[Federal Register Volume 73, Number 193 (Friday, October 3, 2008)]
[Proposed Rules]
[Pages 57750-57851]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-23045]
[[Page 57749]]
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Part III
Federal Communications Commission
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47 CFR Parts 27 and 90
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Service Rules for the 698-746, 747-762 and 777-792 MHz Bands,
Implementing a Nationwide, Broadband, Interoperable Public Safety
Network in the 700 MHz Band; Proposed Rule
Federal Register / Vol. 73, No. 193 / Friday, October 3, 2008 /
Proposed Rules
[[Page 57750]]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 27 and 90
[WT Docket No. 06-150; PS Docket No. 06-229; FCC 08-230]
Service Rules for the 698-746, 747-762 and 777-792 MHz Bands,
Implementing a Nationwide, Broadband, Interoperable Public Safety
Network in the 700 MHz Band
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
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SUMMARY: In this document, the Commission seeks comment on its
tentative conclusions and proposals on how the Commission might modify
its rules governing the public/private partnership, the D Block
licensee, and the public safety broadband licensee. This Third Further
Notice of Proposed Rulemaking (Third FNPRM) seeks comment on its
tentative conclusion that it should continue to mandate a public/
private partnership between the D block licensee and the public safety
broadband licensee on a number of proposals and tentative conclusions
regarding the terms and conditions for the partnership.
DATES: Written comments are due on or before November 3, 2008, and
reply comments are due on or before November 12, 2008.
ADDRESSES: You may submit comments, identified by WT Docket No. 06-150
and PS Docket No. 06-229, by any of the identified methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Federal Communications Commission's Web site: http://www.fcc.gov/cgb/ecfs/. Follow the instructions for submitting comments.
Mail: Filings can be sent by hand or messenger delivery,
by commercial overnight courier, or by first-class or overnight U.S.
Postal Service mail (although the Commission continues to experience
delays in receiving U.S. Postal Service mail). All filings must be
addressed to the Commission's Secretary, Office of the Secretary,
Federal Communications Commission.
People with Disabilities: Contact the Commission to
request reasonable accommodations (accessible format documents, sign
language interpreters, CART, etc.) by e-mail: [email protected] or phone:
202-418-0530 or TTY: 202-418-0432.
For detailed instructions for submitting comments and additional
information on the rulemaking process, see the SUPPLEMENTARY
INFORMATION section of this document.
FOR FURTHER INFORMATION CONTACT: Peter Trachtenberg at (202) 418-7369,
at [email protected], Spectrum and Competition Policy
Division, Wireless Telecommunications Bureau; Jeffrey S. Cohen at (202)
418-0799, [email protected], Public Safety and Homeland Security
Bureau.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Third
FNPRM, WT Docket No. 06-150, PS Docket No. 06-229, adopted on September
25, 2008 and released September 25, 2008. The full text of the Third
FNPRM is available for public inspection and copying during business
hours in the FCC Reference Information Center, Portals II, 445 12th
Street, SW., Room CY-A257, Washington, DC 20554. It also may be
purchased from the Commission's duplicating contractor at Portals II,
445 12th Street, SW., Room CY-B402, Washington, DC 20554; the
contractor's Web site, http://www.bcpiweb.com; or by calling (800) 378-
3160, facsimile (202) 488-5563, or e-mail [email protected]. Copies of
the public notice also may be obtained via the Commission's Electronic
Comment Filing System (ECFS) by entering the docket numbers, WT Docket
No. 06-150 and PS Docket No. 06-229. Additionally, the complete item is
available on the Federal Communications Commission's Web site at http://www.fcc.gov.
Synopsis
In the Second Report and Order, 72 FR 48814, August 24, 2007, the
Commission adopted rules for the establishment of a mandatory public/
private partnership (the 700 MHz Public/Private Partnership) in the
upper portions of the 698-806 MHz band (700 MHz Band) as the means for
promoting the rapid construction and deployment of a nationwide,
interoperable broadband public safety network that would serve public
safety and homeland security needs. Specifically, the Commission
required that the winning bidder of the commercial license in the Upper
700 MHz D Block (758-763/788-793 MHz) (D Block) enter into the 700 MHz
Public/Private Partnership with the nationwide licensee of the public
safety broadband spectrum (763-768/793-798 MHz) (Public Safety
Broadband Licensee) to enable construction of this interoperable
broadband network, which would span both the commercial D Block and
public safety spectrum. In the recently concluded auction of commercial
700 MHz licenses, bidding for the D Block license did not meet the
applicable reserve price of $1.33 billion and, pursuant to the
Commission's rules, there was no winning bid for that license. In the
Second Further Notice of Proposed Rulemaking, 22 FCC Rcd 8047 (2008)
(Second FNPRM), the Commission revisited its decisions concerning the
700 MHz Public/Private Partnership, including revisions to this
partnership as well as alternative rules the Commission should adopt in
the event the D Block licensee is no longer required to enter into a
mandatory public/private partnership.
In the Third FNPRM, the Commission seeks comment on the tentative
conclusions and proposals presented in this Third FNPRM, and on whether
these proposals will lead to a successful auction and, more
importantly, a successful partnership or partnerships that will fulfill
the Commission's goal of making interoperable broadband wireless
service available to public safety entities across the nation. The
Commission tentatively concludes that it should continue to require
that the D Block licensee enter into a public/private partnership with
the Public Safety Broadband Licensee, and proposes to use competitive
bidding to resolve two critical issues: (1) The appropriate geographic
license area for the D Block, and (2) the need for a common broadband
technology platform nationwide. The Commission also proposes
significant clarifications and revisions of the parties' obligations
regarding the construction and operation of the shared wireless
broadband network as well as modifications to certain rules governing
the establishment of the Network Sharing Agreement and the licensing of
the D Block following bidding for D Block licenses. The Commission also
addresses certain additional issues related to the auction process and
the rules governing public safety users and the Public Safety Broadband
Licensee, including narrowband relocation issues. This Third FNPRM is
another step in the Commission's ongoing efforts to develop a
regulatory framework that will address current and future public safety
communications needs.
Discussion
I. Introduction
1. In this Third Further Notice of Proposed Rulemaking (Third
FNPRM), the Commission takes the next step toward achieving the goal of
a nationwide interoperable broadband wireless network for public safety
entities. The Commission previously sought to achieve this goal through
an innovative public/private partnership,
[[Page 57751]]
which required the winning bidder of the commercial license in the
Upper 700 MHz D Block (758-763/788-793 MHz) (D Block) to partner with
the nationwide licensee of the public safety broadband spectrum (763-
768/793-798 MHz) (Public Safety Broadband Licensee or PSBL) to enable
construction of an interoperable broadband network that would serve
both commercial and public safety users.\1\ Because the auction of the
D Block did not result in a winning bid, the Commission issued the
Second FNPRM revisiting the rules governing the mandatory public/
private partnership, the D Block licensee, and the Public Safety
Broadband Licensee, seeking comment broadly on how the Commission might
modify those rules to achieve the Commission goals, whether the
Commission should continue to mandate a public/private partnership
between the D Block licensee and Public Safety Broadband Licensee, and
if so, under what terms and conditions.\2\ The Commission further
indicated that, prior to adopting final rules, the Commission would
present for public comment a detailed proposal regarding specific
proposed rules to address these issues.\3\ In this Third FNPRM, the
Commission now offers and seeks comment on the following proposals and
tentative conclusions.
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\1\ See Service Rules for the 698-746, 747-762 and 777-792 MHz
Bands, WT Docket No. 06-150, Revision of the Commission's Rules to
Ensure Compatibility with Enhanced 911 Emergency Calling Systems, CC
Docket No. 94-102, Section 68.4(a) of the Commission's Rules
Governing Hearing Aid-Compatible Telephones, WT Docket No. 01-309,
Biennial Regulatory Review--Amendment of Parts 1, 22, 24, 27, and 90
to Streamline and Harmonize Various Rules Affecting Wireless Radio
Services, WT Docket 03-264, Former Nextel Communications, Inc. Upper
700 MHz Guard Band Licenses and Revisions to Part 27 of the
Commission's Rules, WT Docket No. 06-169, Implementing a Nationwide,
Broadband, Interoperable Public Safety Network in the 700 MHz Band,
PS Docket No. 06-229, Development of Operational, Technical and
Spectrum Requirements for Meeting Federal, State and Local Public
Safety Communications Requirements Through the Year 2010, WT Docket
No. 96-86, Declaratory Ruling on Reporting Requirement under
Commission's Part 1 Anti-Collusion Rule, WT Docket No. 07-166,
Second Report and Order, 22 FCC Rcd 15289 (2007) (Second Report and
Order) recon. pending.
\2\ See Service Rules for the 698-746, 747-762 and 777-792
Bands; Implementing a Nationwide, Broadband, Interoperable Public
Safety Network in the 700 MHz Band, WT Docket No. 06-150, PS Docket
No. 06-229, 22 FCC Rcd 8047 (2008) (Second FNPRM).
\3\ See id. at 8052 para. 7.
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2. As an initial matter, the Commission tentatively concludes that
it should continue to require, as a license condition, that the D Block
licensee enter into a public/private partnership with the Public Safety
Broadband Licensee for the purpose of constructing a wireless broadband
network that will operate over both D Block spectrum and public safety
broadband spectrum and provide broadband services to both commercial
users and public safety entities (shared wireless broadband
network).\4\ The Commission finds that a public/private partnership
condition on the D Block remains the best option to achieve nationwide
build-out of an interoperable broadband network for public safety
entities, given the current absence of legislative appropriations for
this purpose and the limited funding available to the public safety
sector. The Commission also proposes to retain those current rules that
will support this relationship. For example, the Commission proposes to
continue requiring the parties to enter into a Network Sharing
Agreement (NSA), and to make the NSA a condition of the grant of the D
Block license(s). The Commission also proposes, however, to clarify and
revise the rules to clearly establish the obligations of the parties to
the partnership with greater specificity and detail. These
clarifications and revisions address whether the D Block will be
licensed on a nationwide or regional basis, the obligations of the
parties regarding the construction and operation of the shared wireless
broadband network, the rules governing the process for establishing an
NSA between the parties, certain auction issues, and issues related to
public safety users and the Public Safety Broadband Licensee. The
Commission anticipates that, by establishing the rules governing the
public/private partnership in a more comprehensive and detailed
fashion, the Commission will enhance the certainty of bidders regarding
their potential obligations as D Block licensees, and facilitate the
rapid and successful negotiation of NSAs as the Commission would be
significantly reducing the scope of issues that need to be
negotiated.\5\ Equally important, the Commission seeks in its proposals
to meet the needs of the public safety community in a commercially
viable manner. With these goals in mind, the Commission makes the
following proposals.
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\4\ Under the Commission proposal, it is possible that there
will be multiple regional D Block licenses or a single nationwide D
Block license. Accordingly, references herein to ``the'' D Block
license and licensee should be understood to incorporate reference
to any of multiple D Block licenses or licensees, as appropriate.
The Commission proposed rules should be interpreted in similar
fashion.
\5\ The Commission has appended an NSA term sheet, which
provides a summary of major terms that the parties must include in
their agreement(s). See, supra, Appendix D.
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3. First, the Commission tentatively concludes that it should
resolve two critical issues through the use of competitive bidding: (1)
The appropriate geographic license area for the D Block, and (2) the
need for a common broadband technology platform nationwide. The
Commission tentatively concludes that it can resolve these issues
through competitive bidding by offering alternative sets of D Block
licenses with different license areas and broadband technology
conditions. With regard to the appropriate geographic area, the
Commission proposes to offer the D Block both as a single nationwide
license and on a regional basis, using geographic areas that the
Commission will refer to as Public Safety Regions (PSRs). PSRs would be
comprised of fifty-five regions that mirror the geographic boundaries
of the fifty-five 700 MHz Regional Planning Committee (RPC) regions,
and three additional areas (for a total of 58 PSRs) to cover the whole
country and match the geographic area of the nationwide license.\6\
With regard to the broadband technology platform, the Commission
proposes to establish rules that will ensure that a single broadband
air interface is used nationwide regardless of whether there is a
single licensee or multiple regional licensees, to ensure that public
safety users may communicate when they roam outside their home regions.
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\6\ The three additional regions will cover (1) the Gulf of
Mexico; (2) the Territory of Guam (Guam) and the Commonwealth of
Northern Mariana Islands (Northern Mariana Islands); and (3) the
Territory of American Samoa (American Samoa), and will be identical
to the current Economic Area (EA) licensing areas for those same
regions. See Appendix A.
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4. To resolve both of these issues, the Commission therefore
proposes to offer simultaneously three alternative sets of licenses
that vary by geographic license area and by conditions regarding the
technology platform that must be used by the licensee(s). Specifically,
under this proposal, the Commission would offer (1) a single license
for service nationwide with the technology platform to be determined by
the licensee; (2) a nationwide set of PSR licenses conditioned on the
use of Long Term Evolution (LTE) by the licensees; and (3) a nationwide
set of PSR licenses conditioned on the use of Worldwide
Interoperability for Microwave Access (WiMAX) by the licensees. The
Commission will then award the D Block license(s) in the set that
receives bids on licenses covering the greatest aggregate population,
subject to the requirement that the license(s) must
[[Page 57752]]
authorize service in areas covering at least half of the nation's
population. If more than one set of licenses meeting these requirements
cover the same population, the Commission will award the D Block
licenses in the set that receives the highest aggregate gross bid. The
Commission also proposes to establish auction procedures that will
encourage bidding on licenses covering as much population as possible,
including procedures to reduce minimum opening bids on unsold regional
licenses during bidding under circumstances the Commission specifically
describes below. The Commission also tentatively concludes that package
bidding on licenses in the regional sets would serve the public
interest and that it should direct the Wireless Telecommunications
Bureau to propose and implement detailed package bidding procedures
prior to bidding. The Commission tentatively concludes that this method
of assigning D Block licenses will be most likely to result in the
successful development of a nationwide interoperable broadband network
for public safety use, and provides a better means of addressing these
issues than by specifying a single geographic licensing area or
broadband technology in advance of competitive bidding. At the same
time, it will provide all interested bidders with the necessary
certainty at the time they make their bids of what conditions will be
applicable to them should their bids be successful.
5. The Commission proposes significant clarifications and revisions
of the parties' obligations regarding the construction and operation of
the shared wireless broadband network. These clarifications and
revisions address (1) the use of spectrum in the shared wireless
broadband network, including requirements regarding public safety
priority access to commercial capacity in emergencies; (2) the
technical requirements of the shared wireless broadband network; (3)
the performance requirements of the D Block licensee(s); and (4) the
respective operational roles of the D Block licensee(s) and the Public
Safety Broadband Licensee. With regard to spectrum use, the Commission
first tentatively concludes that a D Block licensee may construct and
operate its shared wireless broadband network using the entire 20
megahertz of D Block spectrum and public safety broadband spectrum as a
combined, blended resource. Under this proposal, public safety users
will still be guaranteed unconditionally preemptive access to 10
megahertz of capacity at all times, but the shared wireless broadband
network may flexibly and dynamically assign frequencies from either the
D Block or public safety spectrum to provide that capacity. Second, the
Commission proposes to revise the rules governing public safety
priority access to D Block spectrum capacity in emergencies. The
Commission proposed revisions include: (1) Specifying in detail the
circumstances that trigger public safety priority access to commercial
spectrum capacity; (2) providing that, in this context, ``priority
access'' means only that a public safety user would be assigned the
next available channel within the commercial spectrum over a commercial
user, and does not include a right to preempt any ongoing commercial
calls being carried over commercial spectrum capacity; (3) limiting the
additional capacity that must be provided to public safety users in
emergencies to a specified percentage of the D Block spectrum capacity;
(4) requiring that public safety priority access to D Block spectrum
capacity be limited to the time and geographic scope affected by the
emergency; and (5) specifying the procedures for requesting and
obtaining such access. Third, the Commission tentatively concludes that
the current rules for commercial access to public safety spectrum
should remain the same subject to the Commission's clarification
regarding blended use. Thus, the Commission proposes that commercial
users will have secondary access to public safety's 10 megahertz of
spectrum capacity subject to unconditional and immediate preemption
when the spectrum capacity is needed by public safety users. Fourth,
the Commission finds that the Commission tentative proposals regarding
spectrum use are consistent with the requirements of Section 337 of the
Communications Act, as amended.
6. With regard to the technical requirements of the network, in
addition to the Commission's proposal regarding the broadband
technology platform, it makes detailed proposals regarding (1)
interoperability and public safety roaming; (2) availability,
robustness, and hardening of the network; (3) capacity, throughput, and
quality of service; (4) security and encryption; (5) power limits,
power flux density limits, and related notification and coordination
requirements; and (6) ensuring the availability of a satellite-capable
handset.
7. With regard to the D Block license term and performance
requirements, the Commission proposes to extend the license term to
fifteen years and to adopt performance benchmarks applicable at the
fourth, tenth, and fifteenth years following the license grant date.
For the first two benchmarks, the Commission proposes to require D
Block licensees to provide signal coverage and offer service to at
least 40 percent of the population in each PSR by the end of the fourth
year, and at least 75 percent by the end of the tenth year. For the
final benchmark at the fifteenth year, the Commission proposes to adopt
a ``tiered'' approach, applying one of three different population
coverage requirements depending on the population density of the PSR:
(1) For PSRs with an average population density of less than 100 people
per square mile, the licensee would be required to provide signal
coverage and offer service to at least 90 percent of the population
within that PSR; (2) for PSRs with an average population density of at
least 100 people per square mile and less than 500 people per square
mile, the licensee would be required to provide signal coverage and
offer service to at least 94 percent of the population within that PSR;
and (3) for PSRs with an average population density of at least 500
people per square mile, the licensee would be required to provide
signal coverage and offer service to at least 98 percent of the
population within that PSR.
8. The Commission also proposes modifications to certain rules
governing the establishment of the Network Sharing Agreement and the
licensing of the D Block following bidding for D Block licenses, in
order to increase the likelihood of successful, rapid deployment of the
shared wireless broadband network. First, the Commission tentatively
proposes that it shall be able to offer any D Block license to a second
highest bidder in the event that the original winning bidder is not
assigned the license, either due to a failure to enter into an NSA or
for any reason. Second, the Commission tentatively concludes that a
winning bidder for a D Block license that is otherwise qualified will
be liable for default payments only if it chooses not to execute a
Commission-approved NSA. Thus, an otherwise-qualified winning bidder
for a D Block license will not be liable for default payments if the
lack of a Commission-approved NSA results from any other party's
failure to execute the agreement or a Commission determination that
there is no acceptable resolution to a dispute regarding terms to be
included in the agreement. Finally, given the Commission decision to
offer alternative D Block licenses by auction, the Commission
tentatively concludes that it should adopt a D Block-specific rule
regarding the amount of additional
[[Page 57753]]
payments owed by any defaulting bidder. The Commission proposes a rule
equivalent to the Commission's standard rule with respect to non-
package bidding auctions, i.e., that the Commission will provide that
the additional payment will be between 3 and 20 percent of the
applicable bid.
9. The Commission also addresses certain additional issues related
to the auction process. In particular, in order to further facilitate
applications from potentially qualified parties, the Commission
tentatively concludes that it will not restrict the eligibility to bid
of any party that may qualify to hold a D Block license and that no
reserve price beyond the minimum opening bid(s) will apply.
Furthermore, given the oversight that already applies to the D Block,
the Commission will codify an existing exception to the Commission's
designated entity eligibility rules with respect to the spectrum
capacity of D Block licenses, so that a designated entity applicant or
licensee with lease or resale (including wholesale) arrangement(s) for
more than 50% of the spectrum capacity of any D Block license will not
on that basis alone lose its eligibility for designated entity
benefits.\7\
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\7\ Because this exception does not extend to arrangements for
use of the spectrum capacity of licenses other than the D Block
license, if an applicant or licensee has an impermissible material
relationship with respect to the spectrum capacity of any other
license(s), the normal operation of the Commission's rules will
continue to render it ineligible for designated entity benefits for
the D Block license.
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10. The Commission also makes a number of tentative conclusions and
proposals with regard to the rules governing public safety users and
the Public Safety Broadband Licensee. The Commission tentatively
concludes that eligible users of the public safety broadband spectrum
capacity must be providers of ``public safety services'' as defined in
the Act.\8\ The Commission also proposes to reaffirm the Commission
prior decision to grant the Public Safety Broadband Licensee sole
discretion regarding whether to permit Federal public safety agency use
of the public safety broadband spectrum capacity. Further, the
Commission tentatively concludes not to require eligible public safety
users to subscribe to the shared broadband network.
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\8\ See 47 U.S.C. 337(f)(1).
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11. With respect to the Public Safety Broadband Licensee, the
Commission tentatively concludes that it should remain a non-profit
entity, and proposes certain restrictions on its business relationships
to avoid the potential for conflicts of interest. Specifically, the
Commission proposes that an entity serving as an advisor, agent, or
manager of the Public Safety Broadband Licensee will be ineligible to
become a D Block licensee unless such entity completely severs its
business relationship with the Public Safety Broadband Licensee no
later than thirty days following release of an oder adopting final
rules in this proceeding. Further, the Commission proposes to prohibit
advisors, agents, or managers of the Public Safety Broadband Licensee
from establishing business relationships with third party entities
having a financial interest in the decisions of the Public Safety
Broadband Licensee.
12. With respect to the mechanism of funding the Public Safety
Broadband Licensee, the Commission tentatively concludes that the
nationwide D Block licensee or, if the D Block is licensed on a
regional basis, each regional D Block licensee, will make an annual
payment to the Public Safety Broadband Licensee, which would constitute
the sole allowable source of funding for the Public Safety Broadband
Licensee's annual operating and administrative costs. The Commission
further tentatively concludes that the Public Safety Broadband Licensee
must establish an audited annual budgeting process, and must submit its
proposed annual budget to the Commission for approval. The Commission
also reserves the right to request an audit of the Public Safety
Broadband Licensee's expenses at any time. The Commission further
tentatively concludes that it should establish fixed nationwide service
fees that the D Block licensee may charge to public safety users based
on a discounted rate schedule.
13. The Commission proposes several changes to the Public Safety
Broadband Licensee's articles of incorporation and by-laws.
Specifically, the Commission proposes replacing the Public Safety
Broadband Licensee board of directors position currently held by the
National Emergency Management Association (NEMA) with the National
Regional Planning Council (NRPC). The Commission also tentatively
concludes that the positions of Chairman of the Board and Chief
Executive Officer must be filled by separate individuals; that the
Public Safety Spectrum Trust Corporation (PSST) may not hire a new
individual to fill the CEO position until the D Block licensee(s) has
made funding available to the PSST for its administrative and
operational costs; and that any individual appointed as CEO cannot have
served on the Public Safety Broadband Licensee executive committee
during the period three years prior to his or her appointment as CEO.
The Commission also tentatively concludes that the PSST board should
elect a new executive committee with proposed new conditions on term
limits, consecutive terms, and committee size. Further, the Commission
tentatively concludes that it will require three-fourths supermajority
voting on all major decisions by the board, that board meetings be open
to the public (with some exceptions), that the minutes of each board
meeting must be made publicly available (again with some exceptions),
and several other conditions. The Commission tentatively declines to
rescind the present PSST's license and reissue the license to a new
licensee.
14. In relation to narrowband relocation issues, the Commission
tentatively concludes that the Commission will extend the current
February 17, 2009 deadline for completing such relocation twelve months
from the date upon which narrowband relocation funding is made
available by the D Block licensee(s). The Commission also proposes that
the current $10 million cap on narrowband relocation costs should be
increased to $27 million. The Commission also tentatively concludes
that the existing August 30, 2007 cut-off date for narrowband
deployments outside of the consolidated narrowband spectrum should not
be changed, and propose conditions under which waiver relief may be
granted for deployment of narrowband equipment beyond that date.
15. The Commission seeks comment on all of the tentative
conclusions and proposals presented in this Third FNPRM, and on whether
these proposals will lead to a successful auction and, more
importantly, a successful partnership or partnerships that will fulfill
the Commission's goal of making interoperable broadband wireless
service available to public safety entities across the Nation.
II. Background
16. In this section, the Commission reviews the history of its
efforts to establish a public/private partnership to address the need
for nationwide interoperable public safety communications and to
promote public safety access to advanced broadband communication
systems and technologies. The Commission first describes the rules it
promulgated in the Second Report and Order, which established two
nationwide 700 MHz licenses, the Public Safety Broadband License and
the commercial D Block license, and required the licensees to
[[Page 57754]]
enter into a public/private partnership for the purpose of constructing
and operating a nationwide wireless broadband network meeting specified
terms. The Commission reviews petitions for reconsideration of the
Second Report and Order that raised issues related to this proceeding.
The Commission briefly discusses Auction 73, the auction of commercial
700 MHz licenses concluded earlier this year in which the Commission
auctioned the D Block under the public/private partnership rules but
did not receive a winning bid. Finally, the Commission summarizes the
Second FNPRM, which commenced the process of revisiting and
reconsidering the public/private partnership rules that the Commission
continues now in the present Third FNPRM.
A. 700 MHz Second Report and Order
17. The commercial and public safety spectrum bands at issue in
this proceeding are part of the 700 MHz Band (698-806 MHz), which is
currently occupied by television broadcasters, but which must be
cleared of such transmissions and made available for wireless services
by February 17, 2009, as part of the digital television (DTV)
transition.\9\ Pursuant to Congress's direction in the Balanced Budget
Act of 1997 (Balanced Budget Act), codified at section 337(a) of the
Act, the Commission has allocated, in the Upper 700 MHz Band (746-806
MHz), 24 megahertz of spectrum for public safety services and 36
megahertz for commercial services.\10\
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\9\ See Deficit Reduction Act of 2005, Public Law No. 109-171,
120 Stat. 4 (2006).
\10\ See Balanced Budget Act of 1997, Public Law No. 105-33, 111
Stat. 251 sec. 3004 (1997) (adding new sec. 337 of the
Communications Act); Reallocation of Television Channels 60-69, the
746-806 MHz Band, ET Docket No. 97-157, Report and Order, 12 FCC Rcd
22953, 22955 para. 5 (1998), recon. 13 FCC Rcd 21578 (1998) (Upper
700 MHz Reallocation Order).
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18. In the Second Report and Order, the Commission established,
among other rules regarding the 700 MHz Band, rules for the 700 MHz
public safety spectrum and one block of the Upper 700 MHz commercial
spectrum that would promote the creation of a nationwide, interoperable
broadband public safety network. With regard to the public safety
spectrum, the Commission designated the lower half of the spectrum (the
763-768 MHz and 793-798 MHz bands) for public safety broadband
communications, and consolidated existing narrowband allocations,
previously located in both the lower and upper ends of the public
safety spectrum, in the upper half of the spectrum (the 769-775 MHz and
799-805 MHz bands) exclusively.\11\ The Commission also created a
single nationwide license for the public safety broadband spectrum, the
Public Safety Broadband License, and the Commission specified the
criteria, selection process, and responsibilities of the licensee
assigned this spectrum, including a requirement that the licensee must
be a non-profit organization.\12\
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\11\ See Second Report and Order, 22 FCC Rcd at 15406 para. 322.
The Commission also created an internal guard band in the 768-769
MHz and 798-799 MHz bands located between the broadband and
narrowband allocations. Id.
\12\ See Second Report and Order, 22 FCC Rcd at 15406 para. 322.
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19. With regard to the commercial spectrum in the 700 MHz Band, and
as described in greater detail below, the Commission created a
nationwide license in the D Block (the 758-763 MHz and 788-793 MHz
bands, located adjacent to the public safety broadband spectrum), and
required the D Block licensee, working with the Public Safety Broadband
Licensee in a public/private partnership (the 700 MHz Public/Private
Partnership) and using the spectrum associated with both licenses, to
construct and operate a nationwide network that would be shared by
commercial and public safety users.\13\
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\13\ Id. at 15428 para. 386.
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20. 700 MHz Public/Private Partnership. The Commission mandated the
700 MHz Public/Private Partnership between two nationwide licensees to
promote the rapid deployment of a nationwide, interoperable, broadband
public safety network that was robust, cost effective, spectrally
efficient, and based on a flexible IP-based, modern architecture.\14\
The Commission found that nationwide licensing would best serve these
goals by centralizing the responsibilities for implementing and
administering a broadband network across the entire country, creating
economies of scale, and avoiding a fragmented approach to network
construction. The Commission further determined that the public/private
partnership, by promoting commercial investment in the build-out of a
shared network infrastructure for both commercial and public safety
users, would address ``the most significant obstacle to constructing a
public safety network--the limited availability of public funding.''
\15\ The Commission concluded that providing for a shared
infrastructure using the D Block and the public safety broadband
spectrum would help achieve significant cost efficiencies. The
Commission noted that this would allow public safety agencies ``to take
advantage of commercial, off-the-shelf technology and otherwise benefit
from commercial carriers' investments in research and development of
advanced wireless technologies.'' \16\ The Commission stated that this
approach would also benefit the public safety community by providing it
with access to an additional 10 megahertz of broadband spectrum during
emergencies.\17\ Most importantly, the Commission anticipated that this
particular public/private partnership approach would provide all of
these public safety benefits on a nationwide basis.\18\ The Commission
noted that the 700 MHz Public/Private Partnership would also provide
the D Block licensee with benefits, including the right to operate
commercial services in the 10 megahertz of public safety broadband
spectrum on a secondary, preemptible basis, which would both help to
defray the costs of build-out and ensure that the spectrum is used
efficiently.\19\
---------------------------------------------------------------------------
\14\ Id. at 15420 para. 369, 15431 para. 396. See also
Implementing a Nationwide, Broadband, Interoperable Public Safety
Network in the 700 MHz Band, Development of Operational, Technical
and Spectrum Requirements for Meeting Federal, State and Local
Public Safety Communications Requirements Through the Year 2010, PS
Docket No. 06-229, WT Docket No. 96-86, Ninth Notice of Proposed
Rulemaking, 21 FCC Rcd 14837, 14842-43 (2006) (700 MHz Public Safety
Ninth Notice).
\15\ Second Report and Order, 22 FCC Rcd at 15431 para. 396.
\16\ Id.
\17\ Id.
\18\ Id.
\19\ Id.
---------------------------------------------------------------------------
21. To ensure that the 700 MHz Public/Private Partnership would
serve the needs of the public safety community and to address concerns
about its success, the Commission specified certain mandatory features.
First, the Commission specified requirements regarding the shared
network to be constructed and the timing for that construction. In
particular, the Commission established certain technical requirements
for the shared network, including requirements relating to the network
technology platform, signal coverage, robustness and reliability,
capacity, security, operational capabilities and control, and certain
equipment specifications.\20\ With regard to the spectrum shared by the
common network, the Commission required that the Public Safety
Broadband Licensee lease the public safety broadband spectrum for
commercial use by the D Block licensee on a secondary, preemptible
basis, and that the public safety entities have priority access to the
D Block spectrum
[[Page 57755]]
during emergencies.\21\ To ensure timely construction and nationwide
coverage, the Commission specified performance requirements, including
three population-based build-out benchmarks requiring the D Block
licensee to provide signal coverage and offer service to (1) at least
75 percent of the population of the nationwide D Block license area by
the end of the fourth year after the DTV transition date, (2) at least
95 percent of the population of the nationwide license area by the end
of the seventh year, and (3) at least 99.3 percent of the population of
the nationwide license area by the end of the tenth year.\22\
---------------------------------------------------------------------------
\20\ Id. at 15433-34 para. 405.
\21\ Id. at 15432 para. 399, 15434-43 paras. 407-31.
\22\ Id. at 15432 para. 399, 15433-44 paras. 403-06, 15443-46
paras. 432-43.
---------------------------------------------------------------------------
22. Next, while finding it appropriate to establish these mandatory
terms, the Commission also concluded that many details of the 700 MHz
Public/Private Partnership should be left to the parties to
negotiate.\23\ Accordingly, the Commission established that the terms
of the 700 MHz Public/Private Partnership would be governed both by
Commission rules and by a Network Sharing Agreement (NSA) between the
winning bidder for the D Block license and the Public Safety Broadband
Licensee.\24\ The Commission further provided rules governing the
process by which the parties would establish the NSA, requiring among
other things that negotiations begin by a date certain and conclude
within six months, and providing that the D Block license application
would not be granted until the parties obtained Commission approval of
the agreement, executed the approved agreement, and then filed it with
the Commission.\25\ The Commission further specified rules to govern in
the event of a negotiation dispute. Specifically, the Commission
provided that if, at the end of the six month negotiation period, or on
their own motion at any time, the Chiefs of the Public Safety and
Homeland Security Bureau (PSHSB) and the Wireless Telecommunications
Bureau (WTB) found that negotiations had reached an impasse, they could
take actions including but not limited to issuing a decision on the
disputed issues and requiring the submission of a draft agreement
consistent with their decision.\26\ The Commission also provided that
if the D Block winning bidder failed to comply with the procedures the
Commission established for negotiation or dispute resolution, failed to
receive final Commission approval of an NSA, or failed to execute an
approved NSA, it would be deemed to have defaulted on its license and
would be subject to the default payments required by Section 1.2109 of
the Commission rules.\27\
---------------------------------------------------------------------------
\23\ Id. at 15488 para. 447.
\24\ Id. at 15432 paras. 399-400, 15447-49 paras. 444-54.
\25\ Id. at 15448 para. 447.
\26\ Id. at 15465 para. 508.
\27\ Id. at 15466 para. 511.
---------------------------------------------------------------------------
23. The Commission also established a number of measures to
safeguard the interests of public safety on an ongoing basis after the
NSA is executed. These measures included: (1) Requirements related to
the organization and structure of the 700 MHz Public/Private
Partnership, intended to protect the D Block license and network assets
from being drawn into a bankruptcy proceeding; (2) a prohibition on
discontinuance of service provided to public safety entities; (3)
special remedies in the event that the D Block licensee or Public
Safety Broadband Licensee fails to comply with either the Commission's
rules or the terms of the NSA; (4) a special, exclusive process for
resolving any disputes related to the execution of the terms of the
NSA; and (5) ongoing reporting obligations.\28\
---------------------------------------------------------------------------
\28\ Id. at 15466-71 para. 513-30.
---------------------------------------------------------------------------
24. Reserve Price for the Auction of the D Block. In the Second
Report and Order, the Commission also concluded that block-specific
aggregate reserve prices should be established for each commercial
license block--the A, B, C, D, and E Blocks--to be auctioned in Auction
73, and directed WTB to adopt and publicly disclose those reserve
prices prior to the auction, pursuant to its existing delegated
authority and consistent with the Commission directions.\29\ For the D
Block, the Commission concluded that WTB should consider certain
factors in setting the D Block reserve price, including the 700 MHz
Public/Private Partnership conditions, which might suggest a reserve
price of $1.33 billion. The Commission provided that, in the event that
bids for the D Block license did not meet the reserve price, the
Commission would leave open the possibility of offering the license on
the same terms or re-evaluating the D Block license conditions.\30\
---------------------------------------------------------------------------
\29\ See id. at 15400 para. 301.
\30\ See id. at 15404 para. 314.
---------------------------------------------------------------------------
25. Narrowband Relocation. As discussed above, to promote public
safety access to a nationwide, interoperable broadband network, the
Commission designated the lower half of the public safety spectrum for
public safety broadband communications, and consolidated existing
narrowband allocations, previously located in both the lower and upper
ends of the public safety spectrum, in the upper half of the
spectrum.\31\ The Commission also shifted the entire public safety band
down one megahertz, so that it would be immediately adjacent to the D
Block spectrum, to further facilitate the development of a shared
wireless broadband network over both D Block and public safety
broadband spectrum.\32\ Both the 1-megahertz shift and the narrowband
consolidation, however, left certain existing public safety narrowband
operations outside of the spectrum now designated for narrowband
services.
---------------------------------------------------------------------------
\31\ See id. at 15406 para. 322. The Commission also created an
internal guard band in the 768-769 MHz and 798-799 MHz bands located
between the broadband and narrowband allocations. Id.
\32\ See id. at 15333 para. 111.
---------------------------------------------------------------------------
26. The Commission provided in the Second Report and Order that all
700 MHz narrowband public safety operations outside of the newly
consolidated narrowband spectrum must be relocated to that spectrum no
later than the DTV transition date.\33\ To effectuate the consolidation
of the narrowband channels, the Commission required the D Block
licensee to pay the costs of relocating narrowband radios and capped
the disbursement amount for such relocation costs at $10 million.\34\
The Commission also cautioned that any narrowband equipment deployed in
the 764-770 MHz and 794-800 MHz bands (channels 63 and 68), or in the
775-776 MHz and 805-806 MHz bands (the upper one megahertz of channels
64 and 69), more than 30 days following the adoption date of the Second
Report and Order would be ineligible for relocation funding.\35\ In
addition, the Commission prohibited authorization of any new narrowband
operations in that spectrum, as of 30 days following the adoption date
of the Second Report and Order.\36\ Subsequent to the release of the
Second Report and Order, the Commission granted limited waivers to two
parties that permitted them to continue to deploy new narrowband
operations outside the consolidated narrowband spectrum after August
30, 2007.\37\ The Commission deferred
[[Page 57756]]
decision on other issues raised by their requests, however, including
the appropriate duration of the relief and whether the parties would be
entitled to reimbursement for the costs of relocating narrowband
operations deployed after August 30, 2007.
---------------------------------------------------------------------------
\33\ Id. at 15410 para. 332.
\34\ Id. at 15412 para. 341.
\35\ Id. at 15412 para. 339.
\36\ Id.
\37\ See Implementation of a Nationwide, Broadband,
Interoperable Public Safety Network in the 700 MHz Band; Development
of Operational, Technical and Spectrum Requirements for Meeting
Federal, State and Local Public Safety Communications Requirements
Through the Year 2010, PS Docket No. 06-229, WT Docket No. 96-86,
Order, 22 FCC Rcd 20290 (2007); Implementing a Nationwide,
Broadband, Interoperable Public Safety Network in the 700 MHz Band;
Development of Operational, Technical and Spectrum Requirements for
Meeting Federal, State and Local Public Safety Communications
Requirements Through the Year 2010; Request for Waiver of Pierce
Transit, PS Docket No. 06-229, WT Docket No. 96-86, Order, 23 FCC
Rcd 433 (PSHSB 2008).
---------------------------------------------------------------------------
B. Petitions for Reconsideration
27. Ten parties filed petitions for reconsideration seeking review
of various aspects of the Second Report and Order.\38\ Three of the
petitions sought reconsideration of the rules governing the 700 MHz
Public/Private Partnership specifically.\39\ All three of these
petitioners argued that the application of the default payment rules to
the D Block winner in the event of a failure to establish an NSA should
be modified, for example, by imposing such payment obligations only if
the D Block winner is found to have negotiated in bad faith.\40\ One
petitioner also argued that network requirements should be specified
more precisely for potential bidders prior to auction.\41\ Conversely,
another of these petitioners argued that, in some respects, the
technical requirements in the rules were too specific, and that the
Commission should ``not prematurely rule on specific technical issues,
[and] should instead allow the [Public Safety Broadband Licensee] and D
Block winner to develop those details as they negotiate the NSA * * *
.'' \42\
---------------------------------------------------------------------------
\38\ AT&T Inc. Petition for Reconsideration and Clarification,
WT Docket No. 06-150; PS Docket No. 06-229 (filed Sept. 24, 2007)
(AT&T Petition for Reconsideration); Blooston Rural Carriers
Petition for Partial Reconsideration and/or Clarification, WT Docket
No. 06-150; PS Docket No. 06-229 (filed Sept. 24, 2007) (Blooston
Petition for Reconsideration); Petition for Reconsideration of the
Ad Hoc Public Interest Spectrum Coalition, WT Docket No. 06-150; PS
Docket No. 06-229 (filed Sept. 24, 2007) (PISC Petition for
Reconsideration); Cyren Call Communications Corporation Petition for
Reconsideration and for Clarification, WT Docket No. 06-150; PS
Docket No. 06-229 (filed Sept. 24, 2007) (Cyren Call Petition for
Reconsideration); Frontline Wireless, LLC Petition for
Reconsideration (filed Sept. 24, 2007); Pierce Transit Petition for
Reconsideration, WT Docket No. 06-150; PS Docket No. 06-229 (filed
Sept. 24, 2007) (Pierce Transit Petition for Reconsideration); Rural
Telecommunications Group, Inc. Petition for Reconsideration, WT
Docket No. 06-150; PS Docket No. 06-229 (filed Sept. 24, 2007) (RTG
Petition for Reconsideration); Commonwealth of Virginia Petition for
Reconsideration, WT Docket No. 06-150; PS Docket No. 06-229 (filed
Sept. 24, 2007) (Virginia Petition for Reconsideration); NTCH, Inc.
Petition for Partial Reconsideration, WT Docket No. 06-150; PS
Docket No. 06-229 (filed Sept. 21, 2007) (NTCH Petition for
Reconsideration); MetroPCS Communications, Inc. Petition for
Clarification and Reconsideration, WT Docket No. 06-150; PS Docket
No. 06-229 (filed Sept. 20, 2007) (MetroPCS Petition for
Reconsideration).
\39\ See AT&T Petition for Reconsideration; Cyren Call Petition
for Reconsideration; Frontline Petition for Reconsideration. The
Frontline September 20, 2007 Request also seeks changes to the rules
governing the 700 MHz Public/Private Partnership. See Request to
Further Safeguard Public Safety Service by Frontline Wireless, WT
Docket No. 06-150 (filed Sept. 20, 2007) (Frontline September 20,
2007 Request).
\40\ See AT&T Petition for Reconsideration at 7-9; Cyren Call
Petition for Reconsideration at 5-7; Frontline Petition for
Reconsideration at 23-25.
\41\ See AT&T Petition for Reconsideration at 5.
\42\ See Frontline Petition for Reconsideration at 22. See also
Cyren Call Petition for Reconsideration at 7.
---------------------------------------------------------------------------
28. Two of the ten petitioners sought reconsideration of the
aggregate reserve prices set for the commercial license blocks,
including the reserve price for the D Block.\43\ These petitioners
presented related arguments in the pre-auction process.\44\ After
considering the arguments, WTB established reserve prices consistent
with the direction of the Second Report and Order, including setting a
$1.33 billion reserve price for the D Block.\45\
---------------------------------------------------------------------------
\43\ See, generally, Frontline Petition for Reconsideration;
MetroPCS Petition for Reconsideration.
\44\ See Auction of 700 MHz Band Licenses Scheduled for January
24, 2008; Notice and Filing Requirements, Minimum Opening Bids, and
other Procedures for Auctions 73 and 76, Public Notice, 22 FCC Rcd
18141, 18194-95 paras. 197-90 (2007) (Auction 73/76 Procedures
Public Notice).
\45\ See id. at 18193-96 paras. 194-200.
---------------------------------------------------------------------------
29. Finally, two other parties filed petitions seeking
reconsideration of some or all of the requirements regarding public
safety narrowband relocation, as well as requests for waiver of some of
these requirements.\46\ The requests for waiver have since been granted
in part.\47\ The two petitions, however, together with the other
petitions seeking reconsideration of the Second Report and Order,
remain pending.
---------------------------------------------------------------------------
\46\ See Virginia Petition for Reconsideration; Pierce Transit
Petition for Reconsideration.
\47\ See Implementation of a Nationwide, Broadband,
Interoperable Public Safety Network in the 700 MHz Band; Development
of Operational, Technical and Spectrum Requirements for Meeting
Federal, State and Local Public Safety Communications Requirements
Through the Year 2010, PS Docket No. 06-229, WT Docket No. 96-86,
Order, 22 FCC Rcd 20290 (2007); Implementing a Nationwide,
Broadband, Interoperable Public Safety Network in the 700 MHz Band;
Development of Operational, Technical and Spectrum Requirements for
Meeting Federal, State and Local Public Safety Communications
Requirements Through the Year 2010; Request for Waiver of Pierce
Transit, PS Docket No. 06-229, WT Docket No. 96-86, Order, 23 FCC
Rcd 433 (PSHSB 2008).
---------------------------------------------------------------------------
C. Auction 73
30. Results of the Auction. The auction of the D Block and other
700 MHz Band licenses, designated Auction 73, commenced on January 24,
2008, and closed on March 18, 2008.\48\ While the bids for licenses
associated with the other 700 MHz Band blocks offered at Auction 73
(the A, B, C, and E Blocks) exceeded the applicable aggregate reserve
prices for those blocks, the nationwide D Block license received only a
single bid that did not meet its reserve price of $1.33 billion and
thus did not become a winning bid.\49\ On March 20, 2008, the
Commission determined that the Commission would not proceed immediately
to re-auction the D Block license in order to provide us additional
time to consider the Commission options.\50\
---------------------------------------------------------------------------
\48\ See Auction 73, 700 MHz Band, at http://wireless.fcc.gov/auctions/default.htm?job=auction_summary&id=73.
\49\ See id.; see also Auction of 700 MHz Band Licenses Closes,
Public Notice, DA 08-595 (rel. Mar. 20, 2008) (700 MHz Auction
Closing Public Notice). http://wireless.fcc.gov/auctions/default.htm?job=auction_summary&id=73. Specifically, a bid of $472
million was entered by Qualcomm in Round 1 of the auction.
\50\ See Auction of the D Block License in the 758-763 and 788-
793 Bands, AU Docket No. 07-157, Order, 23 FCC Rcd 5421, para. 5
(2008) (D Block Post-Auction Order).
---------------------------------------------------------------------------
31. Inspector General's Report. On April 25, 2008, the Office of
Inspector General (OIG) issued a report on its investigation of
allegations that certain statements made by an advisor to the Public
Safety Broadband Licensee to potential bidders for the D Block license
in Auction 73, particularly those regarding the spectrum lease payments
that the Public Safety Broadband Licensee would request from the D
Block licensee for use of public safety spectrum, had the effect of
deterring various companies from bidding on the D Block.\51\ The OIG
determined that the statements in question were ``not the only factor
in the companies' decision not to bid on the D Block.'' Rather, it
concluded that ``the uncertainties and risks associated with the D
Block, including, but not limited to, the negotiation framework with
[the Public Safety Broadband Licensee], the potential for default
payment if negotiations failed, and the costs of the build-out and the
operations of the network, taken together, deterred each of the
companies from bidding on the D Block.'' \52\
---------------------------------------------------------------------------
\51\ See Office of Inspector General Report, from Kent R.
Nilsson, Inspector General, to Chairman Kevin J. Martin (OIG rel.
Apr. 25, 2008) (OIG Report).
\52\ OIG Report at 2.
---------------------------------------------------------------------------
D. Second Further Notice of Proposed Rulemaking
32. On May 14, 2008, to begin the process of reconsidering the
appropriate rules for the D Block and the Public
[[Page 57757]]
Safety Broadband License, the Commission released the Second Further
Notice of Proposed Rulemaking (Second FNPRM). In the Second FNPRM, the
Commission enumerated the following goals and principles for this
rulemaking proceeding:
To facilitate public safety access to a nationwide,
interoperable broadband network in a timely manner;
To identify concerns in the existing structure of the 700
MHz Public/Private Partnership to inform the Commission decision making
going forward;
To promote wireless innovation and broadband network
penetration while meeting the communications needs of the first
responder community in a commercially viable manner;
To identify funding opportunities for the public safety
community to realize the promise of a broadband communications
infrastructure with a nationwide level of interoperability; and
To maximize the commercial and public safety benefits of
the D Block spectrum.\53\
---------------------------------------------------------------------------
\53\ See Second FNPRM, 23 FCC Rcd at 8052 para. 6.
---------------------------------------------------------------------------
33. With these goals and principles in mind, the Commission sought
comment first on whether and how to clarify or revise the rules
governing the public safety component of the 700 MHz Public/Private
Partnership, including rules governing the Public Safety Broadband
Licensee, the entities eligible to obtain access to the public safety
broadband network,\54\ and the relocation of public safety narrowband
operations.
---------------------------------------------------------------------------
\54\ See id. at 8058-8062 paras. 24-32. The term ``public safety
broadband network,'' which the Commission has used in the Second
FNPRM and again in this Third FNPRM, refers to those functions and
services of the shared network to which the Public Safety Broadband
Licensee will administer access.
---------------------------------------------------------------------------
34. With regard to the Public Safety Broadband Licensee, the
Commission sought comment on (1) whether to revise or clarify the
structure and criteria of the Public Safety Broadband Licensee as
adopted in the Second Report and Order, including whether to clarify
the requirement that the Public Safety Broadband Licensee must be a
non-profit organization; \55\ (2) how the Public Safety Broadband
Licensee should be funded; \56\ (3) whether to adopt additional
measures to better enable Commission or Congressional oversight of the
Public Safety Broadband Licensee's activities; \57\ and (4) whether, in
light of these and other possible changes, the Commission should
rescind the current Public Safety Broadband License and seek new
applicants.\58\
---------------------------------------------------------------------------
\55\ See id. at 8064 para. 40, 8067 para. 48.
\56\ See id. at 8065-8065 paras. 42-45
\57\ See id. at 8067 para. 48, 8068 para. 51.
\58\ See id. at 8068 para. 53.
---------------------------------------------------------------------------
35. Regarding access to the public safety broadband network, the
Commission sought comment on (1) whether to clarify which entities are
eligible to use the public safety broadband network; (2) whether to
adopt measures requiring or promoting use of the public safety
broadband network by eligible public safety entities; \59\ (3) whether
State governments should have a role in coordinating the participation
of public safety entities in the public safety broadband network; \60\
and (4) whether to revise the rules regarding use of the public safety
broadband network by Federal public safety agencies.\61\
---------------------------------------------------------------------------
\59\ See id. at 8063 para. 37.
\60\ See id. at 8068 para. 52.
\61\ See id. at 8092-93 para. 126.
---------------------------------------------------------------------------
36. With regard to the relocation of public safety narrowband
operations, the Commission sought comment on issues including (1)
whether to revise or eliminate the cap on relocation expenses; (2)
whether, in light of the proposed re-auction of the D Block and
associated timing issues, the Commission should continue to require
relocation to be completed by the DTV transition date; (3) whether to
amend the process for accomplishing the relocation; and (4) whether the
Commission should extend the August 30, 2007 cut-off date for new
narrowband deployments outside the consolidated narrowband
spectrum.\62\
---------------------------------------------------------------------------
\62\ See id. at 8111 paras. 180-182.
---------------------------------------------------------------------------
37. Turning to the 700 MHz Public/Private Partnership, the
Commission asked, as a central matter, whether the Commission should
continue to require the D Block licensee and the Public Safety
Broadband Licensee to enter into a 700 MHz Public/Private
Partnership.\63\ The Commission further sought comment on a broad set
of possible revisions to the 700 MHz Public/Private Partnership in the
event the Commission continued that requirement, and on which changes
would best serve the goal of making a broadband, interoperable network
available on a nationwide basis to public safety entities.\64\
---------------------------------------------------------------------------
\63\ See id. at 8069 para. 54.
\64\ See id. at 8069 para. 54, 8070 para. 58.
---------------------------------------------------------------------------
38. In particular, the Commission sought comment on (1) whether to
establish a single nationwide D Block licensee or create multiple D
Block licenses with, for example, Regional Economic Area Grouping
(REAG) geographic license areas; \65\ (2) whether to revise or clarify
the technical requirements of the shared network that the D Block
licensee must construct; \66\ (3) whether the Commission should
continue to require that the D Block licensee provide the Public Safety
Broadband Licensee, in emergencies, with priority access to the D Block
spectrum, and if so, whether the Commission should specify the
circumstances that constitute an emergency for this purpose or
establish other limits to such emergency priority access; \67\(4)
whether to revise the D Block licensee's network build-out or
performance requirements and the extent to which they could be met
through non-cellular technologies such as Mobile Satellite Systems
(MSS); \68\ (5) whether to revise or clarify the respective operational
roles of the D Block licensee and the Public Safety Broadband Licensee
in the provision of network services to public safety users once the
shared network is constructed; \69\ and (6) whether the Commission
should regulate network service fees.\70\
---------------------------------------------------------------------------
\65\ See id. at 8109-8112 paras. 183-86.
\66\ See id. at 8071-78 paras. 61-83.
\67\ See id. at 8079-80 paras. 85-87.
\68\ See id. at 8081-86 paras. 90-105
\69\ See id. at 8088-89 paras. 113-16, 8090-92 paras. 121-26.
\70\ See id. at 8094-95 paras. 131-33.
---------------------------------------------------------------------------
39. The Commission further sought comment on the process by which
these parties would establish a NSA that would further define the terms
of the 700 MHz Public/Private Partnership. Among other issues, the
Commission sought comment regarding (1) what rules should apply to the
negotiation of the NSA; (2) whether to adopt dispute resolution
procedures in the event the parties are unable to negotiate a voluntary
agreement on NSA terms and if so, whether such procedures should
include mandatory and binding adjudication of the disputes; (3) in the
event that the process, with or without adjudication, is ultimately
unsuccessful in establishing an NSA, whether and to what extent the D
Block winner should be held liable for default payments; (4) whether,
in the event of a failure to establish an NSA, the Commission should
offer the D Block license to the next highest bidder or immediately re-
auction it without the 700 MHz Public/Private Partnership condition;
and (5) if a further re-auction is required, whether the D Block
winning bidder should be prohibited from participating.\71\
---------------------------------------------------------------------------
\71\ See id. at 8096-8100 paras. 138-54.
---------------------------------------------------------------------------
40. The Commission also sought comment on a number of other
auction-related issues, including (1) whether to restrict who may
participate in the new auction of the D Block license; (2)
[[Page 57758]]
whether to establish a reserve price for such an auction and if so, at
what level; \72\ (3) whether to adopt an exception to the impermissible
material relationship rule for the determination of designated entity
eligibility with respect to arrangements for the lease or resale
(including wholesale) of the spectrum capacity of the D Block license;
\73\ and (4) whether to modify the amount of the default payment
potentially applicable to the D Block winning bidder.\74\
---------------------------------------------------------------------------
\72\ See id. at 8104 paras. 163-64.
\73\ See id. at 8105-06 paras. 166-67.
\74\ See id. at 8108-09 paras. 172-75.
---------------------------------------------------------------------------
41. In addition to seeking comment on rules in the event that the
Commission retains the 700 MHz Public/Private Partnership requirement,
the Commission also sought comment on alternative rules for both the D
Block and the Public Safety Broadband License in the event that the
Commission does not retain the requirement. For the D Block, the
Commission sought comment in particular on the appropriate geographic
license area, performance requirements, license block size and license
term, power and out-of-band-emission (OOBE) limits, and licensing
partitioning and disaggregation rules, and whether to impose conditions
such as an open-platform or wholesale requirement.\75\ For the Public
Safety Broadband Licensee, the Commission sought comment on how the
Commission might still achieve the goal of ensuring that a nationwide,
interoperable broadband network is available for use of public safety,
and whether there are rules the Commission should impose on the Public
Safety Broadband Licensee to achieve that goal.\76\
---------------------------------------------------------------------------
\75\ See id. at 8115-16 paras. 192-205.
\76\ See id. at 8119-20 paras. 206-212.
---------------------------------------------------------------------------
42. Finally, the Commission provided in the Second FNPRM that,
before adopting final rules to address the issues raised therein, the
Commission would present for public comment, in a subsequent further
notice of proposed rulemaking, a detailed proposal including the
specific rules that the Commission intended to promulgate.\77\ The
Commission further indicated that the Commission would seek comment on
an expedited basis.\78\
---------------------------------------------------------------------------
\77\ See id. at 8052 para. 7.
\78\ See id. at 8052 n. 10.
---------------------------------------------------------------------------
III. Discussion
A. Whether to Retain the 700 MHz Public/Private Partnership Condition
43. Background. In the Second Report and Order, the Commission
established rules mandating a public/private partnership between two
nationwide licensees in the 700 MHz spectrum, the licensee of the
commercial D Block and the Commission-designated licensee of the public
safety broadband spectrum (Public Safety Broadband Licensee), to
address the critical need of public safety users for interoperable,
broadband communications. These rules required the D Block licensee to
construct and operate a nationwide, interoperable broadband network
across both the D Block and 700 MHz public safety broadband spectrum to
provide broadband network services to both commercial and public safety
entities.
44. The Commission found that promoting commercial investment in
the build-out of a shared network infrastructure would address the most
significant obstacle to constructing a public safety network--the
limited availability of public funding. The Commission further
determined that the network, by relying on a shared infrastructure to
provide both commercial and public safety services, would achieve
significant cost efficiencies, and benefit public safety agencies by
allowing them to take advantage of off-the-shelf technology and
commercial carriers' investments in research and development of
advanced wireless technologies, as well as provide them with access to
an additional 10 megahertz of broadband spectrum during emergencies.
The Commission concluded that the public/private partnership approach
thus provided the most practical means of speeding deployment of a
nationwide, interoperable, broadband network for public safety service
that is designed to meet their needs in times of crisis. At the same
time, the Commission noted, it would provide the D Block licensee with
rights to operate commercial services in the 10 megahertz of public
safety broadband spectrum on a secondary, preemptible basis, which the
Commission anticipated would help to defray the costs of build-out and
also ensure that the spectrum is used efficiently.
45. In the Second FNPRM, the Commission sought comment on whether
the public interest would best be served by the development of a
nationwide, interoperable wireless broadband network for both
commercial and public safety services through the 700 MHz Public/
Private Partnership between the D Block licensee and the Public Safety
Broadband Licensee, and whether the Commission should therefore
continue to require that the D Block licensee and Public Safety
Broadband Licensee enter into the 700 MHz Public/Private Partnership.
46. Comments. In response to the Second FNPRM, numerous commenters
representing both public safety and commercial interests support
continuing to require a public/private partnership between the D Block
licensee and the Public Safety Broadband Licensee.\79\ These commenters
emphasize the importance of providing public safety first responders
with an interoperable broadband wireless network \80\ and they argue
that a public/private partnership remains the best and possibly the
only means of achieving these goals.\81\ In particular, they argue that
a public/private partnership is the only viable means of funding the
construction of a nationwide network.\82\ While noting that legislative
appropriations could theoretically fund such a network, they
[[Page 57759]]
assert that such funding is not going to be forthcoming, or that it is
too uncertain for the Commission to rely upon.\83\
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\79\ See ACT Comments at 1; ALU Comments at 1; AASHTO Comments
at 7; APCO Comments at 3; AT&T Comments at 2-4; Big Bend Comments at
1; California Comments at 7; Cellular South Comments at 1-2;
Ericsson Comments at 3; IMSA et al. Comments at 1-2; MSUA Comments
at 1; MSV Comments at i; NAEMT Comments at 1; NATOA et al. Comments
at 7; NENA Comments at 2; NPSTC Comments at 1; NRPC Comments at 4;
NTCH Comments at 1-2; PSST Comments at 4; RCA Comments at 1; RPC 6
Comments at 3; RPC 33 Comments at 2 (supporting the partnership ``as
long as there is regional and/or local control over the applied use
of this network''); Seybold Comments at 2; SIEC Comments at 1;
Sprint-Nextel Comments at 9; TeleCommUnity Comments at 3, 5-6;
Televate Comments at 3; TE M/A-COM Comments at 3; U.S. Cellular
Comments at 1; Coverage Co. Comments at 1; VFCA Comments at 3; WFCA
Comments at 1; AASHTO Reply Comments at 1; Cyren Call Reply Comments
at 2; IACPNSA Reply Comments at 1; ICMA Reply Comments at 2; ITS
America Reply Comments at 2; NPSTC Reply Comments at 3; Sprint
Nextel Reply Comments at 2-3; Space Data Reply Comments at 2;
SouthernLINC Reply Comments at ii.
\80\ See AASHTO Comments at 7 (asserting that, ``[w]ithout a
single network using a common technology as its basis, the
Commission nation's emergency response and disaster relief workers
will continue to be hampered in their ability to respond to any call
for assistance in the wake of a natural or man caused situation.'');
Cellular South Comments at 1; Ericsson Comments at 3; Peha Comments
at 2; MSUA Comments at 1; NAEMAT Comments at 2; NPSTC Comments at 6;
PSST Comments at 4; Qualcomm Comments at 7; SIEC Comments at 1.
\81\ See, e.g., APCO Comments at 3; Ericsson Comments at 3; IMSA
et al. Comments at i; RCA Comments at 1. See also AT&T Comments at
2-3; Cellular South Comments at 1, 2; IMSA et al. Reply Comments at
3; ITS America Reply Comments at 2; NENA Comments at 2.
\82\ See AT&T Comments at 3; NATOA et al. Comments at iii; NAEMT
Comments at 2; PSST Comments at 4-5; See also Cellular South
Comments at 2; Ericsson Comments at 3-4; NPSTC Comments at 7
(describing public/private partnership as ``the only reasoned course
to meet this challenge given the lack of any funding to deploy the
system.''); Sprint Nextel Comments at 10 (``public/private
partnerships have been shown to be an effective means of galvanizing
resources in the telecommunications and technology industries to
meet critical needs in the public sector.'').
\83\ See, e.g., NATOA et al. Comments at iii. See also id. at 7
(``Congress has made it clear that government funding * * * is not
possible''); APCO Reply Comments at 3 (``the Commission cannot make
policy decisions based on a `hope and prayer' that Congress will
act.'').
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47. Commenters point to other benefits of the public/private
partnership as well. Several argue, for example, that by sharing
spectrum between commercial and public safety users, the public/private
partnership will promote spectrum efficiency.\84\ AT&T, discussing the
benefits of public/private partnerships more generally, also asserts
that the commercial partner in a public/private partnership can
``leverage existing networks, technical assets, and spectrum resources
to develop the interoperable network as quickly and efficiently as
possible'' and that it might rely on ``previous experiences
constructing wireless networks to ensure the construction of a reliable
and effective public/private wireless broadband network.'' \85\
---------------------------------------------------------------------------
\84\ See AT&T Comments at 4; Cellular South Comments at 2; NATOA
et al. Comments at 8; see also PSST Comments at 5-6.
\85\ AT&T Comments at 2-3. See also IMSA et al. Reply Comments
at 6; PSST Comments at 6.
---------------------------------------------------------------------------
48. A number of commenters either oppose or express strong concerns
regarding retaining the public/private partnership condition on the D
Block.\86\ They argue, among other things, that because of the high
incremental cost of constructing a network to public safety
specifications and build-out requirements, the network cannot be
commercially viable without government funding.\87\ They further argue
that this problem is exacerbated by aspects of the 700 MHz Public/
Private Partnership that make it difficult or impossible to determine
revenue potential, and by the difficulty raising capital in the current
economic environment. Several commenters argue that while the
Commission might reduce the public safety-related requirements
sufficient to permit commercial viability, this would defeat the public
safety purpose of the network.\88\
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\86\ IAFF Comments at 1; King County Comments at 1-3; MetroPCS
Comments at 5-6; Motorola Comments at 5-7; NYPD Comments at 3-5; RTG
Comments at ii; San Francisco Comments at 2-4; Verizon Wireless
Comments at 7-11; Rivada Reply Comments at 1-2, 4-5.
\87\ See, e.g. Motorola Comments at i, 2, 7, 9 (significant
buildout and operating costs ``will dramatically affect the ability
of the D-Block licensee(s) to compete effectively with other
commercial services on price'' and that ``further direction,
legislative action, and funding are needed from Congress to ensure
that first responders have the necessary resources to deploy a
broadband video and data network''); King County Comments at 2; NYPD
Comments at 3 (``there is simply no business case for a commercial
wireless network operator to build a nationwide network that will
meet public safety coverage and survivability standards.''); RPC 9
Comments at 3; San Francisco Comments at 7; Verizon Wireless
Comments at 7-8. See also Motorola Reply Comments at 2.
\88\ Motorola Comments at 5; NYPD Reply Comments at 4-5; Verizon
Wireless Comments at 8; Verizon Wireless Reply Comments at 1. See
also MetroPCS Comments at 14. Cf. ITS America Reply Comments at 3
(``additional funding from Congress to cover the incremental costs
of a Public Safety network compared to that of a commercial network
is likely to be required.'').
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49. Some commenters also argue that the Commission needs to address
the unmet commercial needs of small and regional carriers for
unencumbered spectrum suitable for advanced broadband services and that
this demand can best be met by the D Block.\89\ Based on this concern,
for example, MetroPCS recommends that the Commission auction the D
Block unencumbered and ``seek congressional action to have the proceeds
of such auction be used by the public safety community to build the
network it needs.'' \90\
---------------------------------------------------------------------------
\89\ See MetroPCS Comments at 9-11; RTG Comments at 4-5.
\90\ MetroPCS Comments at 6, 9-11. See also RTG Comments at 4;
CTIA Reply Comments at 2-3, 5. MetroPCS also argues that certain
aspects of the 700 MHz Public/Private Partnership, including the
requirement of commercial access to public safety spectrum on a
secondary basis and of public safety access to commercial spectrum
in emergencies, may violate Section 337 of the Communications Act.
See MetroPCS Comments at 14-16. The Commission addresses these legal
issues in the Commission discussion of spectrum use in the shared
wireless broadband network.
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50. Some public safety entities oppose the public/private
partnership out of concern that the commercial incentives of the D
Block licensee are inconsistent with its obligation to meet public
safety needs. These commenters assert that, due in part to a lack of
confidence in the network, and in some cases to the availability of
local alternatives, local public safety entities will not use the
network, and will therefore receive no benefit from the 700 MHz public
safety broadband spectrum.\91\ These commenters propose that, instead
of using the public safety broadband spectrum in the 700 MHz Public/
Private Partnership, the Commission should provide public safety
entities direct access to the spectrum in order to build out their own
separate networks.\92\ AT&T, Verizon Wireless, and others support a
public-private partnership but argue that a Request for Proposal
process is a better alternative for accomplishing this goal than a
reauction of the spectrum.\93\ Specifically, AT&T and Verizon propose a
process in which the Commission would reallocate the D Block spectrum
to the PSBL, who in turn would use the RFP process to select a lessee
or lessees to build a shared network.\94\ Verizon Wireless also
proposes an alternative RFP process in which the Commission would
``auction the spectrum on an unencumbered basis and give the proceeds
to public safety to support the deployment of interoperable
communications solutions.'' \95\ The public safety licensee would, in
turn, use an RFP process to establish a partnership with a commercial
provider (presumably through some leasing arrangement).\96\
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\91\ NYPD Comments at 3 (asserting that public safety agencies
in New York City have ``little incentive * * * to pay subscriber
fees to access a nationwide public/private broadband network''
because a municipal public safety broadband data network will be
fully deployed by the end of 2008); San Francisco Comments at 2-3;
see also id. at 2 (describing results of a partnership requirement
as ``an uncertain auction, a vague network sharing agreement, an
untested network, and the prospect that many local public safety
agencies could choose not to participate''); RTG Comments at 2.
\92\ San Francisco Comments at 2; King County Comments at 2-3;
NYPD Comments at 5-8. See also NYPD Comments at 7, 10; Philadelphia
Comments, generally (arguing that local governments should have a
right to ``opt-out'' of the nationwide network and construct an
independent network in the public safety broadband spectrum''); TDC
Comments at 3; Rivada Reply Comments at 1,2, 4.
\93\ See, e.g., AT&T Comments at 2.
\94\ See AT&T Comments at 6; Verizon Wireless Comments at 21,
n.33.
\95\ Verizon Wireless Comments at 21, n.33.
\96\ Id. (indicating that the public safety licensee could
either use its existing allocation for the partnership, or the
Commission could reallocate the D Block to public safety and license
it to public safety licensee).
---------------------------------------------------------------------------
51. Discussion. The Commission tentatively concludes that it should
continue to require, as a license condition, that the D Block licensee
enter into a public/private partnership with the Public Safety
Broadband Licensee for the purpose of constructing a shared wireless
broadband network that will provide interoperable broadband service to
public safety entities. Throughout this proceeding, the Commission has
sought to promote nationwide access by public safety agencies to
interoperable broadband wireless services operating over a modern, IP-
based system architecture. The Commission has further sought to achieve
certain ancillary goals, such as ensuring the robustness and
survivability of the public safety broadband system as well as
promoting cost and spectrum efficiency.\97\ Achieving these public
safety goals remains very much in the public interest. The Commission
has noted
[[Page 57760]]
previously the many potential benefits of broadband service to public
safety,\98\ and the record in this proceeding confirms the growing
importance of broadband communications to public safety efforts.\99\
The Commission finds that achieving a nationwide level of
interoperability among and between public safety communications systems
and devices so that public safety entities can communicate and
coordinate their activities, particularly in response to emergencies,
remains a critical imperative.\100\ After considering the results of
Auction 73 and the record in this proceeding, the Commission
tentatively conclude that a mandatory public/private partnership
between the licensee or licensees of the D Block and the licensee of
the public safety broadband spectrum (which the Commission will again
refer to as the ``700 MHz Public/Private Partnership'') remains the
best option available to us to achieve these goals.
---------------------------------------------------------------------------
\97\ See 700 MHz Ninth Public Safety Notice, 21 FCC Rcd at
14842-43 paras. 12-18; Second Report and Order, 22 FCC Rcd at 15431
paras. 396-97; Second FNPRM, 23 FCC Rcd at 8051-52 para. 6.
\98\ See 700 MHz Ninth Public Safety Notice, 21 FCC Rcd at 14842
para. 12 (``police officers could exchange mug shots, fingerprints,
photographic identification, and enforcement records; firefighters
could have access to floor and building plans and real-time medical
information; forensic experts could provide high resolution
photographs of crime scenes and real-time video monitoring
transmitted to incident command centers.'').
\99\ See, e.g., NAEMT Comments at 2 (``EMS communication's
future is broadband. To save time in life-threatening situations, it
will become essential to use technologies now in development to send
data in addition to voice communications.''); see also Ericsson
Comments at 3; NPSTC Comments at 6; PSST Comments at 4; Testimony of
Robert M. Gurss, Director, Legal & Government Affairs, Association
Of Public-Safety Communications Officials-International, Inc., July
30, 2008, http://www.fcc.gov/realaudio/presentations/2008/073008/gurss.pdf (``Broadband video, high speed images, Internet access,
and data of an endless variety would greatly enhance the ability of
police, fire, EMS and other personnel to protect the public and
respond to emergencies.'').
\100\ See, e.g., Cellular South Comments at 1; PSST Comments at
4; SIEC Comments at 1. See also AASHTO Comments at 7 (``Without a
single network using a common technology as its basis, the
Commission nation's emergency response and disaster relief workers
will continue to be hampered in their ability to respond to any call
for assistance in the wake of a natural or man caused situation.'').
---------------------------------------------------------------------------
52. The Commission continues to find that, as a regulatory approach
for promoting the development of a nationwide, interoperable broadband
network for public safety, the basic construct of the 700 MHz Public/
Private Partnership model has a number of benefits. As the Commission
stated in the Second Report and Order, the use of a shared
infrastructure for both commercial and public safety services will
enable a significant cost savings in the construction of the
network.\101\ Further, making the construction and operation of this
network a license condition will help to promote development of public
safety network with access on a nationwide basis, lead to economies of
scale in network infrastructure and equipment, and provide a regulatory
framework for ensuring construction on a timely basis. In addition, by
providing the commercial partner with secondary preemptible access to
the public safety spectrum and providing public safety limited priority
access to the commercial spectrum in times of emergency, the 700 MHz
Public/Private Partnership furthers the important public interest goal
of maximizing efficient and intensive spectrum use,\102\ without
compromising safety or commercial feasibility, resulting in a total net
benefit to public safety and commercial entities. This approach may
also serve important commercial interests, such as promoting the
availability of broadband services to remote areas.
---------------------------------------------------------------------------
\101\ See, e.g., Second Report and Order, 22 FCC Rcd at para.
396.
\102\ See, e.g., 47 U.S.C. 151, 309(j)(3)(D).
---------------------------------------------------------------------------
53. Most importantly, the Commission finds that the 700 MHz Public/
Private Partnership remains the only means, in the absence of
legislative appropriations, of obtaining funding for the construction
of a network or networks to provide public safety with nationwide,
interoperable broadband service. The record in this proceeding confirms
the limited availability of public funding for the construction of a
public safety broadband network, and the importance of the 700 MHz
Public/Private Partnership as a means to promote commercial investment
for that purpose.\103\ The Commission notes that several commenters
have argued that the public safety community's need for such funding is
best addressed by additional government appropriations instead of
through commercial investment.\104\ While the Commission agrees that
government funding would be a solution, the Commission is not aware of
any current appropriations for such networks, and certainly none
sufficient to provide access on the scale addressed by the 700 MHz
Public/Private Partnership proposal. Similarly, Congress has not
authorized the Commission to use 700 MHz auction funds for network
construction. Therefore, so long as there is a reasonable likelihood of
success with the 700 MHz Public/Private Partnership approach, the
Commission declines to abandon this course in favor of a speculative
approach that relies on government funding that may not materialize.
---------------------------------------------------------------------------
\103\ See NAEMT Comments at 2 (``No other proposal for a
national public safety broadband system has suggested how to fund it
other than the FCC's public/private partnership concept''); see also
ACT Comments at 1; AT&T Comments at 3; NATOA Comments at 21; PSST
Comments at 4-5; Sprint Nextel Comments at 10 (``public/private
partnerships have been shown to be an effective means of galvanizing
resources in the telecommunications and technology industries to
meet critical needs in the public sector.'').
\104\ See, e.g., MetroPCS Comments at 6; Motorola Comments at 5-
6; RTG Comments at 3, n.3. See also Verizon Wireless Comments at 30
n.52. Cf. Florida Region 9 Comments at 3 (``Without Federal funding
the Commission believes any public/private partnership will fail the
requirements of the PSST.'').
---------------------------------------------------------------------------
54. The Commission is also not persuaded to rely solely on local
and state entities to build out their own networks in the 700 MHz
public safety broadband spectrum as a substitute for construction by
mandatory public/private partnerships. Although a few jurisdictions
such as New York City have determined to use commercial service
providers to satisfy their wireless broadband needs, none of these
jurisdictions have stated that these networks provide anything more
than commercial-grade service, or that they were able to achieve the
economies of scale and nationwide interoperability inherent in the 700
MHz Public/Private Partnership approach. As more and more public safety
agencies take advantage of the benefits of broadband applications, the
Commission is concerned that in the end the Commission will again end
up with balkanized networks incapable of even minimum
interoperability.\105\ Again, when faced with future calamities, the
Nation will continue to suffer from the same dangerous shortcomings
that were encountered following natural and man-made disasters of the
past because there will remain no dedicated public safety spectrum with
a nationwide level of interoperability. The Commission also remains
concerned that, due to the funding issues discussed above, such local
or regional efforts will occur only in a few jurisdictions, leaving
most of the country's public safety community without wireless
broadband for the foreseeable future. In contrast, the 700 MHz Public/
Private Partnership rules
[[Page 57761]]
proposed herein will provide a plan to provide broadband coverage for
public safety entities on a significantly more expanded basis than
individual agreements with commercial service providers or buildout by
individual jurisdictions in the 700 MHz broadband spectrum could
achieve.
---------------------------------------------------------------------------
\105\ The Commission notes that existing rules permit local
jurisdictions to construct independent networks operating over the
700 MHz public safety broadband spectrum, with certain limitations
and conditions, in the event that the shared wireless broadband
network is not scheduled to cover the relevant jurisdiction by the
end of the D Block license term. See 47 CFR 27.1330(b)(5). In
addition, these rules provide local jurisdictions with a method,
again with certain conditions, to construct a network prior to the
anticipated construction date of the shared wireless broadband
network in that jurisdiction, subject to later integration. See id.
As discussed elsewhere, the Commission tentatively concludes that
the Commission should retain these rules.
---------------------------------------------------------------------------
55. As noted above, some commenters have argued that, whatever
benefits the 700 MHz Public/Private Partnership might possess, the
model cannot be made commercially viable except by reductions in the
network design and coverage requirements that would sacrifice its
suitability as a public safety network. The Commission recognizes that,
for the 700 MHz Public/Private Partnership to achieve the objectives of
this proceeding, it must meet the essential requirements of public
safety communications systems and also provide a level of commercial
viability sufficient to encourage investor participation and to permit
long-term commercial success in a competitive environment. The
Commission also acknowledges that there is some tension between these
goals. To the extent that the network is required to meet higher
standards for reliability, hardening, security, and other features than
are being implemented in competing commercial broadband networks, and
to build out in commercially unprofitable areas, such costs will pose
an additional challenge to the commercial viability of the network. The
Commission also notes that the financial challenges posed by the
construction and operation of the shared wireless broadband network may
be exacerbated by the prevailing condition of the nation's economy
overall and its impact on the availability of capital.\106\
---------------------------------------------------------------------------
\106\ See Council Tree Comments at ii.
---------------------------------------------------------------------------
56. Based on the record before us, however, the Commission
tentatively concludes that it is possible to establish requirements
that are commercially viable while still meeting the essential
requirements of public safety first responders. First, the Commission
anticipates that a part, although likely not all, of the incremental
cost of meeting public safety specifications and construction will be
accounted for in the discounted price of the auctioned D Block
spectrum.\107\ In addition, the Commission finds that certain
reductions or modifications of the requirements in the existing rules
are consistent with the Commission's fundamental public safety
objectives, and will significantly improve the commercial viability of
the 700 MHz Public/Private Partnership, thus enhancing the likelihood
that public safety users will in fact receive the benefits the
Commission seeks to achieve in this proceeding. The Commission also
expects that, to some extent, additional public safety-related
requirements should provide some degree of market advantage,
particularly to public safety users and others, such as critical
infrastructure users.\108\ The Commission notes that despite the
Commission tentative conclusion that entities such as critical
infrastructure users are not eligible for service as public safety
users, they may still receive service as customers of the D Block
licensee(s).\109\
---------------------------------------------------------------------------
\107\ See APCO Comments at 37. But see Verizon Wireless Comments
at 8 (``the D Block and public safety broadband spectrum are not
worth nearly enough to offset the massive cost of building a
national broadband network to the mission-critical specifications of
public safety * * * even if the D Block were given away for free,''
and estimating the incremental costs of hardening and build-out
beyond commercial footprints at over $20 billion). See also APCO
Comments at 37.
\108\ See, e.g. SouthernLINC Reply Comments at ii, 4 (noting
that, ``given its hardened network and best of class design, public
safety agencies throughout SouthernLINC's territory have relied on
SouthernLINC for day-to-day and emergency operations since the
network became operational in 1995,'' and that nearly one-quarter of
its customer base is comprised of ``federal, state, and local
agencies''). But see Motorola Comments at 4-5 (stating that the
number of first responders is ``insufficient * * * to amortize the
high costs associated with hardening the network and constructing
infrastructure covering over 99.3 percent of the U.S.
population.'').
\109\ The Commission note that the record provides some evidence
indicating that networks have already been constructed that are both
suitable for public safety use and commercially viable.
SouthernLINC, for example, notes that since 1995, it has operated a
commercial network ``specifically designed to withstand the
stressful weather conditions caused by hurricanes in the
Southeast,'' with features ``far more robust than a traditionally-
designed, commercial-grade network designed with some additional
redundancy.'' SouthernLINC Reply Comments at 3-4; but see id. at 4
(``[a] true public-private partnership can work, but it is not easy,
and the Commission should recognize that this proceeding may not be
the right vehicle to make it happen''). In addition, PGCC, after
reviewing the results of a project to construct a Wi-Fi network over
a 30-mile corridor in Arizona for public safety and other users,
concluded that the ``experience supports the FCC position proposing
to use D-Block and the adjacent Public Safety spectrum for
nationwide broadband connectivity with commercial ownership subject
to Public Safety constraints.'' PGCC Comments at 11.
---------------------------------------------------------------------------
57. The Commission does find that many of the specific problems
noted by commenters regarding the existing rules governing 700 MHz
Public/Private Partnership present legitimate concerns. The Commission
tentatively concludes that these issues can be successfully addressed,
however, through appropriate rule modifications. On the commercial
side, the Commission agrees, for example, that for potential bidders to
make an informed determination regarding the viability of the
partnership, they must have reasonable certainty and clarity regarding
their obligations under the rules, and thus, the likely costs of
constructing and operating the shared wireless broadband network. They
also need to have some ability to predict the revenue potential of the
shared wireless broadband network. While the Commission may not have
provided sufficient certainty on either of these factors under the
existing rules, the Commission is persuaded that it is possible to
provide such certainty. Conversely, regarding certain public safety
objections that the commercial D Block licensee will not adequately
serve their interests, the Commission finds that appropriate oversight
measures, including reporting requirements, can address these concerns.
Accordingly, in the sections below, the Commission addresses these
issues in greater detail and reaches tentative conclusions regarding
how best to implement the 700 MHz Public/Private Partnership to respond
to these concerns.
58. Though the Commission tentatively concludes that it should
retain the public/private partnership and assign commercial licenses
for the D Block by competitive bidding, the Commission also seeks
comment on whether assigning licenses through a Request for Proposal
(RFP) process would increase the likelihood of successfully deploying a
nationwide interoperable broadband network useable by public safety.
The Commission seeks comments on both a detailed proposal for how the
RFP process would be conducted, as well as why it would be superior to
an auction of licenses consistent with the rules proposed herein. The
Commission seeks comment as well on whether any RFP process would be
consistent with the Commission's obligations under Sections 309(j) and
337(a) with respect to the allocation of spectrum and the method of
assigning D Block licenses.
B. Service Rules for the D Block Licensee and the 700 MHz Public/
Private Partnership
1. Geographic Area for D Block License
59. Background. In the Second Report and Order, the Commission
determined that the D Block license would be auctioned as a single,
nationwide license.\110\ In the Second FNPRM, the Commission revisited
this decision, in part, because no bidder matched the reserve price the
Commission set for the
[[Page 57762]]
D Block license.\111\ In addition to asking if the Commission should
retain the single, nationwide license approach, the Commission proposed
authorizing the D Block among multiple licensees and asked several
questions related to such a proposal. The Commission asked what size
the license areas should be if the D Block were split into regional
licenses? For instance, should the blocks be Regional Economic Area
Groups (REAGs), Economic Areas (EAs), or Cellular Market Areas (CMAs)?
\112\ The Commission also sought comment on whether the D Block should
be split into one license (or several licenses) covering high-
population density areas and a second license (or set of licenses)
covering low-population density areas.\113\ The Commission further
sought comment on whether the Commission should modify any of the
policies or rules previously adopted or proposed with respect to a D
Block 700 MHz Public/Private Partnership to ensure that the primary
goal of a national, interoperable, communications network for public
safety agencies is not jeopardized.\114\
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\110\ Second Report and Order, 22 FCC Rcd at 15420 para. 369.
\111\ Second FNPRM, 23 FCC Rcd 8047, 8048-49 para. 1.
\112\ Second FNPRM, 23 FCC Rcd at 8111-12 para. 183.
\113\ Second FNPRM, 23 FCC Rcd at 8112 para. 185.
\114\ Second FNPRM, 23 FCC Rcd at 8112 para. 184.
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60. Commenters offer divergent views on whether the Commission
should maintain the single, nationwide, license approach or allocate
the D Block through multiple, smaller, regional licenses. Sprint
Nextel, Rural Cellular Association (RCA), Ericsson, Inc. (Ericsson),
the PSST, the Association of Public Safety Communications Officials
(APCO), National Public Safety Telecommunications Council (NPSTC), and
most public safety organizations prefer the single, nationwide license
approach because, they contend, it should present the most cost
effective approach to designing a broadband network that achieves
interoperability and connectivity across geographic regions on a
nationwide basis.\115\ Some commenters object to regional licensing on
grounds that some or even many regions might go unsold at auction,
resulting in checkerboard coverage.\116\ NPSTC argues that integrating
regional networks would present technical and logistical challenges and
could take years to implement.\117\
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\115\ APCO Comments at 40; see also, International Municipal
Signal Association, International Association of Fire Chiefs, Inc.,
Congressional Fire Services Institute, and Forestry Conservation
Communications Association (IMSA et al.) Comments at 12; National
Association of Telecommunications Officers and Advisors, National
Association of Counties, National League of Cities, and U.S.
Conference of Majors (NATOA, et al.,) Comments at 17; National
Public Safety Telecommunications Council (NPSTC) Reply Comments at
9; Region 33, 700 MHz Planning Committee (Region 33) Comments at 19-
21; Virginia Fire Chiefs Association (VFCA) Comments at 3; Rural
Cellular Association (RCA) Comments at 2; Sprint Nextel Comments at
11; Public Safety Spectrum Trust Corporation (PSST) Reply Comments
at 12; Testimony of Chief Harlin R. McEwen, Chairman, PSST FCC En
Banc Hearing, New York, July 30, 2008 at 2; Ericsson Comments at 34;
Council Tree Reply Comments at 13; Intelligent Transportation
Society of America (ITS America) Reply Comments at 3.
\116\ See e.g. APCO Comments at 40.
\117\ NPSTC Reply Comments at 10.
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61. A number of commenters, however, favor a regional approach.
AT&T, Verizon Wireless, and smaller regional service providers, such as
MetroPCS, United States Cellular Corporation US Cellular and Rural
Telecommunications Group (RTG), prefer the multiple, regional license
approach for the D Block because, among other reasons, regional
licenses would permit participation by smaller providers, who may be
unable to compete on a nationwide scale, but may have the resources to
build regional networks that could be leveraged to rapidly deploy a
nationwide system.\118\ US Cellular recommends that the Commission
adopt geographic areas that align with the ``55 National Public Safety
Planning Advisory Committee (NPSPAC) regions.'' \119\ US Cellular
argues that these regions are of similar size to MEAs and ``with over
two decades of experience in meeting the wireless needs of state and
local public safety authorities through [NPSPAC] regional committees
operating pursuant to a national plan and FCC order, there are also
distinct advantages in aligning D Block licenses with the NPSPAC.''
\120\ US Cellular and RTG also contend that smaller license areas could
lead to more rapid deployment of public safety communications networks
in rural areas.\121\
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\118\ AT&T Comments at 24-25; Verizon Wireless Comments at 29-
31; Verizon Wireless Reply Comments at 11; Metro PCS Comments at 20;
US Cellular Comments at i, 15-16; RTG Comments at ii, 1; NTCH
Comments at 9-10; Testimony of William J. Andrle, Jr. Northrop
Grumman Information Technology FCC En Banc Hearing, New York, July
30, 2008 at 2.
\119\ US Cellular Comments at 2. US Cellular later made an ex
parte presentation in which it argued that the Commission should
license the D Block through geographic areas that followed state
geographical boundaries. See Letter from Warren G. Lavey, on behalf
of US Cellular, to Marlene H. Dortch, Secretary, WT Docket No. 06-
150, filed Aug. 29, 2008, Attachment at 3.
\120\ US Cellular Comments at i. See also AT&T Reply Comments at
9; City of Philadelphia Reply Comments at 6-7 & nn. 13, 16.
\121\ RTG Comments at ii, 4; US Cellular Comments at 2.
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62. TeleCommUnity, a national association of local governments, and
Charlotte, North Carolina, Houston, Texas, and Montgomery County,
Maryland (TeleCommUnity), contends that there are strong arguments for
allocating regional licenses, for the D Block, as well as the single,
nationwide license approach.\122\ The New York City Police Department
(NYPD) and the City of Philadelphia (Philadelphia) contend that the
Commission should adopt an approach that permits local public safety
agencies to develop their networks that would then interconnect with
other local public safety agencies.\123\ These entities argue that a
single, nationwide license could impede the development of their local
public safety networks.\124\ Coverage Co. and Space Data Corp. ask the
Commission to adopt an approach that assigns one license for urban or
more populated areas and another license for rural or less populated
areas.\125\ Other entities, such as Google and Qualcomm, do not appear
to favor a single, nationwide license or a multiple regional license
approach. They are more concerned that the Commission establishes a
public safety broadband network that is interoperable as soon as
practicable.\126\
---------------------------------------------------------------------------
\122\ TeleCommUnity Comments at 13-14.
\123\ NYPD Reply Comments at 4-5; Philadelphia Reply Comments at
8.
\124\ NYPD Reply Comments at 7-14; Philadelphia Reply Comments
at 5-8.
\125\ Coverage Co. Comments at 2; Space Data Corp. Comments at
2-3, 12.
\126\ Google Comments at 3; Qualcomm Comments at 8.
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63. Discussion. The Commission tentatively concludes that the
Commission should offer the D Block at auction as both a single,
nationwide license and as regional licenses. The Commission proposes
that the regional geographic areas would be comprised of the 55 700 MHz
RPC regions,\127\ and
[[Page 57763]]
three additional regions, and to refer to these 58 regions as PSRs for
D Block licensing purposes.\128\ The three additional regions will
cover (1) the Gulf of Mexico; (2) the Territory of Guam (Guam) and the
Commonwealth of Northern Mariana Islands (Northern Mariana Islands);
and (3) the Territory of American Samoa (American Samoa), and will be
identical to the current Economic Area (EA) licensing areas for those
same regions.
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\127\ Although some commenters propose the use of NPSPAC regions
for licensing, the Commission tentatively finds it more appropriate
to use the Regional Planning Committee (RPC) regions, which are
largely but not entirely identical. The Commission notes that the
NPSPAC regions were established in connection with the 800 MHz
public safety spectrum. The term ``NPSPAC'' is an acronym for the
National Public Safety Planning Advisory Committee, which was
established by the Commission in 1986 to advise the Commission on
rules for the 821-824 MHz/866-869 MHz band. See Amendment of Parts 2
and 22 of the Commission's Rules Relative to Cellular Communications
Systems Amendment of Parts 2, 15, and 90 of the Commission's Rules
and Regulations to Allocate Frequencies in the 900 MHz Reserve Band
for Private Land Mobile Use Amendment of Parts 2, 22 and 25 of the
Commission's Rules to Allocate Spectrum for, and to Establish Other
Rules and Policies Pertaining to the Use of Radio Frequencies in a
Land Mobile Satellite Service for the Provision of Various Common
Carrier Services, GEN Docket No. 84-1231 RM-4812, GEN Docket No. 84-
1233 RM-4829, GEN Docket No. 84-1234, Report and Order, 2 FCC Rcd at
1825 para. 46 (1986). The 821-824 MHz/866-869 MHz band was
eventually licensed on a regional basis with the resulting regions
designated as NPSPAC regions. However, the initial rules governing
the 700 MHz public safety spectrum, which included the regional
approach governing a portion of that spectrum, were established in a
separate proceeding. See Development of Operational, Technical and
Spectrum Requirements For Meeting Federal, State and Local Public
Safety Agency Communication Requirements Through the Year 2010, WT
Docket No. 96-86, First Report and Order and Third Notice of
Proposed Rulemaking, 14 FCC Rcd 152 (1998) (700 MHz Public Safety
First Report and Order and Third Notice). The Commission tentatively
finds that the 700 MHz regions are the more appropriate regional
basis to use in the instant proceeding. As noted above, the 700 MHz
regions are almost, but not quite, identical to the 800 MHz NPSPAC
regions. Although the NPSPAC regional boundaries were used as the
initial basis for the 700 MHz public safety regions, see id. at 263,
Appendix C (List of Regions), two of the regions have since been
modified. See Public Notice, ``Public Safety 700 MHz Band--General
Use Channels Approval of Changes to Regional Planning Boundaries of
Michigan and Connecticut,'' 16 FCC Rcd 16359 (2001). The Commission
proposal would thus license the D Block in accordance with these
regional boundaries as modified for Connecticut and Michigan. As for
terminology, because the NPSPAC was not involved in the 700 MHz
proceeding, it would be a misnomer to identify these 700 MHz
geographic areas as NPSPAC regions. It is more accurate to refer to
the regions as RPC regions because the spectrum allocation in these
areas is governed by the RPCs. See 47 CFR 90.531.
\128\ See Appendix A.
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64. As the Commission explains further below, the Commission finds
that both nationwide and PSR area licenses have advantages that could
help achieve the public interest goal of establishing a commercially
viable interoperable public safety broadband network on a nationwide
basis. Further, while offering the D Block on a regional basis raises
the risk of unsold areas, offering only a single, nationwide license
may increase the risk that there are no bids on the D Block spectrum at
all. Accordingly, to provide the greatest likelihood of success in
offering new licenses for the D Block spectrum with a public/private
partnership condition, the Commission proposes to permit entities to
bid on both nationwide and regional licensing options and to allow
auction results to determine on which geographic area basis the D Block
will ultimately be licensed pursuant to auction rules and procedures
that the Commission explains elsewhere in this Third FNPRM.
65. Nationwide Option. The Commission tentatively concludes that
one of the D Block geographic license area options that parties should
be able to bid upon is a single, nationwide license. The Commission
proposes to offer a nationwide D Block license because the record in
this proceeding reaffirms that the Commission can achieve its goals for
the public safety broadband network through this type of license.\129\
In particular, one of the Commission's primary goals for the
authorization of the D Block is to ``address a vitally important
problem: promoting interoperability, on a nationwide basis, for public
safety communications.'' \130\ The record in response to the Second
FNPRM supports the Commission's previous determination that
interoperability is a critical need for the public safety broadband
network and that assigning the D Block to a single, nationwide licensee
may help to facilitate achieving nationwide interoperability both
within and between jurisdictions. The Commission notes that the
majority of public safety agencies assert that a single, nationwide
license is the best way to achieve an interoperable network.\131\
Although the Commission tentatively finds that it is possible to
achieve interoperability between regional networks, a nationwide
license would likely simplify the task of ensuring interoperability and
avoid problems in its implementation. For example, it would eliminate
the need for technology coordination, roaming arrangements, and
interconnection arrangements between different regional networks.
---------------------------------------------------------------------------
\129\ Second Report and Order, 22 FCC Rcd at 15420 para. 369.
Thus, the license will cover the 50 states, the Gulf of Mexico, and
the territories.
\130\ Second FNPRM, 23 FCC Rcd at 8051 para. 5; see also Second
Report and Order, 22 FCC Rcd at 15419 para. 365. In addition, in the
700 MHz Public Safety Eighth Notice adopted in March 2006, the
Commission emphasized its commitment ``to ensuring that emergency
first responders have access to reliable and interoperable
communications.'' 700 MHz Public Safety Eighth Notice, 21 FCC Rcd at
3682 para. 31; see also, Second FNPRM, 23 FCC Rcd at 8051 para. 4;
Second Report and Order, 22 FCC Rcd at 15420 para. 369; 700 MHz
FNPRM, 22 FCC Rcd at 8156 para. 253.
\131\ See, e.g., APCO Comments at 40; IMSA et al. Comments at
12; NATOA, et al. Comments at 10.
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66. Licensing the D Block on a nationwide basis could also help to
achieve the other goals that the Commission has for the public safety
broadband network, i.e., that it be cost effective, spectrally
efficient, flexible and employ an advanced IP-based network.\132\ A
single, nationwide license may provide opportunities for cost savings
through elimination of redundant equipment (e.g., mobile base station
deployments in the event of natural disasters), processes (billing,
etc.) or staff (e.g., public safety support), and greater economies of
scale for network equipment or handsets.\133\ These cost savings might
enhance the ability of the D Block licensee to rapidly build the public
safety broadband network in rural, expensive-to-serve, less populated
areas. The Commission therefore tentatively concludes that the
economies of scale that a commercial entity could achieve through a
single, nationwide license could promote the rapid deployment of an
advanced nationwide public safety broadband network.
---------------------------------------------------------------------------
\132\ Second Report and Order, 22 FCC Rcd at 15420 para. 369.
\133\ See Second Report and Order, 22 FCC Rcd at 15298, 15324
paras. 20, 82 (explaining how larger geographic service areas permit
service providers to establish economies of scale).
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67. In addition, a single, nationwide license could facilitate
coordination between the D Block licensee, the Public Safety Broadband
Licensee, and the public safety agencies that use the network. As
discussed elsewhere in this Third FNPRM, the public/private partnership
concept requires the D Block licensee to establish an NSA with the
Public Safety Broadband Licensee and, thereafter, coordinate with the
Public Safety Broadband Licensee to ensure that the network effectively
serves the interests of the public safety community. The coordination
scheme envisioned for the D Block could be particularly efficient if
there were only one licensee required to coordinate and negotiate with
the Public Safety Broadband Licensee and local public safety agencies.
68. Some wireless service providers argue that the single,
nationwide license will not work because, in their opinion, no single
entity would find it commercially viable to develop a nationwide public
safety communications network with the technical requirements and other
rules that the Commission had imposed, in the Second Report and Order,
on the D Block.\134\ As the Commission discusses in more detail,
elsewhere, the Commission has made substantial changes to the technical
specifications and performance requirements that should help make the
single, nationwide license more commercially viable. These policies
should ease the
[[Page 57764]]
burdens on a single, nationwide D Block licensee.
---------------------------------------------------------------------------
\134\ AT&T Comments at 7-8; Verizon Wireless Comments at 7-8,
24-31.
---------------------------------------------------------------------------
69. Public Safety Region Option. The Commission tentatively
conclude that the Commission should revise the Commission rules to also
provide the option of regional geographic area licensing of the D Block
on the basis of 58 PSRs, 55 regions of which would correspond to the 55
RPC regions, and which would include three additional regions covering
(1) the Gulf of Mexico; (2) Guam and the Northern Mariana Islands; and
(3) American Samoa.\135\ As the Commission explains further below, PSR
licensees could lead to a rapid deployment of the public safety
broadband network that is tailored to respond to the public safety
communications needs of particular regions.
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\135\ See Appendix A.
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70. The Commission's proposal to permit licensing of the D Block on
a regional basis is based on several factors. Section 309(j) of the
Communications Act instructs that, in designing competitive bidding
systems, the Commission should consider the dissemination of licenses
among a wide variety of applicants when that consideration would serve
the public interest.\136\ Regional licensing could allow smaller
commercial entities that do not have the resources to acquire a
nationwide license and meet nationwide performance requirements to
participate in bidding for D Block licenses, thereby increasing the
chances of a successful public/private partnership for at least the
majority of the nation. In addition, regional licensing could lead to
enhanced build-out and faster deployment to less populated, rural
areas. Those entities interested in a larger geographic footprint can
bid on, and if successful, aggregate multiple PSR regional licenses.
The record in response to the Second FNPRM demonstrates that nearly all
nationwide carriers and several regional carriers, which filed
comments, support licensing on a regional basis.\137\ As the Commission
explains elsewhere, in order to ensure that authorizing the D Block
through multiple, regional licenses will achieve nationwide
interoperability, the Commission has proposed roaming and certain other
interoperability requirements for D Block licenses. In order to reduce
the possibility that regional licensing of the D Block might result in
large areas that are unserved by the public safety broadband network,
the Commission tentatively concludes that an auction of the D Block
spectrum must result in winning D Block license bidders with licenses
covering at least 50 percent of the nationwide population or the
results of the auction will be void.\138\
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\136\ 47 U.S.C. 309(j)(3)(B); Service Rules for the 746-764 and
776-794 MHz Bands, and Revisions to Part 27 of the Commission's
Rules, First Report and Order, 15 FCC Rcd 476, 500 para. 57 (2000).
\137\ AT&T, Inc., (AT&T) Comments at 24-25; Verizon Wireless
Comments at 29-31; Verizon Wireless Reply Comments at 11; Metro PCS
Comments at 20; U.S. Cellular Comments at i, 15-16; Rural
Telecommunications Group, Inc. (RTG) Comments at ii, 1; NTCH, Inc.,
(NTCH) Comments at 9-10; Testimony of William J. Andrle, Jr.
Northrop Grumman Information Technology FCC En Banc Hearing, New
York, July 30, 2008 at 2. Among the carriers offering nationwide
service plans, who filed comments in this proceeding, only Sprint
Nextel supports nationwide licensing. See Sprint Nextel Comments at
11.
\138\ See Letter from Warren G. Lavey, on behalf of U.S.
Cellular, to Marlene H. Dortch, Secretary, FCC, WT Docket No. 06-
150, filed July 28, 2008, Attachment at 9 (suggesting that the
Commission should set a minimum population threshold in determining
if the auction results for the D Block should stand).
---------------------------------------------------------------------------
71. In addition, regional D Block licensees could be particularly
responsive to the unique needs of state, regional, and local public
safety agencies. Regional licensees could coordinate with local public
safety entities and ensure that public safety communications are
tailored to meet unique local needs in particular geographic areas. PSR
licensees may, for example, take into account regional differences in
terrain and public safety needs in determining how to set up and
operate the system, which could be more cost effective in certain
respects and better suited to regional needs than a one-size fits-all
system. PSR licenses may also be more desirable because the assignment
of a single, nationwide, D Block license may increase risks of
disruption for public safety entities in the event the single
nationwide operator is commercially unsuccessful. Having regional
licensees, with license areas mostly following state jurisdictional
boundaries, may also address certain concerns in the record that the
development of the nationwide public safety broadband network should
not impede the existing networks that some local agencies have spent
substantial resources deploying.\139\
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\139\ See, generally, District Comments; see also Prepared
Testimony of John J. Farmer, Former Attorney General, New Jersey;
Senior Counsel, 9/11 Commission, at 3, FCC En Banc Hearing (July 30,
2008).
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72. Assigning the D Block through PSR licenses that are
geographically aligned with the 55 RPC regions could further enhance
the responsiveness of the PSR licensees to the public safety
communications needs of their specific geographic regions and
facilitate the development of an interoperable public safety broadband
network. The Commission created the RPC regions for 700 MHz public
safety general use spectrum to maximize the efficiency of public
safety's use of this spectrum and to foster the accommodation of a wide
variety of localized public safety communications requirements in
different areas of the Nation. Creating regional D Block licenses whose
boundaries correspond with those of the RPC regions should facilitate
interaction between the PSR licensees and the existing RPCs. The
Commission anticipates that these regional entities have considerable
institutional knowledge about the communications needs and concerns of
public safety entities within their jurisdictions. PSR licensees could
coordinate with them for their respective licensing area to learn about
any public safety communications challenges or needs that might be
specific to the particular region. RPCs might also help the Public
Safety Broadband Licensee and PSR licensees negotiate the build-out
schedule, fees, and other terms of their respective NSAs that would be
tailored for a particular PSR region. RPCs could also share with PSR
licensees approaches towards establishing inter-regional
interoperability that have been more successful than others.\140\
---------------------------------------------------------------------------
\140\ See AT&T Reply Comments at 9 (arguing that, if the Public/
Private Partnership is able to take advantage of the organizational
structure already in place among the RPCs, ``the RPCs will
facilitate interoperability and coordination between adjacent
regions and public safety agencies, while ensuring that local public
safety users have a voice in the design and functionality of the
services offered over the network.'').
---------------------------------------------------------------------------
73. License Partitioning and Disaggregation. The Commission
tentatively concludes that it would not serve the public interest to
change the current rule governing D Block partitioning and
disaggregation, and thus to continue prohibiting any partitioning and
disaggregation of a D Block license. The Commission seeks comment on
this conclusion.
74. Other Geographic Area Proposals. The Commission tentatively
concludes that it would not serve the public interest to split the D
Block into one license for a high-population density area and a second
license covering low-population density, rural areas, as Coverage Co.
and Space Data request.\141\
[[Page 57765]]
Coverage Co. and Space Data's proposals do not specify the boundaries
of the geographic areas that the two licenses would cover, which could
present uncertainties for potential bidders and lead to disputes. In
addition, there is a substantial question about the commercial
viability of these two-license approaches. Coverage Co. and Space Data
do not appear to argue, and the arguments they make do not demonstrate,
that their two-license proposals are more commercially viable than the
regional approach the Commission proposes. Also, the record does not
indicate that commenters, other than Coverage Co. and Space Data,
support these specific two-license proposals. Based on the record and
the unique characteristics of this proceeding, such as the important
obligations of the public/private partnership licensees, the Commission
would need a stronger record, before deciding that it should adopt a
geographic area licensing scheme that is significantly different from
the schemes the Commission has employed in the past.\142\
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\141\ Coverage Co. Comments at 2; Space Data Comments at 2, 13-
15; Space Data Reply Comments at 2. Coverage Co. is a provider of
software-defined radio (SDR) technology services and it claims that
its technology would allow a commercial wireless network to operate
on both CDMA and GSM systems. Coverage Co. Comments at 4-5. Space
Data uses a ``balloon-based `near space' communications system'' to
provide ``wireless services in the South Central United States.''
Space Data Comments at 4.
\142\ Implementation of Section 6002(b) of the Omnibus Budget
Reconciliation Act of 1993, Annual Report and Analysis of
Competitive Market Conditions with Respect to Commercial Mobile
Services, Twelfth Report, 23 F.C.C.R. 2241, 2286 para. 97 (2008)
(Twelfth Report).
---------------------------------------------------------------------------
75. Finally, the Commission tentatively concludes that it would not
serve the public interest to offer license areas that are smaller than
PSRs in the reauction of the D Block. Although the record indicates
that some entities have an interest in the Commission assigning the D
Block by offering 493 BTAs,\143\ 176 EAs,\144\ and 736 CMA
licenses,\145\ smaller license areas may make it more difficult to
achieve nationwide interoperability. Assigning hundreds of smaller
license areas could also exacerbate coordination issues that might
arise among the D Block licensees, the Public Safety Broadband
Licensee, and public safety agencies that would be involved with the
policies and operation of the network. Moreover, license areas smaller
than the PSRs might increase the possibility that some license blocks
will not be sold in the reauction.
---------------------------------------------------------------------------
\143\ AT&T Comments at 24 (recommending EAs and CMAs as options
for the geographic area license); Coleman Bazelon Comments at 24
(CMA licenses); RTG Comments at ii, 5 (requesting CMAs); Wirefree
Comments at 12-14 (requesting CMAs); NTCH Comments at 11 (requesting
BTAs); see also, In the Matter of Inquiry Concerning the Deployment
of Advanced Telecommunications Capability to All Americans in a
Reasonable and Timely Fashion, and Possible Steps to Accelerate Such
Deployment Pursuant to Section 706 of the Telecommunications Act of
1996, Fifth Report, FCC 08-88, 2008 WL 2404499 (rel. June 12, 2008),
at para. 52 (indicating there are 493 BTAs).
\144\ See ``Auction of 700 MHz Band Licenses Scheduled for
January 16, 2008; Comment Sought on Competitive Bidding Procedures
For Auction 73,'' Public Notice, FCC Rcd 15004 (WTB 2007)
(indicating there are 176 EAs).
\145\ See ``Auction of 700 MHz Band Licenses Scheduled for
January 16, 2008; Comment Sought on Competitive Bidding Procedures
For Auction 73,'' Public Notice, FCC Rcd 15004 (WTB 2007)
(indicating there are 736 CMAs).
---------------------------------------------------------------------------
2. Requirements for the Shared Wireless Broadband Network
a. Spectrum Use Issues
(i) Combined Spectrum Use
76. Background. In the Second Report and Order, the Commission
determined that promoting commercial investment in the build-out of a
shared network infrastructure for both commercial and public safety
users through the 700 MHz Public/Private Partnership would address
``the most significant obstacle to constructing a public safety
network--the limited availability of public funding.'' \146\ The
Commission concluded that providing for a shared infrastructure using
the D Block and the public safety broadband spectrum would help achieve
significant cost efficiencies, allow public safety agencies to take
advantage of off-the-shelf technology, provide the public safety
community with access to an additional 10 megahertz of broadband
spectrum during emergencies, and provide the most practical means of
speeding deployment of a nationwide, interoperable, broadband network
for public safety service by providing all of these benefits on a
nationwide basis.\147\ At the same time, the Commission pointed out
that the 700 MHz Public/Private Partnership would provide the D Block
licensee with rights to operate commercial services in the 10 megahertz
of public safety broadband spectrum on a secondary, preemptible basis,
which would both help to defray the costs of build-out and ensure that
the spectrum is used efficiently.\148\
---------------------------------------------------------------------------
\146\ Second Report and Order, 22 FCC Rcd at 15431 para. 396.
\147\ Id.
\148\ Id.
---------------------------------------------------------------------------
77. In the Second FNPRM, the Commission sought comment on whether,
to provide the D Block licensee with appropriate flexibility to achieve
an efficient and effective implementation of the 700 MHz Public/Private
Partnership obligations, the Commission should amend the rules to
clarify that the D Block licensee may construct and operate the shared
wireless broadband network using the entire 20 megahertz of D Block
spectrum and public safety broadband spectrum as a combined, blended
resource.\149\ In particular, the Commission sought comment on whether,
in designing and operating the shared network, the 10 megahertz of D
Block spectrum and the 10 megahertz of public safety broadband spectrum
may be combined, in effect, into a single and integrated 20 megahertz
pool of fungible spectrum.\150\ This pool of spectrum could then be
assigned to users without regard to whether a public safety user is
being assigned frequencies in the D Block or a commercial user is being
assigned frequencies in the public safety broadband spectrum.\151\
These assignments would be permissible so long as the network provides
commercial and public safety users with service that is consistent with
the respective capacity and priority rights of the D Block license and
Public Safety Broadband License and with the Commission rules.\152\ The
Commission sought comment on whether permitting the combined use of
spectrum in this fashion would provide for a more efficient and
effective use of spectrum.\153\ The Commission also sought comment on
whether such a combined use would be consistent with the different
rights and obligations associated with the D Block license and the
Public Safety Broadband License and whether it would be in the public
interest to allow such use.\154\ The Commission asked whether
permitting such combined use would be consistent with the requirements
of Sections 337(a) and (f) and the Commission rules allotting specific
frequencies for use by the Public Safety Broadband Licensee and the D
Block licensee.\155\
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\149\ Second FNPRM, 23 FCC Rcd at 8077 para. 80.
\150\ Id.
\151\ Id.
\152\ Id.
\153\ Id. at 8077 para. 81.
\154\ Id.
\155\ Id.
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78. Comments. In response to Second FNPRM, the Commission received
broad support for clarifying that the D Block licensee may construct
and operate the shared wireless broadband network using the entire 20
megahertz of D Block spectrum and public safety broadband spectrum as a
combined, blended resource.\156\ These commenters note that allowing
the combined flexible use of spectrum will promote efficient use of the
spectrum and make the D Block license more commercially attractive
[[Page 57766]]
while facilitating priority access and preemption.\157\ Supporters of
this approach included members of the public safety community.\158\ In
addition, Google and Alcatel Lucent note that this approach is
consistent with the Communications Act.\159\
---------------------------------------------------------------------------
\156\ ALU Comments at 8-9; Google Comments at 4-5; Ericsson
Comments at 17, 24 n.56; Hypres Comments at 7; Motorola Comments at
10-11; SouthernLINC Reply Comments at 9-10. But see TE M/A-COM
Comments at 8 (arguing against a combined network).
\157\ See ALU Comments at 8; Google Comments at 4-5; Ericsson
Comments at 24 n.56.
\158\ NRPC Comments at 6; APCO Comments at 27.
\159\ Google Comments at 4-5; ALU Comments at 8-9.
---------------------------------------------------------------------------
79. Discussion. Based on the record, the Commission tentatively
concludes that a D Block licensee may construct and operate the shared
wireless broadband network using the entire 20 megahertz of D Block
spectrum and public safety spectrum as a combined, blended resource.
That 20 megahertz of spectrum may be assigned to users without regard
to whether a public safety user is assigned frequencies in the D Block
or a commercial user is assigned frequencies in the public safety
broadband spectrum, so long as 50 percent of the capacity available
from the combined 20 megahertz of spectrum is assigned to the public
safety users and the other 50 percent to the commercial users,
consistent with the respective capacity and priority rights of the D
Block license and the Public Safety Broadband License and with the
Commission rules.\160\
---------------------------------------------------------------------------
\160\ Second FNPRM, 23 FCC Rcd at 8077, para. 80.
---------------------------------------------------------------------------
80. The Commission agrees with the commenters \161\ who conclude
that permitting the combined use of spectrum in this fashion provides
for a more efficient and effective use of spectrum and provides further
flexibility for a D Block licensee to use all available wireless
broadband technologies to build and operate the network and thus
promote the Commission's ultimate goal of making available a nationwide
interoperable broadband network for public safety users. If given the
flexibility of undivided spectrum, a D Block licensee can use the best
available network management technologies to allocate and prioritize
users efficiently across the full 20 megahertz of spectrum,\162\
thereby increasing throughput and capacity over what can be achieved
with two separate 10 megahertz networks.\163\ Further, the Commission
expects that by focusing its resources on a blended network design
rather than a network that must carefully segregate different services
into separate frequency bands, a D Block licensee should also be able
to conserve costs. This improved flexibility, efficiency, and cost
should make the license more attractive to potential bidders.\164\
---------------------------------------------------------------------------
\161\ ALU Comments at 8; Google Comments at 4-5; NRPC Comments
at 6; Ericsson Comments at 17-18; Hypres Comments at 7; SouthernLINC
Reply Comments at 9-10.
\162\ See ALU Comments at 8.
\163\ See Ericsson Comments at 17.
\164\ See Google Comments at 4; SouthernLINC Reply Comments at
9-10.
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(ii) Priority Public Safety Access to Commercial Spectrum During
Emergencies
81. Background. In the Second Report and Order, the Commission
required the D Block licensee to provide the Public Safety Broadband
Licensee with priority access during emergencies to the spectrum
associated with the D Block license (in addition to the 700 MHz public
safety broadband spectrum).\165 \
---------------------------------------------------------------------------
\165\ Second Report and Order, 22 FCC Rcd at 15441-42 paras.
426-27.
---------------------------------------------------------------------------
82. In the Second FNPRM, the Commission sought comment on whether
the Commission should continue to require the D Block licensee to
provide the Public Safety Broadband Licensee with priority access
during emergencies to the spectrum associated with the D Block
license.\166\ The Commission invited comment on whether this obligation
is essential to ensure that the network capacity will meet public
safety wireless broadband needs.\167\ The Commission asked,
alternatively, whether removing the obligation could significantly
improve the chances that this proceeding will succeed in achieving the
Commission's goal of making available to public safety users a
nationwide, interoperable, broadband network that incorporates the
greater levels of availability, robustness, security, and other
features required for public safety services.\168\ The Commission
sought further comment on whether, if the Commission continues to
require that the D Block licensee provide the Public Safety Broadband
Licensee with priority access during emergencies to the spectrum
associated with the D Block license, the Commission should provide more
clarity on the circumstances that would constitute an ``emergency'' for
this purpose.\169\
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\166\ Second FNPRM, 23 FCC Rcd at 8079, para. 85.
\167\ Id.
\168\ Id.
\169\ Id. at 8079-80, para. 86.
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83. Comments. In response to Second FNPRM, the Commission received
comments generally supporting the idea of providing public safety
entities with some additional spectrum capacity for emergency
needs,\170\ but parties diverged on the extent of such access. While
the public safety community generally agrees that public safety users
should have at least some priority access in emergencies to the
spectrum associated with the D Block,\171\ they are divided on whether
geographic and time limits should be established.\172\ PSST argues that
``public safety priority access during emergency situations should be
limited to 70% of total network capacity [or 40% of the D Block
capacity] and that public safety preemption rights should not exceed
50% of the network capacity.'' \173\ APCO proposes avoiding the
difficulties in defining the contours of emergency priority access by
allowing both public safety and commercial users to take advantage of
any available channels in the combined 20 megahertz spectrum when
traffic is low, but restricting each set of users to 10 megahertz
during periods of high traffic.\174\ APCO argues that public safety
users should have priority access to all 20 megahertz only in rare
circumstances.\175\ The Commission notes that several commenters
suggest the possibility of using technology to dynamically prioritize
signals throughout the network.\176\
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\170\ PSST Comments at 32; Seybold Comments at 2-3; RPC 33
Comments at 10; AASHTO Comments at 13; NATOA et al. Comments at iv;
SDR Forum Comments at 10, 16; PGCC Comments at 12; Televate Comments
at 11; NTCH Comments at 4; AT&T Reply Comments at 18; NPSTC Comments
at 12; Ericsson Comments at 25; NATOA et al. Reply Comments at 11;
Verizon Wireless Reply Comments at 7; But see Bazelon Comments at 1-
2, 22 (arguing that a priority access requirement would
inappropriately diminish the value of the D Block for commercial
entities, thereby reducing the likelihood of a winning bid as well
as proceeds to use to support a public safety network).
\171\ PSST Comments at 32; Seybold Comments at 2-3; RPC 33
Comments at 10; AASHTO Comments at 13; NATOA et al. Comments at iv;
SDR Forum Comments at 10, 16; PGCC Comments at 12; Televate Comments
at 11; NTCH Comments at 4; AT&T Reply Comments at 18; NPSTC Comments
at 12; Ericsson Comments at 25; NATOA et al. Reply Comments at 11;
Verizon Wireless Reply Comments at 7; But see Bazelon Comments at 1-
2, 22 (arguing that a priority access requirement would
inappropriately diminish the value of the D Block for commercial
entities, thereby reducing the likelihood of a winning bid as well
as proceeds to use to support a public safety network).
\172\ See RPC 33 Comments at 17-18 (supporting limitations);
Wireless RERC Comments at 12 (same). But see AASHTO Comments at 12-
13 (noting that any limitations could hinder safety operations in
the event of an emergency).
\173\ PSST Reply Comments at ii, 7-8. PSST stated in it initial
comments that ``it is reasonable to limit priority access for public
safety to 70% of overall network capacity of the SWBN, or just 40%
of the D Block spectrum capacity.'' PSST Comments at 33.
\174\ APCO Comments at 27-28. But see NATOA et al. Reply
Comments at 11.
\175\ APCO Comments at 27-28.
\176\ SDR Forum Comments at 16, 25, 27; AT&T Comments at 13;
NPSTC Comments at 47-48.
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84. Other commenters argue that unlimited emergency priority access
to the capacity set aside for commercial use would undermine the
commercial viability of the network and the success
[[Page 57767]]
of the Public/Private Partnership.\177\ AT&T and Alcatel-Lucent
recommend that the Commission model that priority access after the
Department of Homeland Security's Wireless Priority Service,\178\ which
allows government officials to contract with CMRS providers for
priority telecommunications services.\179\ With regard to geographic
limitations, Ericsson argues ``that priority access should be limited
to specific geographic areas affected by serious emergencies, to avoid
jeopardizing the commercial viability of the 700 MHz Public/Private
Partnership, and that priority access should be properly limited to the
area directly affected by the emergency.'' \180\ As to bandwidth
limitations, some propose that at least 50 percent of the capacity be
prioritized for public safety use.\181\
---------------------------------------------------------------------------
\177\ Leap Wireless Comments at 13-14 (arguing argues that
public safety users should be allowed priority access to only 50% of
available network capacity, ``with no other preemption requirements
on the network''); Verizon Wireless Comments at 9 (``providing
priority access to public safety users on a preemptive basis reduces
the value of the network to their commercial counterparts'');
Motorola Comments at 8; but see Sprint Nextel Comments at 14-15
(proposing that the D Block auction winner offer ``near real-time
prioritization,'' under which the D Block licensee moves ``all
commercial traffic off network within ten minutes of receiving a
call from authorized public safety officials'') But see Verizon
Wireless Reply Comments at 7 (noting that reducing priority access
to 50% of the network ``would frustrate the very purpose of building
a new dedicated public safety network.'').
\178\ See http://wps.ncs.gov/.
\179\ AT&T Comments at 13; see also ALU Comments at 9-10; AT&T
Reply Comments at 18 n.59.
\180\ Ericsson Comments at 23.
\181\ Motorola Comments at 10. Ericsson further argues that
``the priority access and preemption for public safety can be
applied on the entire 20 MHz'' and that ``3GPP standards provide
automatic methods for providing such priority access and
preemption.'' Ericsson Comments at 24. But see CEA Comments at 3
(``the Commission should limit public safety's priority access to D
Block spectrum in emergencies to 50 percent of the commercial D
Block capacity.'')
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85. Several commenters also argue that the Commission should define
the specific circumstances that constitute an ``emergency'' before
conducting an auction,\182\ suggesting several methods to achieve this
goal. Others argue that the parties should decide this issue for
themselves,\183\ and one commenter argues that emergencies should be
declared only by senior levels of state or local government.\184\ Some
commenters agree that the specific situations listed in the Second
FNPRM \185\ could be considered an emergency.\186\
---------------------------------------------------------------------------
\182\ See AT&T Comments at 13; Qualcomm Comments at 10-11;
Google Comments at 6-7; NRPC Comments at 9-10; Bazelon Comments at
1; Wireless RERC Comments at 11; APCO Comments at 26. But see Leap
Wireless Comments at 13-14. RPC 33 proposes that an emergency exists
anytime lives or ``significant property'' is at risk, but that the
decision should be made locally, rather than by a national board.
RPC 33 Comments at 17.
\183\ Qualcomm Comments at 10-11. Televate similarly argues that
commercial bidders should submit before the auction proposals that
state under what conditions they will allow priority access to their
networks. Televate Comments at 11. NPSTC agrees that the Commission
should define certain circumstances that would constitute an
emergency ``after consultation with the PSBL and D Block licensee,
and in circumstances the PSBL has defined and Commission approves
prior to the D Block auction.'' NPSTC Comments at 12-13.
\184\ NPSTC Comments at 12-13.
\185\ See Second FNPRM, 23 FCC Rcd at 8079-80 para. 86.
\186\ Ericsson Comments at 23-24; California Comments at 6. The
Wireless RERC urges, however, that the terms ``significant'' and
``substantial,'' as used in the Second FNPRM, be further clarified
or deleted from the descriptions of those situations. Wireless RERC
Comments at 12.
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86. Discussion. Based on the record, the Commission tentatively
concludes that emergency access to the D Block commercial capacity
should be mandated only in the event of an ``emergency,'' as that term
was defined in the Second FNPRM, specifically:
The declaration of a state of emergency by the President
or a state governor.
The issuance of an evacuation order by the President or a
state governor impacting areas of significant scope.
The issuance by the National Weather Service of a
hurricane or flood warning likely to impact a significant area.
The occurrence of other major natural disasters, such as
tornado strikes, tsunamis, earthquakes, or pandemics.
The occurrence of manmade disasters or acts of terrorism
of a substantial nature.
The occurrence of power outages of significant duration
and scope.
The elevation of the national threat level to either
orange or red for any portion of the United States, or the elevation of
the threat level in the airline sector or any portion thereof, to red.
87. The Commission tentatively concludes that for the first two
conditions and when the national or airline sector threat is set to
red, the D Block licensee(s) must provide public safety users priority
access \187\ to, but not preemptive use of, up to 40 percent of the
commercial D Block spectrum capacity (i.e., 2 megahertz in each of the
uplink and downlink blocks), assuming the full public safety broadband
block spectrum capacity is being used, for an aggregate total of 14
megahertz of overall network capacity.\188\ For all other emergencies
listed above, the D Block licensee(s) must provide priority access to,
but not preemptive use of, up to 20 percent of the commercial spectrum
capacity (i.e., 1 megahertz in each of the uplink and downlink blocks).
Furthermore, under either scenario, the right to emergency-based
priority access must be limited to the time and geographic scope of the
emergency. To trigger emergency-based priority access, the PSBL will
request, on behalf of the impacted public safety agencies, that the D
Block licensee provide such access. Priority access requests initiated
by the PSBL will cover a 24-hour time period, and must be reinitiated
by the PSBL for each 24-hour time period thereafter that the priority
access is required. In the event that the D Block licensee and the PSBL
do not agree that an emergency has taken place, the PSBL may ask the
Defense Commissioner to resolve the dispute.
---------------------------------------------------------------------------
\187\ To be clear, by ``priority access,'' the Commission mean
that the public safety user would be assigned the next available
channel over a commercial user--i.e., the public safety user would
be placed at the top of the queue--and would not preempt a
commercial call in progress.
\188\ See PSST Comments at iii, 16 n.28, 33 (explaining that
``it is reasonable to limit priority access for public safety to 70%
of overall network capacity of the SWBN, or just 40% of the D Block
spectrum capacity.''); PSST Reply Comments at ii (``public safety
priority access during emergency situations should be limited to 70%
of total network capacity and that public safety preemption rights
should not exceed 50% of the network capacity.'').
---------------------------------------------------------------------------
88. The Commission expects that the instances under which
emergency-based priority access would be triggered under the definition
the Commission tentatively proposes above will be relatively
infrequent. Moreover, the Commission agrees generally with APCO that
through responsible capacity management that permits public safety user
groups to prioritize their regional and local use of the shared
wireless broadband network, and which is embedded into the network
prior to deployment, it will be possible to provide critical services
using no more than the ten megahertz public safety portion of the
shared wireless broadband network under virtually all but the rarest of
circumstances.\189\ At
[[Page 57768]]
the same time, the Commission proposed approach should continue to
guarantee additional network capacity to meet public safety wireless
broadband needs in the most serious emergencies. The Commission notes,
for example, that both of the circumstances cited by the PSST--the
events of September 11, 2001, and Hurricane Katrina--would have met the
standard the Commission proposes. \190\
---------------------------------------------------------------------------
\189\ See APCO Comments at 28-29. APCO recommended that in
circumstances under which ``sector loading increases and service
contention starts to occur, there [should be] a[n] immediate
transition to a hard partition state'' where commercial and public
safety use of the shared wireless broadband network would revert to
50% of the paired spectrum (i.e., where commercial users accessed
only the ten megahertz of D Block spectrum and public safety users
accessed only the ten megahertz of public safety broadband
spectrum). The only instances in which this ``hard partition'' would
be removed, allowing public safety users priority access some
portion of the commercial D Block spectrum, would be pursuant to
Presidential Order or ``by any other existing means where government
can seize control of commercial assets--a situation that rarely
occurs, and would not be a specific impact to the [National
Broadband Network] any more than any other commercial asset.'' APCO
Comments at 27.
\190\ PSST Comments at 33. See ``Declaration of National
Emergency by Reason of Certain Terrorist Attacks,'' http://www.whitehouse.gov/news/releases/2001/09/20010914-4.html.
---------------------------------------------------------------------------
89. In light of the fact that the Commission expects public safety
use of the priority access mechanism to be infrequent, the Commission
believes it should not require public safety users of priority access
to pay an additional charge to the D Block licensee for such use over
and above the basic monthly service charge discussed elsewhere in this
Third FNPRM. Although the Commission stated in the Second Report and
Order that separate fees for priority access could be specified in the
NSA,\191\ it did so based on a broader definition of priority access
than the one the Commission proposes now. For example, the Second
Report and Order permitted public safety preemption of ongoing
commercial traffic,\192\ which the Commission would no longer allow.
The Commission also proposed more specific criteria for defining
emergencies that would trigger priority access rights and limitations
on the duration of priority access. The Commission therefore seeks
comment on its view that separate fees for priority access should not
be allowed, or whether a separate fee structure would be appropriate to
ensure that the D Block licensee can recover its costs for providing
priority access.
---------------------------------------------------------------------------
\191\ Second Report and Order, 22 FCC Rcd at 15448 ] 450.
\192\ Id. at 15442 ] 428.
---------------------------------------------------------------------------
90. The Commission also expects that the Commission proposed
approach will significantly improve the chances that this proceeding
will succeed in achieving the Commission's goal of making a nationwide,
interoperable, broadband network available to public safety users. The
Commission appreciates that, to be viable, the commercial services
offered on the D Block spectrum must be competitive with other
commercial mobile services. Commercial viability could be adversely
impacted if users of a D Block licensee's commercial services perceive
that their service may be preempted or unavailable at the times when
they most need to use it, while competing providers offer uninterrupted
services. In clarifying the circumstances that would constitute an
emergency, requiring priority access rather than preemption, and
providing that only a portion of the commercial capacity will be
subject to public safety priority access even in emergencies, the
Commission seeks to minimize any diminution of the commercial value of
the D Block spectrum. The Commission tentatively finds that this
approach offers the best opportunity to create a commercially viable
network that can satisfy the demands of public safety users. The
Commission seeks comment on this approach.
91. Commercial Operations in the Public Safety Spectrum on a
Secondary Basis. While the Commission proposes to modify the rules
governing public safety's emergency access to commercial spectrum, the
Commission tentatively concludes that the Commission's rules for
commercial access to public safety spectrum should remain the same,
subject to the Commission's clarification regarding combined/blended
use. As the Commission explains below, the spectrum access permitted
here and the conditions placed on the use of the spectrum are designed
to ensure that any commercial use does not undermine the ``principal
purpose'' of the services provided in this band ``to protect the safety
of life, health, or property,'' as required by Section 337.\193\ And as
the Commission determined in the Second Report and Order, commercial
operations on a secondary, preemptible basis will maximize the
efficient use of the spectrum by permitting full use of the public
safety broadband spectrum.\194\ Further, providing the D Block licensee
with the opportunity to offer commercial services on this spectrum, on
a secondary basis, is an integral part of a viable framework for
enabling the 700 MHz Public/Private Partnership to finance the
construction of a nationwide, interoperable public safety broadband
network.
---------------------------------------------------------------------------
\193\ 47 U.S.C. 337(a)(1), (f)(1)(A).
\194\ Second Report and Order, 22 FCC Rcd at 15437-38, para.
416.
---------------------------------------------------------------------------
(iii) Consistency With Section 337 of the Communications Act
92. Background. Section 337 of the Communications Act, as amended,
required the Commission to allocate, from the 746-806 MHz Band, 24
megahertz for public safety services and 36 megahertz for ``commercial
use to be assigned by competitive bidding pursuant to section 309(j).''
\195\ Some commenters suggest that rules that would permit public
safety use of spectrum allocated for commercial use or commercial use
of public safety spectrum on a secondary basis would violate these
requirements.\196\
---------------------------------------------------------------------------
\195\ 47 U.S.C. 337(a).
\196\ See, e.g., MetroPCS Comments at 14-16.
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93. Discussion. In the Second Report and Order, the Commission
analyzed whether the 700 MHz Public/Private Partnership rules regarding
the use of spectrum by the shared wireless broadband network were
consistent with Section 337.\197\ The Commission found that Section
337(a)(1), requiring 24 megahertz for ``public safety services,'' does
not prohibit us from permitting commercial operations on a secondary
basis to the 10 megahertz of the 700 MHz public safety spectrum to
facilitate the build-out of a public safety network.\198\ The
Commission further found that Section 337(a)(2), which directs us to
allocate 36 megahertz ``for commercial use,'' does not prohibit us from
requiring the D Block licensee to provide public safety users with
priority access to D Block license spectrum in an ``emergency.'' \199\
The Commission continues to find the Commission's analysis of these
issues in the Second Report and Order, persuasive. Further, because the
Commission is not proposing to modify the rules regarding secondary
commercial use of the public safety spectrum, the Commission's
reasoning and conclusions in the Second Report and Order, regarding
such use apply to the Commission's secondary use proposal here as well.
While the Commission does propose to modify public safety access to
commercial spectrum in emergencies, such modifications would only
reduce or clarify the scope of the emergency access. Because the
Commission's conclusion in the Second Report and Order, that such
access was consistent with Section 337 rested in part on a finding that
``emergency access to commercial spectrum would be triggered only in
rare circumstances,'' the Commission finds that the reasoning and
conclusion applies even more strongly to the proposed emergency access
rules. Accordingly, consistent with the Second Report and Order's,
[[Page 57769]]
reasoning and conclusions, the Commission concludes that the
Commission's proposals regarding commercial use of public safety
spectrum on a secondary, preemptible basis and public safety priority
use of commercial spectrum capacity are consistent with the
requirements of Section 337.
---------------------------------------------------------------------------
\197\ See Second Report and Order, 22 FCC Rcd at 15436-43 paras.
412-430.
\198\ See id. at 15437-41 paras. 413-25.
\199\ See id. at 15442 para. 429. The Commission also found that
imposing the 700 MHz Public/Private Partnership condition on the D
Block did not prevent us from auctioning the license and was
therefore consistent with the mandate under Section 337 that the
spectrum be auctioned pursuant to Section 309(j). See id. at 15442-
43 para. 430.
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94. The Commission finds that the Commission's proposal to permit
the D Block licensee to construct and operate the shared wireless
broadband network using the entire 20 megahertz of D Block spectrum and
public safety spectrum as a combined, blended resource is also
consistent with Section 337. The Commission notes that Section
337(a)(1) provides us the authority to allocate 24 megahertz for public
safety services ``according to the terms and conditions established by
the Commission.'' \200\ The Commission has stated previously that
``this phrase * * * afford[s] us broad discretion to impose conditions
on the use of this spectrum to effectuate its optimal use by public
safety * * * .'' \201\ The Commission concludes that permitting a
blended use approach does in fact serve this purpose, given the
Commission's finding above that blended use can provide a more
efficient and effective use of the combined spectrum resource and thus
promote the Commission's ultimate goal of making available an
interoperable broadband network for public safety users nationwide.
Indeed, given the Commission's conclusion that a 700 MHz network
providing for shared use of commercial and public safety spectrum is
itself legally permissible, the Commission finds it unlikely that
Congress intended to preclude an efficient implementation of such
sharing. The Commission emphasizes that, under a blended use approach,
public safety users will still be guaranteed priority access to 10
megahertz of 700 MHz spectrum at all times consistent with the capacity
to which they are entitled under the public safety broadband license.
The blended use approach does not deprive either commercial or public
safety users of the spectrum capacity that Congress directed to be
allocated for their use, and is thus consistent with both the purpose
and text of the statute.
---------------------------------------------------------------------------
\200\ 47 U.S.C. 337(a)(1).
\201\ Second Report and Order, 22 FCC Rcd at 14339 para. 419.
---------------------------------------------------------------------------
b. Technical Requirements of the Shared Wireless Broadband Network
95. Background. In the Second Report and Order, the Commission
found that, to ensure a successful public/private partnership between
the D Block licensee and the Public Safety Broadband Licensee, with a
shared nationwide interoperable broadband network infrastructure that
meets the needs of public safety, the Commission must adopt certain
technical network requirements.\202\ Accordingly, among other
requirements, the Commission mandated that the network incorporate the
following technical specifications:
---------------------------------------------------------------------------
\202\ Second Report and Order, 22 FCC Rcd at 15433 para. 405.
---------------------------------------------------------------------------
Specifications for a broadband technology platform that
provides mobile voice, video, and data capability that is seamlessly
interoperable across agencies, jurisdictions, and geographic areas. The
platform should also include current and evolving state-of-the-art
technologies reasonably made available in the commercial marketplace
with features beneficial to the public safety community (e.g.,
increased bandwidth).
Sufficient signal coverage to ensure reliable operation
throughout the service area consistent with typical public safety
communications systems (i.e., 99.7 percent or better reliability).
Sufficient robustness to meet the reliability and
performance requirements of public safety. To meet this standard,
network specifications must include features such as hardening of
transmission facilities and antenna towers to withstand harsh weather
and disaster conditions, and backup power sufficient to maintain
operations for an extended period of time.
Sufficient capacity to meet the needs of public safety,
particularly during emergency and disaster situations, so that public
safety applications are not degraded (i.e., increased blockage rates
and/or transmission times or reduced data speeds) during periods of
heavy usage. In considering this requirement, the Commission expects
the network to employ spectrum efficient techniques, such as frequency
reuse and sectorized or adaptive antennas.
Security and encryption consistent with state-of-the-art
technologies.\203\
---------------------------------------------------------------------------
\203\ Id.
---------------------------------------------------------------------------
96. The Commission required that the parties determine more
specifically what these technical specifications would be and implement
them through the NSA. In addition, the Commission required that the
parties determine and implement other detailed specifications of the
network that the D Block licensee would construct.\204\ The Commission
determined that allowing the parties to specify details, including the
technologies that would be used, subject to approval by the Commission,
would provide the parties with flexibility to evaluate the cost and
performance of all available solutions while ensuring that the shared
wireless broadband network has all the capabilities and attributes
needed for a public safety broadband network.\205\
---------------------------------------------------------------------------
\204\ Id. at 15434 para. 406.
\205\ Id. at 15426 para. 383.
---------------------------------------------------------------------------
97. In the Second FNPRM, the Commission sought comment on whether
the Commission should clarify or modify any aspect of the technical
network requirements adopted in the Second Report and Order or
otherwise establish with more detail the technical requirements of the
network.\206\ To guide the discussion and enable more focused comment,
the Commission attached as an appendix a possible technical framework
(Technical Appendix) that identified in greater detail potential
technical parameters for the shared wireless broadband network. The
Commission sought detailed comment on the Technical Appendix.
---------------------------------------------------------------------------
\206\ Second FNPRM, 23 FCC Rcd at 8071 para. 61.
---------------------------------------------------------------------------
98. The Commission also sought comment on whether any changes to
requirements were needed to reflect the practical differences between
the architecture of traditional local wireless public safety systems
and the architecture of nationwide commercial broadband network
systems.\207\ Conversely, the Commission sought comment on whether to
require national standardization in the implementation of the network
requirements, and the extent to which national standardization would
help the network to achieve efficiency and economies of scale and
scope.\208\
---------------------------------------------------------------------------
\207\ Second FNPRM, 23 FCC Rcd at 8072 para. 64.
\208\ Second FNPRM, 23 FCC Rcd at 8072 para. 64.
---------------------------------------------------------------------------
99. Further, the Commission sought comments on other specifications
the Commission required of the network, including:
A mechanism to automatically prioritize public safety
communications over commercial uses on a real-time basis and to assign
the highest priority to communications involving safety of life and
property and homeland security consistent with the requirements adopted
in the Second Report and Order;
Operational capabilities consistent with features and
requirements specified by the Public Safety Broadband Licensee that are
typical of current and evolving state-of-the-art public safety systems
(such as connection to the PSTN, push-to-talk, one-to-one and one-to-
many communications, etc.);
[[Page 57770]]
Operational control of the network by the Public Safety
Broadband Licensee to the extent necessary to ensure public safety
requirements are met; and
A requirement to make available at least one handset that
would be suitable for public safety use and include an integrated
satellite solution, rendering the handset capable of operating both on
the 700 MHz public safety spectrum and on satellite frequencies.\209\
---------------------------------------------------------------------------
\209\ Second Report and Order,, 22 FCC Rcd. at 15433-34 para.
405.
---------------------------------------------------------------------------
100. The Commission sought comment on whether the Commission should
itself establish, in a detailed and comprehensive fashion, the
technical obligations of the D Block licensee with regard to the
network, and if so, what specifications it should adopt. The Commission
sought comment on whether the technical framework set forth in the
Technical Appendix could, following comment on its specific components,
help establish an appropriate set of requirements for the shared
wireless broadband network.\210\ The Commission also sought comment on
a number of particular technical issues.\211\
---------------------------------------------------------------------------
\210\ Second FNPRM, 23 FCC Rcd at 8074 para. 70.
\211\ Second FNPRM, 23 FCC Rcd at 8074-79 paras. 71-83.
---------------------------------------------------------------------------
101. The majority of commenters argue that the Commission should
provide more specificity regarding technical network requirements.
APCO, for example, recommends that ``all steps be taken to either pre-
define or eliminate as many negotiating points of the NSA as
possible.'' \212\ AT&T states that the Commission must ``clarify the
key requirements for the public safety network and the rights and
responsibilities for all parties to the Public/Private Partnership * *
*''and that making such clarifications will ``inform commercial
entities about potential risks, benefits, and required amounts of
financial investment, which will enable commercial entities to evaluate
the commercial viability of the Public/Private Partnership.'' \213\ The
PSST agrees that ``a substantially more detailed list of technical
specifications should be developed in advance of the D Block re-
auction.'' \214\ It states that, on balance, ``the benefit of greater
certainty for prospective bidders outweighs the natural inclination of
parties to maintain maximum flexibility during a negotiation process,
particularly one of such complexity and economic significance.'' \215\
The PSST provides proposed rules that include detailed technical
requirements for the shared wireless broadband network.\216\
---------------------------------------------------------------------------
\212\ APCO Comments at 26.
\213\ AT&T Comments at 9.
\214\ PSST Comments at 29.
\215\ PSST Comments at 29.
\216\ Addendum to PSST Comments.
---------------------------------------------------------------------------
102. Discussion. The Commission notes that several technical
issues, such as network coverage, prioritization of services, and
operational control of the network are addressed elsewhere in this
notice. In this section, the Commission specifically addresses
requirements pertaining to: the broadband technology platform;
interoperability; availability, robustness and hardening of the
network; capacity, throughput and quality of service; security and
encryption; power limits/power flux density limits/related notification
and coordination requirements; and the satellite-capable handset
requirement.
103. Based on the record developed in this proceeding, the
Commission tentatively concludes that the Commission should establish
more detailed technical requirements for the shared wireless broadband
network. The Commission tentatively concludes that this approach will
provide additional certainty regarding the obligations of the D Block
licensee(s) and the costs of the shared wireless broadband network. The
Commission anticipates that specifying the technical requirements as
completely as possible at this time, and reducing the issues that will
be left to post auction negotiation, will provide greater assurance to
potential bidders regarding the commercial viability of the shared
wireless broadband network while ensuring that the network meets public
safety's needs.\217\ Thus, the Commission tentatively concludes that
the detailed technical requirements the Commission proposes to adopt as
described herein would best serve the Commission's goal of making a
broadband, interoperable network available on a nationwide basis to
public safety entities. The Commission seeks comment on these tentative
conclusions.
---------------------------------------------------------------------------
\217\ The Commission has appended an NSA term sheet, which
provides a summary of major terms that the parties must include in
their agreement(s). See, supra, Appendix D.
---------------------------------------------------------------------------
104. As noted earlier, a number of commercial interests assert that
the costs associated with deploying a shared network designed to public
safety specifications would exceed those of typical commercial networks
and would directly impact the commercial viability of the network.\218\
They maintain that simply building another commercial grade network
will be inadequate to meet public safety needs, and that it is
imperative that the wireless broadband network be designed to meet the
performance requirements of public safety and to provide the necessary
features and applications so that public safety can effectively
discharge their duties. Many of the commenters from the public safety
community argue that public safety's requirements must not be
diminished in order to make the shared wireless broadband network
commercially viable. Motorola suggests that it is not possible to
balance the interests of public safety and commercial service providers
and that additional funding from the Federal government is required to
make the combined network successful.\219\ APCO supports the
development of a national, interoperable, broadband network that is
designed, maintained, and operated to meet the requirements of public
safety, but recognizes that some compromises regarding public safety
requirements may be necessary to attract a private sector partner
through the D Block auction.\220\ In developing the Commission proposed
technical rules, the Commission has attempted to balance public
safety's requirements with the capabilities that may be commercially
viable based on the record in this proceeding. The proposed technical
requirements take into account the detailed technical requirements
proposed by the PSST and comments filed in response to the Second FNPRM
and Technical Appendix.
---------------------------------------------------------------------------
\218\ AT&T Comments at 2; MetroPCS Comments at 5; Motorola
Comments at 7-9; Sprint Nextel Comments at 13; VerizonWireless
Comments at 3.
\219\ Motorola Comments at 7.
\220\ APCO Comments at 6.
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105. Broadband Technology Platform. Many commenters argue that the
Commission should adopt guidelines specifying that the joint network
must be built with state-of-the-art, commercially available, standards-
based technology.\221\ For example, AT&T argues that the baseline
guidelines should be sufficiently flexible to permit the use of
existing commercial technology, where such components meet public
safety's capability requirements.\222\ The Commission agrees with
commenters that maximizing the use of commercially available technology
can substantially increase the speed and decrease the cost of
deployment of the network.\223\ In
[[Page 57771]]
addition, it is also likely to significantly reduce the costs of end
user devices for first responders. Moreover, by permitting the
leveraging of existing commercial network infrastructure, the shared
wireless broadband network will be able to be built out more
efficiently, thus making participation in the Partnership more
attractive to commercial entities.\224\ Thus, based on these
considerations, the Commission tentatively concludes that the network
should utilize standardized commercial technologies. The Commission
further proposes that the broadband platform must be IP-based and
should also include current and evolving state-of-the-art technologies
reasonably made available in the commercial marketplace with features
beneficial to the public safety community.
---------------------------------------------------------------------------
\221\ See PSST Comments, Attachment C at 2; AT&T Reply Comments
at 18 (citing Ericsson Comments at 9-15; Interisle Comments at 11;
Motorola Comments at 7; NATOA Comments at 9 and Technical Report
Attachment; Northrop Grumman Comments at 6-7; Qualcomm Comments at
8-10; Verizon Wireless Comments at 16-18; Wireless RERC Comments at
7-8).
\222\ AT&T Reply Comments at 18.
\223\ AT&T Reply Comments at 18; AT&T Comments at 10; Ericsson
Comments at 14-15; Verizon Wireless Comments at 16-18; AT&T Reply
Comments at 18.
\224\ AT&T Reply Comments at 18-19.
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106. The Commission tentatively concludes that the shared wireless
broadband network must provide for fixed and mobile voice, video, and
data capability. Some parties indicate that certain applications, such
as fixed video surveillance and fixed point-to-point and point-to-
multipoint services, could use substantial capacity in the network and
should use other spectrum. Alcatel-Lucent notes, for example, that
``because video is likely the public safety application with the
highest data rate requirements, care must be taken to ensure that
support of video across the service area provide public safety with
mission-critical operational capabilities without compromising the
economic viability of the public/private partnership.'' \225\ Stagg
Newman argues that applications such as streaming video could consume
much of the capacity of a network and would have a dramatic effect on
the cost of the network.\226\ Other commenters, such as Tyco
Electronics, argue that the Commission should ``afford public safety
agencies maximum flexibility in the use of D Block Spectrum.'' \227\
The Commission appreciates the concern that certain applications could
have a significant impact on network design and costs. However, the
Commission finds that any effort to prohibit certain types of
applications would be counterproductive to encouraging development and
use of the shared wireless broadband network. The Commission notes that
emerging networks and technologies are capable of accommodating a wide
variety of services. The Commission expects that the operators and
users of the shared wireless broadband network will make reasonable
judgments as to the applications that will run on the network and will
adapt the network to meet evolving requirements. The Commission invites
comment on this tentative conclusion.
---------------------------------------------------------------------------
\225\ ALU Comments at 6.
\226\ See, e.g., Testimony of Stagg Newman, Public Hearing on
Public Safety Interoperable Communications--The 700 MHz Band
Proceeding, Federal Communications Commission, July 30, 2008, at 2,
http://www.fcc.gov/realaudio/presentations/2008/073008/newman.pdf.
(estimating that increase in cell edge speed from 300 kbps/75 kbps
downlink/uplink to 1.2 Mbps/512 kbps downlink/uplink, combined with
a requirement of inbuilding coverage, would require 2 to 4 times the
number of cellsites, at a construction cost of $200,000 to $500,000
and annual operating cost of $50,000 to $100,000 for each cellsite).
\227\ Tyco Comments at 7.
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107. The Commission notes that a variety of commenters--including
public safety and commercial entities--assert that the D Block licensee
should take the lead role in choosing the underlying technology of the
network, in cooperation with the Public Safety Broadband Licensee and
according to minimum specifications set by the Commission.\228\ The
Commission disagrees with commenters who argue that the Commission
should make a specific choice of technology. In view of these
commenters' differing opinions regarding the most appropriate
technology,\229\ there does not appear to be a basis for a
determination regarding the viability of any particular technology for
shared network at this time. Thus, the Commission tentatively concludes
that the public interest would be better served by allowing certain
flexibility to parties interested in the D Block to make a
determination regarding the technology for the network.
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\228\ AT&T Reply Comments at 18 (citing Leap Wireless Comments
at 12-13; NPSTC Comments at 39; NTCH Comments at 7; RPC Comments at
13-14; Comments of Wirefree Partners III, LLC at 14-15).
\229\ See Comcentric Comments at 5; Qualcomm Comments at 8; MSV
Comments at 21; MSUA Comments at 22; Space Data Corp. Comments at 8-
9; SDR Comments at 23-24; Ericsson Comments at 10, 13-14.
---------------------------------------------------------------------------
108. The Commission tentatively concludes, however, that the shared
wireless broadband network must use a common air interface to ensure
nationwide interoperability as discussed elsewhere in this notice. The
Commission proposes that the air interface be selected in a manner that
provides interested parties as much flexibility and control as possible
in the choice, and with the ability to bid on a license with the
confidence regarding what technology will be applicable. The Commission
notes that the record supports a conclusion that two next generation
technologies in particular, WiMAX and LTE, provide the most likely
options to provide the necessary broadband level of wireless service to
public safety entities.\230\ In light of these goals and observations,
the Commission proposes to adopt two approaches with regard to
determining the common broadband technology, tailored to whether the
Commission assigns a nationwide licensee or regional licensees. In the
event of a nationwide licensee, because there is no concern that
different entities will seek to adopt different broadband radio access
network technologies, the Commission proposes to allow the D Block
license winner complete authority and discretion to choose its
broadband technology after winning the license. In the event of
regional licensees, however, the Commission finds that permitting them
to choose their own technology would run an unacceptable risk of the
licensees choosing different technologies, or being otherwise unable to
agree on a technology. Further, the Commission recognizes that it would
be problematic for the Commission itself to establish a common
technology post-auction, as parties will likely consider the broadband
technology a critical element of their business plans and an important
factor in determining whether to bid for a license. Accordingly, to
enable the selection of a single broadband technology standard that
will apply to all regional licensees, the Commission proposes to use
the auctions process itself. More specifically, the Commission
tentatively concludes that the Commission will offer three alternative
sets of licenses: regional licenses conditioned on the use of WiMAX
technology and regional licenses conditioned on the use of LTE
technology, as well as the third set of a single nationwide license.
The bidder(s) for the set covering the greatest aggregate population at
the close of bidding (with ties between sets broken by which of the
tied sets received the highest gross bids in the aggregate) will become
the provisionally winning bidder(s) and determine whether the
Commission will grant the nationwide license, the WiMAX PSR licenses,
or the LTE PSR licenses, subject to post-bidding application of a
minimum sale requirement and all other conditions of the licensing
process established by Commission rules, including those specific to
the D Block. The Commission
[[Page 57772]]
discusses this process in greater detail elsewhere in this Third FNPRM.
The Commission seeks comment on the Commission's proposed
determinations regarding the radio access technology platform for the
shared network.
---------------------------------------------------------------------------
\230\ See, e.g., InterIsle Comments at 2 (``there is much to be
gained by leveraging CMRS technology on behalf of Public Safety
users. Technologies such as WiMAX and especially LTE are very
promising * * * .'').
---------------------------------------------------------------------------
109. The Commission is cognizant that wireless broadband networks
have already been deployed in the 700 MHz public safety spectrum in
certain areas. The Commission does not wish to disrupt existing
operations that represent substantial investments and are working well
to serve local public needs. The Commission invites comment as to what
steps, if any, should be taken with regard to such systems that may
ultimately not be compatible with the nationwide shared wireless
broadband network technology. For example, should the Commission
require use or availability of multi-band radios that could be
available to public safety first responders that may need to come into
these areas in times of emergency? If so, how could this be implemented
and in what timeframe?
110. Interoperability. The Commission tentatively concludes that
that the network must provide voice, video, and data capabilities that
are interoperable across agencies, jurisdictions, and geographic areas.
By interoperable, the Commission means that the technology, equipment,
applications, and frequencies employed will allow all participating
public safety entities, whether on the same network or on different
regional 700 MHz public safety broadband networks, to communicate with
one another regardless of whether they are communicating from their
home networks or have roamed on to another regional network. To achieve
this level of interoperability, the Commission tentatively concludes
that, as discussed in detail above, the shared wireless broadband
network must use a common air interface.\231\ The Commission takes note
that certain parties assert that a nationwide common air interface is
not necessary because most interoperability is conducted locally.
However, in times of a crisis public safety agencies often provide
assistance far beyond their typical areas of operation. The Commission
recognizes that one solution is for the local public safety agencies to
supply compatible equipment to public safety agencies that are coming
from another area to provide assistance. Such an approach has
significant drawbacks because it requires a significant supply of extra
equipment at additional expense. The Commission also notes arguments
that multiple air interfaces could be accommodated through the use of
handsets that can operate over multiple broadband air-interfaces or
through use of software defined radios, particularly at base stations.
The Commission is concerned, however, that such equipment comes at
additional expense that would be borne by all public safety users. It
is also not clear from the record when handsets able to work over all
the broadband platforms chosen by the various licensees would be
available. Further, if these multi-mode handsets were produced solely
to serve the public safety broadband networks, the Public Safety
Broadband Licensee would have less opportunity to equip first
responders with off-the-shelf handsets that could be obtained at
significantly less cost than customized public safety user devices. The
Commission solicits comment on the Commission's tentative conclusion
that selection of a single air interface is necessary to ensure
nationwide interoperability.
---------------------------------------------------------------------------
\231\ See, e.g., NYPD Comments at 10 (``Regional
interoperability can be achieved by adapting a common air interface
and operating on a common frequency band.'').
---------------------------------------------------------------------------
111. As discussed elsewhere, to achieve interoperability with
respect to the geographic area option of PSRs, the Commission
tentatively concludes that the Commission will offer at auction
alternative sets of PSRs, each conditioned on the licensees' use of a
particular technology platform. The Commission further tentatively
concludes that, in the event that there are multiple D Block licensees,
each regional D Block license winner should be required to enter into
arrangements both with the other D Block license winners and with the
Public Safety Broadband Licensee as necessary to ensure
interoperability between networks. The Commission proposes that such
arrangements provide, at a minimum, that each D Block licensee will
provide the ability to roam on its network to public safety users of
all other 700 MHz public safety broadband networks.\232\ The Commission
further proposes that the NSA of each regional D Block licensee must
specify that the licensee will provide public safety users of all other
700 MHz public safety regional networks with the ability to roam on its
network, and should specify the relevant terms and conditions under
which roaming is provided. However, to ensure that the broadband
network supports public safety interoperability, the Commission
proposes that D Block licensees should not be permitted to assess
special roaming charges (over and above service fees charged for in-
region use) in cases where public safety users require roaming for
mutual aid or emergencies.
---------------------------------------------------------------------------
\232\ The Commission does not, however, propose to require that
such roaming arrangements extend to commercial services.
---------------------------------------------------------------------------
112. A number of commenters suggest that further clarity is needed
with regard to the role of the shared wireless broadband network
relative to interoperability with existing public safety networks. For
example, some parties question whether the shared network was to be
used for ensuring interoperability with existing legacy public safety
voice systems or just for users of this spectrum. APCO notes that,
while the shared network will have capabilities for voice, data and
video systems, existing public safety systems will be used well into
the future.\233\ The Commission observes that considerable work has
been done and is under way to ensure interoperability among existing
public safety communications systems.
---------------------------------------------------------------------------
\233\ APCO Comments at 10.
---------------------------------------------------------------------------
113. The Commission expects that the shared wireless broadband
network will ensure interoperability in a variety of ways. All public
safety users that opt to use the shared wireless broadband network will
have the capability to be interoperable because they will be using a
common air interface. As a result, radios could be taken from one
jurisdiction to another, such as occurs for disaster relief, and will
have the ability to communicate with other public safety users in that
area. Moreover, multi-band radios could be developed, although at some
cost premium, that are capable of operating on both the shared wireless
broadband network and other public safety frequency bands.
114. The shared wireless broadband network could also be integrated
with other public safety communications systems via gateways and
bridges, as already occurs for existing public safety systems operating
across multiple frequency bands. In this regard, the Commission
believes it is important that the Commission ensures that the shared
wireless broadband network have the technical capability to support
interconnection with public safety operations in public safety
frequency bands other than the 700 MHz public safety spectrum broadband
allocation.\234\ Specifically, the Commission means to provide public
safety with the opportunity to interconnect existing voice-based public
safety communications systems operating in VHF, UHF, and
[[Page 57773]]
narrowband 700 MHz and 800 MHz bands with the shared network(s). The
Commission therefore proposes to require the D Block licensee(s) to
publish IP-based specifications enabling public safety operations in
other frequency bands to access the shared broadband network(s) via
bridges and/or gateways. The Commission further tentatively concludes
to require the Upper 700 MHz D Block licensee to offer gateway-based
access to the shared network(s) for a standard charge per user (meaning
per public safety officer/individual), and propose that a fee of $7.50
per month may serve as an appropriate amount.\235\ As seen in Table 1,
the Commission bases this proposed fee on the Commission's survey of
monthly rates for services approximating land mobile radio--including
``walkie-talkie'' and push-to-talk service--that are add-ons to basic
monthly service plans and offered under standard government contracts
to public safety users. The Commission also proposes that public safety
users themselves bear the costs of the bridges and gateways, including
installation and maintenance costs, because such equipment would
essentially serve as an extension of existing public safety systems.
Parties who suggest that the costs of gateways or bridges should be
shared between the D Block licensee and the Public Safety Broadband
Licensee should provide specific information as to the costs involved,
rationale for sharing these costs, and formula for sharing the costs.
The Commission invites comment on these proposals.
---------------------------------------------------------------------------
\234\ The Commission intends to include voice service presently
conducted on VHF, UHF.
\235\ Any gateway-based access service necessarily assumes a
public safety network in place providing radio coverage on the
desired frequencies in the area of operation.
Table 1--Survey: Service Rates for Walkie Talkie/Push-To-Talk Service
----------------------------------------------------------------------------------------------------------------
Monthly
Contracting entity/authority Wireless operator Service plan service
rate
----------------------------------------------------------------------------------------------------------------
State of Florida....................... Verizon Wireless.......... Basic Push to Talk (Florida $10.00
Plan). \236\
State of New York...................... Verizon Wireless.......... America's Choice for Business 8.10 \237\
Plan--Push to Talk Option.
Sprint Nextel............. Unlimited Nextel Group Walkie- 7.50 \238\
Talkie.
----------------------------------------------------------------------------------------------------------------
115. The Commission recognizes that interoperability may not be
fully achievable without attention to the use of compatible
applications. As discussed elsewhere, the Public Safety Broadband
Licensee is responsible for approving public safety applications and
end user devices. Accordingly, the Commission proposes to clarify that
in exercising this responsibility, the Public Safety Broadband Licensee
must ensure that any applications and end users devices it approves
must be consistent with the interoperability requirements contained in
the Commission's rules and in accordance with the NSA. The Commission
invites comment as to the merits of this approach and any other methods
to achieve interoperability among user applications. In particular, to
promote interoperability, including interoperability with legacy voice
systems, the Commission proposes to require the Shared Wireless
Broadband Network to support a Voice over Internet Protocol (VoIP)
capability to complement existing public safety mission critical voice
communication systems.
---------------------------------------------------------------------------
\236\ State of Florida, Department of Management Services,
Wireless Voice Services, State Term Contract 725-330-05-1,
Amendment 4, available at http://dms.myflorida.com/business_operations/state_contracts_agreements_and_price_lists/state_term_contracts/wireless_voice_services/contractors_verizon_wireless (last viewed on Sept. 11, 2008). The pla includes unlimited
one to one and group Push to Talk calling.
\237\ State of New York, Office of General Services, Verizon
Wireless Contract Number PS61217 (effective August 15, 2007),
available at http://www.ogs.state.ny.us/purchase/prices/7700802459prices1207.pdf (last viewed on Sept 11, 2008). This rate
is available as an add on option for subscribers of the basic voice
plan offered by Verizon for $32.99 per month.
\238\ Id. This price reflects a 25 percent discount off the
standard retail rate of $10.00 per month. The Commission notes that
Sprint Nextel also offers a ``Basic 200 plan'' for $5 per month.
---------------------------------------------------------------------------
116. If there are multiple regional D Block licensees, it may be
necessary to establish a mechanism to enable public safety to
coordinate with and establish common approaches among these licensees
with regard to interconnection standards, compatibility with common
applications, authentication, etc. The Commission invites comment on
whether the Commission needs to take any specific actions in this
regard or it can be left to the various licensees.
117. Availability, Robustness and Hardening. Several commenters
offer specific proposals regarding the robustness and hardening
requirements for the network.\239\ After reviewing the record, the
Commission has made a number of changes to the proposals in the
Technical Appendix that are reflected in the proposed rules. The
Commission proposes to require 99.6 percent network availability for
all terrestrial elements of operation, as suggested by U.S. Cellular.
The D Block licensee(s) shall use commercially reasonable efforts to
provide network availability above this requirement, with the target of
99.9 percent network availability. The methods of measurement are to be
defined in the Network Sharing Agreement. Sites designated as
``critical'' will be required to have battery backup power of 8 hours,
and shall have generators with a fuel supply sufficient to operate the
generators for at least 48 hours. The D Block licensee(s) will make
reasonable efforts to provide a fuel supply at ``critical'' sites above
this requirement sufficient for a minimum of 5 days. The designation of
a site as ``critical'' shall be a joint decision by the D Block
licensee(s) and the Public Safety Broadband Licensee, in consultation
with the relevant community. The designation of sites as ``critical''
shall not be required to cover more than 35 percent of the shared
wireless broadband network sites for the D Block license(s); however,
the D Block licensee(s) shall use commercially reasonable efforts to
designate as ``critical'' additional sites requested by the Public
Safety Broadband Licensee, up to 50 percent of all the licensee's
sites. The Commission requests comments on these proposals.
---------------------------------------------------------------------------
\239\ See, e.g., Televate Comments at 10, PSST Comments Appendix
C at 3, Peha Comments at 13.
---------------------------------------------------------------------------
118. The Commission also finds considerable support in the record
for permitting reliance on non-terrestrial options to ensure
reliability. The PSST, for example, suggests that reliability,
availability, and hardening expectations could be ``achieved through a
variety of means [including] backup reliance on satellite coverage.''
\240\ SIA, MSV, Inmarsat, and MSUA all encourage the use of satellite
services as part of the nationwide network. Several other commenters
also support the use of satellite or similar services to complement the
overall network.\241\
[[Page 57774]]
MSV in particular proposes that the Commission ``offer the D Block
licensee the option of providing satellite service in return for
greater flexibility in meeting certain license requirements.'' \242\
These commenters argue that non-terrestrial services can provide
critical redundancy to a terrestrial system, increasing the reliability
and robustness of the network.\243\ MSV states, for example, that
``disasters that impair or destroy terrestrial wireless networks either
directly or by disabling the power grid are extremely unlikely to have
any adverse impact on satellite networks.'' \244\
---------------------------------------------------------------------------
\240\ PSST Comments, Attach. C at 3. See also PSST Comments at
34 n.72.
\241\ See Washington Comments at 1; Mississippi Comments at 1;
Comcentric Comments at 4; Wirefree Comments at 15. Space Data
advocated using their ``near space,'' ``balloon-borne'' network of
transceivers that can reach 99.3% of the population less expensively
than construction a terrestrial network with similar reach. Space
Data Comments at 1-3, 7. The SDR Forum notes that cognitive radios
could be used as ``an enabling technology'' to help integrate
satellite and terrestrial services. SDR Forum at 20-21, 23.
\242\ MSV Comments at i-ii.
\243\ See, e.g. MSV Comments at 21.
\244\ MSV Comments at 9-10.
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119. The Commission agrees with commenters that non-terrestrial
capabilities can serve the interests of public safety by increasing the
survivability of the system. Although the Commission does not expect
that non-terrestrial service can fully substitute for terrestrial
network services, the Commission finds that imposing hardening, and
robustness requirements on all sites of the network would jeopardize
the economic viability of the network. Accordingly, the Commission
proposes to permit the D Block licensee(s) and the Public Safety
Licensee to agree on other methods to improve network resiliency in
lieu of designating critical cell sites. These might include deployment
of mobile assets or the use of satellite facilities. Parties are
invited to comment on this proposal. The Commission also seeks comment
on whether additional satellite capability would further enhance the
nationwide shared wireless broadband network and whether it would serve
the public interest to provide additional flexibility to a D Block
licensee in meeting its licensing obligations if it integrates a
satellite component or other non-terrestrial technology with the shared
wireless broadband network.
120. Capacity, Throughput, and Quality of Service. A number of
parties note that an analysis of the economic viability of the shared
wireless broadband network cannot be made without addressing certain
key technical parameters such as edge of cell data rates and data rates
for indoor coverage.\245\ The Commission proposed rules address these
and other points raised by commenters.
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\245\ See ALU Comments at 5 recommending: (1) A minimum cell
edge data rate of 256 Kbps on the forward link (base to mobile), and
128 Kbps on the reverse link (mobile to base); (2) a link budget
supporting 95% (area) coverage reliability corresponding to 90%
(edge contour reliability; and (3) a median throughput per
transceiver of 1 Mbps downstream and 600 Kbps upstream over 50% of
the service area) See also, Stagg Newman Comments, attached White
Paper ``750 MHz RF Coverage Design for the State of North
Carolina'', pp 19-20, proposing 1.0-2.0 Mbps forward link and 450-
750 kbps return link (avg.) over 90% of the coverage area and 300
kbps forward link and 50 kbps reverse link at the cell edge covering
85% of the population of North Carolina; See also Public Safety
Spectrum Trust Comments, attachment C ``Shared Wireless Broadband
Network Technical Analysis'' Table 1-A proposing 1000 kbps forward
link and 256 kbps reverse link for dense urban and urban
morphologies, 512 kbps forward link and 128 kbps reverse link for
suburban and rural morphologies, and 128 kbps forward link and 64
kbps reverse link for highways; See also, U.S. Cellular ex parte of
August 29, 2008, proposing to revise these values to 256 kbps in
both directions in urban environments, 128 kbps in both directions
for suburban and rural areas, and 64 kbps in both directions on
highways, under conditions of 70% loading.
---------------------------------------------------------------------------
121. The Commission proposes that the shared wireless broadband
network typically provide data speeds of at least 1 Mbps in the
downlink direction and 600 Kbps in the uplink direction. Irrespective
of this requirement, the D Block licensee(s) must provide public safety
users with data speeds that are at least as fast as the best data
speeds provided to commercial users of the shared wireless broadband
network. The Commission also proposes that, at the edge of coverage,
the shared wireless broadband network shall provide for data rates of a
minimum of 256 kbps directions in urban environments, 128 kbps for
suburban and rural areas, and 64 kbps on highways, all under 70 percent
loading conditions, in both the downlink and uplink directions as
recommended by U.S. Cellular. The Commission recognizes that these data
speeds may appear to be relatively slow, but note that they generally
ensure that basic service is available even at the edge of coverage
under relatively high traffic conditions. For purposes of this rule,
the Commission proposes that dense urban will encompass areas where the
population per square mile is 15,000 people or greater; urban 2,500-
14,999, suburban 200-2499, and rural 0-199, as suggested by the
PSST.\246\ The Commission also proposes these data speeds serve only as
design objectives. It would not be practical or appropriate to apply
these data rates as the minimum for any given device at any particular
time or location. The Commission appreciates the need to address
planning factors for indoor coverage. The Commission is proposing
propagation factors in the rules that are to be taken into account in
designing the shared wireless broadband network relative to indoor
coverage for VoIP service. The Commission finds that it is appropriate
to focus only on VoIP because these types of communications occur in
real time. Nonetheless, the Commission find that designing the system
for indoor VoIP coverage may well serve to ensure the availability of
data service in buildings as well. The Commission also proposes to
address service to vehicles moving at speeds of up to 100 mph by
planning for coverage based on a 1.5 Watt EIRP mobile vehicle mounted
radios.\247\ The Commission invites comment on these specific proposals
---------------------------------------------------------------------------
\246\ Public Safety Spectrum Trust Comments, Attachment C
``Shared Wireless Broadband Network Technical Analysis'' Table 1-B.
\247\ See Stagg Newman Comments, attached White Paper ``750 MHz
RF Coverage Design for the State of North Carolina'', pp 19-20,
proposing an assumed 1.5 Watt EIRP vehicle mounted radio for public
safety vehicles.
---------------------------------------------------------------------------
122. The Commission is not proposing any specific requirements
relative to overall capacity of the shared wireless broadband
network.\248\ The overall capacity of a network is very difficult to
define because it can depend on many variables such as the level of use
at particular locations, how use varies over time, the types of
applications that are used, etc. Moreover, it is not feasible to
establish rules that would address the various capacity requirements
throughout the nation. For example, the capacity required in a dense
urban area where public safety has implemented a wide variety of
broadband applications would be much greater than in a rural area where
only minimal broadband applications might be used. The Commission also
notes that none of the commenters specifically addressed overall
capacity of the wireless broadband network other than in the context of
specifications for data speeds or to suggest that capacity should be
negotiated under the Network Sharing Agreement The Commission agree
that the capacity of the shared wireless broadband network would be
best addressed through negotiation under the Network Sharing Agreement.
The Commission does not anticipate that this will create any
significant uncertainty for prospective D Block licensee(s) because the
Commission
[[Page 57775]]
expects the capacity requirements will generally follow the patterns of
commercial networks. The Commission solicits comment on this analysis.
The Commission is also proposing to require that the Network Sharing
Agreement include a process for demand forecasting and that the D Block
licensee(s) deliver to the Public Safety Broadband Licensee monthly
capacity utilization reports as discussed below.
---------------------------------------------------------------------------
\248\ Elsewhere in this Third FNPRM, however, the Commission
requires the D Block licensee(s) to ensure public safety users'
access to 10 megahertz of spectrum at all times and 12 to 14
megahertz of spectrum in the case of emergencies. See supra
discussion of Spectrum Use Issues.
---------------------------------------------------------------------------
123. The Commission also proposes a number of requirements to
ensure quality of service for public safety. The Commission notes that
the Department of Homeland Security is working on developing wireless
priority service for public safety communications. While the Commission
encourages the further development and implementation of wireless
priority service for public safety, the Commission will not require
implementation before appropriate standards are developed and
appropriate hardware and software is available. As discussed elsewhere,
the Commission proposes to require the Public Safety Broadband Licensee
to establish access priority and service levels, and authenticate and
authorize public safety users. The Public Safety Broadband Licensee may
accomplish this under the Network Sharing Agreement by establishing its
own system that would accomplish these functions or defining parameters
that are compatible with commercial technology and can be easily
implemented by the D Block licensee(s). This function must be capable
of rapid updates to meet public safety's needs. The Commission asks for
commenters' views on these proposals.
124. The Commission notes that U.S. Cellular proposed a number of
amendments to the PSST's proposed technical requirements whereby the
Public Safety Broadband Licensee would establish a system that would be
integrated with the shared wireless broadband network to provide a
nationwide set of public safety applications, automatically
authenticate public safety users, and assign the required priority or
quality of service to public safety communications.\249\ The
implication of this proposal is that it would serve to ensure overall
quality of service. It is not clear precisely how this proposal might
be implemented. The Commission invites comment on U.S. Cellular's
proposal and whether it is viable for both public safety and the
prospective D Block licensee(s). The Commission also invites comment on
potential costs of this approach and how it might be funded.
---------------------------------------------------------------------------
\249\ U.S. Cellular ex parte of August 29, 2008, proposing
various amendments to the PSST proposed technical requirements.
---------------------------------------------------------------------------
125. Security and Encryption. The Commission tentatively concludes
that the Commission should require the shared broadband network to
maintain security and encryption features consistent with commercial
best practices and with capabilities described in the Technical
Appendix and the Second Report and Order.\250\ The Commission
recognizes that a number of commenters propose more specific
requirements. The Wireless Rehabilitation Engineering Research Center
for Wireless Technologies, for example, recommends the use of open
access networks with built-in default encryption, to reduce potential
security risks.\251\ Cook Consulting recommends using ``whitelisting''
protocol or encryption to protect the network.\252\ Region 33 states
that the network should have the same stringent security and encryption
requirements as existing and future state and Federal databases.\253\
The PSST and NPSTC propose a set of detailed security
requirements.\254\ Other parties, however, argue that the Commission
should maintain a more flexible approach. Leap Wireless states there
should be no security requirements beyond what's required for
nationwide commercial CMRS networks.\255\ Ericsson suggests that
security measures beyond those already provided by commercial networks
should be negotiated between the D Block licensee and the PSBL and
detailed in the NSA.\256\ Sprint Nextel states that network security
and encryption should be ``consistent with state-of the-art
technologies.'' \257\ In view of the divergence of opinions regarding
the need for more specific security and encryption requirements, and on
the appropriate requirements to adopt, the Commission tentatively
concludes that the public interest would be better served by
maintaining flexibility similar to what the Commission adopted in the
Second Report and Order. Specifically the Commission proposes to
require the D Block licensee(s) to provide security and encryption
consistent with commercial best practices. Further, the Commission
proposes to require that the D Block licensee(s) shall: (1) Comply with
U.S. Federal government standards, guidelines and models that are
commercial best practices for wireless broadband networks; (2)
implement controls to ensure that public safety priority and secure
network access are limited to authorized public safety users and
devices, and utilize an open standard protocol for authentication; and
(3) allow for public safety network authentication, authorization,
automatic logoff, transmission secrecy and integrity, audit control
capabilities, and other unique attributes.
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\250\ See Second FNPRM, 23 FCC Rcd at 8131; Second Report and
Order, 22 FCC Rcd at 15434 para. 405.
\251\ Wireless RERC Comments at 15.
\252\ Peter G. Cook Consultancy, Inc., Comments at 7.
\253\ Region 33 Comments at 10.
\254\ PSST Comments Attachment C, at 8; NPSTC Comments at 55.
\255\ Leap Wireless Comments at 12.
\256\ Ericsson Comments at 22-23.
\257\ Comments of Sprint Nextel Corporation at 11.
---------------------------------------------------------------------------
126. Power Limits/Power Flux Density Limits/Related Notification
and Coordination Requirements. In the Second FNPRM, the Commission
addressed the discrepancy between the text of the Second Report and
Order, and the applicable rules of the Second Report and Order. The
text indicated that the Commission would not adopt any power flux
density (PFD) limit requirement in the public safety broadband segment,
based on the limited record received on this issue.\258\ However, the
applicable rules require the Public Safety Broadband Licensee to meet a
PFD limit when operating base stations at power levels above 1 kW
ERP.\259\ In light of this discrepancy, the Commission sought comment
on whether to retain this PFD requirement for the public safety
broadband spectrum.\260\ The Commission also noted that Verizon
Wireless filed a petition for reconsideration of the First Report and
Order with regard to certain of the notification and coordination
obligations placed on commercial 700 MHz licensees.\261\ In light of
this petition, the Commission sought comment on whether to apply any or
all of Verizon's proposed rule changes to the public safety broadband
spectrum.
---------------------------------------------------------------------------
\258\ See id., 22 FCC Rcd at 15417 para. 358.
\259\ See 47 CFR 90.542(a)(5), (b).
\260\ This requirement had initially been imposed on Upper 700
MHz C and D Block licensees to protect public safety narrowband
licensees from interference.
\261\ Petition for Reconsideration of Verizon Wireless, WT
Docket No. 06-150 (filed June 14, 2007) (Verizon Petition).
---------------------------------------------------------------------------
127. NPSTC supports retaining the PFD requirement, stating that
``the PFD requirement should be retained, as it is there to provide an
environmental baseline for which systems can be designed in order to
manage the coexistence of various types of systems * * * additionally,
[a]ll of the notifications should also be retained without any
redefinition (e.g. the 1 kW/MHz proposed by Verizon), as these
notifications serve as a proactive
[[Page 57776]]
means to coordinate operations such that interference can be avoided
before it happens.'' \262\ CEA suggests that the Commission impose the
same out of band emission (OOBE) limit for the D Block that applies to
the C Block.'' \263\
---------------------------------------------------------------------------
\262\ NPSTC Comments at 46-47.
\263\ Comments of Consumer Equipment Association at 6.
---------------------------------------------------------------------------
128. Under existing rules, Upper 700 MHz Band commercial licensees
(i.e., C and D Block licensees), if operating base stations at power
levels greater than 1 kW ERP, must meet a PFD limit of 3 mW/m\2\ on the
ground within 1 km of each base station. They must also notify all
public safety licensees authorized within 75 km of the base station and
all 700 MHz public safety regional planning committees with
jurisdiction within 75 km of the station of their intention to operate
the base station at a power level greater than 1 kW ERP. Similarly
under the Commission's rules, the Public Safety Broadband Licensee must
satisfy this PFD requirement when operating a base station at a power
level greater than 1 kW ERP.\264\ Verizon, in its petition, seeks
various changes to the Commission PFD and notification requirements for
commercial 700 MHz licensees, asking inter alia, that the trigger for
such requirements be changed from 1 kW ERP to 1 kW/MHz ERP. NPSTC,
which did not file comments in response to the Verizon petition,
appears to request that the Commission retain the current 1 kW ERP PFD/
notification trigger for C, D, and Public Safety Broadband licensees.
---------------------------------------------------------------------------
\264\ The Commission do not, however, require the PSBB licensee
to notify other 700 MHz licensees of its intention to operate at a
power level greater than 1 kW ERP.
---------------------------------------------------------------------------
129. The Upper 700 MHz band plan places the public safety
narrowband channels (at 769-775 MHz) in between the Public Safety
Broadband spectrum (at 763-768 MHz) and the upper C block (at 776-787
MHz). Thus, any decision to modify the PFD trigger for either the
Public Safety Broadband spectrum or the upper C block could have a
potential impact on public safety narrowband channel operations.
Therefore, rather than deciding, in this proceeding, on the appropriate
PFD/notification trigger for the Public Safety Broadband spectrum, the
Commission shall defer this decision to the upcoming proceeding
addressing the Verizon petition, where the Commission will take a
comprehensive look at the potential consequences for the public safety
narrowband channels of modifying the trigger for the Public Safety
Broadband Licensee and the C block licensee. NPSTC's comments in the
instant proceeding shall be incorporated into the proceeding addressing
the Verizon petition. The Commission also invites comments from other
parties on this issue, and any such comments will be incorporated into
that proceeding as well.
130. With regard to CEA's suggestion that the Commission impose the
same out-of-band emission (OOBE) limit for both the C and D Blocks,
currently the D Block licensee is required to provide enhanced OOBE
protection \265\ to only the public safety narrowband channels, while
the C block licensee is required to provide such protection to both the
public safety narrowband channels and the Public Safety Broadband
spectrum. The Commission does not require the D Block licensee to
provide this extra OOBE protection to the Public Safety Broadband
spectrum due to the special relationship that exists between the D
Block and Public Safety Broadband Licensee. If the Commission decides
to maintain that relationship, the Commission tentatively concludes
that the Commission should continue to require the D Block licensee to
provide extra OOBE protection only to the public safety narrowband
channels. The Commission tentatively concludes as well that if the
Commission does not maintain the existing relationship between the D
Block and Public Safety Broadband Licensee, the Commission should
require the D Block licensee to provide extra OOBE protection to both
the Public Safety Broadband spectrum and the public safety narrowband
channels--and thus require C and D Block licensees to meet the same
OOBE limits in protecting public safety operations, as CEA suggests.
---------------------------------------------------------------------------
\265\ The standard OOBE limit, which applies to CMRS operations
in various bands, requires licensees to attenuate their emissions by
a factor not less than 43 + 10log P dB. The enhanced OOBE protection
referred to herein requires Upper 700 MHz commercial licensees to
attenuate their base station emissions by a factor not less than 76
+ 10 log (P) dB and to attenuate mobile and portable station
emissions by a factor not less than 65 + 10 log (P) dB.
---------------------------------------------------------------------------
131. Satellite-capable Handset Requirement. The Commission proposes
to continue requiring that the D Block licensee make available to
public safety users at least one handset that includes an integrated
satellite solution, by which the Commission means that the handset must
be capable of operating on both the 700 MHz public safety broadband
network and on the satellite frequency bands and/or systems of
satellite service providers with which the Public Safety Broadband
Licensee has contracted for satellite service.\266\ In addition, as
under existing rules, the Commission proposes not to establish a
specific deadline, but to leave the terms and timeframe for the
availability of the handset to be specified in the NSA. The Commission
proposes to clarify, however, that in the event the Commission license
the D Block on a regional basis, the Commission do not preclude the
regional licensees from relying on the same handset model to meet this
requirement. In addition, because it is not clear that current or
developing technology can provide for handoffs between a terrestrial
network and a satellite service, however, the Commission proposes to
clarify that handsets need not provide for seamless operation between
the terrestrial and satellite modes to meet the Commission requirement.
The Commission also tentatively declines to adopt MSV's proposal that
all public safety handsets be required to be satellite-enabled. As
before, the Commission finds that the Public Safety Broadband Licensee,
in consultation with the D Block licensee(s), will be in the best
position to determine the extent to which public safety equipment
should have integrated satellite capability. The Commission invites
further comment, however, on whether it should require more than one
handset with an integrated satellite solution and if so, what number or
percentage of devices should have that feature.
---------------------------------------------------------------------------
\266\ See Second Report and Order, 22 FCC Rcd at 15452 para.
464.
---------------------------------------------------------------------------
3. Performance Requirements, License Term, and Renewal
132. Background. In the Second Report and Order, the Commission
decided that the D Block license would be issued for a period of ten
years and imposed unique performance requirements for the D Block
license in connection with the construction of the shared wireless
broadband network. Specifically, the Commission required the D Block
licensee to provide signal coverage and offer service to at least 75
percent of the population of the nationwide D Block license area by the
end of the fourth year, 95 percent by the end of the seventh year, and
99.3 percent by the end of the tenth year.\267\ The Commission further
specified that ``the network and signal levels employed to meet these
benchmarks be adequate for public safety use * * * and that the
services made available be appropriate for public safety entities in
those areas.'' \268\
---------------------------------------------------------------------------
\267\ Second Report and Order, 22 FCC Rcd at 15445 para. 437.
\268\ Id. at 15446 para 440.
---------------------------------------------------------------------------
133. Certain other requirements were imposed to further ensure
coverage of highways and certain other areas such
[[Page 57777]]
as incorporated communities with a population in excess of 3,000.\269\
The Commission concluded that these build-out requirements ``will
ensure that public safety needs are met.'' \270\ The Commission also
required, however, that, ``to the extent that the D Block licensee
chooses to provide commercial services to population levels in excess
of the relevant benchmarks, the D Block licensee will be required to
make the same level of service available to public safety entities.''
\271\
---------------------------------------------------------------------------
\269\ See id. at 15445 para. 438-15446 para. 440.
\270\ Id. at 15445 para. 437.
\271\ Id. at 15446 para. 440.
---------------------------------------------------------------------------
134. In addition to establishing performance requirements and a
ten-year license term, the Commission also determined that the
performance requirements and license period would start on February 17,
2009. The Commission determined that this would be the initial
authorization start date because it is the DTV transition date.\272\
The Commission also established that at the end of the ten-year term
the D Block licensee would be allowed to apply for license renewal and
that renewal would be subject to the licensee's success in meeting the
material requirements set forth in the NSA as well as all other license
conditions, including meeting the performance benchmark
requirements.\273\ Because the initial NSA term expired at the same
time, the Commission decided that the D Block licensee must also file a
renewed or modified NSA for Commission approval at the time of its
license renewal application.\274\ Given these detailed license renewal
requirements, the Commission declined to impose a separate substantial
service showing in the Second Report and Order.
---------------------------------------------------------------------------
\272\ Id. at 15450 para. 457.
\273\ Id. at 15450 para. 458.
\274\ Id.
---------------------------------------------------------------------------
135. In the Second FNPRM, the Commission sought comment on whether
the Commission should revise the performance requirements that the
Commission imposed on the D Block licensee with regard to building out
the nationwide, interoperable broadband network and, if so, how those
requirements should be revised.\275\ Specifically, the Commission
sought comment on whether the Commission should retain the existing
end-of-term population benchmark of 99.3 percent or whether the
Commission should adopt a lower population benchmark that is equal to
or more aggressive than the 75 percent benchmark that is applicable to
the 22 megahertz C Block that is licensed on REAG basis.\276\ The
Commission noted that each of the top four nationwide carriers is
currently providing coverage to approximately 90 percent or more of the
U.S. population.\277\ Given that existing commercial wireless
infrastructure already covers approximately 90 percent of the
population, the Commission sought comment on whether it is reasonable
to expect that the D Block licensee would be able to meet at least a 90
percent of the population coverage requirement or more, or whether some
other coverage requirement is appropriate.
---------------------------------------------------------------------------
\275\ Second FNPRM, 23 FCC Rcd at 8075 para. 74, 8080-86 paras.
88-105.
\276\ Id. at 8081 para 91.
\277\ Id. (citing USB Warburg Investment Research, US Wireless
411, at 17 (Mar. 18, 2008).
---------------------------------------------------------------------------
136. The Commission observed that for the 22 megahertz C Block the
Commission required licensees to provide signal coverage and offer
service to at least 40 percent of the population in each EA of the REAG
license area within four years and to at least 75 percent of the
population in each EA of the REAG license area by the end of the ten-
year license term.\278\ Given that the licenses in the C Block were
successfully auctioned in Auction 73, and that at least one bidder has
put together a nearly nationwide geographic footprint with these
licenses, the Commission assumed that the D Block licensee should, at
the very minimum, be able to meet these benchmarks with respect to its
nationwide license. The Commission sought comment on that assumption.
---------------------------------------------------------------------------
\278\ Id. at 8082 para. 94.
---------------------------------------------------------------------------
137. In addition, the Commission invited comment on whether the
Commission should extend the license term for the D Block license, and
possibly the Public Safety Broadband License, if the Commission
determined to provide for construction benchmarks that extended past
the initial license term that the Commission established for the D
Block license.\279\ The Commission asked whether doing so would make it
easier for the D Block licensee to meet the performance requirements
that the Commission adopts. Specifically, if the Commission were to
adopt a 15-year license term, the Commission sought comment on whether
this would increase the commercial viability of the required network
while still meeting public safety needs. If the Commission were to
adopt such a modification, the Commission asked whether the interim
build-out benchmarks should be modified. For example, the Commission
stated that the Commission could require the D Block licensee to
provide signal coverage and offer service to at least 50 percent of the
population of the nationwide license area by the end of the fifth year,
80 percent of the population of the nationwide license area by the end
of the tenth year, and 95 percent of the population of the nationwide
license area by the end of the fifteenth year. The Commission also
noted that the NSA was to have a term not to exceed 10 years from
February 17, 2009, to coincide with the term of the D Block license,
and the Commission asked whether the Commission should extend the term
of the NSA to be co-extensive with any extended term the Commission may
adopt for the D Block.\280\
---------------------------------------------------------------------------
\279\ Id. at 8081 para. 90, 8083 paras. 96, 98.
\280\ Id. at 8083 para. 98.
---------------------------------------------------------------------------
138. The Commission sought further comment on whether the
Commission should revise the Commission's rules to permit the D Block
licensee to use Mobile Satellite Service to help it meet its build-out
benchmarks.\281\ The Commission noted that satellite services can
enable public safety users to communicate in rural and remote areas
that terrestrial services do not reach or in areas where terrestrial
communications networks have been damaged or destroyed by wide-scale
natural or man-made disasters. In light of these observations, the
Commission asked if the Commission should permit the D Block licensee
to utilize Mobile Satellite Service as a way to meet, in part, its
build-out obligations.\282\
---------------------------------------------------------------------------
\281\ Id. at 8083-84 para. 99.
\282\ Id. at 8084 para. 100.
---------------------------------------------------------------------------
139. Parties who filed comments in response to these issues that
the Commission raised in the Second FNPRM, include nationwide service
providers,\283\ regional service providers,\284\ small service
providers,\285\ consumer electronics manufacturers,\286\ commercial
entities,\287\ entities representing rural interests,\288\ entities
representing public safety
[[Page 57778]]
organizations,\289\ and citizens.\290\ In addition, several local
governments filed comments.\291\ Most contend that the current final
benchmark requirement--that the network cover at least 99.3 percent of
the population nationwide within 10 years--is unrealistic. For
instance, AT&T states that the requirement ``to build out the public/
private network to cover 99.3 percent of the population nationwide
within ten years'' ``may have been overly aggressive.'' \292\ Likewise,
Interisle believes that the ``99.3% benchmark for year 10 coverage of
the population is unrealistically high.'' \293\
---------------------------------------------------------------------------
\283\ AT&T Comments at 14; Sprint Nextel Comments at 2, 14-15;
US Cellular Comments 21.
\284\ Leap Comments at 13; NTCH Comments at 9; SouthernLINC
Reply Comments at 7.
\285\ ACT Comments at 2; Big Bend Comments at 2; CTC Comments at
2; Kennebec Comments at 2; PVTC Comments at 2; Ponderosa Comments at
2; Smithville Comments at 2; Spring Grove Comments at 2; Van Buren
Comments at 2; Wiggins Comments at 2.
\286\ CEA Comments at 3; Ericsson Comments at 26; Motorola
Comments at 13; Qualcomm Comments at 11; Motorola Reply Comments at
4.
\287\ ComCentric Comments at 4; Coverage Co. Comments at 6;
GEOCommand Comments at 9; Google Comments at 12; Interisle Comments
at 6; Rivada Comments at 2; Space Data Reply Comments at 2; Televate
Comments at 4; Tyco Comments at 5; Wirefree Comments at 15.
\288\ Council Tree Comments at 14.
\289\ AASHTO Comments at 11; APCO Comments at 14; NATOA Comments
at 8; NENA Comments at 2; NPSTC Comments at 12; Region 6 Comments at
2; Region 20 Reply Comments at 14; Region 33 Comments at 18; PSST
Comments at 34.
\290\ Bazelon Comments at 14; Newman Comments at 4; Pela
Comments at 5.
\291\ ADA County Sheriff's Office Comments at 2; Philadelphia
Comments at 2.
\292\ AT&T Comments at 14.
\293\ Interisle Comments at 6.
---------------------------------------------------------------------------
140. A range of final benchmarks to levels less than 99.3 percent
are proposed in the comments of many commercial commenters. For
example, some of these commenters propose a final benchmark of 95
percent population coverage.\294\ Northrop Grumman asks ``the
Commission to adopt a coverage benchmark of 95%,'' \295\ which it
considers to be ``a much more reasonable level for an especially cost-
intensive build-out of new network service.'' \296\ Televate believes
that the D Block licensee should ``serve at least 95 [percent] of the
population.'' \297\ Space Data, however, argues that there is no need
to relax the performance requirements that apply to the 700 MHz D Block
spectrum.\298\
---------------------------------------------------------------------------
\294\ See Sprint Nextel Comments (advocating 95 percent with a
bidding credit if the bidder commits to greater); Northrop Grumman
Comments at 5. See also ACT Comments at 2.
\295\ Northrop Grumman Comments at 5; Northrop Grumman Reply
Comments at 1.
\296\ Northrop Grumman Comments at 5.
\297\ Televate Comments at 9.
\298\ Space Data Reply Comments at 2.
---------------------------------------------------------------------------
141. Leap recommends that the ``performance requirements relating
to the construction of the network should be set at the same level as
was set for the C Block in Auction 73.'' \299\ In its reply comments,
Council Tree ``endorses'' Leap's proposal that the ``network
construction requirements for the D Block license be modified to match
those that applied to the Upper 700 MHz Band C Block licenses awarded
in Auction 73.'' \300\ SouthernLINC encourages the Commission to reject
those arguments that call for network construction based on
``commercial-level best practices for reliability'' or C Block-type
coverage requirements of only 75% of the population.'' \301\ If public
safety agencies only need commercial-grade wireless coverage,
SouthernLINC states that they should simply subscribe to existing
commercial offerings. A number of other parties simply recommend that
the Commission proposes more realistic benchmarks without offering a
specific percent coverage of the population.
---------------------------------------------------------------------------
\299\ Leap Comments at 13.
\300\ Council Tree Reply Comments at 14.
\301\ SouthernLINC Reply Comments at 7.
---------------------------------------------------------------------------
142. A few public safety commenters support 95 percent or lower
population coverage, including the National Regional Planning Council
(NRPC).\302\ NRPC reasons that ``[w]ith commercial wireless operations
today already covering approximately 90% of the U.S. population base,
this would be a good starting point with a goal of adequate broadband
coverage over 95% of the U.S. population within the 10-year license
term.'' \303\ Region 6, 700 MHz Planning Committee (Region 6), asserts
that a more ``realistic'' performance requirement ``would be 95% of the
United States population within all Urban Areas as defined by the
Federal Department of Homeland Security, while allowing the successful
bidder to expand that coverage upon execution of Memorandum of
Understandings with any remaining governmental agencies.'' \304\ In
addition, Region 33 considers 99.3 percent ``unrealistic'' and supports
a reduction down to 90 percent, asserting this would be ``more
attainable and feasible.'' \305\
---------------------------------------------------------------------------
\302\ NRPC Comments at 4; RPC 6 Comments at 2; RPC 33 Comments
at 18.
\303\ NRPC Comments at 4.
\304\ RPC 6 Comments at 2.
\305\ RPC 33 Comments at 18.
---------------------------------------------------------------------------
143. Other national public safety commenters, however, have not
advocated for a reduction in performance requirements, or for a more
modest reduction. NATOA does not appear to support any reductions in
performance requirements. APCO argues for an extension of the deadlines
of five years, but does not discuss reductions in the final benchmark
level. PSST and NPSTC argue for a reduction to 98 percent.\306\ NENA
supports a ``reasonable'' reduction of the 99.3 percent requirement,
but does not specify to what level.
---------------------------------------------------------------------------
\306\ 306 PSST Comments at 5; NENA Comments at 2; NPSTC Comments
at 12.
---------------------------------------------------------------------------
144. In its en banc testimony, US Cellular states that the
standards ``for population coverage and reliability should be achieved
over the license term, and the rules should allow reasonable
differences in build-out and performance based on the population
density of the license areas.'' \307\ US Cellular proposes that the
rules ``specify a range for population coverage, permitting the PSST,
in consultation with public safety entities and potential bidders, to
specify the requirements for specific areas as part of the NSA put
forward pre-auction.'' \308\ US Cellular's example of such a tiered
structure reflects four tiers of coverage requirements of 86, 90, 94,
and 98 percent, from lowest to highest population densities, for
license areas based on NPSPAC regions.\309\
---------------------------------------------------------------------------
\307\ Testimony of LeRoy T. Carlson, Jr., Chairman, US Cellular,
FCC En Banc Hearing, Brooklyn, New York, Federal Communications
Commission, July 30, 2008, http://www.fcc.gov/realaudio/presentations/2008/073008/carlson.pdf (Carlson Testimony) at 3.
\308\ Id. at 3-4.
\309\ Id. at 8. In its comments and reply comments, US Cellular
suggests that the Commission should require the D Block licensee to
``provide signal coverage and offer service to at least 50 percent
of the population of the nationwide license area by the end of the
fifth year, 80 percent of the population of the nationwide license
area by the end of the tenth year, and 95 percent of the population
of the nationwide license area by the end of the fifteenth year.''
US Cellular Comments at 21 & n.43, citing Second FNPRM, at para. 95;
US Cellular Reply Comments at 12.
---------------------------------------------------------------------------
145. Some commenters argue that keeping the existing 99.3
percentage population benchmark is acceptable as long as the Commission
extends the time period to meet this objective. Ericsson does not
believe that the Commission needs to lower the end-of-license term
coverage requirement to less than 99.3% of population, if the
Commission lengthens the D Block license term. Ericsson states that
extending the D Block license term from ``10 years to 15, 20, or even
25 years would allow the schedule of build-out milestones to be spread
across a longer time period.''\310\ Likewise, Council Tree contends
that, ``[g]iven the uncertainties inherent in the 700 MHz Public/
Private Partnership,'' the D Block license term ``should be extended
from ten years to twenty years in duration regardless of the
determinations the Commission makes with respect to its performance
requirements.'' \311\ Wirefree also ``supports extending the license
term from 10 to 15 years as a fair trade off for building a shared use
network for public safety.'' \312\
---------------------------------------------------------------------------
\310\ Ericsson Comments at 26.
\311\ Council Tree Comments at 19.
\312\ Wirefree Comments at 15.
---------------------------------------------------------------------------
146. Some public safety organizations also support extending the D
Block license term. PSST suggests that if the Commission keeps the
existing 99.3 percentage of population benchmark, then the Commission
should ``extend
[[Page 57779]]
the D Block license term (and the PSBL license term) by five years with
a corresponding extension of the current construction requirements.''
\313\ AASHTO believes that ``reaching 99.3% of the population within
ten years from the issuance of a license is admirable and perhaps can
remain as an ultimate goal, but with an increased time span to achieve
the goal.'' \314\ APCO contends that it is reasonable ``to extend the
timelines of some of these benchmarks by five years (with a
corresponding extension of the license term).''\315\ NENA supports a
reasonable reduction in build-out requirements, ``e.g., reducing the
99.3% geographic build-out requirement to a 15-year license term''
rather than the current 10 year license term.\316\
---------------------------------------------------------------------------
\313\ PSST Comments at 34.
\314\ AASHTO Comments at 11.
\315\ APCO Comments at 30.
\316\ NENA Comments at 2.
---------------------------------------------------------------------------
147. Comcentric, Leap, and Ericsson support the notion that the
Commission should allow the D Block licensee to meet, at least in part,
its build-out obligation through the use of Mobile Satellite Service.
For areas without terrestrial network coverage, Leap indicates that the
Commission could ensure that public safety officials have adequate
service by permitting the carrier to use other alternatives for
satisfying coverage requirements (e.g., satellite).\317\ Ericsson
states that the Commission should allow the D Block licensee to meet
the interim benchmarks though satellite service, but that the licensee
should be required to meet the final benchmark only through the use of
terrestrial broadband facilities.\318\ Comcentric argues that the
public broadband network should cover ``a minimum of 98% of the
population with terrestrial links and 100% of the geographic area with
`in motion' satellite connectivity for rural public safety
officers.''\319\
---------------------------------------------------------------------------
\317\ Leap Comments at 13; Leap Reply Comments at 9.
\318\ Ericsson Comments at 28.
\319\ Comcentric Comments at 4.
---------------------------------------------------------------------------
148. Discussion. The Commission tentatively concludes that the
Commission should modify the population-based performance requirements
and the length of the license term that the Commission adopted in the
Second Report and Order for the D Block spectrum in order to make this
spectrum more commercially viable while at the same time ensuring that
public safety needs are met. As discussed below, the Commission
proposes to require the D Block licensee(s) to meet performance
requirements based on PSRs, regardless of whether the D Block license
is regional or nationwide. The Commission proposes that a D Block
licensee must meet specified population coverage benchmarks at the end
of the fourth, tenth, and fifteenth years of its license term, and that
it must meet these benchmarks in each PSR over which it is licensed,
regardless of whether the D Block spectrum is licensed on a regional or
nationwide basis.
149. Specifically, the Commission tentatively concludes that the
licensee(s) of D Block spectrum be required to provide signal coverage
and offer service to at least 40 percent of the population in each PSR
by the end of the fourth year, and 75 percent by the end of the tenth
year. The Commission proposes to adopt a ``tiered'' approach after 15
years for the final benchmark, applying one of three benchmarks
depending on the population density of the PSR: (1) For PSRs with a
population density less than 100 people per square mile, the
licensee(s) will be required to provide signal coverage and offer
service to at least 90 percent of the population by the end of the
fifteenth year; (2) for PSRs with a population density equal to or
greater than 100 people per square mile and less than 500 people per
square mile, the licensee(s) will be required to provide signal
coverage and offer service to at least 94 percent of the population by
the end of the fifteenth year; and (3) for PSRs with a population
density equal to or greater than 500 people per square mile, the
licensee(s) will be required to provide signal coverage and offer
service to at least 98 percent of the population by the end of the
fifteenth year.\320\ These revised population coverage requirements
will have to be met on a PSR basis, and the licensee(s) will have to
use the most recently available decennial U.S. Census data at the time
of measurement to meet the requirements. The Commission also
tentatively concludes to revise the length of the D Block license term
from 10 to 15 years so that it coincides with the Commission proposed
end-of-term performance requirements. The Commission also tentatively
concludes that the Commission will not impose a separate substantial
service showing for license renewal apart from requiring that a D Block
licensee meet the requirements set forth in the NSA and the
Commission's proposed performance requirements, with the possible
exception of the Gulf of Mexico PSR, as discussed below. The Commission
seeks comment on these tentative conclusions.
---------------------------------------------------------------------------
\320\ See Appendix B (listing the minimum coverage requirements
at the end of fifteen years for each of the regions).
---------------------------------------------------------------------------
150. The Commission's proposal would thus modify both the final and
interim D Block performance requirements under the existing rules. Most
significantly, the Commission proposes to reduce the final performance
benchmark from 99.3 percent to the three tiers discussed above and
extend the period for achieving the appropriate benchmark from 10 to 15
years. The Commission tentatively concludes that adoption of the
interim and end-of-term performance requirements will increase
opportunities for participation by a larger pool of bidders, \321\ and
local and regional build-out will ensure that deployment is responsive
to the needs of local public safety groups.\322\ The Commission also
tentatively concludes that a final benchmark of 99.3 percent of
population would likely not be commercially feasible, but that the
benchmarks under the Commission's tiered proposal are achievable. For
example, the record indicates that 95 percent coverage is
achievable,\323\ and that reducing the final benchmark from 99.3
percent for a nationwide license will result in significant savings in
capital and operational expenses. Space Data estimates that reducing
the 10-year coverage requirement from 99.3 percent to 95 percent
population nationwide will result in a capital expense savings of
$1.0565 billion and an operating expense savings of $2.280
billion.\324\ MSV estimates that reducing the 10-year coverage
requirement from 99.3 percent to 95 percent population nationwide would
result in a capital expense savings of $4.44 billion and an operating
expense savings of $7.056 billion.\325\ Thus, based on the record, the
Commission tentatively concludes that the Commission's proposed new
benchmarks along with extending the final benchmark to fifteen years,
will make building out a network more viable economically than under
the current benchmarks while also ensuring that public safety needs are
met. The
[[Page 57780]]
Commission notes that while most of the licensees will meet a
population benchmark of either 90 or 94 percent in year fifteen, the
Commission's proposal for the third tier will require at least 98
percent coverage with a population density equal to or greater than 500
people per square mile. However, according to U.S. Cellular's proposal,
this 98 percent requirement would apply to only six percent of the
total number of NPSPAC regions, and licensees that would have to meet
this requirement may be able to build on existing infrastructure thus
making commercial opportunities more attractive.\326\ The Commission
seeks comment on these conclusions.
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\321\ See Carlson Testimony at 2-3.
\322\ See AT&T Comments at 25.
\323\ See, e.g., ACT Comments at 2; NNRPC Comments at 4;
Northrop Grumman Comments at 5; Region 6 Comments at 2; Region 33
Comments at 18; Sprint Nextel Comments at 2; US Cellular Comments at
5.
\324\ See Space Data Comments at Exhibit A.
\325\ See MSV Comments at 44. See also Testimony of Lawrence R.
Krevor, Sprint-Nextel Corp., Public Hearing on Public Safety
Interoperable Communications--The 700 MHz Band Proceeding, Federal
Communications Commission, July 30, 2008, http://www.fcc.gov/realaudio/presentations/2008/073008/krevor.pdf, at 2 (increasing
coverage from 95 percent to 99.3 percent would increase costs by
more than $6 billion).
\326\ See Carlson Testimony at 2, 8 & n.5.
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151. The Commission tentatively concludes that the three tiers of
population benchmarks remain an aggressive requirement, given that
existing commercial infrastructure currently covers only approximately
90 percent of the nation's population,\327\ and that the highest level
of population coverage required of any other commercial 700 MHz
licensee is 75 percent.\328\ Therefore, the Commission also tentatively
concludes that the Commission should extend the time provided to the D
Block licensee to meet its end-of-term build-out requirement from ten
to fifteen years.\329\ Giving the D Block licensee five additional
years to meet the final benchmark will provide the licensee with
additional time to raise capital and construct its wireless network. It
will also give the D Block licensee more flexibility and the ability to
lower its construction costs.\330\ As a result, the Commission's
proposal to give the D Block licensee five additional years to build
out its network should help to stimulate commercial interest in the D
Block spectrum. The Commission also notes that a fifteen year period to
accomplish the final performance requirement also receives support from
public safety commenters.\331\ For these reasons, the Commission
tentatively concludes that the proposed final benchmark which uses a
three-tiered requirement at 15 years, as discussed above, provides the
most aggressive coverage requirement that will still provide an
adequate level of commercial feasibility, and the Commission seeks
comment on this tentative conclusion.
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\327\ See NPRC Comments at 4; Sprint Nextel Comments at 2; see
also Second FNPRM, 23 FCC Rcd at 8084 para. 91 (citing USB Warburg
Investment Research, US Wireless 411, at 17 (Mar. 18, 2008); MSV
Comments at 8 (noting that ``[t]he top four national wireless
carriers cover on average only 92.7% of the US population'').
\328\ Second Report and Order, 22 FCC Rcd at 15351 para. 162
(discussing performance requirements for REAG licenses, i.e., C
Block).
\329\ Both public safety and commercial entities support
expanding the time period that the D Block licensee has to meet the
final performance requirement. See, e.g., AASHTO Comments at 11;
APCO Comments at 30; Council Tree Comments at 19; Ericsson Comments
at 26; NENA Comments at 2; PSST Comments at 34; Wirefree Comments at
15.
\330\ Ericcson Comments at 26.
\331\ See, e.g., PSST Comments at 34.
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152. The Commission's proposal also imposes new interim coverage
requirements. Specifically, instead of the current interim requirements
of 75 percent at four years and 95 percent at seven years, the
Commission proposes to require 40 percent at four years and 75 percent
at ten years. These interim requirements are identical to the
population coverage levels required of 700 MHz C Block REAG licensees
at the 4 year and 10 year periods. The fact that all of the C Block
licenses were successfully auctioned supports the conclusion that these
interim requirements are commercially viable.\332\ Thus, the Commission
tentatively concludes that the interim coverage benchmarks for the D
Block of 40 percent of the population in four years and 75 percent in
ten years are commercially viable and will lead to a successful auction
of the D Block spectrum. Setting the first benchmark at four years
should also provide an adequate period for the development of new
advanced technologies so that these technologies can be incorporated
into the network implemented by the D Block licensee. At the same time,
the Commission proposed interim benchmarks will still help to ensure
that the D Block licensee will begin providing service to a significant
portion of the nation's public safety community well in advance of the
end of its license term. Thus, these proposed benchmarks for the D
Block licensee are designed to balance the need to expedite the
deployment of an interoperable, broadband public safety network with an
appropriate consideration of commercial viability and the need to allow
sufficient time for new and innovative wireless broadband technologies
to develop. By proposing the Commission three-tiered benchmark with
coverage levels at 90 percent or higher, the Commission addresses the
special coverage needs of public safety yet ensure this is commercially
achievable by affording the D Block Licensee an additional five years
to achieve this requirement. Accordingly, the Commission tentatively
concludes that the Commission proposed interim benchmarks are
consistent with the Commission goal of establishing a national
interoperable public safety network that will provide state-of-the-art
service to the Public Safety Broadband Licensee. The Commission seeks
comment on the Commission tentative conclusion to establish the interim
coverage requirements for the D Block as 40 percent of the population
in four years and 75 percent in ten years, for each of the 58 PSRs.
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\332\ See Leap Comments at 13; Council Tree Reply Comments at
14.
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153. The Commission tentatively concludes that the D Block licensee
should not be permitted to satisfy its performance benchmarks through
the provision of non-terrestrial services such as MSS. The Commission
finds that MSS and other non-terrestrial technologies cannot currently
provide broadband capabilities comparable to those of a broadband
terrestrial network. Further, given the significant reduction in
geographic area that will need to be covered under the Commission's
proposed population based benchmarks and the additional time the
Commission is proposing to provide the D Block licensee to build out,
the Commission tentatively concludes that it is reasonable to expect
the D Block licensee to meet the Commission's proposed benchmarks by
building out a terrestrial wireless network. Under the Commission's
proposal, the D Block licensee will have fifteen years to build out a
terrestrial wireless network to meet the final performance benchmarks.
Therefore, requiring the D Block licensee to build out a terrestrial
wireless network rather than relying on Mobile Satellite Service or
other such technologies should not undercut the Commission goal of
making this spectrum more attractive to commercial development and
should help ensure the development of a robust public safety network.
The Commission seeks comment on these tentative conclusions.
154. To meet the Commission's proposed performance requirements,
the Commission tentatively concludes that the Commission will require
the D Block licensee to use the most recently available U.S. Census
Data and that the licensee meet the Commission's performance
requirements on a PSR basis.\333\ The Commission recognizes that
commercial providers typically focus exclusively on building out high
population areas and that first responders have needs in smaller towns
and rural areas. However, by proposing
[[Page 57781]]
to require that the performance benchmarks be calculated on a PSR basis
even in case of a nationwide license, the Commission will ensure that
areas with smaller populations and rural areas receive coverage.
Accordingly, to meet the benchmarks, the Commission tentatively
concludes that the D Block licensee will be required to provide signal
coverage and offer service to at least 40 percent of the population in
each PSR license area within four years, 75 percent of the population
in each PSR license area within ten years, and an appropriate percent
of the population in each PSR license area within 15 years.\334\ The
Commission also proposes to clarify that, to count toward the
satisfaction of the Commission's performance requirements, any build-
out must provide service that meets the signal levels and other
technical requirements that the Commission proposes in this Third
FNPRM. Further, to the extent that the D Block licensee chooses to
provide terrestrial commercial services to population levels in excess
of the relevant benchmarks, the Commission proposes that the D Block
licensee be required to make the same level of coverage and service
available to public safety entities. The Commission seeks comment on
these proposals.
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\333\ The Commission notes that, by the ``most recently
available U.S. Census data,'' the Commission means only the most
recent decennial update to the U.S. Census, currently the 2000 U.S.
Census Data, and not any estimates or revisions that have occurred
between the official decennial updates.
\334\ See Appendix B.
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155. In order to promote an additional degree of coverage in rural
areas, the Commission proposes to continue, with some modifications,
requiring that the D Block licensee extend coverage to major highways
and interstates. The Commission further proposes to clarify, however,
that any coverage necessary to provide complete service to major
highways, interstates, and incorporated communities with populations
greater than 3,000 beyond the network coverage required by the
Commission's population benchmarks must be established no later than
the end of the D Block license term. In addition, the Commission
proposes that to the extent that coverage of major highways,
interstates and incorporated communities with populations in excess of
3,000 requires the D Block licensee to extend coverage beyond what is
required to meet its population benchmarks, the Commission would permit
that coverage to be met through non-terrestrial means, such as MSS or
other such technologies. As discussed above, the Commission tentatively
concludes that the proposed population coverage benchmarks provide the
best balance between maximizing coverage and ensuring commercial
viability of the network and therefore, that reliance on non-
terrestrial technologies is justified to the extent that the proposed
requirements regarding major highways, interstates, and small
communities would impose a more onerous build-out obligation. In order
to provide the D Block licensee with the flexibility to use a myriad of
innovative solutions, including non-terrestrial technologies, the
Commission seeks comment on whether any of its existing rules for this
band regarding terrestrial base stations or land stations may need to
be clarified or modified to be applicable to non-terrestrial
technologies that perform the same functions of terrestrial base
stations and that comply with service rules applicable to the D Block
and the Public Safety Broadband spectrum, including rules regarding
interference protection and network specifications.\335\
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\335\ See Space Data Ex Parte September 17, 2008 letter to
Marlene H. Dortch at 4-5 (requesting, among other things, that the
Commission: (1) Amend the definition of ``base station'' in Section
27.4 of the rules to include ``technologies that perform the same
functions as land stations,'' and/or (2) provide that any technical
requirements in Sections 27.50-27.70 that apply to base stations or
fixed towers similarly apply to non-traditional technologies that
perform the same functions as base stations or towers.).
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156. To further facilitate public safety access to the network in
low or zero-population areas where the network has not yet been
constructed and to satellite services more broadly, the Commission
proposes to maintain the current requirement that the D Block licensee
make available to the Public Safety Broadband Licensee at least one
handset suitable for public safety use that includes an integrated
satellite solution under terms, conditions, and timeframes set forth in
the NSA. The Commission seeks comment on these tentative
conclusions.\336\
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\336\ As discussed elsewhere in this Third FNPRM, the Commission
also proposes to continue requiring the NSA to include a detailed
build-out schedule that is consistent with the performance
benchmarks and requirements that the Commission proposes above.
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157. The Commission tentatively concludes to revise the D Block
license term and performance requirements start date from February 17,
2009, to the date that the D Block licensees receive their licenses.
The Commission previously anticipated that the D Block licensee would
receive its license prior to February 17, 2009. Given that the
Commission no longer expects to license the D Block before February 17,
2009, the Commission tentatively concludes that the D Block license
term and performance requirements start date should be the license
grant date as is consistent with other wireless services.\337\ The
Commission seeks comment on the Commission's tentative conclusion that
the Commission should use the license grant date as the start date for
the D Block license term and performance requirements.
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\337\ See, e.g., 47 CFR 1.946.
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158. The Commission proposes to continue to allow the D Block
licensee to modify its population-based construction benchmarks where
the D Block licensee and the Public Safety Broadband Licensee reach
agreement and the Commission gives its prior approval for a
modification. This approach would allow a certain limited degree of
flexibility to meet commercial and public safety needs where those
needs may deviate from the Commission's adopted construction
benchmarks. As with other commercial 700 MHz Band licensees, the D
Block licensee will be required under the Commission's proposal to
demonstrate compliance with the Commission's adopted benchmarks by
filing with the Commission within 15 days of passage of the relevant
benchmarks a construction notification comprised of maps and other
supporting documents certifying that it has met the Commission's
performance requirements.\338\ The construction notification, including
the coverage maps and supporting documents, must be truthful and
accurate and not omit material information that is necessary for the
Commission to make a determination of compliance with the Commission's
performance requirements.\339\ However, unlike some other commercial
licenses and because of the nature of the partnership established
herein, the D Block licensee will not be subject to a ``keep-what-you-
use'' rule. Rather, the Commission will strictly enforce these build-
out requirements and, if the D Block licensee fails to meet a
construction benchmark, the Commission may cancel its license,
depending on the circumstances, or take any other appropriate measure
within its authority. The Commission seeks comment on these proposals.
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\338\ See 47 CFR 1.946(d) (``The notification must be filed with
Commission within 15 days of the expiration of the applicable
construction or coverage period.'').
\339\ See, e.g., 47 CFR 1.17 (Truthful and accurate statements
to the Commission); 47 CFR 1.917 (``Willful false statements made
therein, however, are punishable by fine and imprisonment, 18 U.S.C.
1001, and by appropriate administrative sanctions, including
revocation of station license pursuant to 312(a)(1) of the
Communications Act of 1934, as amended.'').
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159. As stated above, the Commission also tentatively concludes to
revise the license term for the D Block license
[[Page 57782]]
from 10 to 15 years. By making this change, the Commission will provide
for uniformity in the length of the performance requirement period and
the length of the D Block license term. Further, allowing a
significantly longer license term overall has the separate benefit of
affording additional investment confidence and certainty. Public safety
commenters and commercial entities support extending the D Block
license term and the related period of time to meet the Commission
proposed performances requirements.\340\ By having the license term and
performance requirement period end at the same time, it will be easier
to assess whether the D Block license should be renewed. The Commission
seeks comment on these tentative conclusions.
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\340\ See, e.g., AASHTO Comments at 11; APCO Comments at 30;
Council Tree Comments at 19; Ericsson Comments at 26; NENA Comments
at 2; PSST Comments at 34; Wirefree Comments at 15.
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160. The Commission also proposes not to require the D Block
licensee to make a separate substantial service showing for license
renewal consistent with the Commission findings in the Second Report
and Order.\341\ At the end of the 15 year license term, the D Block
licensee will be permitted to apply for license renewal and that
renewal will be subject to the licensee's success in meeting the
material requirements set forth in the NSA as well as all other license
conditions, including meeting the Commission's proposed performance
requirements. Given these detailed license renewal requirements, the
Commission does not propose to impose a separate substantial service
showing requirement, with the possible exception of the Gulf of Mexico,
as discussed below. The Commission seeks comment on this tentative
conclusion to not impose on the D Block licensee a separate substantial
service showing apart from meeting the requirements set forth in the
NSA and the Commission's proposed performance requirements.
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\341\ See Second Report and Order, 22 FCC Rcd at 15450 para.
458.
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161. With respect to the Gulf of Mexico PSR, the Commission notes
that this PSR covers a body of water and, therefore, its proposed
population-based benchmarks may not be appropriate for this PSR to meet
public safety needs in that region. In addition, local and state public
safety entities may have very limited operations in this region.
Accordingly, the Commission proposes that it give the D Block licensee
for the Gulf of Mexico PSR and the Public Safety Broadband Licensee
flexibility to negotiate, as part of the NSA, a coverage and service
plan for public safety use for that region as needed, subject to
Commission resolution in the event of disputes. The Commission also
seeks comment on whether it is sufficient to require the Gulf of Mexico
D Block licensee to make a showing of substantial service as a
condition of licensee renewal, as other 700 MHz licensees are currently
required to do,\342\ as well as a showing of the D Block licensee's
success in meeting the material requirements set forth in the NSA and
all other license conditions. The Commission notes that, as proposed
above, any build-out would have to meet the signal levels and other
technical requirements that the Commission proposes in this Third
FNPRM. With respect to the Gulf of Mexico PSR, the Commission notes
that this PSR covers a body of water and, therefore, the proposed
population-based benchmarks may not be appropriate for this PSR to meet
public safety needs in that region. In addition, local and state public
safety entities may have very limited operations in this region.
Accordingly, the Commission proposes that it give the D Block licensee
for the Gulf of Mexico PSR and the Public Safety Broadband Licensee
flexibility to negotiate, as part of the NSA, a coverage and service
plan for public safety use for that region as needed, subject to
Commission resolution in the event of disputes. The Commission also
seeks comment on whether it is sufficient to require the Gulf of Mexico
D Block licensee to make a showing of substantial service as a
condition of licensee renewal, as other 700 MHz licensees are currently
required to do,\343\ as well as a showing of the D Block licensee's
success in meeting the material requirements set forth in the NSA and
all other license conditions. The Commission notes that, as proposed
above, any build-out would have to meet the signal levels and other
technical requirements that it proposes in this Third FNPRM.
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\342\ 47 CFR 27.14(e).
\343\ 47 CFR 27.14(e).
---------------------------------------------------------------------------
162. As a result of the Commission's tentative conclusion to revise
the license term for the D Block license from 10 to 15 years, the
Commission also tentatively concludes to extend the license term for
the Public Safety Broadband Licensee. In adopting the 10-year licensee
term for the Public Safety Broadband Licensee, the Commission sought to
harmonize the license terms to facilitate the contemplated leasing
arrangement and build-out requirements.\344\ Extending the license term
from 10 years to 15 years for the Public Safety Broadband Licensee will
be consistent with this reasoning. Also, the Commission tentatively
concludes that the license term of the Public Safety Broadband Licensee
should re-commence from the date that the D Block licensee receives its
license, consistent with the Commission's determination to change the
start date of the license term for the D Block licensee to that date.
The Commission seeks comment on these tentative conclusions to extend
the license term of the Public Safety Broadband Licensee.\345\ The
Commission proposes that, if the Commission extends these license terms
to 15 years, the Commission should also mandate a 15-year NSA term.
---------------------------------------------------------------------------
\344\ See Second FNPRM, 23 FCC Rcd at 8083 para. 98.
\345\ Elsewhere in this Third FNPRM, the Commission similarly
proposes extending the initial term of the NSA to 15 years.
---------------------------------------------------------------------------
163. The Commission proposes to continue requiring the NSA to
include a detailed build-out schedule that is consistent with the
performance benchmarks that the Commission has proposed in this
section.\346\ Thus, the Commission proposes to continue to require the
NSA to identify the specific areas of the country that will be built
out and the extent to which major highways and interstates, as well as
incorporated communities with a population in excess of 3,000, within
the D Block licensee's service area will be covered by each of the
performance deadlines.
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\346\ See Second Report and Order, 22 FCC Rcd at 15449 para.
453.
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164. Finally, the Commission seeks comment on an alternative
approach to the one the Commission has tentatively concluded to adopt
for purposes of performance requirements, license term, and renewal in
this Third FNPRM. Specifically, under such an alternative approach, the
Commission could require the D Block licensee to provide signal
coverage and offer service to at least 40 percent of the population of
the license area by the end of the fourth year, 75 percent of the
population by the end of the tenth year, and 95 percent of the
population by the end of the fifteenth year. The requirements under
this alternative approach will have to be met on a PSR basis, and
licensees will have to use the most recently available decennial U.S.
Census data at the time of measurement to meet the requirements. As a
part of this alternative approach, the Commission also proposes to
revise the length of the D Block license term from 10 to 15 years so
that it coincides with the Commission proposed end-of-term performance
requirements. The
[[Page 57783]]
Commission seeks comment on this alternative approach, and specifically
on the adoption of a 95 percent coverage requirement by the end of the
fifteenth year of the license term instead of the three tiered approach
which the Commission proposes elsewhere in this Third FNPRM.
4. Role and Responsibilities of the D Block Licensee in the Management,
Operations, and Use of the Network
165. Background. In adopting the 700 MHz Public/Private Partnership
in the Second Report and Order, the Commission sought to delineate the
respective roles and responsibilities of the D Block licensee and the
Public Safety Broadband Licensee in a manner that would ensure the
construction and operation of a shared, interoperable broadband network
infrastructure that operated on the 20 megahertz of spectrum associated
with the D Block license and the Public Safety Broadband License and
that served both the needs of commercial and public safety users.\347\
Under this plan, the D Block licensee and its related entities would
finance, construct, and operate the shared network,\348\ but the full
extent of the D Block licensee's operational role was not specified. In
particular, the Commission indicated that the Public Safety Broadband
Licensee, which would be required to lease its spectrum on a secondary
basis to the D Block licensee pursuant to a spectrum manager leasing
arrangement,\349\ would also have operational control of the network
``to the extent necessary to ensure public safety requirements are
met.'' \350\ In the Second FNPRM, the Commission sought comment on
whether additional clarity with regard to the role and responsibilities
of the D Block licensee would be helpful to ensure that the 700 MHz
Public/Private Partnership achieves its goal in creating a shared,
interoperable broadband network.\351\ In particular, the Commission
indicated the Commission's expectation that the D Block licensee would
establish a network operations system, including an operations/
monitoring center, billing functions, and customer care services, among
other elements, to support the network infrastructure that it deployed
and the services that it provided over that infrastructure to public
safety entities.\352\ The Commission sought comment on whether the
Commission should provide that all such traditional network service
provider operations for the benefit of either commercial users or
public safety users should be responsibilities exclusively assumed by
the D Block licensee, and whether assigning such responsibilities
exclusively to the D Block licensee would better enable the Public
Safety Broadband Licensee to administer access to the national public
safety broadband network by individual public safety entities and to
perform its other related responsibilities.\353\
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\347\ See, e.g., 22 FCC Rcd at 15426 para. 383, 15431 para. 396.
\348\ See, e.g., id. at 15428 para. 386.
\349\ See id. at 15437-38 ]] 414-17.
\350\ See id. at 15434 para. 405.
\351\ See Second FNPRM, 23 FCC Rcd at 8088 para. 113.
\352\ See Second FNPRM, 23 FCC Rcd at 8088-89 para. 115.
\353\ See Second FNPRM, 23 FCC Rcd at 8088-89 para. 115
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166. Comments. Several commenters--including both commercial and
public safety entities--state that the D Block licensee should maintain
control of the network, subject to some limited areas of operational
authority by the Public Safety Broadband Licensee. For instance, AT&T
argues that commercial partners should have ``day-to-day'' operational
control over the entire network, ``subject only to discrete PSBL
operational authority defined by the Commission prior to the RFP
process or a reauction.'' \354\ Similarly, Ericsson contends that that
the D Block licensee should run a substantial part of the network on a
``day-to-day'' basis.\355\
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\354\ AT&T Comments at 16.
\355\ Ericsson Comments at 30. See also APCO Comments at 35
(arguing that the D Block licensee should manage the network, and
that the Public Safety Broadband Licensee needs to move towards a
management structure that monitors D Block licensee contract
performance and service relations, without duplicating the D Block
licensee's core function or neglecting the agencies and citizens the
PSBL is charged to protect).
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167. The PSST argues against allowing the D Block licensee ``sole
control over all of the traditional network service provider
operations, including those associated with the spectrum for which the
PSST is the licensee.'' \356\ It argues that providing the D Block
licensee with ``sole control'' will impair the Public Safety Broadband
Licensee's abilities to administer access and carry out its other
obligations, and that fulfilling its functions in the 700 MHz Public/
Private Partnership, such as monitoring the D Block licensee's
compliance with the terms of the NSA, ``requires that the PSST not be
passive or entirely dependent on the activities and assurances of the D
Block operator.'' \357\ The PSST further asserts that the Public Safety
Broadband Licensee must continue to have a ``direct relationship'' with
public safety users.\358\
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\356\ PSST Comments at 11-12.
\357\ PSST Comments at 13.
\358\ PSST Comments at 12.
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168. The PSST argues that allowing ``the D Block licensee to assume
sole control of all traditional network service provider operations on
PSBL spectrum would be even more problematic should the FCC authorize a
wholesale-only model for the D Block licensee.'' \359\ Under a
wholesale-only approach, it argues, ``it is not at all clear who would
deliver the necessary services to public safety agencies, including
ensuring that the primary goal of interoperability is satisfied in an
environment where different services might be made available by
individual retail providers in different markets, or even in the same
market.'' \360\ Accordingly, it states, if the D Block winning bidder
elects a wholesale model, ``the PSST and FCC will need to be confident
that the specific needs of public safety users nonetheless will be met.
In addition, the PSST asserts that the D Block licensee's
responsibilities should include delivering ``to the Public Safety
Broadband Licensee capacity utilization reports that provide a
comparative measure of public safety network services utilization
against the documented, engineered, installed, and in-service Radio
Access (RA) and terrestrial network capacity.'' \361\
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\359\ PSST Comments at 12.
\360\ PSST Comments at 12.
\361\ PSST Reply Comments, Attach. A1 at 6.
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169. Discussion. The Commission tentatively concludes, consistent
with the Commission's tentative determinations elsewhere regarding the
appropriate operational role and responsibilities of the Public Safety
Broadband Licensee, that the D Block licensee(s) should assume
exclusive responsibility for all traditional network service provider
operations, including network monitoring and management, operational
support and billing systems, and customer care, in connection with
services provided to public safety users.
170. As the Commission noted in the Second FNPRM, ``primary
operational control of the network is inherently the responsibility of
the D Block licensee (and its related entities), which would in turn
generally provide the operations and services that enable the Public
Safety Broadband Licensee to ensure public safety requirements are
met.'' \362\ The Commission agrees with AT&T that the commercial
partner will likely have the experience, resources, and personnel to
best perform these
[[Page 57784]]
functions, and that without assurance of day-to-day operational
control, commercial partners might be deterred from seeking D Block
licenses.\363\ Providing that the D Block licensee(s) will assume
exclusive responsibility for traditional operations should also avoid
any duplication of efforts or responsibilities between the D Block
licensee(s) and the Public Safety Broadband Licensee, improving the
efficiency of network operation, and ensuring that the Public Safety
Broadband Licensee will be focused on meeting its own exclusive
functions and responsibilities.
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\362\ Second FNPRM, 23 FCC Rcd at 8091-92 para. 124.
\363\ AT&T Comments at 17.
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171. In addition, while the Commission provides that only the D
Block licensee(s) may directly manage the network or provide network
services, the Commission observes that the Public Safety Broadband
Licensee will nonetheless retain control over use of the Public Safety
Broadband spectrum, pursuant to its license obligations and the
spectrum manager leasing arrangement(s) for D Block secondary use
lasting for the full term of the license(s),\364 \and will have
significant input into the provision of such services through the
establishment of priority access, service levels and related
requirements within the NSA process, approving public safety
applications and end user devices, and ongoing monitoring of system
performance made possible through the monthly reporting requirement the
Commission proposes to mandate on the D Block licensee(s) showing
network usage. As a consequence, reserving all traditional network
provider functions to the D Block licensee(s) should not prevent the
Public Safety Broadband Licensee from maintaining a direct relationship
with public safety users or from carrying out its specific assigned
responsibilities.
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\364\ See Second Report and Order, 22 FCC Rcd at 15437-38,
paras. 414-17. See also 47 CFR 90.1407.
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172. As noted above, the Commission tentatively decides to impose
specific obligations on the D Block licensee(s) to provide regular
monthly reports on network usage to the Public Safety Broadband
Licensee as proposed by the PSST. This network reporting requirement
will be in addition to the existing requirement that, following the
execution of the NSA, the D Block licensee(s) and Public Safety
Broadband Licensee must jointly provide quarterly reports including
detailed information on the areas where broadband service is deployed,
how the specific requirements of public safety are being met, audited
financial statements, and other aspects of public safety use of the
network.\365\ The Commission anticipates that such reporting will
enable the Public Safety Broadband Licensee to carry out its
responsibility to monitor system performance and provide adequate
oversight of the D Block licensee's operations.
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\365\ See Second Report and Order, 22 FCC Rcd at 15471 para.
530.
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173. National Committee of D Block Licensees. The Commission notes
U.S. Cellular's proposal that, if the D Block is licensed on a regional
basis to multiple entities, there should be a National Committee of
Licensees, which would: (1) ``Serve as a single point of contact for
FCC, PSST and public safety agencies with licensees on national
issues;'' (2) ``develop licensees' recommendations for any FCC rule
changes''; (3) ``negotiate changes in national NSA with PSST;'' (4)
``arrange support services for operations requiring inter-carrier
coordination;'' and (5) ``work in conjunction with existing standards
bodies and clearing houses.'' \366\ The PSST also has similarly
proposed that if the Commission adopts regional licensing, it should,
among other things, ``adopt a legally binding governance structure to
facilitate interactions among multiple D Block licensees and PSST, and
to ensure interoperability and nationwide roaming.'' \367\ The
Commission seeks comment on these proposals, and more generally on
whether, in the event the Commission licenses the D Block on a regional
basis, the Commission should require the regional licensees to form a
formal national governance structure, and if so, what role and
responsibilities this national entity should have in the establishment
of the NSA(s), the construction and operation of the regional networks,
or any other matter.
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\366\ Letter from Warren G. Lavey, on behalf of United States
Cellular Corp., to Marlene H. Dortsch, Secretary, FCC, WT Docket No.
06-150, filed Sept. 2, 2008 (US Cellular Sept. 2, 2008 Ex Parte),
Attach., ``Making the Partnership Work: Solutions for the 700 MHz D
Block'', at 7.
\367\ Letter from Chief Harlin R. McEwen, Chairman, Public
Safety Spectrum Trust Corporation, to Marlene H. Dortsch, Secretary,
FCC, WT Docket No. 06-150, filed Aug. 29, 2008 (PSST Aug. 29, 2008
Ex Parte), at 1.
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174. Wholesale Service. With regard to the provision of wholesale
service, the Commission has proposed elsewhere in this Third FNPRM to
continue to permit the D Block licensee(s) the flexibility to provide
either retail or wholesale service commercially. With regard to
services to public safety entities, however, the Commission tentatively
concludes that such flexibility must be limited to some extent. As the
PSST notes, ``[u]nder a wholesale-only approach, it is not at all clear
who would deliver the necessary services to public safety agencies * *
*.'' \368\ To address this concern, the Commission tentatively
concludes that if the D Block licensee chooses to adopt a wholesale-
only model with respect to the D Block spectrum, it must still ensure,
though arrangements such as the creation of a subsidiary or by
contracting with a third party, that retail service will be provided to
public safety entities that complies with the Commission's regulatory
requirements.\369\ The Commission proposes to require this arrangement
to be included in the NSA, and that, whatever the arrangement, the D
Block licensee should be responsible for ensuring that service to
public safety meets applicable requirements. The Commission notes that
the current rules require the D Block licensee to create separate
entities to hold the license and network assets, respectively, and a
third entity to construct and operate the network, and further require
that these separate entities must be special purpose, bankruptcy remote
entities, as defined in the rules, to provide the network with a
certain degree of protection from being drawn into a bankruptcy
proceeding. The Commission seeks comment on whether certain
arrangements might enable a D Block licensee to place important assets
outside the protection from bankruptcy that the Commission intended
through this structure.
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\368\ PSST Comments at 12.
\369\ The relationship between a D Block auction winner and the
retail-level operating company will be subject to all of the
Commission's rules, including, but not limited to, provisions
regarding leasing in Subparts Q and X of Part 1 of the Commission's
rules.
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5. Role and Responsibilities of the Public Safety Broadband Licensee in
the Use of the Network
175. Background. In the Second Report and Order the Commission
charged the Public Safety Broadband Licensee with representing the
interests of the public safety community to ensure that the shared
interoperable broadband network meets their needs. Specifically, the
Commission assigned the following responsibilities to the Public Safety
Broadband Licensee concerning its partnership with the D Block
licensee:
General administration of access to the national public
safety broadband network by individual public safety entities,
including assessment of usage fees to recoup its expenses and related
frequency coordination duties.
[[Page 57785]]
Regular interaction with and promotion of the needs of the
public safety entities that would utilize the national public safety
broadband network, within the technical and operational confines of the
NSA.
Use of its national level of representation of the public
safety community to interface with equipment vendors on its own or in
partnership with the D Block licensee, as appropriate, to achieve and
pass on the benefits of economies of scale concerning network and
subscriber equipment and applications.
Sole authority, which cannot be waived in the NSA, to
approve, in consultation with the D Block licensee, equipment and
applications for use by public safety entities on the public safety
broadband network.
Responsibility to facilitate negotiations between the
winning bidder of the D Block license and local and state entities to
build out local and state-owned lands.\370\
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\370\ Second Report and Order at 15427 para. 383.
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176. The Commission also identified several other of the Public
Safety Broadband Licensee's responsibilities, which included:
Coordination of stations operating on public safety
broadband spectrum with public safety narrowband stations, including
management of the internal public safety guard band.
Oversight and implementation of the relocation of
narrowband public safety operations in channels 63 and 68, and the
upper 1 megahertz of channels 64 and 69.
Exercise of sole discretion, pursuant to Section 2.103 of
the Commission's rules, whether to permit Federal public safety agency
use of the public safety broadband spectrum, with any such use subject
to the terms and conditions of the NSA.
Responsibility for reviewing requests for wideband waivers
and including necessary conditions or limitations consistent with the
deployment and construction of the national public safety broadband
network.\371\
---------------------------------------------------------------------------
\371\ Id.
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177. In developing these responsibilities, the Commission afforded
the Public Safety Broadband Licensee flexibility in overseeing the
construction and use of the nationwide broadband public safety network,
while seeking ``to balance that discretion with the concurrent and
separate responsibilities'' of the D Block licensee.\372\ To that end,
the Commission indicated elsewhere that the interoperable shared
broadband network must incorporate, among other requirements,
``[o]perational control of the network by the Public Safety Broadband
Licensee to the extent necessary to ensure public safety requirements
are met.'' \373\
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\372\ Id. at 15426 para. 383.
\373\ Id. at 15434 para. 405.
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178. In the Second FNPRM, the Commission sought comment on whether
the Commission should clarify that the Public Safety Broadband Licensee
may not assume any additional responsibilities other than those
specified by the Commission in this proceeding.\374\ The Commission
asked generally whether the Commission should clarify, revise, or
eliminate any of the specific responsibilities listed above that the
Public Safety Broadband Licensee must assume.\375\ The Commission also
sought comment in particular on whether to clarify or revise the
division of responsibility between the Public Safety Broadband Licensee
and the D Block licensee regarding direct interaction with individual
public safety entities in the establishment of service to such
entities, the provision of service, customer care, service billing, or
other matters.\376\
---------------------------------------------------------------------------
\374\ Second FNPRM, 23 FCC Rcd at 8090, para. 121.
\375\ Id.
\376\ Second FNPRM at para. 122.
---------------------------------------------------------------------------
179. In addressing these questions, the Commission asked commenters
to consider the unique role served by the Public Safety Broadband
Licensee by virtue of holding the single nationwide public safety
license, while not being an actual user of the network.\377\ The
Commission observed that the Public Safety Broadband Licensee would in
many respects function much as regional planning committees presently
do in the 700 MHz and 800 MHz bands, yet with a nationwide scope.\378\
The Commission noted, for example, that like regional planning
committees, the Public Safety Broadband Licensee would administer
access to the spectrum, coordinate spectrum use, interact with and
promote the needs of individual public safety agencies, and ensure
conformance with applicable technical and operational rules.\379\ The
Commission further observed that the Public Safety Broadband Licensee
has distinct abilities, in that it may assess usage fees to recoup its
costs, can use its national level of representation to pass on the
benefits of economies of scale for subscriber equipment and
applications, and holds sole authority to approve, in consultation with
the D Block licensee, equipment and applications for public safety
users, and to permit Federal public safety agency use.\380\
---------------------------------------------------------------------------
\377\ Second FNPRM at para. 122.
\378\ Second FNPRM at para. 122.
\379\ Second FNPRM at para. 122.
\380\ Second FNPRM at para. 123.
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180. In light of these similarities and differences, the Commission
asked whether there are certain elements of the existing regional
planning committee functions that the Commission should adopt for the
Public Safety Broadband Licensee, and whether for those functions
distinct from regional planning committees, the Commission should adopt
specific rules governing how the Public Safety Broadband Licensee would
carry those out.\381\ To the extent the Public Safety Broadband
Licensee also serves a role as a partner with the D Block licensee
(such as facilitating negotiations between the D Block licensee and
state and local agencies for local build-outs), the Commission asked
how, if at all, the Public Safety Broadband Licensee's role as one half
of the 700 MHz Public/Private Partnership should impact how the
Commission modify or clarify the respective responsibilities of the D
Block licensee and the Public Safety Broadband Licensee moving
forward.\382\
---------------------------------------------------------------------------
\381\ Second FNPRM at para. 123
\382\ Second FNPRM at para. 124.
---------------------------------------------------------------------------
181. The Commission also observed in the Second FNPRM that more
specific limits may be required regarding the Public Safety Broadband
Licensee's discretion to carry out its partner-related
responsibilities.\383\ The Commission noted, for example, that the
shared wireless broadband network elements adopted in the Second Report
and Order required that the network infrastructure incorporate
operational control of the network by the Public Safety Broadband
Licensee ``to the extent necessary'' to ensure public safety
requirements are met.\384\ The Commission reiterated that the
underlying premise of the 700 MHz Public/Private Partnership was that
the D Block licensee would be responsible for construction and
operation of the broadband network.\385\ The Commission observed that
allowing duplication of some or all of these operational functions by
the Public Safety Broadband Licensee could render it a reseller of
services, thus injecting an inappropriate ``business'' or ``profit''
motive into the Public Safety Broadband Licensee structure, and
detracting it from the intended primary focus of the Public Safety
Broadband Licensee.\386\ Accordingly, the Commission sought comment on
whether to clarify that
[[Page 57786]]
none of the responsibilities and obligations of the Public Safety
Broadband Licensee, either as previously adopted or as possibly
revised, would permit the Public Safety Broadband Licensee to assume or
duplicate any of the network monitoring, operations, customer care, or
related functions that are inherent in the D Block licensee's
responsibilities to construct and operate the shared network
infrastructure.\387\
---------------------------------------------------------------------------
\383\ Second FNPRM at para. 124.
\384\ Second FNPRM at para. 124.
\385\ Second FNPRM at para. 124.
\386\ Second FNPRM at para. 124.
\387\ Second FNPRM at para. 124.
---------------------------------------------------------------------------
182. The Commission further sought comment on whether to expressly
provide that neither the Public Safety Broadband Licensee nor any of
its advisors, agents, or service providers may assume responsibilities
akin to a mobile virtual network operator (``MVNO'') \388\ because such
a role would be contrary to the respective roles and responsibilities
of the D Block licensee and Public Safety Broadband Licensee regarding
construction, management, operations, and use of the shared wireless
broadband network, might unnecessarily add to the costs of the 700 MHz
Public/Private Partnership, and might otherwise permit ``for profit''
incentives to influence the operations of the Public Safety Broadband
Licensee.\389\
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\388\ A mobile virtual network operator is a non-facility-based
mobile service provider that resells service to the public for
profit. See Implementation of Section 6002(B) of the Omnibus Budget
Reconciliation Act of 1993, WT Docket No. 05-71, Tenth Report, 20
FCC Rcd 15908, 15920 para. 27 (2005).
\389\ Second FNPRM, 23 FCC Rcd at 8092, at para. 125.
---------------------------------------------------------------------------
183. Comments. The PSST generally argued that it must be an ``equal
partner'' in the 700 MHz Public/Private Partnership, and that
``[b]ecause the FCC has made the PSST responsible for the public safety
user experience on the SWBN [shared wireless broadband network], it
also must provide the PSST with a mechanism that permits the PSST to
fulfill that responsibility on an ongoing basis after negotiating the
NSA.'' \390\ The PSST explained that while it ``accepts the FCC's view
that the PSST should not have [ ] an active role in the `business' of
managing the public safety user experience on the SWBN,'' it ``does not
agree that the D Block licensee should have sole control over all of
the traditional network service provider operations, including those
associated with the spectrum for which the PSST is the licensee.''\391\
The PSST further argued that ``[c]eding sole control over these
important functions to the D Block licensee would seriously impair, not
`better enable,' the PSBL's ability to `administer access to the
national public safety broadband network by individual public safety
entities, coordinate frequency usage, assess usage fees, and exercise
its sole authority to approve equipment and applications for use by
public safety entities.' '' \392\ The PSST asserted that ``[i]t is
clear to the PSST that for the PSST to `administer' network access it
will need some form of direct relationship with public safety users on
the network.''\393\
---------------------------------------------------------------------------
\390\ PSST Comments at 10.
\391\ PSST Comments at 11-12 (citing 47 CFR 1.9010, 1.9020 and
90.1440).
\392\ PSST Comments at 12 (citing Second FNPRM at para. 115;
Appendix, Section II).
\393\ PSST Comments at 12.
---------------------------------------------------------------------------
184. The PSST argued that ``it can fulfill its responsibilities if
it is considered to operate in a manner comparable to a `cooperative'
licensee.'' \394\ According to the PSST, under this model, the
``cooperative status permits a single entity to hold the authorization
for spectrum that will be utilized by multiple users on a non-profit,
cost-shared basis when each user is independently eligible to operate
on the spectrum.'' \395\ Additionally, according to the PSST, ``[t]he
cooperative approach should provide the PSST with a direct enforcement
right to obtain redress on behalf of public safety users as well as a
direct right to ensure that the highest levels of SWBN priority access
are only used for public safety authorized purposes.'' \396\
---------------------------------------------------------------------------
\394\ PSST Comments at 14 (citing 47 CFR 90.179).
\395\ PSST Comments at 14.
\396\ PSST Comments at 14.
---------------------------------------------------------------------------
185. The PSST asserted that ``the FCC already has determined that
the PSST must have operational control of the SWBN to the extent
required to ensure that public safety requirements are met, a
responsibility that is critical during incident management.'' \397\ The
PSST acknowledged that ``this can be accomplished without the PSST
establishing Network Operating Centers (NOCs) or other network elements
that could be considered parallel to or duplicative of those maintained
by the D Block licensee,'' \398\ but added that ``the PSST's right to
an appropriate level of control dictates that it must have the
exclusive right to manage the assignment of the highest priority levels
on the SWBN.'' \399\
---------------------------------------------------------------------------
\397\ PSST Comments at 15.
\398\ PSST Comments at 15.
\399\ PSST Comments at 16. The PSST further explained that while
``overall control of these priority levels must reside with the
PSST, [ ] individual priority assignments may be carried out, as
they are today, at more local levels.'' Id. The PSST also asserted
that it would need to play an ``active role'' in ``[e]stablishing
standards for the construction of a SWBN with specific features and
services for the benefit of public safety,'' and ``[n]egotiating
arrangements for the purchase of equipment from vendors (under
master agreements for the benefit of public safety users), and
renegotiating these agreements on an ongoing basis to reflect the
latest market developments.'' Id. at 9-10.
---------------------------------------------------------------------------
186. The PSST also argued that it ``must have an independent
ability to monitor the D Block licensee's compliance with the FCC rules
and with the terms of the NSA as they relate to public safety
operations on the SWBN,'' which it further argued would involve
monitoring ``the D Block operator's performance on a real-time basis so
that problems are identified and corrected, preferably before they
impact public safety communications rather than after the fact.'' \400\
The PSST clarified that ``[a]lthough the D Block licensee will always
have operational control of the SWBN, the PSST should have sufficient
access to and certain rights regarding the D Block licensee's NOC and
data centers to carry out the PSST's obligations, including
implementing priority access for public safety users, if the PSST is
not to have its own facilities.'' \401\ According to the PSST,
``[n]either the PSST nor the emergency responders who elect to join the
network should have to rely entirely on self-policing and self-
reporting by the D Block licensee to confirm that public safety needs
are being met.'' \402\ The PSST further asserted that ``[i]t also is
important that the PSST, as well as the D Block licensee, play a direct
role in promoting widespread public safety usage of the SWBN.'' \403\
---------------------------------------------------------------------------
\400\ PSST Comments at 16. The PSST also contended that it
``will need to be involved in and able to enforce the contracts
between public safety users and the D Block licensee in order to
ensure contract compliance and obtain redress on behalf of public
safety users, without being reduced to an ineffectual committee
preparing reports on NSA compliance.'' Id. at 10.
\401\ PSST Comments at 16 n.30.
\402\ PSST Comments at 16.
\403\ PSST Comments at 17.
---------------------------------------------------------------------------
187. The PSST included proposed regulations with its Reply Comments
that would implement many of its positions described above.\404\ For
example, under its proposed regulations defining the ``Shared Wireless
Broadband Network,'' the network would ``[p]rovide for operational
control of the network by the Public Safety Broadband Licensee, on
terms and conditions agreed to by the Public Safety Broadband Licensee
and the Upper 700 MHz D Block licensee, to the extent necessary to
ensure that Priority Public Safety Users' expectations are met.'' \405\
Under the proposed regulations, these terms and conditions
[[Page 57787]]
would include the ability of the Public Safety Broadband Licensee and
public safety users to ``[h]ave real-time monitoring and visibility
into the network that is integrated with performance, SLA, and KPI
reports as defined and specified in the NSA'' as well as ``real-time
visibility into Shared Wireless Broadband Network service quality and
network status relevant to the local agency or jurisdiction, including
the ability for local Priority Public Safety Users to have real-time
network status, site status, and alarm visibility for their geographic
area.'' \406\
---------------------------------------------------------------------------
\404\ See PSST Reply Comments, Attachment A.
\405\ See PSST Reply Comments, Attachment A, at 9.
\406\ Id. The proposed regulations further indicate that
``[o]perational control, as agreed to between the Upper 700 MHz D
Block licensee and the Public Safety Broadband Licensee in the NSA,
shall include * * * [t]he authorities and permissions for Public
Safety Broadband Licensee-trained incident management personnel to
have real-time access to the Upper 700 MHz D Block licensee's
primary and secondary Network Operations Centers (NOCs).'' Id. at
10.
---------------------------------------------------------------------------
188. APCO argued that it would be inappropriate for the PSBL to act
as a MVNO because such action ``would add duplication and costs that
could become a burden for both the PSBL and, more importantly, end
users.'' \407\ APCO observed that the MVNO model ``also imposes
responsibilities on the PSBL for which it is likely to be ill-
equipped,'' and that ``[t]o accept such a responsibility, the PSBL
would need to rely heavily upon commercial contractors, and somehow
provide sufficient oversight to ensure that the contractors are serving
public safety's interests.'' \408\ APCO further observed that
``[b]uilding the required internal management and operational
capability would also involve very substantial capital expenditures,''
for which the PSBL ``would need to rely upon either debt extended by
its contractors [] or substantial payment from the D Block licensee
pursuant to the NSA (which would likely discourage bidders once
again).'' \409\
---------------------------------------------------------------------------
\407\ APCO Comments at 34.
\408\ APCO Comments at 34.
\409\ APCO Comments at 34-35.
---------------------------------------------------------------------------
189. APCO argued, however, that the ``PSBL does need to have an
active role in the operation of the broadband network to ensure that it
meets public safety's requirements.'' \410\ APCO stated that ``there
needs to be a mechanism to oversee priority access and proper incident
command and control for the capacity represented by the 10 MHz licensed
to the PSBL.'' \411\ More specifically, APCO argued that ``the PSBL
needs to move towards a management structure that monitors D Block
licensee contract performance and service relations, without
duplicating the D Block licensee's core function or neglecting the
agencies and citizens the PSBL is charged to protect.'' \412\ To
achieve this objective, APCO proposed a specific list of tasks and
services that it contended the PSBL needs the ability to perform.\413\
---------------------------------------------------------------------------
\410\ APCO Comments at 35.
\411\ APCO Comments at 35.
\412\ APCO Comments at 35.
\413\ APCO Comments at 35-37.
---------------------------------------------------------------------------
190. AT&T urged the Commission to ``definitively declare that
commercial partners will have operational control over the entire joint
network, subject only to specific PSBL operational authority that the
Commission clearly defines prior to the RFP process or a reauction.''
\414\ AT&T contended that ``[c]ommercial partners require day-to-day
operational control over the entire network to ensure that commercial
and public safety service offerings meet the high standards expected by
commercial and public safety end users on a daily basis,'' adding that
``commercial partners are likely also in the best position to perform
this function, given their experience, expertise, and personnel and
financial resources.'' \415\ AT&T further contended that ``[w]ithout
assurance of commercial control over the network's operations, AT&T
questions whether any interested commercial parties will participate in
a RFP process or reauction.'' \416\ To that end, AT&T requested
clarification regarding the Commission's statement in the Second Report
and Order that the Public Safety Broadband Licensee would have
``operational control of the network to the extent necessary to ensure
public safety requirements are met.'' \417\ More specifically, AT&T
argued that ``[i]n order to assess the commercial viability of the
Public/Private Partnership, potential commercial participants need the
Commission to eliminate [any] ambiguity [on this issue] and to provide
a concise definition of ``operational control.'' \418\
---------------------------------------------------------------------------
\414\ AT&T Comments at 16. See also Reply Comments of AT&T at
17-18.
\415\ AT&T Comments at 16-17.
\416\ AT&T Comments at 17.
\417\ AT&T Comments at 17 (citing Second Report and Order at
para. 405).
\418\ AT&T Comments at 17.
---------------------------------------------------------------------------
191. AT&T further requested that the Commission clarify that ``the
PSBL has a responsibility to set priority levels and provision priority
users on the public safety network,'' for which AT&T recommends
following the model established by [the Department of Homeland
Security's National Communications System] in the provisioning of
[Wireless Priority Service].'' \419\ In addition, AT&T asserted that
``decisions whether a certain public safety device or application
should be permitted on the public/private network should rest primarily
with the PSBL.'' \420\ AT&T indicated that it ``generally agrees'' with
the list of potential PSBL responsibilities proposed by APCO.\421\ AT&T
opposed the notion of allowing the Public Safety Broadband Licensee to
act as an MVNO, arguing that allowing ``the PSBL or its advisors
operate as an MVNO or otherwise profiteer from the Public/Private
Partnership will likely raise the costs of services for public safety
users as well as discourage commercial participation in the Public/
Private Partnership.'' \422\
---------------------------------------------------------------------------
\419\ AT&T Comments at 17-18.
\420\ AT&T Comments at 18.
\421\ AT&T Reply Comments at 18.
\422\ AT&T Comments at 21-22. See also AT&T Reply Comments at
16.
---------------------------------------------------------------------------
192. Big Bend Telephone Company argued that the Commission ``should
not permit the Public Safety Broadband Licensee, or any of its
advisors, agents, or service providers to provide commercial services
as a `mobile virtual network operator.' ''\423\ Big Bend further argued
that permitting such action ``would permit `for profit' incentives to
influence the operations of the Public Safety Broadband Licensee,''
which Big Bend argued would ``prove detrimental to the viability of
smaller and rural wireless carriers.'' \424\ Big Bend also contended
that smaller and rural wireless carriers ``should have a reasonable
expectation that the FCC's rules will not permit a heavily subsidized
competitor--one that did not have to pay for its spectrum or network
construction, and that enjoys preferred regulatory status--to compete
in the market for commercial wireless services.'' \425\ A number of
other rural telecommunications carriers filed essentially identical
comments.\426\
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\423\ Big Bend Comments at 3.
\424\ Big Bend Comments at 3.
\425\ Big Bend Comments at 3.
\426\ See ACT Comments at 2-3; Smithville Comments at 2-3; PVTC
Comments at 3; Van Buren Comments at 2-3; Wiggins Comments at 4; CTC
Comments at 3; Ponderosa Comments at 2-3.
---------------------------------------------------------------------------
193. Ericsson asserted that ``[a] substantial portion of that
network (at a minimum, the radio access network, and in all likelihood,
other network components as well) will be run, day-to-day, by the D
Block licensee.'' Ericsson envisioned that the ``PSBL will need to
interact regularly with the D Block licensee to ensure that the needs
of the public safety organizations using the national public safety
broadband network are satisfied, within the
[[Page 57788]]
technical and operational confines of the NSA and FCC rules.'' \427\ To
that end, Ericsson argued that ``the D Block licensee would need to
provide the PSBL with any reports needed to evaluate the effectiveness
and proper operation of the priority access and preemption
mechanisms.'' \428\ Additionally, Ericsson argued that ``the PSBL
should be responsible for taking a leadership role in negotiations
concerning the siting of facilities on lands owned or controlled by
state and local governments, and regarding siting of facilities in
cases where state and local government oppose the site.'' \429\
---------------------------------------------------------------------------
\427\ Ericsson Comments at 30.
\428\ Ericsson Comments at 30.
\429\ Ericsson Comments at 30.
---------------------------------------------------------------------------
194. Nextwave asserted that ``the PSST should be tasked with
organizing, prioritizing, and addressing accordingly the varying
broadband needs of the diverse public safety community it serves.''
\430\ In particular, Nextwave recommended that ``the FCC leave to the
local and regional jurisdictions decisions with respect to standards-
based technologies to suit their specific needs, but direct the PSST to
provide guidance on coordination of spectrum usage, minimum network
performance requirements, permissible standards-based technologies with
which the networks must be built to comply, and end-to-end
interoperability.'' \431\ Furthermore, Nextwave suggested that ``the
FCC require the PSST, as licensee of the public safety broadband
spectrum, to create and provide an Interoperability Plan to public
safety entities for their reference in building regional networks.''
\432\
---------------------------------------------------------------------------
\430\ Nextwave Reply Comments at 8.
\431\ Nextwave Reply Comments at 8-9.
\432\ Nextwave Reply Comments at 9.
---------------------------------------------------------------------------
195. Council Tree contended that ``the Public Safety Broadband
Licensee should be required to operate as an accountable MVNO with
respect to public safety users.'' \433\ Council Tree argued that such
action is necessary because ``the MVNO will serve as the appropriate
vehicle through which public safety users may commit to certain minimum
volume purchase requirements,'' \434\ and ``the MVNO structure provides
a substantial service to the D Block licensee by taking on the
administrative responsibility associated with meeting the unique
service needs of public safety users.'' \435\ Additionally, Council
Tree argued that ``[s]hifting responsibilities to an MVNO directed by
the Public Safety Broadband Licensee also simplifies key elements in
the NSA and should facilitate negotiation of the agreement.'' \436\
---------------------------------------------------------------------------
\433\ Council Tree Comments at 21.
\434\ Council Tree Comments at 21.
\435\ Council Tree Comments at 22.
\436\ Council Tree Comments at 22.
---------------------------------------------------------------------------
196. Discussion. As an initial matter, the Commission does not
propose any changes to the responsibilities of the Public Safety
Broadband Licensee summarized above that were established by the Second
Report and Order. Thus, the Public Safety Broadband Licensee will
continue to be responsible for such activities as administration of
access to the nationwide public safety broadband network by public
safety entities, representation of the public safety community in
negotiating the NSA with the D Block licensee(s), interaction with
equipment vendors and approval of equipment and applications, and
administration of the narrowband relocation process.
197. However, the Commission tentatively concludes that further
clarification as to the responsibilities and obligations of the Public
Safety Broadband Licensee would help define the overall 700 MHz Public/
Private Partnership model and provide greater certainty to both the
Public Safety Broadband Licensee and potential bidders for the D Block
license(s) regarding their respective roles. The Commission begins with
the premise that the responsibilities and obligations of the Public
Safety Broadband Licensee do not include the Public Safety Broadband
Licensee assuming or duplicating any of the day-to-day network
monitoring, operations, customer care, or related functions that are
inherent in the D Block licensee's responsibilities to construct and
operate the shared network infrastructure. In the context of the 700
MHz Public/Private Partnership model, the Commission does not envision
that the Public Safety Broadband Licensee would operate as an MVNO or
that it would exercise actual day-to-day operational control over the
shared broadband network. While the Public Safety Broadband Licensee is
charged with administering access to the shared broadband network by
public safety users, the Commission's view it as carrying out these
functions through the establishment of priority access, service levels,
and related requirements within the NSA process, as opposed to
providing any form of ongoing day-to-day billing or customer care
functions to public safety entities desiring to access the shared
broadband network.
198. The Commission agrees with commenters who observed that
allowing the Public Safety Broadband Licensee to duplicate some or all
of the operational functions for which the D Block licensee, as the
service provider, inherently is responsible, would effectively render
the Public Safety Broadband Licensee a reseller of services, which
could inject an inappropriate and impermissible ``business'' or
``profit'' motive into the Public Safety Broadband Licensee's
structure.\437\ Such duplication of functions also would unnecessarily
increase the Public Safety Broadband Licensee's costs.
---------------------------------------------------------------------------
\437\ See, e.g., Big Bend Telephone Company Comments at 3.
---------------------------------------------------------------------------
199. At the same time, the Commission agrees with commenters who
observed that the Public Safety Broadband Licensee should have the
ability to monitor the services provided by the D Block licensee(s) to
ensure that priority access and other operational requirements
(including the establishment of service levels and the authentication
and authorization of public safety users) are being provided in
accordance with the NSA's terms, and should be empowered to work with
the D Block licensee to promptly correct any deficiencies. The
Commission expects that the Public Safety Broadband Licensee will be
able to perform this function through review of monthly usage reports
supplied by the D Block licensee(s), and that such monitoring will
enable the Public Safety Broadband Licensee to work with the D Block
licensee(s) to develop improved ways to meet the evolving usage needs
of the public safety community. The Commission also believes that the
Public Safety Broadband Licensee can effectively carry out its
monitoring role without requiring the D Block licensee to support real-
time monitoring by the PSBL or to provide the PSBL with access rights
to the D Block licensee's NOC and/or data centers.
200. The Commission believes that the role of the Public Safety
Broadband Licensee, as discussed in the Second Report and Order and as
further clarified above, is fully consistent with the requirement under
Section 310(d) of the Communications Act that it exercise de facto
control over use of the public safety broadband spectrum. Although the
Public Safety Broadband Licensee will not exercise day-to-day
operational control of the shared broadband network, the Commission has
previously stated that operational control of facilities is not a
statutory requirement to establish control, so long as the licensee
retains ultimate control over use of the licensed spectrum.\438\ In
[[Page 57789]]
this case, the Public Safety Broadband Licensee will exercise control
over use of the public spectrum by defining and administering the terms
of access and use of the spectrum, maintaining an active monitoring and
oversight role based on the monthly reports provided by the D Block
licensee, and exercising its other responsibilities enumerated above
and in the Second Report and Order. The Public Safety Broadband
Licensee will also have the authority to act on information provided in
the D Block licensee's reports, if necessary, by bringing a complaint
or petition for declaratory ruling to the Commission.\439\ This
authority will enable the Public Safety Broadband Licensee to carry out
its core responsibility to ensure compliance with Commission rules and
policies by users of the public safety broadband spectrum.
---------------------------------------------------------------------------
\438\ See generally Promoting Efficient Use of Spectrum Through
the Elimination of Barriers to the Development of Secondary Markets,
WT Docket 00-230, Report and Order and Further Notice of Proposed
Rulemaking, 18 FCC Rcd 20604 (2003) (concluding that operational
control of facilities was not a prerequisite for establishing that a
licensee retained de facto control under Section 310(d) in the
spectrum leasing context).
\439\ See Second Report and Order, 22 FCC Rcd at 15470, para.
528.
---------------------------------------------------------------------------
201. Accordingly, the Commission tentatively concludes that the
Commission should clarify the Public Safety Broadband Licensee's
responsibilities with respect to ``general administrator of access,''
as well as the requirement (codified in existing rule sections
27.1305(h) and 90.1405(h)) that the network incorporate ``operational
control'' as follows. The Commission proposes that the D Block
licensee(s) build into the shared broadband network infrastructure a
capability to provide monthly usage reports covering network capacity
and priority access so that the Public Safety Broadband Licensee can
monitor usage and provide appropriate feedback to the D Block
licensee(s) on operational elements of the network. The Commission
further proposes that the Public Safety Broadband Licensee utilize
these reports to carry out its role in administering access to the
shared broadband network in consultation with local, regional and state
public safety agencies. The Public Safety Broadband Licensee also may
administer access in terms of establishing access priorities and
service levels, authenticating and authorizing public safety users,
approving equipment and applications for public safety end users of the
network, and interacting with the public safety community to facilitate
an understanding of the opportunities made possible by subscribing to
the interoperable shared broadband network and the procedures for doing
so.
6. Post-Auction Process for Establishing a Network Sharing Agreement
202. Background. In the Second FNPRM, the Commission sought comment
on whether and how to modify the post-auction process, including
provisions governing negotiations between a winning D Block bidder and
the Public Safety Broadband Licensee for a Network Sharing Agreement.
The Commission sought comment on whether modifications to the process
would create greater incentives for the D Block winner and the PSBL to
negotiate the terms of the NSA in good faith, while reasonably
protecting their respective interests. In particular, comment was
sought regarding what consequences following failure to negotiate an
NSA would provide the best set of incentives for effective negotiation.
For example, such consequences could include offering a D Block license
to the next highest bidder, as well as possibly requiring the initial D
Block winner to cover the PSBL's costs associated with the unsuccessful
negotiations; or conducting a new auction, with or without the winner
of the initial auction; or conducting a new auction with licenses no
longer subject to the Public Private Partnership, with or without the
winner of the initial auction and/or with parties previously excluded
from the initial auction; and/or subjecting the D Block winning bidder
to default payments, either dependent on or irrespective of its good
faith in conducting the negotiations.
203. Discussion. In this section, the Commission tentatively
concludes that the public interest in achieving a nationwide
interoperable public safety broadband network following bidding for
alternative D Block licenses will be served best by making no provision
at this time for lifting the Public Private Partnership conditions
following such bidding. The Commission further tentatively concludes
that the Commission should adopt a rule providing that if a winning
bidder should for any reason not be assigned a license following an
auction of D Block licenses subject to the Public Private Partnership
Conditions, including due to a failure to negotiate an NSA, the
Commission shall offer to the other bidder(s) with the next highest
bid(s) on the license(s) any license that was not assigned. The
Commission directs the Wireless Telecommunications Bureau to specify
the circumstances in which the Commission may make such an offer in the
context of the final procedures adopted for any auction of D Block
licenses.
204. The Commission's separate tentative conclusion to offer
multiple regional licenses for the D Block, in addition to a nationwide
license, presents the possibility that separate NSAs may apply to
separate licenses. The Commission tentatively concludes that the
Commission should review and, if in the public interest, may accept
NSAs for some licenses, even if acceptable NSAs are not submitted with
respect to all licenses.
205. The Commission tentatively concludes that the Commission
should continue to provide for Commission resolution of any impasse
between the parties negotiating any NSA. The Commission further
tentatively concludes that a winning D Block bidder shall not be
subject to a default payment in the event there ultimately is no
agreement on the terms of the NSA, provided that it accepts any
Commission resolution of an impasse in the process of negotiating the
NSA.
206. The unique requirement for the D Block that winning bidders to
negotiate the terms of an NSA with the PSBL following bidding for the
licenses but before being granted the license may produce circumstances
not contemplated by the Commission's current rules for processing a
winning bidder's license application. For example, the Commission's
current rules do not contemplate denial of a winning bidder's
application without finding the applicant is either disqualified or in
default or both.\440\ As discussed herein, however, there may be
circumstances in which the Commission will not assign the license even
though the winning D Block bidder has not defaulted and, but for the
absence of an acceptable NSA, might otherwise be qualified to be
licensed. Accordingly, the Commission proposes a rule specific to the D
Block setting forth post-auction application procedures consistent with
the tentative conclusions reached in this 700 MHz Third FNPRM.
---------------------------------------------------------------------------
\440\ Cf. 47 CFR 1.2109(c).
---------------------------------------------------------------------------
207. The Commission tentatively concludes that the current record
does not demonstrate that any other alternatives for determining the
terms of the NSA, either through processes modeled on a Request for
Proposal mechanism or other proposals to finalize the NSA prior to an
auction, will better serve the public interest than the Commission's
initial proposal that the winning bidder(s) in an auction to license
the D Block should negotiate the terms of the NSA with the PSBL. The
Commission seeks comment on all the tentative conclusions with respect
to the process for negotiating the NSA.
[[Page 57790]]
208. Finally, given the proposal to offer the D Block on a regional
basis, and the other significant changes proposed herein, the
Commission seeks comment on whether the Commission should adopt further
changes to the process for establishing the NSA.\441\ For example, the
Commission seeks comment on whether the Commission should reduce or
modify the current negotiation reporting requirements, which obligate
the Public Safety Broadband Licensee and the D Block winning bidder to
jointly provide detailed reports on a monthly basis on the progress of
the negotiations.
---------------------------------------------------------------------------
\441\ 47 CFR 27.1315.
---------------------------------------------------------------------------
a. Action if All or Some D Block Winning Bidders Are Not Assigned
Licenses
209. Comments. Several parties, predominantly public safety
entities, contend that any Commission commitment to license D Block
without the Public Private Partnership under any subsequent
circumstances might undermine the chances for a successful Public
Private Partnership. Specifically, APCO notes that providing for
subsequent action on the D Block in the event there is no winning
bidder after an auction subject to the Public Private Partnership may
create incentives for parties that prefer those other alternatives in
order to prevent licensing pursuant to the Public Private
Partnership.\442\ NATOA et al. concurs, as does PSST.\443\
TeleCommUnity asserts that any such provision ``may guarantee a failed
second auction'' to license the D Block pursuant to the Public Private
Partnership.\444\ Equipment manufacturer Ericson echoes these public
safety commenters.\445\
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\442\ APCO Comments at 40.
\443\ NATOA et al.Comments at 23, PSST Comments at 43.
\444\ TeleCommUnity Comments at 15.
\445\ Ericsson Comments at 32.
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210. With respect to the particular scenario in which a winning
bidder is unable to negotiate a Network Sharing Agreement, PSST
supports offering the license to a next highest bidder.\446\ Ericson
also advocates this approach, as the most direct way to achieve the
benefits of the Public Private Partnership, despite the initial
winner's failure to negotiate an NSA.\447\
---------------------------------------------------------------------------
\446\ PSST Comments at 42.
\447\ Ericsson Comments at 32.
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211. In opposition, commercial provider MetroPCS, which advocates
abandoning the Public Private Partnership model outright, insists that
at a minimum the Commission should provide for an immediate subsequent
auction to license the D Block without the Public Private Partnership
in the event an auction subject to the Public Private Partnership does
not succeed.\448\ MetroPCS advocates that the Commission license the D
Block without the Public Private Partnership by assigning licenses by
CMA and without accepting package, or combinatorial, bids.\449\
---------------------------------------------------------------------------
\448\ MetroPCS Comments at 7.
\449\ MetroPCS Comments at 20-23.
---------------------------------------------------------------------------
212. Discussion. The Commission tentatively concludes that the
public interest in achieving a nationwide interoperable public safety
broadband network following the next auction of D Block licenses will
be served best by making no provision for lifting the Public Private
Partnership conditions at this time. Experience gained from an attempt
to establish a successful Public Private Partnership following the next
auction may help chart the future course of the D Block spectrum.
Moreover, achieving a successful nationwide interoperable public safety
broadband network is more important than accelerating the licensing of
the D Block.
213. A number of commenters support offering the D Block license to
the next highest bidder following any failure to negotiate an NSA.
These comments focus on providing a winning D Block bidder with the
best incentives to negotiate an NSA. However, the public interest in
achieving a nationwide interoperable public safety broadband network as
soon as possible also will be furthered if, in the event the Commission
determines it will not assign a license or license(s) to a winning
bidder for any reason, such as the winning bidder's default for failure
to make post-auction payments or disqualification due to failure to
meet the Commission's requirements of a D Block licensee, the
Commission offers the relevant license(s) to the other bidder(s) that
placed the next highest bid on the same license(s). Consequently, the
Commission considers more generally under what circumstances, if any,
the Commission may offer a license to another bidder without conducting
a second auction.
214. Pursuant to its current rules, the Commission has authority to
offer licenses to bidders with the next highest bids without re-opening
bidding but only in auctions in which a disqualified winning bidder's
bid could not have helped determine the winning bids on other licenses.
The Commission's rules currently provide discretion to make such an
offer in Commission auctions without package bidding, while precluding
it from doing so in auctions with package bidding.\450\ The
Commission's rules make this distinction because in an auction with
package bidding, absent the disqualified bid(s) the next highest bid(s)
of other bidder(s) for the same license(s) or package may not have
become a winning bid and a group of other bids for different packages
of licenses might have become the winning bids. In that case, the
disqualified bidder's bid helped determine not only the winner of the
licenses subject to the disqualified bid but also the winner of other
licenses.
---------------------------------------------------------------------------
\450\ See 47 CFR 1.2109(c) (in the event a winning bidder ``is
found unqualified to be a licensee * * * the Commission may * * *
offer [the license] to the other highest bidders (in descending
order) at their final bids.'') The Commission clarify here that the
imposition of liability for a default payment, referenced in the
first sentence of Section 1.2109(c), is not a precondition to the
Commission offering the license to the next highest bidder. Rather,
once a winning bidder is found ``unqualified,'' which in the context
of the D Block would include a finding that the winning bidder has
been unable to negotiate a Network Sharing Agreement with the PSBL
that the Commission will accept, the Commission then ``may * * *
offer [the license] to the other highest bidders,'' regardless of
whether the winning bidder is liable for a default payment.
---------------------------------------------------------------------------
215. Given the public interest at stake in the D Block being used
to deploy rapidly a nationwide interoperable broadband network for
public safety use, the Commission tentatively concludes that the
Commission should have authority to offer a license to the next highest
bidder if a winning bidder in an auction of alternative D Block
licenses subsequently defaults or is disqualified. The offer will be
for the same license won by the initial winning bidder, so that any
offer for a PSR license will be made to the next highest bidder for a
license using the same technology platform, even if higher bids were
placed on a license for the same PSR using a different technology
platform or a set of bids for alternative licenses would have won
absent the subsequently defaulted or disqualified bid. Moreover, the
Commission tentatively concludes that the Commission should be able
make such an offer whether bidding on alternative licenses was
conducted with or without package bidding. The Commission will adopt a
rule specifically for the D Block incorporating these provisions.
216. The Commission reaches this tentative conclusion while
recognizing that simultaneously offering alternative licenses for the D
Block has similarities to a package bidding auction, even absent
package bidding as defined in the Commission's rules.\451\ For example,
if bidders on regional licenses collectively outbid a bidder for the
alternative
[[Page 57791]]
nationwide license, it is possible that the bid on one of those
regional licenses affected the outcome for all the other regions by
making the aggregate bid for the regional licenses greater than the bid
for the nationwide license.\452\ However, given the importance of
rapidly licensing the D Block, the Commission tentatively concludes
that, following the simultaneous offer of alternative D Block licenses,
whether or not package bidding is available, if the Commission
determines that it will not assign any license(s) to an initial winning
bidder, the Commission may offer the same license(s) to the next
highest bidder, even if a different set of licenses covering the same
population would have had a higher aggregate bid in the absence of the
initial winning bid. The Commission seeks comment on the Commission's
tentative conclusion and whether any alternative would better serve the
purposes for making such offers.
---------------------------------------------------------------------------
\451\ See 47 CFR 1.2103(b).
\452\ This will not always be the case. A post-auction
disqualification of one winning bidder in an auction of alternative
licenses or a package bidding auction may not affect other winning
bidders for other licenses. For example, bidders for a group of
single licenses might have prevailed against a bid on an alternative
nationwide license--or package of single licenses--even if one of
the original winning bids is replaced by a second highest bid on a
single license. The Commission's standard package bidding rule
applies a bright line for all package bidding auctions, regardless
of the particular bids in the auction.
---------------------------------------------------------------------------
217. The Commission tentatively concludes that it would not be
appropriate to either require the Commission to offer the license to
the next highest bidder or to require the next highest bidder to accept
the license. The Commission should retain flexibility to utilize any
information obtained from the efforts of an initial D Block winning
bidder and the PSBL to negotiate an NSA, which might suggest a superior
course to simply offering the license to the next highest bidder.
Similarly, not requiring the next highest bidder to accept the license
provides that party with the flexibility to consider information
developed during the initial negotiations, which may avoid further
unsuccessful negotiations for the NSA. The Commission seeks comment on
these tentative conclusions.
b. Separate NSAs for Different Licenses
218. Given the Commission's tentative conclusion to offer regional
licenses for the D Block, the Commission also must consider whether all
the winning bidders for D Block licenses must successfully negotiate
NSAs, either jointly or individually, in order for any of them to be
licensed, or whether the Commission may license a subset of winning
bidders based on their success in negotiating NSAs notwithstanding the
inability of other winning bidders to do so. The Commission tentatively
concludes that the Commission may accept NSAs that are negotiated
between the PSBL and a subset of winning bidders. When negotiating NSAs
with winning bidders in a subset of areas to be licensed, the PSBL
should take into account the flexibility needed in the future to meet
the needs of other unlicensed areas. This should prevent unnecessary
limitations being imposed on future NSAs for unlicensed areas as a
result of NSAs for areas licensed first. The Commission further notes
that the Commission may take such concerns into account in determining
whether to accept NSAs in areas where the winning bidder and the PSBL
are able to come to agreement.
c. Liabilities of D Block Winning Bidders That Fail To Negotiate an NSA
219. Almost all commenters addressing whether to assess a default
payment on a D Block winner that fails to negotiate an NSA would, at
least in some circumstances, eliminate the default payment in the event
a winning bidder is unable to negotiate an NSA. PSST believes that
replacing the default payment with an automatic offer to the second
highest bidder will serve the purposes underlying the Commission's
default payment rule.\453\ APCO contends that ``[a]bsent bad faith, the
D Block auction winner should not pay a substantial financial penalty
if NSA negotiations fail (though some cost should be imposed to
encourage serious good faith negotiations).'' \454\ While NPSTC
believes that the default payment rule, like a reserve price, can serve
to help ensure that D Block participants possess the financial,
technical and managerial resources to perform responsibly, NPTSC
believes that the Commission should provide sufficient assurance
through other means, in which case the default payment can be reduced
or removed.\455\ NATOA et al. acknowledge the difficulty that large
default payments may create for potential D Block applicants but stress
the importance that any winning D Block bidder that does not negotiate
in good faith should face ``significant'' penalty or forfeiture.\456\
---------------------------------------------------------------------------
\453\ PSST Comments at 42.
\454\ APCO Comments at 38.
\455\ NPSTC Comments at 10.
\456\ NATOA et al. Comments at 22.
---------------------------------------------------------------------------
220. AT&T proposes that a winning bidder should only be subjected
to default payments if it acted in bad faith and that it should enjoy a
presumption of good faith.\457\ In addition, AT&T suggests that the
Commission stipulate that any proposal satisfying minimum requirements
delineated by the Commission would be deemed per se to be in good
faith.\458\ Council Tree Communications agrees that absent bad faith,
no default payment should be required.\459\ Northrop Grumman asserts
that the Commission should relieve any winning bidder that negotiates
the NSA in good faith from any default liability in the event no
agreement can be reached, but does not discuss the standard for
determining ``good faith.'' \460\
---------------------------------------------------------------------------
\457\ AT&T Comments at 23.
\458\ AT&T Comments at 23.
\459\ Council Tree Comments at 17. It asserts that if, however,
the Commission retains the default payment in all circumstances,
then only AT&T, Sprint Nextel, T-Mobile, and Verizon Wireless should
be subject to its provisions. Council Tree Comments at 20.
\460\ Northrop Grumman Comments at 9.
---------------------------------------------------------------------------
221. MetroPCS, however, would retain the default payment for a
winning D Block bidder that fails to negotiate an NSA, apparently
regardless of the bidder's good faith.\461\
---------------------------------------------------------------------------
\461\ MetroPCS Comments at 34.
---------------------------------------------------------------------------
222. Discussion. The Commission tentatively concludes if the
Commission dismisses a winning bidder's long-form application solely
for the lack of a Commission-approved NSA, a winning D Block bidder
should only be subject to a default payment if it chooses not to accept
the Commission's resolutions to any and all impasses in the process of
negotiating an NSA.\462\ Accordingly, if the Commission does not
mandate a resolution to an impasse for any reason, or the PSBL refuses
to accept a Commission resolution after the D Block bidder does so, the
winning D Block bidder will not be subject to a default payment. Given
the importance of developing a nationwide interoperable broadband
network usable for public safety, the Commission will attempt to
resolve any disputes between a winning D Block bidder and the PSBL with
respect to the terms of the NSA. The Commission will use its discretion
to determine how best to take into account the winning D Block bidder's
business plan, as well as the requirements of public safety users, when
mandating a resolution. The winning D Block bidder will be subject to a
default payment if it refuses to accept any resolution mandated by the
Commission. In the
[[Page 57792]]
event that the Commission does not mandate a resolution, or if the D
Block winner accepts the Commission's resolution but the PSBL declines
to do so, the D Block winning bidder will not be subject to a default
payment. Thus, a D Block winning bidder only will be exposed to default
payment liability from a negotiation failure if the Commission mandates
a resolution that the D Block winner chooses not to accept. The D Block
winner's subjective ``good faith'' or ``bad faith'' will not play a
role in determining default payment liability. The Commission
tentatively concludes that this standard should sufficiently protect D
Block bidders against any risk that the PSBL has requirements for the
NSA that cannot be reasonably accommodated as part of the D Block
winner's business plan. Employing a sweeping ``good faith'' exception
to the application of the Commission default rule as advocated by some
commenters would place the Commission in the untenable position of
having to evaluate the D block winning bidder's motives and business
judgments, which could significantly delay the NSA resolution process.
Instead, by placing the ultimate decision of acceptance of the
negotiated NSA or default in the hands of the D Block winning bidder,
it will have the ability to weigh its choices and reach a determination
of commercial viability.
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\462\ The Commission's competitive bidding rules and precedents
governing post-auction defaults would apply to bidders for D Block
licenses in other contexts, e.g., failure to make post-auction
payments, failure to file an acceptable long-form application, etc.
---------------------------------------------------------------------------
223. Although the Commission tentatively concludes that it should
not use a ``good faith'' standard in connection with imposing liability
on D Block winning bidders based solely on a failure to negotiate an
NSA, the Commission asks commenters whether there is another reasonable
alternative to its proposal to impose liability based on whether a D
Block winning bidder chooses to accept the Commission's resolution of
any negotiation disputes. Further, the Commission seeks comment on any
solutions to the difficulties of applying a ``good faith'' standard.
The Commission also sought comment on whether any winning bidder unable
to negotiate an NSA with the PSBL that was acceptable to the Commission
should be required to pay the PSBL's costs arising from the
unsuccessful negotiations. The Commission tentatively concludes that
the Commission should not impose such a requirement. While it might
immunize the PSBL against otherwise unnecessary expense, the overall
impact on the D Block winning bidders' incentives to negotiate would be
minimal. Finally, the administrative process of accounting for expenses
directly related to the negotiation might needlessly complicate the
negotiation process.
d. NSA Negotiation Process
224. The few comments directly addressing the negotiating process
within the context of the Commission's proposal for negotiation of an
NSA between the D Block winning bidder and the PSBL are divided on the
Commission's role. According to APCO, ``it is important that the FCC
continue to be the final arbiter of disputes.'' \463\ Northrop Grumman,
in contrast, argues that the Commission should assure a winning D Block
bidder a ``way out'' by eliminating any binding arbitration of disputes
with the PSBL when negotiating the NSA.\464\
---------------------------------------------------------------------------
\463\ APCO Comments at 38.
\464\ Northrop Grumman Comments at 9.
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225. The City of Philadelphia contends that ``the Commission should
require the PSBL to establish and delegate authority to regional
entities comprised of public safety agencies to negotiate terms of the
NSA that affect their operations, including commercial use of public
safety spectrum, priority access for public safety communications, and
preemption in cases of local or regional emergency.'' \465\
---------------------------------------------------------------------------
\465\ Philadelphia Comments at 3-4.
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226. Discussion. The Commission tentatively concludes that the
Commission should continue to provide for final Commission resolution
of any impasse between the parties negotiating the NSA. While the
Commission concurs with the view that winning D Block bidder(s) should
have a ``way out'' without the imposition of liability in the event
that it proves impossible to negotiate an acceptable NSA, the
appropriate ``way out'' is to provide for the Commission to determine
the final resolution of any dispute in connection with the negotiation
of the NSA, including, should the Commission find it in the public
interest, requiring the parties to accept specified terms resolving the
dispute. The Commission's resolution will be final. The Commission
notes that should the Commission conclude that it is unable to arrive
at a resolution that the Commission believes is reasonable to require
the parties to adopt, the Commission's tentative conclusion is that the
Commission will not impose default payment obligations on the winning D
Block bidder. In short, a winning D Block bidder unable to reach
agreement with the PSBL need only prove its case to the Commission in
order to be relieved of any liability for failure to negotiate the NSA.
The Commission think this ``way out'' provides the best balance of
incentives to negotiate the NSA in good faith, rather than leaving the
parties free to reject attempts at resolving any disputes.
227. With respect to the issue of involving local entities in the
negotiation of the NSA, the Commission disagrees with Philadelphia's
proposal that the PSBL should delegate authority to regional or local
authorities to negotiate terms with the D Block licensee. One of the
primary roles of the PSBL is to serve as the single public safety
representative for purposes of negotiating the NSA. Permitting multiple
public safety parties to conduct simultaneous NSA negotiations with the
D Block licensee would be inefficient and unwieldly, and would detract
from the ultimate goal of achieving a nationwide interoperable
broadband network for the entire public safety community. At the same
time, the PSBL must carry out its responsibility to negotiate the NSA
in a manner that is broadly representative of the public safety
community. Accordingly, the Commission tentatively concludes that,
while it would be contrary to the PSBL's primary NSA negotiation
responsibility to allow individual public safety entities to negotiate
directly with the D Block auction winner(s), the PSBL must reasonably
afford and accommodate local public safety input into its
deliberations, and in doing so, balance local needs with the rules and
policies ultimately adopted in this proceeding. Moreover, the
limitation on negotiation by local agencies does not preclude them from
contributing to the construction of the network with financial or other
resources where they are able to do so. Thus, the Commission
tentatively concludes that local public safety agencies, the PSBL, and
the winning bidder, where they are able to agree to particular terms
for local contribution to the network that expand upon a baseline
agreement, will be free to do so and incorporate those terms within the
larger NSA.
e. RFPs and Other Alternatives for Determining NSA Terms
228. Background. In the 700 MHz Second FNPRM, the Commission sought
comment on whether a request for proposal (RFP) approach in conjunction
with an auction might serve to establish the terms of the Network
Sharing Agreement. More specifically, the Commission sought comment on
whether to conduct an auction and then have a number of high bidders
submit proposals in response to an RFP outlining the needs of the PSBL
or,
[[Page 57793]]
alternatively, whether to issue an RFP outlining public safety needs,
then use one of the proposals submitted in response to establish rules
on the terms of an NSA, and finally conduct an auction open to all
parties interested in complying with those terms.
(i) RFP Approaches
229. Comments. Televate proposes an approach along the lines of the
Commission's first RFP-related suggestion. More specifically, Televate
proposes that the Commission accept proposals to satisfy public safety
needs from all bidders willing to meet a minimum bid of $150 million
and then score the proposals based on the weight given to various
proposal features, including the bid amount.\466\ The applicant with
the highest score would then negotiate the final NSA details with the
PSBL.\467\ As part of its proposal for licensing the D Block, Televate
proposes that bidders unable to negotiate an NSA would not be subject
to a penalty.\468\
---------------------------------------------------------------------------
\466\ Televate Comments at 5.
\467\ Televate Comments at 5.
\468\ Televate Comments at 6.
---------------------------------------------------------------------------
230. NTCH, a PCS provider and tower development company, proposes
an RFP-related approach roughly along the lines of the Commission's
second suggestion. NTCH suggests that would-be ``network managers''
negotiate alternative NSAs with the PSBL and subsequently applicants
for licenses would place bids on licenses, specifying with which of the
potential NSAs the bidder will comply.\469\ High bids for licenses
complying with the same NSA would be aggregated and compared with
aggregated high bids for licenses complying with the terms of other
NSAs. The NSA receiving the highest aggregate amount of license bids
would win. The network manager for that NSA would undertake to build
out any licenses not assigned to other parties based on the
bidding.\470\
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\469\ NTCH Comments at 5.
\470\ NTCH Comments at 5.
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231. Leap proposes that the Commission use a contracting process
between public safety users and the D Block licensee to determine what
network requirements the D Block licensee will satisfy beyond those
required by the Commission's commercial rules. Leap appears to advocate
that the Commission modify its standard 700 MHz rules by imposing a
requirement that the D Block licensee make its network available to
public safety, via the PSBL, and negotiate in good faith with public
safety users, via the PSBL, regarding any network improvements that the
public safety users may require, with the cost of such improvements to
be financed by the public safety users.\471\
---------------------------------------------------------------------------
\471\ Leap Comments at 12-13.
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232. AT&T, Verizon Wireless, and others promote a non-auction RFP
approach to achieving the goal of an interoperable nationwide
network.\472\
---------------------------------------------------------------------------
\472\ See, generally, AT&T Comments, Verizon Wireless Comments.
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233. Discussion. As discussed elsewhere in this Third FNPRM, the
Commission tentatively concludes that the detailed Public/Private
Partnership proposal set out in this Third FNPRM remains the best
option to achieve nationwide build-out of an interoperable broadband
network for public safety entities, given the current absence of
legislative appropriations for this purpose and the limited funding
available to the public safety sector.\473\ The Commission finds that
the RFP proposals submitted by parties in the record are not as likely
to sustain the Commission's commitment to achieving a nationwide
interoperable broadband network that meets public safety needs.
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\473\ The Commission notes that AT&T and Verizon Wireless state
that their proposals conflict with our prior determination in the
Second Report and Order that Section 337 of the Communications Act
requires that we license spectrum allocated for commercial purposes
in the upper 700 MHz band (which includes the D Block) by
competitive bidding, and that AT&T asserts that Congress would be
willing to revise the statute to permit an alternative approach. See
AT&T Comments at 7; see also Verizon Wireless Reply Comments at 2.
---------------------------------------------------------------------------
234. For instance, the Commission tentatively concludes that
Televate and NTCH have not demonstrated that their proposals are
workable in their current form. For example, Televate's proposal, while
generally describing the relative percentage weight to be applied to
different portions of bidder proposals, does not provide any guidance
on the difficult question of how to actually score each proposal. With
respect to NTCH's proposals, the Commission is not persuaded that the
Public Safety Broadband Licensee will be able to negotiate final terms
of multiple NSAs with various network operators in the absence of the
actual licensees who are to build and construct the ultimate network.
Accordingly, any advantages these proposals might have are hypothetical
and insufficient for us to adopt them in place of the existing
structure of licensing the D Block and having the NSA determined by
negotiation between winning bidder(s) and the Public Safety Broadband
Licensee.
235. Finally, the Commission tentatively concludes that Leap's
proposal offers insufficient assurance that the D Block licensee will
in fact negotiate terms that will result in an interoperable broadband
network that meets the needs of public safety on a nationwide basis.
The most likely outcome of adopting Leap's proposal seems to be a
nationwide interoperable commercial network supplemented by a patchwork
of regional arrangements meeting the needs of public safety to the
extent that local or regional public safety users are able to finance
network modifications required to meet their needs. Given that the
entire premise of the Public Private Partnership is that public safety
users lack sufficient financing to meet their needs, the Commission
tentatively concludes that Leap's proposal will not serve the public
interest.
(ii) Alternative Commenter Proposals
236. Comments. In addition to RFP approaches, several commenters
propose alternative approaches to establishing an NSA that diverge from
the Commission's initial proposal that a winning D Block bidder and the
PSBL negotiate an NSA after an auction to license the D Block. The
Mercatus Center at George Mason University proposes that the NSA be
negotiated prior to auctioning the license, ``through a negotiated
rulemaking,'' with the Commission establishing a ``negotiation
committee composed of the current members of the PSBL and the
representatives from potential bidders in the auction.'' \474\
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\474\ Mercatus Center Comments at 3.
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237. United States Cellular argues that the PSBL, in conjunction
with the public safety service providers, should establish the NSA
prior to auction, subject to amendments thereafter.\475\ In this
context, with the NSA established pre-auction, United States Cellular
favors subjecting any D Block winner that does not execute an NSA to
the Commission's default payment rules.\476\
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\475\ US Cellular Comments at ii-iii.
\476\ US Cellular Comments at 21.
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238. Discussion. The Commission tentatively concludes that the
public interest in achieving a nationwide interoperable broadband
network would be best served by accepting bids for D Block licenses
prior to negotiating the terms of the NSA. The Commission therefore
declines to adopt these alternative proposals for determining the terms
of the NSA prior to auction. As reflected in the Draft Network Sharing
Agreement accompanying this Third FNPRM, with the revised rules
proposed herein, the Commission provides considerable additional
certainty as to the ``baseline'' terms of
[[Page 57794]]
the NSA, rendering full negotiation of the NSA in advance of auction
unnecessary. Thus, all key baseline requirements to be covered by the
NSA have been either defined or identified prior to auction, thereby
providing a level of certainty to prospective bidders and ensuring
uniformity and consistency among regional networks in the event
regional licenses ultimately are implemented. While any given bidder
for a D Block license would prefer to have all the terms of the NSA
known prior to making its bid, the Commission has tentatively concluded
that, with respect to additional matters to be covered by the NSA,
negotiation between a winning bidder and the PSBL will be the most
effective means to achieving the best result. Terms that are not
essential to the successful operation of an NSA may nevertheless be
important to the viability of one bidder's business plan--while
irrelevant to another. Predetermining such NSA terms prior to
conducting an auction risks precluding many potential applicants, as
well as denying the winning bidder flexibility that may be essential to
achieving a nationwide interoperable broadband network that meets the
needs of public safety. The Commission seeks comment on the
Commission's tentative conclusions.
7. Auction Issues
239. Background. In the 700 MHz Second FNPRM, the Commission sought
comment on four specific issues related to how to conduct an auction to
license the D Block subject to the Public Private Partnership. In
particular, the Commission requested that commenters address (1)
whether to restrict eligibility of entities to participate in the D
Block auction based on their access to other 700 MHz spectrum; (2) how
to determine any reserve price in such an auction; (3) whether to adopt
an exception to the impermissible material relationship rule for
determination of designated entity eligibility; and (4) whether the
Commission should modify the auction default payment rules. In
addition, the Commission solicited comment on whether there were any
other changes that should be made to the standard competitive bidding
rules with respect to an auction to license the D Block.
240. Summary. In this section, the Commission reaches several
tentative conclusions with respect to issues related to the next
auction to license the D Block. The Commission has tentatively
concluded in this Third FNPRM that licenses subject to three
alternative provisions regarding the technology platform with which the
license(s) can be used should be offered. The three alternatives are as
follows: a nationwide license with which the winning bidder may use a
technology platform of its choice and two types of regional licenses,
one in which the licenses are to be used with LTE technology and a
second in which the licenses are to be used with WiMAX technology. The
Commission tentatively concludes that the Commission will determine
which of these alternative licenses to assign based on the results of
an auction in which all of the licenses are offered simultaneously.
241. Furthermore, the Commission tentatively concludes, in light of
the Commission's primary goal of facilitating the development of a
nationwide interoperable shared broadband network for the public-
private partnership, that it is in the public interest to award
licenses to the highest bidder(s) for the license(s) in the technology
platform alternative for which license(s) receiving bids cover the
greatest aggregate population, provided that at least half of the
nation's population is covered. If the provisionally winning bids do
not cover at least half of the nation's population, the auction will be
cancelled and no D Block licenses will be awarded based on the results
of the auction. Thus, the high bid on the nationwide, technology
platform alternative would be the provisionally winning bid over any
aggregate bid(s) covering less population in the two sets of regional
licenses until there are bids on all regions in at least one of the
alternatives. In addition, if there are high bids for license(s) in
more than one of the alternatives covering equal population, subject to
the minimum coverage requirement, licenses will be awarded to high
bidder(s) for license(s) in the technology platform alternative that
receives the highest aggregate gross bid(s). Finally, to promote
competition during the bidding for licenses covering as much population
as possible, the Commission tentatively concludes that the Commission
should direct the Wireless Telecommunications Bureau to establish
auction procedures that will encourage bidding on licenses covering as
much population as possible. For instance, with that goal in mind, the
Commission intends that provision be made to reduce minimum opening
bids on unsold regional licenses during bidding. In addition, in
furtherance of the Commission's goal of achieving the widest possible
population coverage, the Commission tentatively concludes that package
bidding on the sets of regional licenses would be in the public
interest and that the Commission should direct the Wireless
Telecommunications Bureau to establish procedures for package bidding
for this purpose.
242. In addition, the tentative conclusions the Commission reach on
issues raised in the 700 MHz Second FNPRM all reflect the Commission's
determination that the public interest in achieving a nationwide
interoperable broadband network that meets the needs of public safety
can best be promoted by auction provisions that will increase the
likelihood of active participation in an auction and competition for
the licenses. Accordingly, the Commission tentatively concludes that
the Commission should not adopt any restriction on the eligibility to
bid for D Block licenses by any entity otherwise eligible to be a D
Block licensee based on its spectrum holdings, whether in the 700 MHz
band or any other band. The Commission also tentatively concludes that
the Commission should direct the Wireless Telecommunications Bureau to
not adopt a reserve price greater than any minimum opening bid or bids.
The Commission further tentatively concludes that the Commission should
codify the substance of the previously granted waiver of the
impermissible material relationship rule with respect to designated
entity eligibility in connection with the D Block. As discussed in
connection with the process for establishing the NSA, the Commission
tentatively has concluded the only change needed with respect to the
Commission's default payment rules for purposes of the D Block is a
modification that limits application of the default payment rule to
specific circumstances following the failure to negotiate an NSA with
the PSBL that is acceptable to the Commission. Finally, for a variety
of reasons, the Commission tentatively concludes that the Commission
should not make any of the additional changes to the Commission's
competitive bidding rules proposed by commenters. The Commission seeks
comment on all these tentative conclusions.
a. Determining Geographic Area and Platform Technology Through Auction
243. The Commission tentatively concludes that rather than require
that applicants offer service nationwide or that winners of regional
licenses must use a predetermined technology platform, it is in the
public interest to offer simultaneously at auction alternative
licenses, specifically a single national license for use with a
technology platform of the licensee's choice and regional licenses for
use with one of two specific technology
[[Page 57795]]
platforms. Under this proposal, D Block license(s) would be awarded to
the highest bidder(s) for license(s) in the technology platform
alternative (i.e., either the nationwide license or one of the sets of
regional licenses) for which there are high bid(s) on license(s)
covering the greatest aggregate population, subject to conditions of
grant, including long-form license application processing. In the event
that there is a tie in the greatest aggregate population covered by
licenses with high bids in more than one of the alternatives,\477\ the
Commission would award license(s) to the high bidders for license(s) in
the alternative that receives the highest aggregate gross bid(s).
Furthermore, the Commission tentatively concludes that the Wireless
Telecommunications Bureau should establish, as part of its pre-auction
process, specific procedures to implement such an auction, including
provisions for reducing minimum opening bids on regional licenses, that
will promote bidding on licenses covering as much population as
possible, and specific procedures to make available package bidding for
groups of regional licenses using the same technology platforms.
---------------------------------------------------------------------------
\477\ For purposes of determining the extent of population
covered by licenses with high bids, the Commission would treat the
license for the Gulf of Mexico PSR as having population. Thus, a bid
on the nationwide license would cover a greater aggregate population
than bids on a set of regional licenses that covered all PSRs other
than the Gulf of Mexico PSR. Similarly, bids on one set of regional
licenses that include a bid on the Gulf of Mexico PSR license will
cover a greater aggregate population than bids on the second set of
regional licenses covering the same population but without a bid on
the Gulf of Mexico PSR license.
---------------------------------------------------------------------------
244. By offering alternative licenses at auction simultaneously,
the Commission can use the auction results to determine which
license(s) will facilitate coverage of the maximum population by the
nationwide interoperable shared broadband network for the public-
private partnership. Specifically, the Commission proposes to offer
simultaneously licenses with three alternative conditions regarding the
technology platform that may be used by the licensee: ``Alternative
(1),'' a nationwide license with the technology platform to be
determined by the winning bidder; ``Alternative (2),'' a set of
regional licenses for use with the LTE technology platform; and
``Alternative (3),'' a set of regional licenses for use with the WiMAX
technology platform. The Commission's goal is to provide for an auction
in which applicants could place bids for license(s) covering the
geographic area of their choice (nationwide and regional) and subject
to specific provisions regarding the required technology platform. More
specifically, the Commission seeks to provide certainty to bidders for
regional licenses about which technology platform would be required if
they become winning bidders. Thus, the Commission tentatively concludes
that the Commission should enable an auction in which applicants can
place bids that represent the values they assign to licenses for the
alternative geographic areas and alternative technology platform
requirements described above.
245. In furtherance of the Commission's primary goal of promoting
the widest possible population coverage by D Block license(s) subject
to the public-private partnership conditions, the Commission
tentatively concludes, as an initial matter, that the Commission will
not award any licenses unless the total population covered by licenses
with high bids meets or exceeds fifty percent (50%) of the U.S.
population. Setting the requirement at half of the population should
help assure that sufficient licenses are assigned after the next
auction to facilitate the ultimate success of a nationwide
interoperable broadband network for public safety. The Commission will
direct the Wireless Telecommunications Bureau, as part of its pre-
auction process, to describe how this requirement will be implemented
in the context of the final auction procedures. If provisionally
winning bids do not meet this requirement, the auction will be
cancelled and no D Block licenses will be awarded based on the results
of the auction.
246. The Commission further tentatively concludes that, if the
fifty percent (50%) population threshold is met, winning bidders will
be determined according to the following criteria. If there is no
nationwide bid and there are not high bids on all regional licenses in
either set, the bidder(s) with high bid(s) on the D Block license(s) in
the technology alternative covering the greatest aggregate population
will become the winning bidders after the close of bidding. Similarly,
if there is a nationwide bid but not high bids on all licenses in
either regional set, the bidder for the nationwide license will become
the winning bidder by covering the greatest aggregate population. In
the event that there is a bid on the nationwide license and on all
licenses in either regional set, the set of licenses with the highest
aggregate gross bid(s) will become the winning bidder(s). Similarly, in
the event that there is no nationwide bid and the greatest aggregate
population is covered equally by the high bids in the two sets of
regional licenses, the high bidder(s) for license(s) in the set with
the highest aggregate gross bid(s) will become the winning bidder(s).
Thus, the Commission will look first to population coverage to
determine the winning set of licenses, and to the highest aggregate bid
amounts only if the population coverage is equal.\478\
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\478\ For purposes of determining the extent of population
covered by licenses with high bids, the Commission would treat the
license for the Gulf of Mexico PSR as having population. Thus, if
two sets of licenses otherwise cover the same aggregate population
and only one of the license sets includes the Gulf of Mexico PSR,
the set of licenses that includes the Gulf of Mexico PSR will be the
winning set, regardless of which set has the highest aggregate bid
amount. The nationwide license includes the Gulf of Mexico PSR.
---------------------------------------------------------------------------
247. The Commission further tentatively concludes that the Wireless
Telecommunications Bureau should establish auction procedures that will
encourage bidding on licenses covering as much population as possible,
including procedures to reduce minimum opening bids on unsold regional
licenses during bidding. In particular, the Commission tentatively
concludes that the Bureau should lower certain minimum opening bids to
the levels set out below if either of the following two triggers is
tripped.
248. First, if there is a bid for the nationwide license, neither
alternative set of regional licenses has received bids on all 58
licenses, and the sum of the provisionally winning bids for either set
of regional licenses is greater than the amount of the nationwide
license bid, then the Bureau will lower the minimum opening bids for
the regional licenses that do not have bids. Second, if there is not a
bid for the nationwide license and there are bids in either set of
regional licenses that cover at least half the nation's population,
then the Bureau will lower the minimum opening bids for the regional
licenses that do not have bids.
249. In particular, in these circumstances, the Commission proposes
that the Bureau would lower the relevant minimum opening bids by
setting new minimum opening bids for licenses without bids at $0.005
per megahertz per population (MHz-pop). If either of the regional
licenses for the Gulf of Mexico does not have a bid, its minimum
opening bid will be reduced to $2,500. Under this proposal, the Bureau
would not further reduce minimum opening bids during the auction.
250. The Commission also seeks comment on alternative triggers for
the
[[Page 57796]]
reduction of minimum opening bids. For instance, the Commission seeks
comment on whether, absent a bid on the nationwide license, there is
another level at which the aggregate bids for either set of regional
licenses should trigger a reduction in minimum opening bids for
regional licenses without bids.
251. The Commission seeks comment on all of these tentative
conclusions and on whether such an auction process will best serve the
public interest in achieving a nationwide interoperable public safety
broadband network. The Commission also seeks comment on whether there
are other auction provisions the Commission could establish that would
promote the widest possible coverage of the nation's population by D
Block licensees, while providing meaningful opportunities for regional
bidders that would create interoperable regional networks. Further, the
Commission seeks comment on whether the approach suggested by its
tentative conclusions is consistent with the Commission's long-held
policy of technology neutrality. To the extent commenters believe it is
not, the Commission asks that they provide specific input on
modifications the Commission could make that would advance technology
neutrality. For example, would it be feasible to offer a fourth set of
regional licenses that would allow the licensees to choose their own
technology? What are the advantages and disadvantages of including such
an additional set of regional licenses? Specifically, if licensees can
choose their own technologies, how could the Commission assure that
regional deployments on licenses offered in the fourth regional set
will be fully interoperable consistent with the Commission's
fundamental premise that bridging, gateways, and/or IP patches are
insufficient for this purpose? Finally, the Commission seeks comment on
when the auction should commence.
252. While the 700 MHz Second FNPRM did not seek comment on the
details of auction design, some commenters noted their objections to
the possibility of package bidding. United States Cellular opposes the
use of package bidding in any auction to license the D Block subject to
the Public Private Partnership.\479\ The Rural Telecommunications Group
also opposed package bidding.\480\
---------------------------------------------------------------------------
\479\ US Cellular Comments at 21-22. Coleman Bazelon asserted
with respect to Auction 73 that package bidding and anonymous
bidding created difficulties for smaller bidders. See Bazelon
Comments, Attachment at 11-14. Cox Communications opposes the use of
anonymous bidding in any auction to license D Block that is not
subject to the Public Private Partnership. Cox Communications
Comments at 13-14. MetroPCS opposes the use of package bidding in
any auction to license D Block that is not subject to the Public
Private Partnership. MetroPCS Comments at 21-22.
\480\ RTG Comments at 11.
---------------------------------------------------------------------------
253. The Commission tentatively concludes that the Wireless
Telecommunications Bureau should consider specific procedures for
package bidding with respect to regional licenses. As discussed
elsewhere, the Commission tentatively concludes that the Commission
should offer regional licenses in order to enhance the likelihood that
an applicant will seek licenses covering as much population as
possible. While regional licenses offer applicants greater flexibility
than a nationwide license, and bidders can win multiple regional
licenses, some potential applicants may prefer to be able to place
single bids covering geographic areas that are significantly larger
than the roughly state-sized PSRs. Accordingly, the Commission
tentatively concludes that the Commission should direct the Wireless
Telecommunications Bureau, as part of its pre-auction process, to seek
comment on and establish specific procedures for package bidding for
regional licenses that might encourage bidding on licenses that cover
as much population as possible. With respect to the concerns raised by
commenters, the Commission notes that consistent with the Commission's
conclusion in the Second Report and Order, the Commission anticipates
that the Wireless Telecommunications Bureau can implement procedures
for an auction with package bidding that will not impose disadvantages
on parties that wish to bid on individual licenses offered and direct
that it consider procedures that further that objective.\481\
---------------------------------------------------------------------------
\481\ See Second Report and Order at para. 290.
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254. Because of the critical importance of achieving a truly
nationwide interoperable wireless broadband network for public safety,
the Commission proposes to take prompt action to assign any licenses
remaining unsold if an auction meets the minimum coverage requirement
and yet there is no winning bidder in some regions. Any remaining
unsold licenses after an auction satisfies the minimum coverage
requirement will be regional licenses conditioned on the use of a
particular broadband technology platform. Such licenses will be unsold
if no party is willing to make the minimum opening bid for the license,
notwithstanding the Commission's reduction of the minimum opening bid
to $0.005 per megahertz per population (MHz-pop). Furthermore, regional
licenses subject to the Public/Private Partnership will have been sold
that cover at least fifty percent (50%) of the nation's population,
consistent with the minimum coverage requirement. Thus, licenses sold
will provide a foundation for an interoperable public safety wireless
broadband network and yet the network will not be nationwide because
some regional licenses remain unsold, despite very low minimum opening
bids. In order to realize the benefits of a truly nationwide network,
the Commission proposes that under such unique circumstances, the
Commission tentatively concludes that it should depart from its
standard approach of offering commercial licenses to the applicant
making the highest bid without reference to the applicant's particular
business plan and instead conduct a Request for Proposal (RFP) process,
incorporating consideration of applicant's proposals together with
their bids.\482\
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\482\ Because this approach does not involve any procurement by
or on behalf of the federal government, the use of the term ``RFP''
would not imply any obligation on the part of the federal government
to apply the Federal Acquisition Regulations, 48 CFR Chapter 1, or
any other government contracting requirements.
---------------------------------------------------------------------------
255. One possible RFP process under such circumstances would be to
request the submission of detailed proposals and bids from would-be
licensees regarding how they would use the regional license to deploy
an interoperable broadband network useable for public safety in the
applicable region, in conjunction with the D block licenses already won
at the auction. The Commission would determine the contents of the
request in consultation with the PSBL, the applicable regional public
safety planning committee, and other parties, including public
commenters, as may be appropriate. The RFP would specify the license
being offered, the applicable Commission rules, any additional
requirements or modifications appropriate to the region, and specify
the process by which any proposal(s) and bids would be evaluated. Based
on this process, the Commission would award the license to the
qualified party with the proposal and bid that best meet the
requirements. The terms of the proposal would then be incorporated into
an NSA for the region. The Commission seeks comment on this approach.
256. Alternatively, The Commission could re-allocate the spectrum
so that it can be assigned to the Public Safety Broadband Licensee. The
PSBL would then request the submission of detailed
[[Page 57797]]
proposals from would-be licensees regarding how they would deploy an
interoperable broadband network useable for public safety in the
applicable region in partnership with the D block licenses won at the
auction. The Commission seeks comment on these options.
257. The Commission seeks comment as well on whether these
approaches would be consistent with the Commission's obligations under
Sections 309(j) and 337(a) with respect to the allocation of spectrum
and the method of assigning D Block licenses. The Commission believes
that, at least once the Commission has put up for auction two times the
entire D Block portion of the 36 megahertz of spectrum allocated for
commercial use under Section 337 and assigned a substantial number of
commercial licenses in this Block through competitive bidding to cover
at least half of the country, at a time when the DTV transition has
already taken place and all the rest of the 36 megahertz of spectrum
has been made available by auction and nearly all subsequently
licensed, the Commission would have satisfied the allocation and
assignment obligations of Section 337(a) for those D Block licenses
that have failed to sell. In this regard, the Commission notes that the
circumstances here differ significantly from those that informed the
Commission's conclusion in the 700 MHz 2d R&O that it lacked authority
under Section 337 at that time to reallocate commercial use guard band
spectrum to public safety.
b. Eligibility Restrictions
258. Comments. Some public safety and commercial commenters,
including public safety entities, equipment manufacturers and large
commercial wireless providers, oppose adopting eligibility restrictions
on participation in an auction to license the D Block subject to the
Public Private Partnership. PSST expressly refrains from taking a
position on the issue. Other commenters, primarily smaller commercial
entities as well as public interest commenter PISC, support such a
proposal.
259. So long as the Public Private Partnership is retained, NATOA
et al. do not support any restrictions on eligibility of otherwise
qualified potential licensees to bid for the D Block license.\483\ APCO
contends that the Commission should not impose eligibility restrictions
that are unrelated to the goal of developing a national public safety
broadband network.\484\
---------------------------------------------------------------------------
\483\ NATOA et al. Comments at 21.
\484\ APCO Comments at 38.
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260. The Consumer Electronics Association opposes any restriction
on bidding eligibility that might preclude incumbents from bidding,
given the incumbents' qualifications and experience.\485\ Motorola
opines that given the significant investment required to develop and
deploy a public-safety grade broadband network, excluding current
spectrum holders will put the entire effort in jeopardy.\486\ Qualcomm
contends that the lack of bidding on D Block in Auction 73 counsels
against any restrictions on eligibility in a subsequent auction.\487\
---------------------------------------------------------------------------
\485\ CEA Comments at 5.
\486\ Motorola Comments at 17.
\487\ Qualcomm Comments at 11-12.
---------------------------------------------------------------------------
261. Both AT&T and Verizon Wireless also oppose eligibility
restrictions, noting that larger wireless providers are precisely the
parties best positioned to create a new public safety network.\488\
---------------------------------------------------------------------------
\488\ AT&T Reply Comments at 12; Verizon Wireless Comments at
22.
---------------------------------------------------------------------------
262. PSST does not take a position on eligibility restrictions at
this time.\489\ However, PSST advocates that the Commission attempt to
assure itself of the intentions of AT&T and Verizon Wireless, in order
to avoid an outcome where the possibility that those entities might
participate in the auction deters other participants, notwithstanding a
lack of interest by either AT&T or Verizon Wireless.\490\
---------------------------------------------------------------------------
\489\ PSST Comments at 43. PSST did not amend this position in
its Reply Comments. See, generally, PSST Reply Comments.
\490\ PSST Comments at 44-45.
---------------------------------------------------------------------------
263. Claiming that AT&T, Sprint, T-Mobile, and Verizon Wireless
currently have a collective ``chokehold'' on the wireless services
industry and that there is a low likelihood that new entrants will have
any opportunity other than the D Block, Council Tree Communications
asserts that AT&T, Sprint, T-Mobile and Verizon Wireless should be
prohibited from participating in an auction to license the D
Block.\491\ For the same reasons, Council Tree advocates use of the
``attributable interest'' standard previously used as part of the
former spectrum aggregation limit to preclude participation by parties
in which one of the barred carriers has an attributable interest.\492\
---------------------------------------------------------------------------
\491\ Council Tree Communications Comments at 14.
\492\ Council Tree Communications Comments at 16.
---------------------------------------------------------------------------
264. Cellular South ``strongly encourages'' the Commission to limit
participation in the D Block auction by parties who have significant
access to 700 MHz spectrum.\493\ In particular, Cellular South endorses
the use of the Commission's spectrum aggregation screen used for
wireless transactions in connection with licensing of the D Block.\494\
Similarly, Leap proposes that the Commission bar entities that won a
``substantial amount of spectrum'' in Auction 73 from participating in
an auction to license the D Block.\495\ More specifically, Leap
proposes that any current license holder or winning bidder capable of
reaching more than half of the nation's population with its 700 MHz
spectrum be prohibited from participating in an auction to license D
Block.\496\ NTCH proposes that parties with more than 20 megahertz of
700 MHz spectrum in a given market, primarily AT&T and Verizon
Wireless, should be precluded from bidding on the D Block in that
market.\497\
---------------------------------------------------------------------------
\493\ Cellular South Comments at 2.
\494\ Cellular South Comments at 3.
\495\ Leap Comments at 4.
\496\ Leap Comments at 7.
\497\ NTCH Comments at 13.
---------------------------------------------------------------------------
265. Citing conditions for competition that it contends worsened as
a result of the outcome of Auction 73, PISC advocates the adoption of a
spectrum cap of 95 megahertz in a market, as well as the grant of its
pending petition for reconsideration which would preclude the C Block
licensee from holding the D Block license.\498\ In the current
proceeding, the Rural Telecommunications Group advocates a per county
spectrum cap of 24 megahertz of 700 MHz band spectrum, while it seeks
in a separate proceeding to impose a general spectrum cap on spectrum
below 2.3 GHz.\499\ These restrictions on eligibility to hold a license
would go beyond the bidding eligibility restrictions contemplated by
the Commission in the 700 MHz Second FNPRM.
---------------------------------------------------------------------------
\498\ PISC Comments at 6-7.
\499\ RTG Comments at 8-11.
---------------------------------------------------------------------------
266. Discussion. The Commission tentatively concludes that the
Commission should not adopt any restriction on the eligibility to bid
for D Block licenses by any entity otherwise eligible to be a D Block
licensee based on its spectrum holdings, whether in the 700 MHz band or
any other band.\500\ The 700 MHz Second FNPRM sought comment on whether
a restriction on eligibility to bid in an auction to license the D
Block might increase the likelihood that a new entrant to nationwide
service in the 700 MHz band
[[Page 57798]]
would have an opportunity to do so. The Commission tentatively
concludes that the public interest in maximizing the likelihood that a
nationwide interoperable broadband network meeting the needs of public
safety will be built outweighs any possibility that a restriction on
eligibility to bid in an auction to license the D Block pursuant to the
Public Private Partnership will increase the likelihood that a new
nationwide service provider will emerge. The Commission notes that this
tentative conclusion does not itself bar any new provider from
participating in an auction to license the D Block. Moreover, to the
extent incumbent providers have cost advantages over a new provider
with respect to providing nationwide service that meets the needs of
public safety, the Commission tentatively concludes it better serves
the public interest to enable those savings to be put to use in
facilitating the provision of such service, rather than by requiring
the D Block winner to assume additional costs.
---------------------------------------------------------------------------
\500\ As the Commission discuss elsewhere, the Commission
tentatively conclude that the Commission should establish
eligibility conditions for any advisor to the Public Safety
Broadband Licensee.
---------------------------------------------------------------------------
267. The Commission decline to adopt PSST's suggestion that the
Commission seeks a commitment from nationwide incumbent service
providers regarding their intentions to participate in an auction to
license D Block. The Commission recognizes the PSST's concern that
uncertainty regarding potential competition from incumbents in an
auction conceivably could inhibit other potential bidders,
notwithstanding an ultimate lack of interest by incumbent nationwide
service providers. However, the Commission believes that parties
dissuaded from even applying to participate in an auction by such
concerns are unlikely to have the commitment or the resources essential
to providing service as a D Block licensee. Moreover, the Commission
recognizes that incumbent nationwide service providers may be unable to
determine their ultimate intentions regarding their interest in the D
Block with certainty far enough in advance of an auction for their
statements to be of use to other applicants. The Commission does not
want to foreclose the possibility that an incumbent carrier might
become a licensee by requiring them to make an earlier determination
than other parties regarding their interest in doing so. Accordingly,
the Commission declines to adopt PSST's suggestion that the Commission
seeks a commitment from nationwide incumbent service providers
regarding their intentions to participate in an auction to license D
Block.
268. The Second FNPRM did not seek comment on a spectrum cap or any
limitation on the ability of parties to hold licenses for the D Block.
As many commenters noted, in the Second Report and Order, the
Commission considered and rejected restricting eligibility to hold
licenses in the 700 MHz band based on competition in the market for
broadband services.\501\ While the spectrum holdings of parties have
changed in the period since that decision, none of the commenters
demonstrate that these changes have resulted in any change in the
market for broadband services that mandates revisiting the Commission's
decision. Thus, even if within the scope of this proceeding, the
Commission does not believe the record before us supports any spectrum
cap applicable to the D Block at this time. The Commission's conclusion
in this regard is without prejudice to the Commission's review of the
record in any other proceedings regarding potential spectrum caps.
---------------------------------------------------------------------------
\501\ Parties have filed petitions for reconsideration of that
decision, which remain pending before the Commission. See, e.g.,
PISC Petition for Reconsideration at 2.
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c. Reserve Price
269. Comments. As to the level of any reserve price used in an
auction to license the D Block, the consensus view among commenters is
that the reserve should be reduced or even eliminated. Numerous
commenters, from Council Tree Communications to Verizon Wireless to
APCO, supported significantly reducing or eliminating a reserve price
altogether. Some commenters, such as Jon Peha, Coleman Bazelon, and
Northrop Grumman, even supported eliminating a minimum opening bid.
MetroPCS was the only commenter that supported an aggressive reserve
price in excess of the minimum opening bid.
270. NATOA et al. assert that, so long as the Public Private
Partnership is retained, there is no need for a reserve price in light
of the revenues recovered in Auction 73.\502\
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\502\ NATOA et al. Comments at 20-21.
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271. Ericson asserts that the public interest would be served by a
reserve price just high enough to assure that a winning bidder has an
economic stake in successfully negotiating an NSA but not one linked to
the potential value of the D Block absent the Public Private
Partnership.\503\ Northrop Grumman asserts that given the financial
success of Auction 73 and the need to attract additional interest in
the D Block, neither a minimum opening bid nor a reserve price would
serve the public interest in an auction to license D Block.\504\
---------------------------------------------------------------------------
\503\ Ericson Comments at 33.
\504\ Northrop Grumman Comments at 9.
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272. Individual commenters Jon Peha and Coleman Bazelon both
contend that the D Block winner may need subsidies in order to
construct the Public Safety Network and, accordingly, there should be
no reserve price.\505\
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\505\ Bazelon Comments at 2.
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273. The Commission notes that three academic commenters address
the role of the reserve price rather than its level. Sandro Brusco,
Giuseppe Lopomo, and Leslie M. Marx (Brusco et al.) address the reserve
price from the perspective of using it in order to determine whether to
impose additional requirements on the licensee. They contend that
meeting a reserve price is likely to be a poor mechanism for balancing
public and private interests and for identifying the highest valuing
user of the spectrum.\506\ As an alternative mechanism, Brusco et al.
suggest that the Commission considers using an ``exclusive buyer
mechanism'' in which bidders compete for the right to choose between
the license with requirements or without requirements (or with fewer
requirements), with a discount on a bidder's bid if it chooses to
accept the requirements. In such a mechanism, the Commission would set
the bid discount to reflect the public benefit of the
requirements.\507\ Given the Commission's tentative conclusion to
retain the D Block license requirements regardless of the bidding in
the next auction, this analysis is not relevant to the Commission's
current decisions.
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\506\ Brusco et al. Comments at 2-4.
\507\ Brusco et al. Comments at 5.
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274. Discussion. The Commission tentatively concludes that the
Commission should direct the Wireless Telecommunications Bureau to not
adopt a reserve price greater than any minimum opening bid or bids. The
successful creation of a nationwide interoperable broadband network
meeting the needs of public safety will be of enormous value to the
public, quite possibly exceeding the value of any potential revenue for
the public from the sale of licenses for the D Block. Thus, in contrast
to the Commission's decisions with respect to Blocks A, B, C, and E in
Auction 73, the Commission tentatively concludes that it is not in the
public interest to adopt a reserve price beyond the minimum opening bid
to assure that the adoption of the Public Private Partnership does not
have an excessive negative effect on the value of the public spectrum
resource. In addition, as many commenters note, the results of Auction
73 more than satisfied the revenue expectations of the Congress with
respect to the auction of recovered analog spectrum, as set forth
[[Page 57799]]
in the DTV Act. Furthermore, a reserve price may have negative
consequences by discouraging otherwise viable bidders from competing in
an auction. Accordingly, no reserve price beyond the minimum opening
bid for the next auction to license the D Block is needed to serve a
larger policy goal, notwithstanding the Commission's contrary decision
in Auction 73. At the same time, the Commission also tentatively
concludes that it is in the public interest to direct the Wireless
Telecommunications Bureau to establish initial minimum opening bids for
each set of alternative D Block licenses that equal or aggregate
approximately $750 million.\508\ The Commission seeks comment on the
Commission's tentative conclusions, including whether the proposed
aggregate minimum opening bids should be lowered.
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\508\ Appendix E provides proposed minimum opening bids for each
of the 58 PSRs, which total approximately $750 million.
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d. Impermissible Material Relationships for Designated Entities
275. Comments. Only a select group of commenters addressed this
issue. Council Tree Communications, MetroPCS, NATOA et al., and
Wirefree Partners all addressed this issue.
276. NATOA et al., favor codifying the waiver, so long as the
Public Private Partnership is retained, so as to facilitate the
participation of smaller bidders.\509\ Council Tree Communications
favors codifying the waiver.\510\ In addition, Council Tree
Communications proposes that the Commission waive all designated entity
rule modifications adopted since 2006, in part due to Council Tree
Communications pending litigation challenging those rule changes.\511\
Wirefree likewise supports codifying the waiver in connection with
making other changes to the designated entity rules.\512\ Wirefree
would liberalize the designated entity rules by returning to a pre-2000
structure of requiring that qualifying entities maintain a minimum
equity interest in the applicant while not attributing revenues of
other interest holders to the applicant.\513\
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\509\ NATOA et al. Comments at 21.
\510\ Council Tree Communications Comments at 11.
\511\ Council Tree Communications Comments at 13.
\512\ Wirefree Comments at 9-10.
\513\ Wirefree Comments at 9-11.
---------------------------------------------------------------------------
277. MetroPCS opposes codifying or even retaining the waiver.
MetroPCS argues generally that the Commission should not retain the
Public Private Partnership that is the basis of the current
waiver.\514\ Consistent with its view that the Public Private
Partnership will make extreme demands on the D Block licensee's
financial resources, MetroPCS argues that that the Commission should
not offer bidding credits to applicants for D Block license(s).\515\
Further, MetroPCS contends that a D Block exemption from the
impermissible material relationship rule is not supported by any
``unique or unusual circumstances surrounding this spectrum.'' \516\
---------------------------------------------------------------------------
\514\ MetroPCS Comments, passim.
\515\ MetroPCS Comments at 34-35.
\516\ MetroPCS Comments at 36.
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278. Discussion. The Commission tentatively concludes that the
Commission should codify the substance of the previously granted waiver
of the impermissible material relationship rule so that a D Block
applicant or licensee with lease or resale (including wholesale)
arrangements with other entities involving more than 50 percent of the
spectrum capacity of a D Block license will not be ineligible for
designated entity benefits solely on the basis of such
arrangements.\517\ The waiver of the rule was premised on the fact that
certain aspects of the Commission's D Block rules with respect to the
Public Private Partnership provided adequate safeguards against the
abuses the impermissible material relationship rule was intended to
prevent. The Commission does not believe that any of the changes in the
D Block rules the Commission tentatively proposes today invalidate that
premise. Accordingly, the Commission disagrees with MetroPCS's
contention that there are no unique or unusual circumstances
surrounding this spectrum and tentatively concludes that the Commission
should codify the waiver.\518\ The Commission seeks comment on this
tentative conclusion.
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\517\ If a D Block applicant or licensee utilizes this exception
to the impermissible material relationship rule, it still remains
subject to the Commission other designated entity eligibility rules,
including the Commission controlling interest, unjust enrichment,
attributable material relationship, audit, eligibility event and
annual reporting rules. C.f., In Re Waiver of Section
1.2110(b)(3)(iv)(A) of the Commission's Rules For the Upper 700 MHz
Band D Block License, Order, 22 FCC Rcd. 20354, 20357 para.8, fn. 21
(2007).
\518\ Because this exception does not extend to arrangements for
use of the spectrum capacity of licenses other than the D Block
license, if an applicant or licensee has an impermissible material
relationship with respect to the spectrum capacity of any other
license(s), the normal operation of the Commission's rules will
continue to render it ineligible for designated entity benefits for
the D Block license.
---------------------------------------------------------------------------
279. The Commission further tentatively concludes that the
Commission should not revisit more generally the rules regarding
designated entity eligibility as proposed by Council Tree
Communications or Wirefree. Without prejudging those proposals, it is
more appropriate to address the rules regarding designated entity
eligibility generally in a separate proceeding. The Commission can
consider its general designated entity eligibility rules in various
pending proceedings, including a pending Further Notice of Proposed
Rulemaking and pending petitions for reconsideration arising from the
Commission's most recent revisions to the designated entity program.
The Commission also rejects the notion that Council Tree
Communications' attempt to litigate the Commission's existing
designated entity rules, which the Commission adopted to further the
public interest and applied in the recent auctions of Advanced Wireless
Services and 700 MHz licenses, is any basis for suspending those rules
in the next auction to license the D Block spectrum.
e. Default Payment Amounts
280. Comments. Few commenters addressed whether to modify the
default payment outside of the context of a failed attempt to negotiate
an NSA. Andrew Seybold states without further discussion that ``the
penalty clause should be removed.'' \519\ Qualcomm asserts that the
default rules are among rules that must be revised but suggests only
that the Commission waits until the close of the comment cycle in
response to the 700 MHz 2d FNPRM and then convene all affected
stakeholders in a meeting or meetings to ensure that the revised rules
strike the right balance.\520\
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\519\ Andrew Seybold Comments at 7.
\520\ Qualcomm Comments at 11.
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281. Discussion. The Commission tentatively concludes that the
Commission's existing rules governing the amount of the default payment
are generally appropriate for circumstances in which a D Block winning
bidder may be liable for a default payment.\521\ However, the
Commission also tentatively concludes that for an auction of
alternative D Block licenses, the Commission should apply the same
default payment amount rule regardless of whether or not it package
bidding is utilized. Currently, the Commission rules provide that the
Bureau, prior to auctions without combinatorial bidding, i.e., package
bidding, shall establish the percentage for the additional payment
[[Page 57800]]
component of a default payment between 3 and 20 percent. In auctions
with combinatorial or package bidding, the Commission's rules provide
that this percentage shall be 25 percent. The Commission established
this higher percentage for package bidding auctions because of the
potential inter-relatedness of bids in such an auction. Because each
bidder's bid in a package bidding auction is combined with bids on
other licenses to determine the group of winning bids, any one bid may
affect which bids win other licenses. Consequently, the Commission
concluded that it is particularly important to discourage defaults in
package bidding auctions. As the Commission has discussed elsewhere,
bids in an auction of alternative licenses are also inter-related,
regardless of whether package bidding is available. However, the
Commission tentatively concludes that in an auction of alternative
licenses for the D Block subject to the 700 MHz Public/Private
Partnership, whether or not package bidding procedures are implemented,
the Commission should direct the Wireless Telecommunications Bureau to
set the percentage of the additional payment for defaults at between 3
and 20 percent, the same range for an auction without package bidding.
The Commission tentatively concludes that this range will enable the
Bureau to set an appropriate percentage as part of its pre-auction
process, taking into account both the special circumstances of the D
Block and the final details of the auction process to be used. The
Commission seeks comment on this tentative conclusion.
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\521\ As discussed elsewhere, the Commission has concluded
tentatively that the Commission default payment rules should be
modified with respect to the circumstances under which they apply to
D Block winning bidders following a failure to negotiate an NSA with
the PSBL that is acceptable to the Commission.
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f. Other Competitive Bidding Rules
282. Background. In the 700 MHz Second FNPRM, the Commission sought
comment on other potential changes to the Commission's competitive
bidding rules, potentially to assist new entrants or to serve other
public interest purposes.
283. Comments. Sprint proposes a system of performance-based
bidding credits, in which applicants agreeing to meet any of up to 5
potential stricter performance requirements could receive bidding
credits, subject to a requirement to repay the credit, with interest,
if the applicant does not meet the stricter standards. AT&T opposes
this proposal, characterizing it as ``[a]llowing carriers to eviscerate
[minimum] standards by paying additional money.'' \522\ Commenter
Andrew Seybold proposes that an auction be conducted to determine the
party that will manage the Public Safety Network, with incumbent
carriers constructing the network in response to other incentives, such
as tax credits and access to the network.\523\ In this context, he
advocates that the Commission lift its anti-collusion rule, in order to
enable communications among incumbent carriers and prospective network
managers.\524\ As part of its own alternative proposal, NTCH suggests
that the Commission lift the anti-collusion rule prior to the auction,
apparently unaware that the rule does not apply until would-be
licensees file applications to participate in the auction.\525\ NATOA
also suggests ``relaxing'' the Commission's anti-collusion rules,
apparently under the mistaken belief that the rules prohibit the
creation of bidding consortia prior to the auction.\526\ United States
Cellular opposes the use of anonymous bidding in any auction to license
the D Block subject to the Public Private Partnership.\527\ As noted
above, Council Tree Communications and Wirefree Partners suggest
several changes to the Commission's designated entity program in order
to encourage participation by designated entities.
---------------------------------------------------------------------------
\522\ AT&T Reply Comments at 21.
\523\ Andrew Seybold Comments at 4.
\524\ Andrew Seybold Comments at 5.
\525\ NTCH Comments at 14.
\526\ NATOA et al. Comments at 21.
\527\ US Cellular Comments at 21-22. Coleman Bazelon asserted
with respect to Auction 73 that package bidding and anonymous
bidding created difficulties for smaller bidders. See Bazelon
Comments, attachment at 11-14. Cox Communications opposes the use of
anonymous bidding in any auction to license D Block that is not
subject to the Public Private Partnership. Cox Communications
Comments at 13-14. MetroPCS opposes the use of package bidding in
any auction to license D Block that is not subject to the Public
Private Partnership. MetroPCS Comments at 21-22.
---------------------------------------------------------------------------
284. Discussion. The Commission seeks further comment with respect
to the approach advocated by Sprint. As discussed elsewhere in this
Third FNPRM, the Commission has reached tentative conclusions with
respect to the appropriate level of performance mandates. The
Commission asks that commenters address whether it should modify these
performance mandates by offering bidding credits to applicants willing
to commit themselves to meeting greater requirements. In light of the
mandates proposed herein, with respect to which mandates should the
Commission offer bidding credits for commitments to exceed the
requirements? What would be the level by which the mandate should be
exceeded before a credit should be offered? What amount of credit is
appropriate for a particular performance requirement? Should the credit
only be refunded from the full bid price after the greater requirement
is met? Or should the commitment be sufficient to receive a reduction
in the bid amount, subject to repayment if the commitment is not
fulfilled? Does the appropriate approach change depending on the
particular performance requirement?
285. The Commission tentatively concludes that it should not make
any of the changes commenters propose to the Commission's competitive
bidding rules. As the Commission's anti-collusion rule applies solely
after parties file applications to participate in bidding for
Commission licenses, the Commission tentatively concludes bidding
consortia may form prior to the application deadline without any
relaxation of the rule. Furthermore, in light of the Commission's
tentative conclusion that the winning bidder for a D Block license
should negotiate an NSA only after the conclusion of the auction, there
is no reason to relax the anti-collusion rule to permit communications
during the auction in connection with the terms of the NSA. Commenters'
proposals regarding certain details of auction design, such as
anonymous bidding, are best addressed in the context of the Wireless
Telecommunication Bureau's pre-auction notice and comment process.\528\
Finally, for reasons discussed above, the Commission will not consider
in this proceeding the wholesale changes to the Commission's designated
entity eligibility rules proposed by Council Tree Communications and
Wirefree Partners.
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\528\ The Commission detailed the public interest reasons
underlying its decision to utilize anonymous bidding in for the
auction of 700 MHz Band licenses in the Second Report and Order and
has used anonymous bidding in a number of Commission auctions for
wireless services licenses. Accordingly, absent good cause, the
Commission expects that anonymous bidding likely will be employed in
the next auction of the D Block.
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8. Safeguards for Protection of Public Safety Service
286. Background. In the Second Report and Order, the Commission
established a number of measures to safeguard the interests of public
safety on an ongoing basis following the execution of the NSA. These
measures included: (1) Requirements related to the organization and
structure of the 700 MHz Public/Private Partnership; (2) a prohibition
on discontinuance of service provided to public safety entities; (3)
special remedies in the event that the D Block licensee or Public
Safety Broadband Licensee fail to comply with either the Commission's
rules or the terms of the NSA; (4) a special,
[[Page 57801]]
exclusive process for resolving any disputes related to the execution
of the terms of the NSA; and (5) ongoing reporting obligations.\529\
These measures addressed concerns that problems arising after the
execution of the NSA, whether financial or otherwise, might threaten
the build-out of the network or the provision of services to public
safety, or that financial problems might lead the D Block licensee to
draw its license or the network assets into a bankruptcy proceeding.
The Commission did not specifically propose any modifications to these
rules in the Second FNPRM.
---------------------------------------------------------------------------
\529\ Second Report and Order, 22 FCC Rcd at 15467-71 paras.
517-530.
---------------------------------------------------------------------------
287. Discussion. The Commission tentatively concludes that the
Commission should retain these rules to safeguard the interests of
public safety on an ongoing basis following the execution of the
NSA.The Commission continues to believe that the measures the
Commission previously adopted are necessary to address the possibility
that problems could arise in the implementation of the NSA or the
operation of the common network, and that they will protect the
interests of public safety without compromising the commercial
viability of the 700 MHz Public/Private Partnership.\530\
---------------------------------------------------------------------------
\530\ But see Letter from Warren G. Lavey, US Cellular, to
Marlene H. Dortch, Secretary, FCC, WT Docket 06-150, PS Docket 06-
229, filed Sept. 17, 2008 (asserting that the requirement to form
bankruptcy remote special entities ``may be detrimental to the
rapid, efficient deployment and operation of networks by many
potential D Block licensees'').
---------------------------------------------------------------------------
288. The Commission also notes that, in addition to the quarterly
reporting requirements adopted in the Second Report and Order, it has
proposed elsewhere in this Third FNPRM that the D Block licensee be
required to provide to the Public Safety Broadband Licensee monthly
network usage statistics. The Commission also finds that these existing
and newly proposed reporting requirements address the concerns of some
commenters regarding the need for oversight of the D Block licensee's
operations. The Commission seeks comment on these tentative
conclusions.
289. In addition, the Commission seeks comment on whether a winning
bidder for any D Block license should post financial security to ensure
that the network will be constructed pursuant to the terms of the NSA
and the Commission's rules. In particular, the Commission seeks comment
on whether a winning bidder for D Block licenses should be required to
obtain an irrevocable standby letter of credit (``LOC'') no later than
the date on which its executed NSA is submitted to the Commission. The
Commission also seeks comment on whether only applicants that do not
meet certain criteria should be subject to this requirement. For
example, should the Commission establish criteria, based on bond
rating, market capitalization, or debt/equity ratios (combined with
minimum levels of available capital) that, if not met, would make an
LOC necessary?
290. The Commission seeks comment on the amount of the LOC
necessary to ensure uninterrupted construction of the public safety
network, as well as the length of time that the LOC should remain in
place. For example, the amount of the LOC could be determined on the
basis of estimated annual budgets that could accompany the build-out
schedule required as part of the NSA, or the Commission could simply
require a specific dollar figure for the LOC in an amount that would
ensure that construction could proceed for a given amount of time.
Should the amount of an initial LOC, or a subsequent LOC, also ensure
the continuing maintenance and operation of the network? Under what
circumstances should the D Block licensee be required to replenish the
LOC?
291. The Commission also seeks comment on whether the LOC should be
issued in favor of a trustee and the Commission. What events would
constitute a default by the D Block licensee that would allow the
trustee or the Commission to make a draw on the entire remaining amount
of the LOC? Further, the Commission notes its intent that, in the event
of bankruptcy, the LOC should be insulated from claims other than the
draws authorized here for the construction and operation of the
network. The Commission seeks comment on provisions it might adopt to
provide safeguards to this effect.\531\
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\531\ For example, the Commission could require as a condition
of the Public/Private Partnership License that any winning bidder
for a D Block license and related parties must first provide the
Commission with a legal opinion letter that would state, subject
only to customary assumptions, limitations and qualifications, that
in a proceeding under Title 11 of the United States Code, 11 U.S.C.
Section 101 et seq. (the ``Bankruptcy Code''), in which the winning
bidder is the debtor, the bankruptcy court would not treat the
Letter of Credit or proceeds of the Letter of Credit as property of
the winning bidder's bankruptcy estate (or the bankruptcy estate of
any other bidder-related entity requesting the issuance of the LOC)
under Section 541 of the Bankruptcy Code.
---------------------------------------------------------------------------
292. As an alternative to an LOC, the Commission seeks comment on
whether it should require parties to obtain performance bonds covering
the cost of network construction or operation. The Commission also
seeks comment on the types of requirements that bond issuers might
impose and whether such requirements are consistent with the public
interest in permitting a range of qualified parties to seek D Block
licenses. The Commission also seeks comment on the relative merits of
performance bonds and LOCs and the extent to which performance bonds,
in the event of the D Block Licensee's bankruptcy, might frustrate the
Commission's goal of ensuring timely buildout of the network. The
Commission also seeks comment on whether there are other protections
that it should reasonably seek to ascertain the financial viability of
the winning bidder, and ensure construction of the network and its
subsequent operation.
9. Local Build-Out Options
293. Background. In the Second Report and Order, the Commission
adopted provisions for early build-out in areas that do and do not have
a build-out commitment from the D Block licensee. Under these
provisions, for areas with a build-out commitment, some commenters
request that public safety entities can, with pre-approval from the
Public Safety Broadband Licensee, construct at its own expense a
broadband network in that area that conforms to the requirements and
specifications of the NSA, and must transfer such network to the D
Block licensee for integration into the Shared Wireless Broadband
Network. In this case, the public safety entity's compensation would be
limited to the costs the D Block licensee would have incurred had it
constructed the network in that area itself. Alternatively, rather than
constructing the network at its own cost, the public safety entity
could provide the D Block licensee with the funds necessary to do
so.\532\ For areas lacking a build-out commitment from the D Block
licensee, public safety entities may, at their own expense, construct
and operate an exclusive broadband network that is fully interoperable
with the Shared Wireless Broadband Network, pursuant to a spectrum
leasing arrangement with the Public Safety Broadband Licensee, and
after the Public Safety Broadband Licensee first offers the D Block
licensee the option of constructing a network in that area itself.\533\
---------------------------------------------------------------------------
\532\ See 47 CFR 90.1430(b)(1)-(4).
\533\ See 47 CFR 90.1430(b)(5).
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294. Comments. The Second FNPRM did not specifically seek comment
on changes to the rules on local public safety build-out. However, some
commenters advocated for greater
[[Page 57802]]
flexibility or autonomy in building out their own networks in the 700
MHz public safety broadband spectrum.\534\ APCO cautions that ``while
some accommodation for certain local deployments in the context of a
national license is necessary, the Commission must avoid creating yet
another situation consisting of multiple islands of robust, but
incompatible, public safety networks with vast unserved areas in-
between.'' \535\ Similarly, California asserts that ``[t]he vision of a
nationwide Shared Wireless Broadband Network (SWBN) cannot be realized
through the deployment of a multitude of [discrete] systems,'' arguing
that, given limited economic resources, ``[s]ome public safety agencies
in urban areas would likely implement broadband networks, but those in
rural areas would find it harder to justify building a local or
regional broadband network.'' \536\ APCO adds that it continues to
support allowing local deployments in areas where the national network
is unlikely to be built in the near future, conditioned on eventual
integration into the national network.\537\
---------------------------------------------------------------------------
\534\ See Kentucky Wireless Interoperability Executive Committee
Comments at 1, San Francisco Comments at 3-4; Philadelphia Comments
at 5-8, NYPD Comments at 7-10, District of Columbia Comments at 8-
15.
\535\ Id. at 3.
\536\ California Comments at 7.
\537\ See APCO Reply Comments at 3 n.2.
---------------------------------------------------------------------------
295. In an ex parte letter, Alcatel-Lucent proposes changes to the
local build-out rules that would create an additional option allowing a
public safety entity to ``enter a spectrum lease agreement with the
Public Safety Broadband Licensee and, at its own expense, build out a
700 MHz broadband network in any area where the public-private
broadband system has not yet been built.'' \538\ Further, if the D
Block licensee ``were to seek to build out and operate the public-
private network in the same area, it would be required to compensate
the public safety entity, based upon commercially reasonable terms, for
the value of the network to be integrated into the public-private
network.'' \539\ Alcatel-Lucent also argues that ``[n]etwork
integration and technological evolution are commonplace in commercial
mobile networks today, and there is no technological impediment to
integration--regardless of technologies.'' \540\
---------------------------------------------------------------------------
\538\ Alcatel-Lucent Ex Parte at 2.
\539\ Id.
\540\ Id.
---------------------------------------------------------------------------
296. Discussion. The local build-out rules the Commission adopted
in the Second Report and Order afford public safety entities with
options to build out broadband networks in advance or in lieu of the D
Block licensee's build-out, so that public safety agencies may obtain
use of advanced broadband networks more quickly if their needs so
dictate. Particularly in areas that have a build-out commitment, a
public safety entity serving that area may already have invested
resources in development of plans to deploy a system that is tailored
to that area and thus may have options available to accelerate the
deployment of the public safety broadband network to its jurisdiction.
At the same time, the Commission recognizes that since the auction of
the D Block did not result in a winning bid, there has been an
associated delay in the deployment of the nationwide broadband network,
which may impact the extent to which some public safety agencies may
desire to construct their own networks before a new auction is
completed.
297. In its comments, the District of Columbia (the ``District'')
made certain requests related to the Regional Wireless Broadband
Network (RWBN) \541\ operated by the National Capital Region (NCR)
jurisdictions, of which the District is a member.\542\ The District
indicates that $8.2 million in Federal grant funds have been expended
to build out the RWBN thus far, primarily within the District.\543\ The
District further states that it requires certainty to realize a return
on further investment in the program.\544\ Specifically, the District
requests that the Commission authorize it to: (i) Continue deploying
and operating the RWBN for 10 years from the date of any final decision
on its request, or require the interoperable shared broadband network
into which the RWBN would be incorporated to provide service to
District users for 10 years free of charge; (ii) use the 700 MHz
broadband spectrum for 10 years from the date of a final decision or
until the RWBN is incorporated into the interoperable shared broadband
network; (iii) use the RWBN to provide service to as broad a range of
users as possible, including municipal, state, and Federal users, as
well as other users not typically defined as ``first responders;'' and
(iv) offer service and assign priority levels to specific groups of
users as the District deems appropriate and necessary to sustain the
RWBN financially.\545\
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\541\ NCR deployed the RWBN in the 700 MHz Band pursuant to a
waiver issued by the PSHSB in January 2007. See Request by National
Capital Region for Waiver of the Commission's Rules to Allow
Establishment of a 700 MHz Interoperable Broadband Data Network, WT
Docket No. 96-86, Order, 22 FCC Rcd 1846 (PSHSB 2007) (NCR Waiver
Order). NCR operates the RWBN pursuant to a grant of a request for
Special Temporary Authority. See Special Temporary Authorization,
File No. 0003149202, Call Sign WQHY489 (Nov. 1, 2007); Special
Temporary Authorization, File No. 0003397425, Call Sign WQHY489
(April 28, 2008); Special Temporary Authorization, File No.
0003151108, Call Sign WQHY490 (Nov. 1, 2007); Special Temporary
Authorization, File No. 0003397644, Call Sign WQHY490 (April 28,
2008).
\542\ The NCR consists of eighteen jurisdictions: The District
of Columbia, Montgomery and Prince Georges Counties of Maryland, and
the cities of Gaithersburg, Rockville, Takoma Park, Bowie, College
Park, and Greenbelt; Arlington, Fairfax, Loudon and Prince William
Counties of Virginia, and the cities of Alexandria, Falls Church,
Town of Leesburg, Manassas, and Manassas Park. See The National
Capital Planning Act of 1952, 40 U.S.C. 71.
\543\ District Comments at 14.
\544\ District Comments at 13.
\545\ District Comments at 3.
---------------------------------------------------------------------------
298. The Commission tentatively declines to grant the District's
request. The Commission finds that granting independent operational
authority for a significant number of years to the District as it
requests would undermine the goals of this proceeding and be
inconsistent with the tentative proposals the Commission have outlined
in this Third FNPRM. Further, if, as the District requests, the
Commission requires the D Block licensee to provide free service to the
District, the Commission is concerned about the resulting impact on the
commercial viability of a regional or nationwide D Block licensee.
Moreover, as the Commission tentatively concluded elsewhere, the
District would not be permitted to provide service to a wider range of
users than would be eligible to use the nationwide wireless broadband
network. While the Commission appreciates the District's desire to
realize a financial return on the investment made in deploying the
RWBN, the Commission observes that the NCR on multiple occasions
knowingly undertook such action entirely at its own risk.\546\
---------------------------------------------------------------------------
\546\ As the Commission observed in the Second Report and Order,
in requesting its waiver to operate its broadband network, NCR
specifically represented that it ``fully underst[ood] and accept[ed]
that as a result of any rulemaking changes the Commission may make,
the NCR will have to comply with the results of such rule making,''
including possible change of its network technology to a different
standard or transition to a public safety broadband network managed
by a single national licensee. Second Report and Order at para. 477
(citing NCR Waiver Order at 1849 para. 8, quoting letter from Bill
Butler, NCR Interoperability Program, OCTO-Wireless Programs Group,
to Marlene H. Dortch, Secretary, FCC (Jan. 29, 2007) and attached e-
mail from Robert L. LeGrande, II, NCR Interoperability Program,
Deputy Chief Technology Officer, District of Columbia, to Dana
Shaffer, Deputy Chief, Public Safety and Homeland Security Bureau,
FCC (Jan. 28, 2007)).
---------------------------------------------------------------------------
299. While the Commission tentatively declines to grant the
District's specific requests outlined above, the Commission remains
[[Page 57803]]
sensitive to the fact that the District has expended significant
efforts to achieve broadband interoperability in the near-term for
public safety users within the District through the RWBN. Therefore,
consistent with the Second Report and Order, the Commission continues
to contemplate that the Public Safety Broadband Licensee will consult
NCR in negotiating the schedule for buildout of the shared
interoperable network in the area served by the RWBN, and will provide
NCR a reasonable amount of time to make any modifications necessary to
incorporate the RWBN into the shared network.\547\ In this manner, the
Commission hopes to minimize any delays that the District might
otherwise experience in realizing the benefits of an interoperable
broadband network geared towards public safety needs. In addition, to
the extent that the D Block licensee building out the NCR areas seeks
to utilize any hard assets of the RWBN, such as tower facilities, in
constructing the 700 MHz interoperable shared broadband network, NCR
may seek appropriate compensation for the use of such assets.
---------------------------------------------------------------------------
\547\ See Second Report and Order at para. 478.
---------------------------------------------------------------------------
300. As noted above, Alcatel-Lucent advocates changes to the
Commission's local build-out rules to permit local public safety to
build-out immediately, and thus prior to completion of a reauction of
the D Block and selection of the air interface that would support
nationwide interoperability. Alcatel-Lucent argues that, regardless of
the technology deployed, the local network could be readily integrated
into the regional or nationwide D Block license, and proposes that the
D Block licensee would be required to ``compensate the local public
safety entity based upon commercially reasonable standards.'' \548\
---------------------------------------------------------------------------
\548\ Alcatel-Lucent Ex Parte at App. p. 2.
---------------------------------------------------------------------------
301. While early deployment of public safety broadband networks
would afford public safety agencies with the benefits of such networks
more quickly, the Alcatel-Lucent proposal also poses a number of
concerns. For example, unlike the Commission's current rules, which
only contemplate the early build-out of systems utilizing the same
technology as the D Block licensee, a public safety entity that engages
in early deployment risks choosing a technology that is not compatible
with the technology that will be deployed later by the D Block
licensee. Although Alcatel-Lucent argues that any technology deployed
by a public safety entity could be integrated into the regional or
nationwide broadband network, the Commission has tentatively concluded
that the nationwide interoperable network should have the same air
interface technology. Accordingly, the Commission seeks comment on how
it can ensure that a public safety entity engaging in such early build-
out selects a compatible technology that is fully interoperable with
the Shared Wireless Broadband Network(s), meaning consistent with the
Commission's tentative conclusions elsewhere concerning
interoperability requirements for all operations in the 700 MHz public
safety broadband spectrum, and thus not via gateways and bridges.
302. The Commission also seeks comment on Alcatel-Lucent's proposal
that a D Block licensee seeking to operate in the area be required to
compensate early public safety builders based upon ``commercially
reasonable standards.'' Should the Commission replace its current rule,
which limits compensation for early build to the costs that the D Block
licensee would have incurred, with one based on ``commercially
reasonable standards?'' How would ``commercially reasonable terms'' be
determined? What if the network constructed by the local public safety
agency was of little worth to the D Block licensee, whether due to
technology choices, network design, or a D Block licensee's existing
resources in the area? Would reliance on such a basis for compensation
lead to significant or intractable disputes either at the Commission or
in courts?
303. Given the potential costs and benefits in allowing early
deployment of wireless public safety broadband networks, the Commission
seeks comment on the appropriate balance between ensuring flexibility
for public safety entities to engage in early deployment and providing
some mechanism for compensation, if not under the existing rules, while
also ensuring the Commission's goal of achieving nationwide
interoperability across networks and maintaining the financial
viability of the 700 MHz Public/Private Partnership. To what extent
should public safety entities be allowed to deploy in advance of future
build out by the D Block licensee? Are the Commission's existing rules
on compensation for early build-out sufficient, or should some
allowance be made for compensation for early build-out of systems using
technologies that are different and incompatible with those to be
deployed by the D Block licensee for that area? Would allowing
compensation for early deployment of incompatible technologies stand as
a disincentive to auction participation by commercial entities?
10. Open Platform/Wholesale Conditions
304. Background. In the Second Report and Order the Commission
declined to restrict the D Block licensee to operating exclusively on a
``wholesale'' or ``open-access'' basis.\549\ The Commission concluded
that it would not serve the goals of the Public/Private Partnership to
impose special wholesale or open-access requirements on the D Block
licensee.\550\ Instead, the Commission provided the D Block licensee
with the flexibility to provide wholesale or retail services or other
types of access to its network that comply with the Commission rules
and the NSA.\551\ The Commission reasoned that the D Block licensee has
the flexibility to choose the commercial service it will provide based
on its determination of market needs; and that this flexibility
improves the viability of the 700 MHz Public/Private Partnership and
serves the interests of public safety.\552\ With respect to services
offered to public safety, the Commission noted that the Public Safety
Broadband Licensee will have the right to determine and approve
specifications for public safety equipment used on the network and the
right to purchase its own subscriber equipment from any vendor it
chooses, to the extent such specifications and equipment were
consistent with reasonable network control requirements established in
the NSA.\553\
---------------------------------------------------------------------------
\549\ Second Report and Order at para. 545.
\550\ Id.
\551\ Id.
\552\ Id.
\553\ Second Report and Order at paras. 405-406, 546.
---------------------------------------------------------------------------
305. In the Second FNPRM, the Commission sought comment on whether
the Commission should require the D Block licensee to operate on an
exclusively wholesale or open access basis.\554\ The Commission asked
for comment on how an open access environment might affect public
safety, and whether the Commission needs to clarify or revise the
operational responsibilities of the D Block and the Public Safety
Broadband Licensees if the Commission were to adopt a wholesale
approach.\555\ Further, the Commission sought comment on whether
maintaining a flexible approach would improve the viability of the
Public/Private Partnership.\556\
---------------------------------------------------------------------------
\554\ Second FNPRM at para. 187.
\555\ Id.
\556\ Id.
---------------------------------------------------------------------------
306. Comments. In response to the Second FNPRM, the Commission
received some comments on this subject
[[Page 57804]]
matter. Motorola recommends that the Commission imposes an open
platform condition and allows public safety to use any device or
application provided it does not harm the network.\557\ Wireless RERC
recommends consideration of an open access network contending that such
a condition would allow public safety entities access to numerous
suppliers of IP-based communications equipment and systems capable of
interconnecting with the network.\558\ It believes that this would
allow the communication of emergency information to be accessible in
many formats.\559\ Cellular South argues that the Commission should
impose a mandatory wholesale condition as a way to give smaller
carriers entry into the market.\560\ PISC states that the Commission
should impose both open access and wholesale conditions as they will
help enhance competition and further public interest goals.\561\
---------------------------------------------------------------------------
\557\ Motorola Comments at 11.
\558\ Wireless RERC Comments at 14.
\559\ Wireless RERC Comments at 15.
\560\ Cellular South Comments at 3-4.
\561\ PISC Comments at 7-10.
---------------------------------------------------------------------------
307. Qualcomm argues that the Commission should not impose an open
platform condition or forbid any particular business models.\562\ AT&T
argues that the Commission should not impose an open access platform or
a mandatory wholesale condition because it violates the flexible use
approach which has proven to produce the best technological and
business practices.\563\ It further asserts that a public/private
partnership will fail if it is constrained by conditions not compatible
to the reality of the market.\564\ Google recommends that the
Commission not impose open access or wholesale conditions for the
present time, and states they should keep a careful watch on anti-
consumer practices and intervene with such measures when
appropriate.\565\ Coleman Bazelon argues against imposing a wholesale
condition because the spectrum will be most valuable to the larger
carriers.\566\ Ericsson argues against imposing a wholesale condition
because such limitations on the business plan of the D Block licensee
would make bidding less attractive to many potential bidders.\567\ CTIA
recommends that the Commission base its rules on the same market
oriented, flexible-use service rule model that has successfully created
today's wireless marketplace.\568\ Verizon notes that the Commission
should reject calls to impose wholesale-only and open access
requirements.\569\ Motorola supports ``open access for public safety
subscriber equipment and applications from multiple sources that meet
public safety requirements.'' \570\
---------------------------------------------------------------------------
\562\ Qualcomm Comments at 11.
\563\ AT&T Comments at 18; AT&T Reply Comments at 10-14.
\564\ AT&T Comments at 18.
\565\ Google Comments at 10; Google Reply Comments at 1-4.
\566\ Coleman Bazelon Comments at 22.
\567\ Ericsson Comments at 35.
\568\ CTIA Reply Comments at 8-9.
\569\ Verizon Wireless Reply Comments at 19 n.43.
\570\ Motorola Comments at 7.
---------------------------------------------------------------------------
308. Discussion. In the Second Report and Order, the Commission
declined to impose broad open access or wholesale service requirements
in the 700 MHz band because the Commission found that it would not
serve the goals of the Public/Private Partnership to mandate these
requirements on the D Block licensee specifically.\571\ Rather, the
Commission decided that the D Block licensee should be given the
flexibility to choose the commercial service it would provide.\572\ In
the Commission determination, the Commission noted that the effects of
an open access environment were unknown, and, before it was mandated,
it was necessary to understand the impact that mandatory provisions
would have on the public safety environment.\573\ In this Third FNPRM,
the Commission tentatively concludes not to impose a mandatory
wholesale or open access condition on the D Block licensee. Comments in
support of mandatory wholesale and open access provisions have not
established the impact that these provisions would have on the public
safety environment and the goals of the Public/Private Partnership. The
Commission reaffirms that the D Block licensee has the flexibility to
provide wholesale or retail services or other types of access to its
network to comply with the Commission's rules and the NSA.\574\ The
Commission believes that this flexibility improves the viability of the
Public/Private Partnership, serves the interests of public safety, and
is supported by the record.
---------------------------------------------------------------------------
\571\ Second Report and Order, 22 FCC Rcd at 15476-77, 15478
paras. 545, 549.
\572\ Id., 22 FCC Rcd at 15476-77 para. 545.
\573\ Id. (citing NPSTC 700 MHZ Further Notice Reply Comments at
8 -9).
\574\ Applicable rules include, but are not limited, provisions
regarding leasing in Subparts Q and X of Part 1 of the Commission's
rules.
---------------------------------------------------------------------------
309. With respect to subscriber equipment and applications offered
to public safety, the Commission proposes to retain the flexibility
afforded to public safety subscribers in the Second Report and Order.
Specifically, the Commission proposes to retain the rights of the
Public Safety Broadband Licensee to determine the public safety
equipment and applications that would be used on the network. The
Commission also proposes to retain the rights of public safety entities
to purchase their own subscriber equipment and applications from any
vendor they choose, provided that the equipment and applications they
purchase are consistent with reasonable network management requirements
and approved by the Public Safety Broadband Licensee. The Commission
seeks comment on these proposals.
11. Other Rules and Conditions
310. In the Second FNPRM, the Commission sought comment generally
on whether, aside from the subjects specifically that the Commission
specifically discussed, the Commission should modify any other aspects
of the rules or conditions for the 700 MHz Public/Private Partnership.
The Commission tentatively concludes that, aside from the specific
changes the Commission has proposed in this Third FNPRM,\575\ the
Commission should retain the existing rules governing the 700 MHz
Public/Private Partnership largely without modification.
---------------------------------------------------------------------------
\575\ The specific rule changes the Commission proposes are
included herein.
---------------------------------------------------------------------------
C. Public Safety Issues
1. Eligible Users of the Public Safety Broadband Spectrum
311. Background. Section 337(a)(1) of the Communications Act
requires the Commission to allocate 24 megahertz of spectrum between
746 MHz and 806 MHz for ``public safety services.'' \576\ Section
337(f)(1) of the Act defines ``public safety services'' as follows:
---------------------------------------------------------------------------
\576\ 47 U.S.C. 337(a)(1).
---------------------------------------------------------------------------
(f) Definitions--For purposes of this section:
(1) Public Safety Services--The term ``public safety services''
means services--
(A) The sole or principal purpose of which is to protect the safety
of life, health, or property;
(B) That are provided--
(i) By State or local government entities; or
(ii) By nongovernmental organizations that are authorized by a
governmental entity whose primary mission is the provision of such
services; and
(C) That are not made commercially available to the public by the
provider.\577\
---------------------------------------------------------------------------
\577\ 47 U.S.C. 337(f).
---------------------------------------------------------------------------
In establishing license eligibility rules for the 700 MHz public safety
band in Section 90.523 of the Commission's
[[Page 57805]]
rules the Commission sought to mirror these eligibility
requirements.\578\
---------------------------------------------------------------------------
\578\ 47 CFR 90.523.
---------------------------------------------------------------------------
312. Section 90.523(e) includes specific eligibility provisions
applicable to the Public Safety Broadband Licensee.\579\ Like the
narrowband license eligibility provisions set forth in Sections
90.523(a)-(d),\580\ the Commission intended the provisions of Section
90.523(e) to ensure that the use of the 700 MHz public safety broadband
spectrum, under the auspices of the Public Safety Broadband Licensee,
be consistent with the statutory definition of ``public safety
services'' in Section 337(f)(1)--both to ensure that the band remained
allocated to such services, as required by Section 337(a)(1)--as well
as to focus the Public Safety Broadband Licensee exclusively upon the
needs of public safety entities that stand to benefit from the
interoperable broadband network.\581\
---------------------------------------------------------------------------
\579\ 47 CFR 90.523(e).
\580\ 47 CFR 90.523(a)-(d).
\581\ Second Report and Order, 22 FCC Rcd at 15421 para. 373.
Specifically, the Commission required that the Public Safety
Broadband Licensee satisfy the following eligibility criteria: (1)
No commercial interest may be held in this licensee, and no
commercial interest may participate in the management of the
licensee; (2) the licensee must be a non-profit organization; (3)
the licensee must be as broadly representative of the public safety
radio user community as possible, including the various levels
(e.g., state, local, county) and types (e.g., police, fire, rescue)
of public safety entities; and (4) to ensure that the Public Safety
Broadband Licensee is qualified to provide public safety services,
an organization applying for the Public Safety Broadband License was
required to submit written certifications from a total of at least
ten geographically diverse state and local governmental entities,
with at least one certification from a state government entity and
one from a local government entity. See 47 CFR 90.523(e).
---------------------------------------------------------------------------
313. In the Second FNPRM, the Commission identified certain aspects
of Section 90.523 that may need clarification. First, the Commission
identified two elements of the statutory definition of ``public safety
services'' that the eligibility rules that could be construed as not
applying explicitly enough to the Public Safety Broadband Licensee: (1)
The Section 337(f)(1)(A) element that requires that the ``sole or
principal purpose * * * is to protect the safety of life, health, or
property;'' and (2) the Section 337(f)(1)(C) element that bars such
services from being ``made commercially available to the public by the
provider.'' \582\ Second, the Commission observed that there may be
some ambiguity as to the applicability of the narrowband eligibility
provisions in Sections 90.953(a)-(d) to the Public Safety Broadband
Licensee.\583\ Accordingly, the Commission sought comment as to whether
the Commission should make minor amendments to Section 90.523 to: (a)
Clarify that the services provided by the Public Safety Broadband
Licensee must conform to all the elements of the statutory definition
of ``public safety services;'' and (b) clearly delineate the
differences and overlap in the respective eligibility requirements of
the narrowband licensees and the Public Safety Broadband Licensee.\584\
---------------------------------------------------------------------------
\582\ Second FNPRM, 23 FCC Rcd at 8060 para. 28.
\583\ Second FNPRM, 23 FCC Rcd at 8060 para. 28.
\584\ Second FNPRM, 23 FCC Rcd at 8060 para. 28.
---------------------------------------------------------------------------
314. As a corollary to examining whether the services provided by
the Public Safety Broadband Licensee must conform to all the elements
of the statutory definition of ``public safety services,'' the
Commission also examined whether, under Section 337 of the Act and in
furtherance of the policies that led to the creation of the Public
Safety Broadband Licensee, the eligible users of the public safety
broadband network that are represented by the Public Safety Broadband
Licensee should be restricted to entities that provide ``public safety
services,'' as defined in Section 337 of the Act.\585\ Specifically,
the Commission observed that the question of whether the Public Safety
Broadband Licensee's service qualifies as a ``public safety service''
under Section 337(f)(1) of the Act depends in part on the nature of the
spectrum use by the entities to which it grants access to the shared
broadband network.\586\
---------------------------------------------------------------------------
\585\ Second FNPRM, 23 FCC Rcd at 8060-61 para. 29.
\586\ Second FNPRM, 23 FCC Rcd at 8061 para. 30.
---------------------------------------------------------------------------
315. The Commission further observed that to the extent that these
entities are public safety entities that are accessing the shared
network to provide themselves with communications services in
furtherance of their mission to protect the safety of life, health or
property, the Public Safety Broadband Licensee's services related to
the public safety broadband spectrum would conform to the statutory
definition of ``public safety services'' and would comport with the
Commission's obligation under Section 337(a)(1) of the Act to allocate
a certain amount of spectrum to such services.\587\ Under this
interpretation, only entities providing public safety services, as
defined in the Act, would be eligible to use the public safety spectrum
of the shared network of the 700 MHz Public/Private Partnership on a
priority basis, pursuant to the representation of the Public Safety
Broadband Licensee.
---------------------------------------------------------------------------
\587\ Second FNPRM, 23 FCC Rcd at 8061 para. 30.
---------------------------------------------------------------------------
316. In arriving at this interpretation, the Commission observed
that, under the statutory definition, a service might be considered a
``public safety service'' even if its purpose is not solely for
protecting the safety of life, health or property, so long as this
remains its ``principal'' purpose.\588\ Taken a step further, the
service provided by the Public Safety Broadband Licensee--providing
public safety entities access to the spectrum for safety-of-life/
health/property communications operations--could conceivably include
the provision of spectrum access to public safety entities for uses
that do not principally involve the protection of life, health or
property, provided that the principal purpose of the Public Safety
Broadband Licensee's services, on the whole, is to protect the safety
of life, health or property.\589\ The Commission further observed,
moreover, that such a literal reading of the statute could permit the
Public Safety Broadband Licensee to provide spectrum access to a small
number of entities having little or no connection to public safety
whatsoever, and potentially result in entire pockets within its
nationwide service area served only by such non-public safety
entities.\590\
---------------------------------------------------------------------------
\588\ Second FNPRM, 23 FCC Rcd at 8061 para. 31 (citing 47
U.S.C. 337(f)(1)(A)).
\589\ Second FNPRM, 23 FCC Rcd at 8061 para. 31.
\590\ Second FNPRM, 23 FCC Rcd at 8061-62 para. 32.
---------------------------------------------------------------------------
317. Because such a result would appear inconsistent with the
spirit of Section 337(f)(1)(A) of the Act, the Commission sought
comment on whether, and to what degree, the Public Safety Broadband
Licensee would be statutorily precluded by that subsection from
representing and allowing any entity to use the network for services
that are not principally for public safety purposes.\591\ The
Commission also sought comment on whether there are other grounds--
specifically, the authorization requirement of Section 337(f)(1)(B)(ii)
of the Act and/or public interest reasons--for prohibiting the Public
Safety Broadband Licensee from providing network access to non-public
safety entities or permitting public safety entities that it represents
to use the network for services that do not have as their principal
purpose the protection of the safety of life, heath or property, and
instead requiring such non-permitted users, including critical
infrastructure industry (CII) users, to be treated as commercial users
who would obtain access to spectrum only through
[[Page 57806]]
commercial services provided solely by the D Block licensee.\592\
---------------------------------------------------------------------------
\591\ Second FNPRM, 23 FCC Rcd at 8061-62 para. 32.
\592\ Second FNPRM, 23 FCC Rcd at 8061-62 para. 32.
---------------------------------------------------------------------------
318. Comments. The Commission did not receive any comments with
respect to whether the Commission should make minor amendments to
Section 90.523 of the Commission's rules to: (a) Clarify that the
services provided through the Public Safety Broadband Licensee must
conform to all the elements of the statutory definition of ``public
safety services;'' and (b) clearly delineate the differences and
overlap in the respective eligibility requirements of the narrowband
licensees, set forth in Sections 90.953(a)-(d) of the Commission's
rules, and the Public Safety Broadband Licensee, set forth in Sections
90.953(e) of the Commission's rules to eliminate any ambiguity
regarding the applicability of the former to the latter.
319. The Commission did, however, receive a number of comments
addressing the question of whether the Public Safety Broadband Licensee
should be prohibited both from providing network access to non-public
safety entities (i.e., entities that would not be eligible to hold
licenses under Section 337 of the Act), and from allowing the public
safety entities that it represents to use the network for services that
do not have as their principal purpose the protection of the safety of
life, heath or property. The National Public Safety Telecommunications
Council (NPSTC), for example, observed that ``[t]here are common
situations across the country where restoring critical infrastructure--
gas, electric, water, transportation or telecommunications--is at least
as important as public safety use.'' \593\ On that basis, NPSTC argued
that ``access [to the shared network] needs to be flexible and managed
real-time, allowing the subscribers who are critical to the operation
at hand, whatever and whomever that might be, use of required network
resources.'' \594\ Under NPSTC's approach, access to the shared network
by CII entities (and Federal agencies) ``would be directed to emergency
circumstances and not general use of the network.'' \595\ Other
commenters expressed similar views.\596\
---------------------------------------------------------------------------
\593\ NPSTC Comments at 17.
\594\ NPSTC Comments at 17-18.
\595\ NPSTC Comments at 18. NPSTC recommends that the Commission
``parallel the core concept of its rules contained in section
90.523. That provision recognizes that critical infrastructure
entities that are state or local government agencies may be
licensed. It would allow access for Non Government Organizations
(NGOs) that have the support of the relevant local or state
government agency and the PSBL.'' Id.
\596\ See, e.g., AASHTO Comments at 12; PSST Comments at 21;
NATOA et. al. Comments at 13; TDC Comments at 2-3; International
Municipal Signal Association, International Association of Fire
Chiefs, Inc, Congressional Fire Services Institute, and Forestry
Conservation Communications Association Joint Comments at 10;
American Hospital Association Comments at 3; Association of
Emergency Medical Technicians Comments at 4; Mayo Clinic Comments at
4; City and County of San Francisco Comments at 4 n.3; TeleCommUnity
Comments at 10; Ericsson Inc. Comments at 5; District of Columbia
Comments at 3; Intelligent Transportation Society of America Reply
Comments at 3. Joe Hanna Reply Comments at 4; American Petroleum
Institute Reply Comments at 5-7.
---------------------------------------------------------------------------
320. A few parties, however, argued a more circumscribed view that
eligibility for access to the shared network through the Public Safety
Broadband Licensee should be limited to entities that have as their
principal purpose the protection of safety of life, health or property.
APCO, for example, asserted that ``there are significant questions as
to whether the Communications Act would allow the PSBL to offer service
on public safety spectrum to entities not eligible for public safety
spectrum under Section 337 of the Act.'' \597\ Accordingly, APCO
suggested that the Commission ``should require that the D Block
licensee provide CII entities with priority access to the commercial
portion of the network (secondary, however, to public safety where
relevant) consistent with current CII/wireless carrier agreements.''
\598\ The National Regional Planning Council (NRPC) asserted that the
``principal purpose of the [shared network] spectrum should remain for
public safety use [and] the PSBL should provide network access only to
public safety entities that have as their principal purpose the
protection of safety of life, health or property.'' \599\
---------------------------------------------------------------------------
\597\ Association of Public-Safety Communications Officials-
International, Inc. Comments at 8.
\598\ Association of Public-Safety Communications Officials-
International, Inc. Comments at 9.
\599\ National Regional Planning Council Comments at 6. See also
International Association of Fire Fighters Comments at 5.
---------------------------------------------------------------------------
321. Discussion. As a preliminary matter, the Commission
tentatively concludes that the Commission should revise Section 90.523
of the Commission's rules to: (a) Clarify that the services provided
through the Public Safety Broadband Licensee must conform to all the
elements of the statutory definition of ``public safety services;'' and
(b) clearly delineate the differences and overlap in the respective
eligibility requirements of the narrowband licensees, set forth in
Sections 90.953(a)-(d), and the Public Safety Broadband Licensee, set
forth at Section 90.953(e) to eliminate any ambiguity regarding the
applicability of the former to the latter. The Commission believes
these clarifications would be accomplished through the rule revisions
the Commission is proposing (discussed below) to address the issue of
eligibility to access the public safety broadband network.
322. With respect to the question of which entities should be
eligible to access the public safety broadband network through the
Public Safety Broadband Licensee, while the Commission recognizes and
appreciate the important functions that CII entities can serve in
supporting public safety entities during the resolution of emergencies,
the Commission tentatively concludes that both statutory limitations
and policy considerations preclude CII entities from accessing the
public safety broadband network. The Commission proposes specific
amendments to Section 90.523 of the Commission's rules included in this
document to effect such tentative conclusion and to effect the general
clarifications discussed above.
323. In arriving at the Commission's tentative conclusion, the
Commission necessarily begins with an analysis of Section 337 of the
Act. Section 337(a)(1) requires the Commission to allocate 24 megahertz
of spectrum between 746 MHz and 806 MHz for ``public safety services.''
\600\ As stated above, the statutory definition of ``public safety
services,'' which is set forth in Section 337(f) of the Act, provides
as follows:
---------------------------------------------------------------------------
\600\ 47 U.S.C. 337(a)(1).
---------------------------------------------------------------------------
(f) Definitions--For purposes of this section:
(1) Public Safety Services--The term ``public safety services''
means services--
(A) The sole or principal purpose of which is to protect the safety
of life, health, or property;
(B) That are provided--
(i) By State or local government entities; or
(ii) By nongovernmental organizations that are authorized by a
governmental entity whose primary mission is the provision of such
services; and
(C) That are not made commercially available to the public by the
provider.\601\
---------------------------------------------------------------------------
\601\ 47 U.S.C. 337(f).
---------------------------------------------------------------------------
Section 337(f)(1) specifies, among other criteria, that the sole or
principal
[[Page 57807]]
purpose of the service for which the 700 MHz public safety spectrum is
used must be to protect the safety of life, health, or property.\602\
While CII entities, such as utility companies, may play an important
role on occasion supporting public safety entities to carry out their
mission of protecting the safety of life, health, or property, this
role is ancillary to the entities' principal purposes, such as
providing electricity. By way of contrast, with respect to concerns
raised by the American Hospital Association and other health care
representative associations, the Commission observes that under these
proposed amendments, the sole or principal purpose of the
communications needs of hospitals and other health care facilities as
well as ambulance and Emergency Medical Services involved in the
provision of emergency medical care, are innately to protect the safety
of life, health, or property.\603\ For example, the Commission
envisions that in providing health care services to the sick or
injured, responding to accident scenes, or in addressing public health
emergencies such as pandemics or poisonous gas exposure, hospitals,
health care facilities, and emergency medical service departments would
be eligible users of the 700 MHz public safety spectrum.
---------------------------------------------------------------------------
\602\ 47 U.S.C. 337(f)(1)(A).
\603\ See American Hospital Association Comments at 3;
Association of Emergency Medical Technicians Comments at 4; Mayo
Clinic Comments at 4.
---------------------------------------------------------------------------
324. Because CII entities would not be eligible to access the 700
MHz public safety spectrum under Section 337, they also would not be
eligible to gain access to this spectrum through the Public Safety
Broadband Licensee. Even if authorized by a governmental entity
pursuant to Section 337(f)(1)(B)(ii) of the Act, since the sole or
principal purpose of the communications of CII entities are not to
protect the safety of life, health or property, granting such access to
otherwise ineligible CII entities through a bona fide eligible entity
merely bypasses the separate requirement contained in Section
337(f)(1)(A) of the Act. Permitting the Public Safety Broadband
Licensee to provide public safety broadband spectrum access to non-
public safety entities also would exceed the carefully prescribed scope
of its representation. Specifically, the eligibility criteria for the
Public Safety Broadband Licensee requires, among other things, that
such licensee be ``as broadly representative of the public safety radio
user community as possible, including the various levels (e.g., state,
local, county) and types (e.g., police, fire, rescue) of public safety
entities,'' and be certified by at least ten geographically diverse
state and local governmental entities whose ``primary mission is the
provision of public safety services.'' \604\
---------------------------------------------------------------------------
\604\ 47 CFR 90.523(e). The scope of the Public Safety Broadband
Licensee's representation also is limited by the requirements
pertaining to its Articles of Incorporation, including that they
incorporate among its purposes that the Public Safety Broadband
Licensee ``is to represent the interests of all public safety
entities to ensure that their broadband spectrum needs are met in a
balanced, fair, and efficient manner, in the interests of best
promoting the protection of life and property of the American
public.'' Second Report and Order at para. 375.
---------------------------------------------------------------------------
325. The Commission also believes that permitting CII entities to
access the 700 MHz public safety spectrum through the Public Safety
Broadband Licensee--and thereby access this spectrum on a priority
basis--would not be in the public interest. As the Commission observed
in the Second FNPRM, given the limited amount of spectrum available to
the public safety community, and particularly with respect to spectrum
allocated for interoperability purposes, there is no margin for
awarding priority access to entities that do not have as their sole or
principal purpose the protection of the safety of life, health, or
property.\605\ Permitting CII entities to access the 700 MHz public
safety broadband spectrum would significantly dilute the band's
available capacity, because the size of the CII community is relatively
much larger than the size of the public safety community itself. The
Commission thus believes the public interest would be best served by
maximizing broadband spectrum capacity for bona fide public safety
entities, and maximizing the growth potential for new broadband
applications geared towards the needs of the public safety
community.\606\ In any event, the Commission observes that CII entities
may access the shared broadband network on a commercial basis as
customers of the D Block licensee(s).
---------------------------------------------------------------------------
\605\ Second FNPRM, 23 FCC Rcd at 8061-62 para. 32.
\606\ For these same statutory-based and public interest
reasons, the Commission do not believe such concerns would be
alleviated by permitting CII entities access to the 700 MHz public
safety broadband spectrum only on a limited, case-by-case, emergency
basis, as administered locally or through the Public Safety
Broadband Licensee. See, e.g., The National Association of
Telecommunications Officers and Advisors (NATOA), the National
Association of Counties (NACo), the National League of Cities (NLC),
and the U.S. Conference of Mayors (USCM) Joint Comments at 13.
---------------------------------------------------------------------------
326. To implement the Commission's tentative conclusions on the
eligibility issues, the Commission is proposing revisions to Section
90.523 of the Commission's rules (included in this document). First,
the Commission proposes to revise the narrowband eligibility criteria
to clarify that authorizations to deploy and operate systems in the
769-775 MHz and 799-805 MHz (narrowband) frequency bands are limited to
systems the sole or principal use of which is to protect the safety of
life, health, or property, and which are not used to provide any
service that is made commercially available by the license holder.\607\
Second, the Commission proposes to add a new provision setting forth
the eligibility criteria for entities seeking to access the public
safety broadband network through the Public Safety Broadband Licensee,
which criteria incorporates the narrowband eligibility criteria and
requires that the sole or principal purpose of such entities must be to
protect the safety of life, health, or property.\608\ Third, the
Commission proposes revisions to the Public Safety Broadband Licensee
eligibility criteria to ensure that the services provided through the
Public Safety Broadband Licensee conform to all the elements of the
statutory definition of ``public safety services.'' \609\
---------------------------------------------------------------------------
\607\ See proposed Section 90.523(a)(1), Appendix A.
\608\ See proposed Section 90.523(b), Appendix A.
\609\ See proposed Section 90.523(c)(5), Appendix A.
---------------------------------------------------------------------------
327. Federal Usage of the Public Safety Broadband Network. With
respect to whether the Commission should modify Section 2.103 of the
Commission's rules to limit Federal public safety agency use of the
public safety broadband spectrum to situations where such use is
necessary for coordination of Federal and non-Federal activities,\610\
most parties opposed such a specific limitation. The Association of
Public-Safety Communications Officials--International, Inc. (APCO), for
example, asserts that it ``supports a provision that would allow
Federal public safety use of the broadband network with the concurrence
of the PSBL and local public users in the areas in which the Federal
government desires to operate on the network.'' \611\ APCO further
contends that ``[i]n general, Federal public safety use should be
encouraged as a means of improving interoperability in emergency
response activities, but not at the expense of providing sufficient
[[Page 57808]]
spectrum capacity for state and local governments.'' \612\
---------------------------------------------------------------------------
\610\ Second FNPRM, 23 FCC Rcd at 8092 at para. 126.
\611\ Association of Public-Safety Communications Officials--
International, Inc. Comments at 9.
\612\ Association of Public-Safety Communications Officials--
International, Inc. Comments at 9. See also National Public Safety
Telecommunications Council Comments at 18 (``[t]he 700 MHz public
safety broadband network should reflect the much envisioned
objective of interoperability across all levels of government during
an emergency.''); National Regional Planning Council Comments at 6
(``All governmental services, including federal and military, should
be eligible.'').
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328. The Public Safety Spectrum Trust Corporation argues that ``the
FCC should reaffirm the decision adopted in the Second R&O, wherein the
PSST was given exclusive authority to approve Federal usage of the PSBL
spectrum, a determination that will be made on a case-by-case basis
consistent with the PSST's responsibility to promote interoperable
public safety communications.'' \613\ The PSST further observes that
``Federal users who do not require priority service on the SWBN are
free to accept normal commercial service as regular D Block
subscribers.'' \614\
---------------------------------------------------------------------------
\613\ Public Safety Spectrum Trust Corporation Comments at 18-
19. See also National Public Safety Telecommunications Council
Comments at 18; Ericsson, Inc. Comments at 31.
\614\ Public Safety Spectrum Trust Corporation Comments at 19.
---------------------------------------------------------------------------
329. Rivada Networks argues, however, that ``the Commission should
streamline Section 2.103 to allow the most efficient and effective
access of the public safety 700 MHz spectrum for Federal agencies that
may be called upon to respond in the event of an emergency and
coordinate with non-Federal State and local agencies.'' \615\ According
to Rivada, ``[s]o long as there is `mutual agreement between the
Federal and non-Federal entities' and that agreement includes
coordination procedures to protect against interference, Federal use of
this spectrum should be presumptively allowed.'' \616\
---------------------------------------------------------------------------
\615\ Rivada Networks Comments at 6.
\616\ Rivada Networks Comments at 6.
---------------------------------------------------------------------------
330. Discussion. The Commission believes that it should reaffirm
the decision adopted in the Second Report and Order to grant the PSBL
``exercise of sole discretion, pursuant to Section 2.103 of the
Commission's rules, whether to permit Federal public safety agency use
of the public safety broadband spectrum, with any such use subject to
the terms and conditions of the NSA.'' \617\ The Commission's decision
in this regard was based upon the Commission's earlier determination
that Section 337 of the Act does not bar Federal Government public
safety entities from using the 700 MHz band under certain
conditions.\618\ Specifically, the Commission determined that, while
Section 337 of the Act does not expressly indicate that Federal
government entities should be eligible, such ``omission simply reflects
the fact that the Commission does not license Federal stations.'' \619\
The Commission further observed that Federal entities, although
ineligible for Commission licensing in the 700 MHz band, already were
eligible to receive authorization to use the 700 MHz public safety
spectrum in accordance with the requirements set forth in Section
2.103,\620\ which the Commission amended to clarify the permitted
Federal use of this band.\621\ Key to the Commission's determination
were its observations, based on the record then before it, that Federal
entities provide noncommercial services the sole or principal purpose
of which is to protect the safety of life, health, or property, and
that allowing Federal entities to access the 700 MHz band is essential
to promoting interoperability.\622\
---------------------------------------------------------------------------
\617\ See Second Report and Order, 22 FCC Rcd at 15427 para.
383.
\618\ See Second Report and Order, 22 FCC Rcd at 15427 para. 383
n.822 (citing Development of Operational, Technical and Spectrum
Requirements for Meeting Federal, State and Local Public Safety
Agency Communication Requirements Through the Year 2010, WT Docket
No. 96-86, First Report & Order and Third Notice of Proposed
Rulemaking, 14 FCC Rcd 152, 185 para. 66 (1998); 47 CFR 2.103(b)).
\619\ Development of Operational, Technical and Spectrum
Requirements for Meeting Federal, State and Local Public Safety
Agency Communication Requirements Through the Year 2010, WT Docket
No. 96-86, First Report & Order and Third Notice of Proposed
Rulemaking, 14 FCC Rcd 152, 185 para. 66 (1998).
\620\ See Development of Operational, Technical and Spectrum
Requirements for Meeting Federal, State and Local Public Safety
Agency Communication Requirements Through the Year 2010, WT Docket
No. 96-86, First Report & Order and Third Notice of Proposed
Rulemaking, 14 FCC Rcd 152, 185-86 paras. 67-68 (1998).
\621\ See 47 CFR 2.103(b).
\622\ See Development of Operational, Technical and Spectrum
Requirements for Meeting Federal, State and Local Public Safety
Agency Communication Requirements Through the Year 2010, WT Docket
No. 96-86, First Report & Order and Third Notice of Proposed
Rulemaking, 14 FCC Rcd 152, 185 para. 65 (1998).
---------------------------------------------------------------------------
331. The Commission sees no reason to disturb the Commission's
previous treatment of Federal use of the 700 MHz public safety
spectrum. The Commission agrees with APCO that ``federal public safety
use should be encouraged as a means of improving interoperability in
emergency response activities,'' \623\ and that narrowing the
Commission's existing rules to permit Federal use of the 700 MHz band
only for Federal/non-Federal coordination activities would achieve an
opposite result. The Commission observes that contrary to PSST's
characterization, such authority need not necessarily be exercised only
on a case-by-case basis. To this extent, the Commission agrees with
Rivada that the Public Safety Broadband Licensee may establish more
broad-reaching agreements with Federal public safety entities and thus
avoid the need for case-by-case determinations in appropriate
situations.\624\ Accordingly, the Commission tentatively concludes that
the Commission will reaffirm its current rules under which the Public
Safety Broadband Licensee has exercise of sole discretion, pursuant to
Section 2.103 of the Commission's rules, whether to permit Federal
public safety agency use of the public safety broadband spectrum, with
any such use subject to the terms and conditions of the NSA.
---------------------------------------------------------------------------
\623\ Association of Public-Safety Communications Officials-
International, Inc. Comments at 9.
\624\ See Rivada Networks Comments at 6.
---------------------------------------------------------------------------
332. Mandatory Usage of the Public Safety Broadband Network. In the
Second FNPRM the Commission asked whether eligible public safety users
should be required to subscribe to the shared broadband network for
service, at reasonable rates, or be subject to some alternative
obligation or condition promoting public safety network usage in order
to provide greater certainty to the D Block licensee.\625\ Among other
things, the Commission asked whether it should require the purchase of
a minimum number of minutes, and how such obligation might be imposed;
whether any such obligation should be conditioned on the availability
of government funding for access; and whether the Commission should
require public safety users to pay for access with such money.\626\
---------------------------------------------------------------------------
\625\ Second FNPRM, 23 FCC Rcd at 8063 para. 37.
\626\ Second FNPRM, 23 FCC Rcd at 8063 para. 37.
---------------------------------------------------------------------------
333. The parties addressing these issues opposed any form of
mandatory usage requirements. NPSTC, for example, asserted that,
``[s]uch a mandate would be a historic departure from the Commission's
role of leaving such choice to the consumer, public or private.'' \627\
The International Association of Fire Fighters asserted that ``all
public safety agencies must be given the flexibility to choose whether
or not to participate based on their own unique public safety needs and
obligations.'' \628\ The PSST opposed imposition of a mandatory use or
minimum public safety usage requirement on grounds that such
[[Page 57809]]
concept ``is inconsistent with the PSST's understanding of the FCC's
original Public/Private Partnership arrangement and with the PSST's
belief that network adoption must be entirely voluntary.'' \629\
---------------------------------------------------------------------------
\627\ NPSTC Comments at 15.
\628\ IAFF Comments at 5. See also NRPC Comments at 4; RPC 33
Comments at 4; Lencioni Comments at 1; TeleCommUnity Comments at 11;
Virginia Comments at 7; Verizon Wireless Comments at 10; RPC 20
Reply Comments at 15-16.
\629\ PSST Comments at 17-18.
---------------------------------------------------------------------------
334. The City of Philadelphia added that, ``[w]here local
governments are required to pay user fees over which they have no
control, they must have the option of declining participation in the
network where they determine the fees are unaffordable or local budget
appropriations do not cover them.'' \630\ Moreover, the City of
Philadelphia observed that, ``[m]andating participation in a national
network is not in the public interest because it requires local
governments to cede control over service and operations and to accept
terms that may not meet the specific communications needs of their
public safety agencies.'' \631\ The PSST commented that, ``[m]andating
public safety use of the network, an option that the PSST does not
support, could have the effect of disrupting existing business
relationships between commercial operators and public safety
organizations.'' \632\
---------------------------------------------------------------------------
\630\ Philadelphia Comments at 6. See also NPSTC Comments at 15;
Lencioni Comments at 1.
\631\ Philadelphia Comments at 6.
\632\ PSST Comments at 18. See also TE M/A-COM Comments at 9.
---------------------------------------------------------------------------
335. The National Association of Telecommunications Officers and
Advisors (NATOA), the National Association of Counties (NACo), the
National League of Cities (NLC), and the U.S. Conference of Mayors
(NATOA et al.) argued that ``there should be no mandatory requirement
that public safety entities use the proposed network, but there must be
a requirement that provides for interconnection of existing networks
with the new network.'' \633\
---------------------------------------------------------------------------
\633\ NATOA et al. Comments at 18.
---------------------------------------------------------------------------
336. Concerning the availability of government funding for access,
the NRPC, for example, argued that ``[i]f a local public safety entity
elects not to subscribe to the new network, the Commission would
request the Commission's consideration to not develop regulatory rules
that impose any obligations on the agency based on the availability of
any government grant monies or any monies, regardless of origin.''
\634\ Finally, APCO and NPSTC, also questioned the Commission's legal
authority to impose such a mandate.\635\
---------------------------------------------------------------------------
\634\ NRPC Comments at 4. See also APCO Comments at 13 (arguing
that the Commission lacks authority to require ``use of the public
safety broadband network [as] a condition of government funding.'').
\635\ See APCO Comments at 13; NPSTC Comments at 15.
---------------------------------------------------------------------------
337. Discussion. The Commission tentatively concludes not to
establish any mandate requiring eligible public safety users to
subscribe to the shared broadband network for service, or subject such
entities to any other alternative obligations or conditions promoting
public safety network usage. Specifically, the Commission is concerned
that establishing usage mandates would potentially interfere with local
public safety needs and obligations unique to their communities, as
well as with existing network investments or business relationships
with other vendors and service providers. In addition, any mandatory
subscription obligation would be inconsistent with the Commission's
continued expectation that voluntary participation will be driven by
the shared network build undertaken by the D Block licensee(s),
resulting state-of-the-art broadband applications, and economies of
scale made possible under the public/private partnership approach.\636\
---------------------------------------------------------------------------
\636\ See, e.g., Second Report and Order, 22 FCC Rcd at 15431
para. 396.
---------------------------------------------------------------------------
2. Provisions Regarding the Public Safety Broadband Licensee
a. Non-Profit Status
338. Background. Among other criteria for eligibility to hold the
Public Safety Broadband License that the Commission established in the
Second Report and Order, the Commission provided that no commercial
interest may be held in the Public Safety Broadband Licensee, that no
commercial interest may participate in the management of the licensee,
and that the licensee must be a non-profit organization.\637\ The
Commission also indicated, however, that, as part of its administration
of public safety access to the shared wireless broadband network, the
Public Safety Broadband Licensee might assess ``usage fees to recoup
its expenses and related frequency coordination duties.'' \638\
---------------------------------------------------------------------------
\637\ See Second Report and Order, 22 FCC Rcd at 15421 para.
421.
\638\ Id. at 15426 para. 383.
---------------------------------------------------------------------------
339. In the Second FNPRM, the Commission sought to further examine
the Public Safety Broadband Licensee's non-profit status, and issues
related to alternative funding mechanisms, including excess revenue
derived from any access fees that the Public Safety Broadband Licensee
might charge. With respect to the requirement that the Public Safety
Broadband Licensee be organized as a non-profit organization, in the
Second FNPRM, the Commission sought comment as to whether the
Commission should specify that the Public Safety Broadband Licensee and
all of its members (in whatever form they may hold their legal or
beneficial interests in the Public Safety Broadband Licensee) must be
non-profit entities.\639\ While the Commission acknowledged that the
Public Safety Broadband Licensee may need to contract with attorneys,
engineers, accountants, and other similar advisors or service providers
to fulfill its responsibilities to represent the interests of the
public safety community, the Commission asked whether the Commission
should restrict the Public Safety Broadband Licensee's business
relationships pre- and post-auction with commercial entities, and if
so, what relationships should and should not be permitted.\640\
---------------------------------------------------------------------------
\639\ Second FNPRM, 23 FCC Rcd at 8064 para. 40.
\640\ Second FNPRM, 23 FCC Rcd at 8064 para. 40.
---------------------------------------------------------------------------
340. The Commission also sought comment as to whether the
Commission should clarify that the Public Safety Broadband Licensee may
not obtain debt or equity financing from any source, unless such source
is also a non-profit entity.\641\ The Commission asked whether such a
restriction would be warranted to ensure that the Public Safety
Broadband Licensee is not unduly influenced by for-profit motives or
outside commercial influences in carrying out its official
functions.\642\ The Commission also sought comment on ways to allow
necessary financing while still ensuring the independence of the Public
Safety Broadband Licensee, such as whether to allow working capital
financing from commercial banks and whether to restrict the assets of
the Public Safety Broadband Licensee that can be pledged as security
for such loans, and/or whether there are other types of loans or
alternative funding sources that the Commission should allow the Public
Safety Broadband Licensee to employ.\643\
---------------------------------------------------------------------------
\641\ Second FNPRM, 23 FCC Rcd at 8064-65 para. 41.
\642\ Second FNPRM, 23 FCC Rcd at 8064-65 para. 41.
\643\ Second FNPRM, 23 FCC Rcd at 8064-65 para. 41.
---------------------------------------------------------------------------
341. As a separate line of inquiry, the Commission sought comment
in the Second FNPRM on the best way to fund the Public Safety Broadband
Licensee's operations. The Commission asked, for example, whether the D
Block licensee should be required to pay the Public Safety Broadband
Licensee's administrative costs and, if so, whether
[[Page 57810]]
such obligation should be capped.\644\ Assuming government-allocated
funding were available, the Commission asked whether such funding
mechanisms would be the best solution for funding the Public Safety
Broadband Licensee.\645\ The Commission further asked whether the
Commission has legal authority to support the Public Safety Broadband
Licensee's operational expenses through the Universal Service Fund
\646\ or Telecommunications Development Fund,\647\ and whether such
approaches would be appropriate.\648\
---------------------------------------------------------------------------
\644\ Second FNPRM, 23 FCC Rcd at 8065 para. 42.
\645\ Second FNPRM, 23 FCC Rcd at 8065 at para. 42.
\646\ See, e.g., 47 U.S.C. 254(c)(1), (h).
\647\ See, e.g., 47 U.S.C. 614.
\648\ Second FNPRM, 23 FCC Rcd at 8065 para. 43.
---------------------------------------------------------------------------
342. The Commission also sought comment on whether any excess
revenue generated by the fees or other sources of financing obtained by
the Public Safety Broadband Licensee from non-profit entities should be
permitted and, if so, how they should be used.\649\ The Commission
asked, for example, whether the Public Safety Broadband Licensee should
be permitted to hold a certain amount of excess income as a reserve
against possible future budget shortfalls or whether such excess income
should instead be used for the direct benefit of the public safety
users of the network, such as for the purchase of handheld
devices.\650\ Finally, the Commission sought comment on whether the
Public Safety Broadband Licensee may legitimately incur certain
reasonable and customary expenses incurred by a business, consistent
with the constitution of the Public Safety Broadband Licensee and the
nature of its obligations as established by the Commission.\651\
---------------------------------------------------------------------------
\649\ Second FNPRM, 23 FCC Rcd at 8065-66 para. 44.
\650\ Second FNPRM, 23 FCC Rcd at 8065-66 para. 44.
\651\ Second FNPRM, 23 FCC Rcd at 8066 para. 45.
---------------------------------------------------------------------------
343. Comments. The Commission received comments on most of the
issues raised in the Second FNPRM, as broken out below.
(i) Clarifying the Public Safety Broadband Licensee's Non-Profit Status
344. Only a few commenters addressed the question of clarifying the
Public Safety Broadband Licensee's non-profit status. NATOA endorsed
requirements that ``no commercial interest may be held in the Public
Safety Broadband Licensee, that no commercial interest may participate
in the management of the licensee, and that the licensee must be a non-
profit organization.'' \652\ AT&T and others asserted that the
Commission should ensure ``that the PSBL must be a nonprofit entity
that will use the network solely for public safety purposes.'' \653\
TeleCommUnity argued that ``in addition to the public policy argument
that favors the requirement that the [PSBL] be a non-profit
organization, there could be an argument that Section 337 of the Act
requires that the Licensee be so.'' \654\
---------------------------------------------------------------------------
\652\ NATOA Comments at 14-15 (internal footnote omitted).
\653\ AT&T Comments at 19, 21. See also Eads Comments at 1;
Lencioni Comments at 2; Philadelphia Comments at 5.
\654\ TeleCommUnity Comments at 11.
---------------------------------------------------------------------------
345. Discussion. The Commission agrees with commenters who argue
that the Public Safety Broadband Licensee should remain a non-profit
entity and see no reason at this time to alter the non-profit status of
the Public Safety Broadband Licensee. As discussed in the following
paragraphs and elsewhere in this Third FNPRM, the Commission is
proposing significant steps to insulate the Public Safety Broadband
Licensee from undue commercial influence, and additional reporting and
auditing requirements to provide greater oversight of the Public Safety
Broadband Licensee's activities. The Commission believes these changes
should further clarify the non-profit requirement of the Public Safety
Broadband Licensee.
(ii) Restrictions on PSBL Business Relationships
346. With respect to the question of restricting the Public Safety
Broadband Licensee's business relationships pre- and post-auction with
commercial entities generally, the record reflects mixed views. The
PSST asserted that ``the current restrictions regarding its agent/
advisor relationships are more than adequate to prevent improper
commercial influence, and the FCC should not place additional
restrictions on the PSST's business relationships and its agent/advisor
relationships.'' \655\ Instead, the PSST argued, ``the Commission
should provide greater clarity regarding its restriction on `commercial
interests' participating in management of the license.'' \656\ The PSST
observed that the current rules governing the PSBL ``allow for
arrangements with third parties to assist with the management or
operation of the public safety-side of the network,'' which
arrangements the PSST asserted ``are invaluable for a variety of
reasons, including access to expertise and funding, in assisting the
PSST to do its job effectively.'' \657\
---------------------------------------------------------------------------
\655\ PSST Comments at 49.
\656\ PSST Comments at 49.
\657\ PSST Comments at 49.
---------------------------------------------------------------------------
347. The PSST further indicated that while ``there have been abuses
in the past involving impermissible relationships between licensees and
third parties that would cause the FCC to adopt [ ] prophylactic
measures,'' it is also important ``that the FCC not so restrict the
PSBL in its ability to contract for needed services that it is
prevented from fulfilling the very functions that the FCC has
determined need to be undertaken on behalf of public safety.'' \658\ In
this regard, the PSST added that it ``has a strong preference for
outsourcing services to others where practical and appropriate, thereby
avoiding the need for a large internal staff with associated employer
obligations.'' \659\ The PSST further argued that ``provision of
management services or other types of support that are consistent with
[the] Intermountain Microwave or Motorola [standards for de jure and de
facto control] and would not involve prohibited economic interests
should be permitted under `incentive-compatible' standards.'' \660\ In
addition, the PSST argued that ``any new `incentive-compatible' rules
must not unduly restrict the PSST's ability to obtain funding, so long
as there is no commercial interest participating in management of the
licensee.'' \661\
---------------------------------------------------------------------------
\658\ PSST Comments at 49.
\659\ PSST Comments at 50.
\660\ PSST Comments at 50 (citing Intermountain Microwave, 12
FCC 2d 559 (1963); Applications of Motorola, Inc. for 800 MHz
Specialized Mobile Radio Trunked Systems, File Nos. 507505 et al.,
Order (issued July 30, 1985) (Private Radio Bureau)).
\661\ PSST Comments at 50.
---------------------------------------------------------------------------
348. Finally, the PSST states that its ``engagement of Cyren Call
is consistent with those FCC requirements.'' \662\ The PSST explained
that ``[b]ecause it had no governmental or other funding or assets to
serve as collateral for a commercial loan, [it] obtained a deferral
from Cyren Call of amounts due, and even obtained an advance loan from
Cyren Call that reflects arm's-length, normal commercial terms.'' \663\
The PSST asserts, however, that ``Cyren Call has no management
relationship with or management role within the PSST, has no legal or
beneficial interest in the PSST, and does not participate in the PSST's
management.'' \664\ The PSST further asserts that ``[t]here are no
conditions, covenants or other features of Cyren Call's service
agreement with or loan to the PSST that would allow
[[Page 57811]]
Cyren Call to influence the PSST's policy or management
determinations.'' \665\ Cyren Call stated that its arrangements with
the PSST did not provide it ``with any measure of control or undue
influence over the PSST's activities or its decisionmaking process.''
\666\
---------------------------------------------------------------------------
\662\ PSST Comments at 50-51.
\663\ PSST Comments at 51.
\664\ PSST Comments at 51.
\665\ PSST Comments at 51.
\666\ Cyren Call Reply Comments at 6.
---------------------------------------------------------------------------
349. NPSTC asserted that the ``experience and expertise in
deploying and operating wireless communications is a narrow field''
and, thus, ``the PSBL should have the ability to select its advisors to
discharge its duties effectively.'' \667\ APCO, however, noted that
``the Commission should require that the PSBL adopt strict conflict of
interest requirements that include prohibiting its advisors from
engaging in business activities resulting from the advice provided to
the PSBL [and] from establishing business relationships with equipment
vendors, service providers, and others with a financial interest in the
decisions of the PSBL.'' \668\ Further, as explained more fully below,
some commenters expressed concerns regarding the propriety of
permitting the PSBL to be funded by any of its for-profit advisors.
---------------------------------------------------------------------------
\667\ NPSTC Comments at 21. See also Hanna Reply Comments at 2;
NASEMSO Reply Comments at 2.
\668\ APCO Comments at 17.
---------------------------------------------------------------------------
350. Discussion. The Commission agrees with APCO that the
Commission should subject the Public Safety Broadband Licensee and its
advisors, agents, and managers to strict conflict of interest
requirements. The Commission believes safeguards should be implemented
to ensure that no entity is able to influence the Public Safety
Broadband Licensee's pre-auction activities in a manner that might
benefit that entity's, or a related entity's, plans to participate in
the upcoming D Block auction, or to gain any advantage as compared to
other bidders by virtue of information obtained from the Public Safety
Broadband Licensee during the course of its relationship with the
Public Safety Broadband Licensee. Thus, the Commission tentatively
concludes that the Commission should adopt conflict of interest
requirements making entities that are serving as advisors, agents, or
managers (or their related entities, including affiliates and those
controlled by any officer or director of such an entity) of the PSBL
ineligible to become a D Block licensee unless such an applicant
completely severs its business relationship with the Public Safety
Broadband Licensee no later than 30 days following the release date of
an order adopting final rules in this proceeding.\669\ For purposes of
this eligibility rule, the Commission proposes to define the terms
officer, director, and affiliate in the same manner as those terms are
currently defined in Section 1.2110(c) of the Commission's rules, which
govern competitive bidding, relating to designated entity eligibility
because the Commission has found those definitions effective when
assessing relationships among parties related to an applicant.\670\ The
Commission seeks comment on this tentative conclusion and proposed
rule.
---------------------------------------------------------------------------
\669\ In this regard, the Commission notes that Cyren Call
currently has an outstanding loan extended to the PSST. The
Commission seeks comment on whether Cyren Call should be allowed to
remain a creditor of the PSST if it wishes to be eligible to become
a D Block licensee.
\670\ See 47 CFR 1.2110(c).
---------------------------------------------------------------------------
351. The Commission also tentatively concludes that the Commission
should adopt conflict of interest requirements requiring entities that
are serving as advisors, agents, or managers (or their related
entities, including affiliates and those controlled by any officer or
director of such an entity) of the PSBL from establishing business
relationships or otherwise being affiliated with, or holding a
controlling interest in, equipment vendors, service providers, or other
entities that have a direct financial interest in the decisions of the
PSBL.\671\ These requirements would apply to both pre-auction and post-
auction activities. The Commission seeks comment on this tentative
conclusion and proposed rule.
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\671\ For purposes of defining ``affiliated'' and ``controlling
interest,'' the Commission propose to use the definitions contained
at 47 CFR 1.2110(c).
---------------------------------------------------------------------------
352. The Commission does not believe that the regulations the
Commission proposes today will interfere with the Public Safety
Broadband Licensee's ability to discharge its duties effectively. The
Commission also considers it necessary to implement regulations in
order to prevent impropriety and/or the appearance of impropriety in
the Public Safety Broadband Licensee's discharge of its duties. The
Commission agree with the PSST on the necessity of avoiding regulations
that overly restrict the Public Safety Broadband Licensee's ability to
engage in necessary transactions with third parties. The Commission
believes that the requirements the Commission propose here strike the
appropriate balance between providing the Public Safety Broadband
Licensee with the flexibility it requires to utilize expert advisors,
agents, and managers, and to make necessary contracts with third
parties, while ensuring that the Public Safety Broadband Licensee's
decisions are insulated from potential undue influences.
(iii) Funding of the PSBL Through the D Block Licensee
353. With respect to funding the PSBL through the D Block licensee,
there was support for such action, in various forms, including via an
upfront payment as well as through recurring payments, such as in the
form of a spectrum lease fee. The PSST stated that, as a non-profit,
tax-exempt organization subject to IRS rules, the PSST ``will need to
charge usage fees to public safety users, and it will need to obtain a
lease payment from the D Block licensee.'' \672\ The PSST added that
``[b]ecause the bulk of the spectrum likely will be used by the D Block
licensee to provide services from which it expects to realize a profit,
the PSST believes it logically should obtain most of its funding from
the lease payment.'' \673\ The PSST, however, acknowledged that ``there
must be an appropriate balance of public safety fees paid for SWBN
usage and a D Block spectrum lease payment,'' which the PSST argued
should be evaluated, along with related issues, and addressed in the
NSA.\674\
---------------------------------------------------------------------------
\672\ PSST Comments at 23-24.
\673\ PSST Comments at 23-24.
\674\ PSST Comments at 24.
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354. APCO asserted that, lacking conventional forms of security, it
will be difficult for the PSBL to obtain debt financing and, therefore,
an FCC rule provision ``that a specific dollar amount must be made
available by the D Block licensee to the PSBL to pay back loans
obtained from financial institutions to provide operational funds''
would be appropriate.\675\ APCO further suggested ``requiring the D
Block licensee to establish a trust fund with a specified dollar amount
that the PSBL would be allowed to draw from and pay its operating
expenses * * * provided there is a clearly established and supported
operating budget.'' \676\ APCO stated that the Commission should
continue to require that the D-Block winner pay a spectrum lease fee to
the Public Safety Broadband Licensee as part of the NSA, but asked the
Commission to provide ``some further definition * * * to provide
auction participants with greater certainty,'' and also stated that a
``fee cap may also be appropriate.'' \677\
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\675\ APCO Comments at 18.
\676\ APCO Comments at 18.
\677\ APCO Comments at 18. However, APCO warned against the D-
Block winner directly paying the PSBL's expenses ``as that would
create potential conflicts of interest.'' Id.
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[[Page 57812]]
355. The NRPC stated that the ``D Block licensee should be required
to pay all costs identified as necessary with regard to the [PSBL's]
administrative costs.'' \678\ In the context of its revised plan for
implementing a shared broadband network, Televate proposed that the ``D
Block winner provides billing services to the public safety community
and collects a service fee, per line, to fund PSST baseline
operations.'' \679\
---------------------------------------------------------------------------
\678\ NRPC Comments at 5.
\679\ Televate Comments at 13.
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356. Both the PSST and APCO asserted that the PSBL should be
allowed to obtain a lease payment from the D Block licensee to cover
the PSBL's operational funding.\680\ NENA stated that ``in the absence
of government funding for the public safety broadband licensee, the
licensee must be permitted to generate revenues to ensure its
viability.'' \681\ AT&T asserted that the ``Commission must promulgate
guidelines that address the spectrum usage fees the PSBL may charge
commercial partners for access to 700 MHz public safety broadband
spectrum,'' and these guidelines ``should clarify that any lease
agreements be negotiated using commercial practices for cost recovery
for the PSBL.'' \682\ AT&T urged that these guidelines ``address how
charges for network usage and spectrum access will be structured.''
\683\
---------------------------------------------------------------------------
\680\ See PSST Comments at 23-24; APCO Comments at 18.
\681\ NENA Comments at 4-5.
\682\ AT&T Comments at 19.
\683\ AT&T Comments at 19. AT&T argued that the lack of this
information ``was a factor cited as contributing to the failed D
Block auction.'' Id.
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357. With respect to excess revenues, the PSST stated that ``there
would be nothing improper in the PSST undertaking an activity that
might generate revenue that exceeded its expenses, provide the activity
was in furtherance of public safety interests.'' \684\ APCO suggested
that ``all funds generated through spectrum lease fees in excess of
those deemed appropriate to cover the operating expenses of the PSBL be
held in trust with a not-for-profit foundation [from which] public
safety users have the ability to apply for grant funding * * * to be
used to cover the cost of equipment, devices, and any operating fees
associated with the use of the nationwide broadband network.'' \685\
APCO also asked the Commission not to ``impose any arbitrary
restrictions on [any] excess revenues * * * of the PSBL.'' \686\ APCO
did, however, indicate support for Commission oversight of the PSBL's
use of any excess revenues.\687\ Region 33 states that any excess
revenues should ``be used to offset operating expenses with the
remainder going toward infrastructure improvements.'' \688\ Region 33
also adds ``limiting the amount of time excess funds can be retained''
would allow use of excess income as a reserve against possible future
budget shortfalls, but also provide funding for ``improvements to
infrastructure or general rate reductions for users.'' \689\
---------------------------------------------------------------------------
\684\ PSST Comments at 22.
\685\ APCO Comments at 18-19.
\686\ APCO Comments at 19.
\687\ APCO Comments at 19.
\688\ Region 33 Comments at 6.
\689\ Region 33 Comments at 6.
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358. Discussion. The Commission agrees with commenters that it is
reasonable for the D Block licensee(s) to cover the Public Safety
Broadband Licensee's administrative and operating expenses. The Public
Safety Broadband Licensee's non-profit status as discussed above and
the Commission's related concerns that no entangling financial
relationships compromise its core mission of representing the public
safety community point to establishing a direct funding mechanism
between the D Block licensee(s) and the Public Safety Broadband
Licensee. Further, the Commission finds merit in ensuring that the
administrative and operating expenses of the Public Safety Broadband
Licensee are finely tuned to its core mission and fully transparent to
key stakeholders. Thus, the Commission tentatively concludes that the
Public Safety Broadband Licensee shall establish an annual budget and
submit this budget to the Chief, WTB and Chief, PSHSB, on delegated
authority, for approval. The proposed annual budget to be submitted by
the Public Safety Broadband Licensee would enable the Commission to
ensure that the Public Safety Broadband Licensee is acting in a
fiscally responsible manner and not engaging in activities that exceed
the scope of its prescribed roles and responsibilities. The Public
Safety Broadband Licensee already is required to submit a full
financial accounting on a quarterly basis,\690\ which helps serve the
same purpose. As an additional measure, the PSBL also would need to
have an annual audit conducted by an independent auditor. In addition,
the Commission is proposing to provide that the Commission reserves the
right, as delegated to the Chief, PSHSB, to request an audit of the
Public Safety Broadband Licensee's expenses at any time.
---------------------------------------------------------------------------
\690\ See 47 CFR 90.528(g).
---------------------------------------------------------------------------
359. With respect to the mechanism of funding of the Public Safety
Broadband Licensee, the Commission tentatively concludes that the
nationwide D Block licensee or, if the D Block is licensed on a
regional basis, each regional D Block licensee, will make an annual
payment to the Public Safety Broadband Licensee of, in the aggregate,
the sum total of $5 million per year. These payments would be in
consideration for the D Block licensee(s)' leased access on a secondary
basis to the public safety broadband spectrum. In the event that the D
Block is licensed on a regional basis, the Commission will specify
after the close of the auction the annual payments required for each
license won at auction, such that the total $5 million in annual
payments to the Public Safety Broadband Licensee is apportioned on a
per region basis, based upon total pops per region. Because these
figures are tied to the regional D Block licenses actually won at
auction, the Commission may adjust them to account for any regional D
Block licenses that may go unsold in the next D Block auction but which
are successfully reauctioned on a subsequent date. The annual payment
funds will be placed into an escrow account managed by an unaffiliated
third party, such as a major commercial financial institution, for the
benefit of the Public Safety Broadband Licensee. The Commission will
require the Public Safety Broadband Licensee to seek approval of its
selected escrow account manager from the Chief, PSHSB. The Public
Safety Broadband Licensee would draw funds on this account to cover its
annual operating and administrative expenses in a manner consistent
with its submitted annual budget for that fiscal year.\691\ The
entirety of the Public Safety Broadband Licensee's annual operating
budget shall be based on these annual payments. The Commission seeks
comment on these tentative conclusions and proposals, including when
the D Block licensee(s) should make their initial payment to the Public
Safety Broadband Licensee. Specifically, comment is requested on
whether the D Block licensee(s) should make funding available prior to
the commencement of the NSA negotiation process. As a related matter,
the Commission also seeks comment on when it should first require the
Public Safety Broadband Licensee to develop its first annual
[[Page 57813]]
budget, and when the Commission should require the independent audit.
---------------------------------------------------------------------------
\691\ In the event that the PSST continues to serve as the PSBL,
it may, as part of its first submitted annual budget, account for
its administrative and operational expenses to date.
---------------------------------------------------------------------------
360. To the extent that the Public Safety Broadband Licensee's
actual operating expenses for a given fiscal year turn out to be less
than its proposed budget, such that there are excess funds left over at
the end of that fiscal year from the annual payment(s) made by the D
Block licensee(s) at the beginning of that year, those excess funds
would be applied towards the Public Safety Broadband Licensee's funding
of administrative or operational expenses for the following fiscal
year, or to fund secondary activities, such as the purchase of
equipment for the benefit of individual public safety agencies. The
Commission expects that the various reporting and auditing requirements
will provide the Commission with sufficient ability to ensure that the
Public Safety Broadband Licensee's expenses are reasonable and that it
is operating within the scope of its prescribed role and
responsibilities.\692\
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\692\ As discussed elsewhere, the Commission propose certain
limitations on the role and responsibilities of the Public Safety
Broadband Licensee, which should lead to significantly decreased
expenses than what may have originally been envisioned by the PSST.
---------------------------------------------------------------------------
361. Finally, in light of the funding mechanism the Commission
proposes above, the Commission tentatively concludes that the
Commission will not permit the Public Safety Broadband Licensee to
charge a separate lease fee to the D Block licensee(s) for their use of
the public safety broadband spectrum. As noted elsewhere, given the
funding mechanism the Commission is tentatively proposing above, the
Commission is also tentatively proposing not to permit the Public
Safety Broadband Licensee to obtain loans or financing from any other
sources.
(iv) Funding of the PSBL Through the Federal Government
362. Commenters generally questioned the legality of funding the
Public Safety Broadband Licensee's operations through the Universal
Service Fund (USF) and/or Telecommunications Development Fund (TDF).
APCO, for example, asserted that from a ``public policy perspective,
there is much to support using USF'' to support the PSBL, but noted
``potential legal issues'' in that the PSBL is not a common
carrier.\693\ NPSTC observed that the ``revenue base of [the USF and
TDF] is already subject to varying constraints and demands, if not
controversy,'' concluding that ``[t]he risks associated with these
alternatives appears to outweigh any potential benefit.'' \694\
---------------------------------------------------------------------------
\693\ APCO Comments at 19. See also PSST Comments at 25.
However, the PSST does recommend use of the USF and TDF to fund the
D Block licensee's activities. Id.
\694\ NPSTC Comments at 20-21.
---------------------------------------------------------------------------
363. With respect to other sources of Federal funding for the PSBL,
many commenters supported such action, noting Congresswoman Jane
Harmon's proposed legislation \695\ to achieve this result.\696\ NATOA,
for example, asserted that ``government funding of the PSBL is the best
option to preserve the licensee's independence from commercial
interests.'' \697\
---------------------------------------------------------------------------
\695\ See Public Safety Broadband Authorization Act of 2008,
H.R. 6055, 110th Cong. (2008).
\696\ See AT&T Comments at 21; Philadelphia Comments at 5; NRPC
Comments at 5; TeleCommUnity Comments at 12; RPC 33 Comments at 5;
RPC 20 Reply Comments at 18.
\697\ NATOA et al. Comments at 15.
---------------------------------------------------------------------------
364. Spectrum Acquisitions proposed a revised band plan leading to
increased D Block spectrum which, when auctioned, could ``provide
additional funds to be transferred to the PSST.'' \698\ Hanna suggested
using ``revenues generated from pending auctions, to provide a funding
stream to all the PSST/PSBL to operate in an independent and
transparent manner.'' \699\ The IAFF suggested establishment of ``a
grant program to fund the administrative and operational costs of the
public safety licensee, thus eliminating the need for the public safety
licensee to procure such funding from for-profit entities.'' \700\
---------------------------------------------------------------------------
\698\ SAI Comments at 13.
\699\ Hanna Reply Comments at 2-3.
\700\ IAFF Comments at 3.
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365. Discussion. As an initial matter, the Commission does not
believe that the USF or TDF funding programs are appropriate for
funding the Public Safety Broadband Licensee's operations. In the case
of USF, the Commission observes that the USF program ultimately is
intended to fund actual services, whereas the context for exploring USF
funding in this proceeding is to fund the day-to-day administrative
operations of the Public Safety Broadband Licensee.\701\ Moreover, USF
funding is limited to ``eligible telecommunications carriers''
(ETC),\702\ and as the PSST observes, to be designated as an ETC, the
Public Safety Broadband Licensee ``would need to be a common carrier,
which it is not and cannot become.'' \703\
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\701\ See, e.g., 47 U.S.C. 254(c)(1) (``In general.--Universal
service is an evolving level of telecommunications services * * *'')
(emphasis added); 47 U.S.C. 254(e) (``A carrier that receives [USF]
support shall use that support only for the provision, maintenance,
and upgrading of facilities and services for which the support is
intended.'').
\702\ See 47 U.S.C. 254(e).
\703\ PSST Comments at 25 (citing 47 U.S.C. 214(e)).
---------------------------------------------------------------------------
366. With respect to the TDF, as currently constituted, this
program appears inappropriate for funding the Public Safety Broadband
Licensee's operations. Congress established the TDF in Section 707 of
the Telecommunications Act of 1996 \704\ as a mechanism to promote
access to capital for small businesses in the telecommunications
industry, stimulate the development of new technology, and support
delivery of universal service.\705\ The TDF, a non-profit corporation,
essentially functions as a venture capital fund, making loans to
``eligible small business[es]'' based upon business plans and related
considerations.\706\ As such, the TDF takes equity positions in the
companies that seek its assistance, and makes funding decisions largely
based upon the business case of the potential borrower, both of which
are inapposite to the non-profit status of the Public Safety Broadband
Licensee and its operations. Moreover, since the TDF program is a
statutory entity with no implementing FCC regulations, accommodating
the funding of the Public Safety Broadband Licensee by the TDF would
require legislation.
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\704\ Public Law No. 104-104, Sec. 707, 110 Stat. 56, 47 U.S.C.
614.
\705\ See 47 U.S.C. 614(a).
\706\ See 47 U.S.C. 614(f). TDF funds may only be used for:
``The making of loans, investments, or other extensions of credits
to eligible small businesses''; provision of financial advice to
``eligible small businesses''; conducting research; paying the TDF's
operating expenses; and ``other services'' consistent with the TDF's
purposes. See 47 U.S.C. 614(e).
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367. Regarding commenters' other suggested sources for Federal
funding of the PSBL, while the Commission agrees that government
funding of the PSBL may well be the best option to preserve the
licensee's independence from commercial interests, the Commission notes
that it has no control over Congressional disbursement of funds.
Moreover, the use of auction revenues or Federal grants for the purpose
of funding the PSBL would also require Congressional legislation.
(v) Restrictions on Financing
368. With regard to the issue of implementing restrictions on
financing that would facilitate necessary funding while still ensuring
the independence of the Public Safety Broadband Licensee, the comments
again reflected mixed views.
369. The PSST stated that in its early years of operation it
``likely will need to
[[Page 57814]]
borrow money'' and the Commission ``should continue to allow the PSBL
to secure ordinary commercial loans at reasonable rates.'' \707\ The
Virginia Fire Chiefs stated that if ``neither Congress nor FCC can
provide * * * funding, it should not deny the PSST the ability to fund
itself using methods commonly in use by other non-profit entities.''
\708\ AASHTO supported the ``Commission's concern [that] the holder of
the PSBL is representative of all public safety groups,'' but urged the
Commission to ``strongly consider if the imposition of any additional
conditions, mandates, or restrictions placed on one not-for-profit
licensee would apply equally to all other not-for-profit licensees.''
\709\ AASHTO further argued that ``[i]mposition of FCC regulations
above those requirements of the [IRS] only obfuscate the issue and do
not add clarity or transparency.'' \710\
---------------------------------------------------------------------------
\707\ PSST Comments at 23 n. 48.
\708\ Virginia Fire Chiefs Comments at 2. See also RPC 33
Comments at 7; NPSTC Comments at 21; Northrop Grumman Comments at
12; NAEMT Comments at 3-4; AASHTO Comments at 14.
\709\ AASHTO Comments at 7.
\710\ AASHTO Comments at 8.
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370. APCO argued that ``[e]quity funding from any sources should be
prohibited, as that would undermine the independence and non-profit
status of the PSBL.'' \711\ APCO further asserted that ``the PSBL must
have the ability to seek debt financing (i.e., loans) to fund its
operations, and those loans would almost certainly need to be from
banks or other ``for profit'' institutions.'' \712\ NATOA argued that
the PSBL should not be allowed to ``obtain debt or equity financing
from any source * * * unless such source is also a non-profit entity.''
\713\ Peha asserted that prohibiting the PSBL from accepting funds from
for-profit entities ``is a useful restriction, but not a sufficient
restriction,'' because some entities might qualify as non-profit yet
have missions that would make it ``problematic if they funded the
PSBL.'' \714\ Accordingly, Peha argued that the funding ``should come
from a source whose unambiguous objective is either to serve the public
interest, or to serve public safety.'' \715\
---------------------------------------------------------------------------
\711\ APCO Comments at 17.
\712\ APCO Comments at 17.
\713\ NATOA et al. Comments at 15. See also Philadelphia
Comments at 5.
\714\ Peha Comments at 10.
\715\ Peha Comments at 10.
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371. As indicated above, commenters also opposed allowing the PSBL
to obtain funding from any of its agent/advisors. APCO, for example,
contended that the ``agent/advisor's funding of the PSST and the
resulting debt creates at least a perception that the agent/advisor
could exert undue influence over the PSST.'' \716\ APCO further
contended that such funding scenario ``imposes a financial burden that
could interfere with the PSST's mission.'' \717\ Accordingly, APCO
asserted that ``the Commission's rules should prohibit the PSBL from
borrowing funds from entities that provide substantial services to the
PSBL.'' \718\
---------------------------------------------------------------------------
\716\ APCO Comments at 17.
\717\ APCO Comments at 17.
\718\ APCO Comments at 17. See also APCO Comments at 17-18
(``[An] appropriate provision would be to prohibit debt financing
from any entity that provides services to or otherwise has business
relationships with the PSBL.'').
---------------------------------------------------------------------------
372. Peha espoused a similar view, noting that by obtaining funding
from its advisor, ``the PSST has probably lost the option of choosing a
new advisor if it is ever unhappy with the current one * * *'' \719\
Peha observed that where the PSBL's advisor also loans money to the
PSBL, the advisor then ``has a great deal to lose if the PSBL is unable
to reach agreement with a commercial provider, as the loan will never
be repaid,'' but ``has nothing to lose if the PSBL reaches an agreement
that fails to meet the needs of a single public safety organization.''
\720\ Verizon Wireless argued that a single entity that both loans
money and serves as an advisor to the PSBL ``raises issues concerning
potential conflicts,'' and that, in such instances, the Commission
``should take steps to ensure that the no-commercial-profit principal
is not violated.'' \721\
---------------------------------------------------------------------------
\719\ Peha Comments at 9-10.
\720\ Peha Comments at 10.
\721\ Verizon Wireless Comments at 34. See also AT&T Comments at
19, 21; IAFF Comments at 3; RPC 20 Reply Comments at 17; Verizon
Wireless Reply Comments at 23-26.
---------------------------------------------------------------------------
373. Discussion. As indicated above, the Commission is proposing
that funding for the Public Safety Broadband Licensee's operational and
administrative costs would come through the annual payment to the
Public Safety Broadband Licensee of one percent of the amount of the D
Block licensee's gross winning bid, but not to exceed the sum of $5
million per year. The Commission believes this funding mechanism will
make it unnecessary for the Public Safety Broadband Licensee to seek
third party loans to fund start-up and ongoing operations. Thus, the
Commission proposes to clarify that the Public Safety Broadband
Licensee may not obtain debt or equity financing from any source. As
commenters point out, the independence of the Public Safety Broadband
Licensee may be unduly influenced by for-profit motives or outside
commercial influences in carrying out its official functions were it
allowed to enter into financing agreements with third party, for profit
entities. For similar reasons, the Commission proposes to prohibit the
acquisition of any financing, whether debt or equity, from Public
Safety Broadband Licensee agents, advisors or any entity that provides
services to the Public Safety Broadband Licensee.\722\ Further, the
Commission remains concerned that any financial arrangement beyond
those described below with respect to funding from the D Block
licensee(s) would impose a financial burden that could compromise the
functioning and mission of the Public Safety Broadband Licensee. Thus,
the Commission proposes to prohibit the Public Safety Broadband
Licensee from entering into any financial arrangements with third
party, non-profit entities for the purpose of securing funding.
---------------------------------------------------------------------------
\722\ The Commission includes any equipment manufacturer
financing to support the acquisition of equipment for public safety
users.
---------------------------------------------------------------------------
b. Fees for Services Provided to Public Safety Entities
374. Background. In the Second Report and Order, the Commission
provided guidance concerning the service fees that the D Block licensee
could charge public safety users for their access to and use of the
public safety broadband network and, in times of emergency, to the D
Block spectrum.\723\ The Commission also discussed the importance of
the D Block licensee's ability to offer commercial services using the
public safety broadband spectrum leased from the Public Safety
Broadband Licensee.\724\
---------------------------------------------------------------------------
\723\ Second Report and Order, 22 FCC Rcd at 15448-49 paras.
450-52.
\724\ Second Report and Order, 22 FCC Rcd at 15437-39 paras.
414-19, 15441 para. 425.
---------------------------------------------------------------------------
375. The Commission required that all service fees--including
service fees that the D Block licensee would charge public safety users
for normal network service using the public safety broadband spectrum
and for their priority access to the D Block spectrum--be specified in
the Network Sharing Agreement.\725\ The Commission encouraged the
parties to negotiate a fee agreement that incorporates financial
incentives for the D Block licensee based on the number of public
safety entities and localities that subscribe to the service.\726\ The
Commission also observed that, for the negotiation of reasonable rates,
typical commercial
[[Page 57815]]
rates for analogous services might be useful as a guide, but that the
negotiated rates may in fact be lower than typical commercial rates for
analogous services.\727\ The Commission added that the Commission
expectation was that the winning bidder of the D Block license and the
Public Safety Broadband Licensee would negotiate a fee structure for
priority access to the D Block in an emergency that will protect public
safety users from incurring unforeseen (and unbudgeted) payment
obligations in the event that a serious emergency necessitates
preemption for a sustained period.\728\
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\725\ Second Report and Order, 22 FCC Rcd at 15448 para. 45.
\726\ Second Report and Order, 22 FCC Rcd at 15448 para. 450.
\727\ Second Report and Order, 22 FCC Rcd at 15449 para. 451.
\728\ Second Report and Order, 22 FCC Rcd at 15449 para. 451.
Elsewhere, the Commission stated that this ``[p]riority service,
although provided to public safety, will still be commercial, and
will not appreciably impair the D Block licensee's ability to
provide commercial services to other parties.'' Id. at 15437 para.
413.
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376. In the Second FNPRM, the Commission invited comment on whether
the Commission should reconsider any aspect of the rules regarding
service fees to be paid by public safety users, including any
applicable fees for normal network service and fees for priority access
to the D Block in an emergency.\729\ The Commission specifically sought
comment on whether the Commission should clarify any aspect of these
service fees that was left to negotiations.\730\ The Commission also
asked whether the Commission provided adequate guidance in the Second
Report and Order to enable the parties to negotiate reasonable rates
for all fees, or whether the Commission should adopt a more detailed
fee structure or formula to facilitate negotiations on this issue.\731\
The Commission asked, for example, whether the Commission should
specify that the D Block licensee is entitled to charge rate-of-return
or cost-plus rates, taking the incremental costs of public safety
network specifications and other costs attributable uniquely to public
safety users into account.\732\ Alternatively, the Commission asked
whether requiring public safety users to pay the same rates as
commercial users would be sufficient.\733\ The Commission further asked
whether the Commission should mandate that public safety users be
entitled to receive the lowest rate that the D Block licensee offers to
its commercial users for analogous service.\734\
---------------------------------------------------------------------------
\729\ Second FNPRM, 23 FCC Rcd at 8094 para. 132.
\730\ Second FNPRM, 23 FCC Rcd at 8094 para. 132.
\731\ Second FNPRM, 23 FCC Rcd at 8094 para. 132.
\732\ Second FNPRM, 23 FCC Rcd at 8094 para. 132.
\733\ Second FNPRM, 23 FCC Rcd at 8094 para. 132.
\734\ Second FNPRM, 23 FCC Rcd at 8094 para. 132.
---------------------------------------------------------------------------
377. The Commission also sought comment on whether particular uses
of the public safety broadband network by public safety users should be
free and others fee-based, and upon what bases such distinction should
be made.\735\ In this regard, the Commission asked whether it is
practical to use service- and context-based distinctions, such as
between voice and advanced data services, mission-critical and non-
mission-critical communications, emergency and non-emergency events,
priority and non-priority access, or similar metrics.\736\
Alternatively, the Commission asked whether it would be preferable to
rely on technical distinctions, such as a specified number of minutes
or bits, a percentage of network capacity, or similar metrics.\737\
Finally, the Commission asked whether either approach would provide
sufficient certainty to public safety users and/or the commercial D
Block licensee.\738\
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\735\ Second FNPRM, 23 FCC Rcd at 8094-95 para. 133.
\736\ Second FNPRM, 23 FCC Rcd at 8094-95 para. 133.
\737\ Second FNPRM, 23 FCC Rcd at 8094-95 para. 133.
\738\ Second FNPRM, 23 FCC Rcd at 8094-95 para. 133.
---------------------------------------------------------------------------
378. Comments. A number of commenters addressed whether the
Commission should more clearly define the fees to be charged to public
safety users. AT&T, for example, asserted that ``it is critically
important that the Commission provide additional guidance in this area
* * * to enable potential commercial participants to evaluate the
financial prospects of this venture.'' \739\ Peha argued that the fees
should be set in advance of the auction because ``no public safety
agency will purchase equipment to use a system unless it can be certain
that the monthly fees will be reasonable for the life of that
equipment, if not indefinitely.'' \740\ Similarly, Mercatus urged the
Commission to provide ``more specificity on what the D Block licensee
may charge public safety users.'' \741\
---------------------------------------------------------------------------
\739\ AT&T Comments at 20.
\740\ Peha Comments at 13.
\741\ Mercatus Comments at 2.
---------------------------------------------------------------------------
379. The PSST indicated that it ``understands the desire by some
parties that service fees be set prior to the auction, [but] sees no
reasonable way of doing so.'' \742\ Specifically, the PSST argued that
``[n]etwork service fees will and should have some correlation to
network costs. But those costs will vary considerably depending on the
D Block winner.'' \743\ In this regard, the PSST observed that ``[a]n
incumbent with built-out infrastructure and an in-place retail service
business will have different requirements than a new entrant that would
need to build a network from scratch or from a winner that elects to
operate on a wholesale-only basis.'' \744\ Accordingly, the PSST argued
that ``it is not possible to determine service fees prior to knowing
the identity and business plans of the D Block winner.'' \745\
---------------------------------------------------------------------------
\742\ PSST Comments at 37.
\743\ PSST Comments at 37.
\744\ PSST Comments at 37.
\745\ PSST Comments at 37.
---------------------------------------------------------------------------
380. The PSST added that it is ``opposed to allowing the D Block
licensee to recoup the incremental cost of a public safety-quality
build from public safety users,'' which arrangement the PSST argued
would ``not be materially different than if the PSST were to pay an
incumbent wireless carrier to augment its existing facilities to
support a public safety-grade 700 MHz system, particularly if the
carrier was deploying its own 700 MHz network.'' \746\ According to the
PSST, the ``better approach is to encourage the parties to negotiate a
mutually acceptable rate(s) for public safety entities, one that will
encourage widespread public safety adoption and that also provides the
D Block operator with reasonable compensation consistent with the
benefits it is receiving from the partnership arrangement,'' but in all
cases, ``the FCC should continue to specify a requirement (or at least
an expectation) that the fees paid by public safety users should be
substantially lower than the fees paid by the D Block licensee's
commercial customers.'' \747\
---------------------------------------------------------------------------
\746\ PSST Comments at 36.
\747\ PSST Comments at 36-37.
---------------------------------------------------------------------------
381. Northrop Grumman urged the Commission ``to adopt an objective
method for the determination of fees, including a mechanism to
segregate and define the charges to public safety users, with cost
recovery using a ``no profit, no loss'' or similar framework.'' \748\
According to Northrop Grumman, such an approach would ``align the
incentives of the D Block licensee and the PSBL toward serving public
safety's needs, and ensure that the costs of public safety's needs are
met without conflicting with overall viability of the shared network.''
\749\
---------------------------------------------------------------------------
\748\ Northrop Grumman Comments at 8.
\749\ Northrop Grumman Comments at 8.
---------------------------------------------------------------------------
382. Televate contended that the ``maximum service price for
priority public safety services must be
[[Page 57816]]
discounted from list rates by at least 20 percent.'' \750\ Televate
also suggested that bidders should somehow be credited for offering
``higher levels of discounts off commercial list prices'' and
``innovative methods to bring the maximum number of public safety
personnel on to the network.'' \751\ Gerard Eads, a ``communications
administrator,'' urged the Commission to require ``that public safety
agencies access the system at no recurring charge'' and subsidize their
fees using revenue from the auction.\752\
---------------------------------------------------------------------------
\750\ Televate Comments at 10.
\751\ Televate Comments at 10.
\752\ Eads Comments at 3.
---------------------------------------------------------------------------
383. NTCH proposed the imposition of ``a relatively modest usage
fee,'' the proceeds from which could ``pay the ongoing costs of the
public safety licensee as well as system maintenance.'' \753\ According
to NTCH, the service could still be provided at a discount to costs
currently incurred by public safety entities and ``the charge to public
safety users for unlimited calling would be equivalent to similar
charges to a private sector user for unlimited calling plans and data
transfers over the network.'' \754\ U.S. Cellular asserted that to
``increase the attractiveness'' of less populated geographic areas in
the D Block, the Commission could make ``the service fees more
commercially attractive (in areas with low volumes of public safety
usage, lower charges for the D Block licensee's use of the public
safety spectrum, and higher charges for public safety agencies' use of
the D Block spectrum).'' \755\ California argued in favor of
implementing ``a small incremental cost increase in a `heavy use' area
as a means of offsetting the cost for providing service to a `low use'
area.'' \756\
---------------------------------------------------------------------------
\753\ NTCH Comments at 6.
\754\ NTCH Comments at 6.
\755\ U.S. Cellular Comments at 14, 22.
\756\ California Comments at 5.
---------------------------------------------------------------------------
384. Some commenters argued that the Federal government should
subsidize the public safety network. RPC 33 argues that the user fees
should be ``fair and equitable to all concerned'' and that funding for
the network should come from the Federal government until the D Block
spectrum becomes profitable.\757\ Wireless RERC supported capping fees
that could be charged to public safety entities and contends the
network costs could be subsidized using ``funds appropriated by
Congress, federal grants, or a cost-recovery fund.'' \758\
---------------------------------------------------------------------------
\757\ RPC 33 Comments at 5.
\758\ Wireless RERC Comments at 12-13.
---------------------------------------------------------------------------
385. APCO indicated that ``per unit and aggregate service pricing
has been a major concern for APCO since the inception of this
process.'' \759\ Specifically, APCO argued that ``it will almost always
cost more to provide an equal level of service to the smaller agency
that works in remote areas and have wide jurisdictional areas than it
will to cover a dense urban area.'' \760\ APCO suggested that the
imbalance in equalizing rates between populated versus less populated
areas could be addressed through such measures as ``blanket Federal
subsidies,'' ``a rate structure that is subsidized by the other
users,'' or for the Commission ``to collect a user fee on all users,
similar to a 911 service fund or fee.'' \761\ In all cases, however,
APCO recommended that the Commission ``take full advantage of an
advisory rate board, commission or advisory group to assist in
establishing the rates and future adjustments to them.'' \762\ APCO
also suggested that the Commission allow the ``PSBL and the D Block
licensee to negotiate with qualified public safety agencies to accept
capital investments or the use of publicly funded capital investment in
exchange for reduced rates.'' \763\
---------------------------------------------------------------------------
\759\ APCO Comments at 14.
\760\ APCO Comments at 14.
\761\ APCO Comments at 15.
\762\ APCO Comments at 15.
\763\ APCO Comments at 16.
---------------------------------------------------------------------------
386. AT&T argued that the Commission ``must promulgate guidelines
that address the service fees commercial partners may charge local
public safety users * * * .'' \764\ AT&T further argued that
``[p]otential commercial partners require such clarification in order
to evaluate the financial prospects of this venture'' and that,
therefore, if ``the Commission intends to restrict the type or amount
of service fees a commercial partner may charge a local public safety
user, the Commission must clearly explain this restriction prior to an
RFP process or a reauction.'' \765\
---------------------------------------------------------------------------
\764\ AT&T Reply Comments at 20; see also Northrop Grumman
Comments at 7-8; Peha Comments at 13; Wireless RERC Comments at 12-
13.
\765\ AT&T Reply Comments at 20. AT&T also recommended
guidelines addressing spectrum usage fees, and asserted that, if
``the Commission permits the PSBL to charge access fees, the
Commission should ensure that such payments be negotiated * * *
using commercial practices for cost recovery for the PSBL.'' Id.
---------------------------------------------------------------------------
387. Discussion. Resolving the matter of service fees for public
safety use of the broadband network requires us to carefully balance
the interests of potential D Block bidders and public safety users of
the network.\766\ It is also important to provide both sets of
stakeholders with a fee structure that is reasonably stable and
predictable, notwithstanding the difficulty of determining such fees
given the limited information before us.\767\ The Commission agrees
with commenters that potential commercial participants need sufficient
pre-auction information regarding fees to help them evaluate the
financial prospects of providing both a commercial- and public safety-
oriented service.\768\ Similarly, the Commission believes that public
safety agencies need specificity regarding prospective fees in order to
ensure their timely commitment to use the public safety spectrum and to
enable them to plan and budget for the use of the new network.
---------------------------------------------------------------------------
\766\ See AT&T Comments at 20. The Commission also recognizes
Peha's argument that a failure to determine rates ex ante could
adversely affect public safety purchase of 700 MHz equipment. See
Peha Comments at 13.
\767\ See Peha Comments at 13.
\768\ See, e.g., AT&T Comments at 20.
---------------------------------------------------------------------------
388. As an initial matter, with regard to those commenters who
argue that the fees charged to public safety users of the shared
network should be subsidized by the Federal government, whether on an
ongoing basis or through the use of auction proceeds,\769\ the
Commission notes that the Commission's lack the authority to obligate
Federal funds in such fashions. In addition, while the Commission finds
Northrop Grumman's concept of a ``no profit, no loss'' or similar
framework appealing,\770\ the Commission does not believe that the
Commission should prohibit the D Block licensee from deriving income
from public safety users of the public safety spectrum. The Commission
agrees with the general consensus of most commenters, however, that any
fees charged to public safety users should be discounted as compared to
the fees charged to commercial users.
---------------------------------------------------------------------------
\769\ See Eads Comments at 3.
\770\ See Northrop Grumman Comments at 8.
---------------------------------------------------------------------------
389. The Commission tentatively concludes, therefore, that the
Commission should establish fixed nationwide service fees that the D
Block licensee may charge to public safety users based upon a
discounted rate schedule. The Commission believes that adopting a fee
schedule nationwide will ensure uniform standards and practices in the
700 MHz band, rapid adoption and deployment by public safety users, and
provide an efficient cost structure for the D Block licensee(s) as it
builds out a network capable of supporting commercial and public safety
users.
390. As the Commission considers the specific fees to be mandated,
the Commission tentatively concludes that the rates being offered today
for
[[Page 57817]]
broadband wireless data service provide a sufficient, forward-looking
benchmark upon which to establish a nationwide fee schedule. The
Commission tentatively concludes that the characteristics of services,
such as those offered by Verizon Wireless, AT&T Mobility, Sprint
Nextel, and T-Mobile, are consistent with those that will be associated
with the public safety broadband network. The Commission also finds
that offering such discounted fixed rates is a standard practice of
nationwide and regional wireless carriers that have established voice
and data service prices for public safety and government users. The
Commission bases its conclusion on a survey of contracts, as presented
in Table 2, that are presently offered to governments and public safety
authorities for wireless voice and data services.\771\
---------------------------------------------------------------------------
\771\ See, e.g., General Services Administration, Federal Supply
Service, Cellular/PCS Services, Contract GS-35F-0119P,
available at https://www.gsaadvantage.gov/ref_text/GS35F0119P/0EA660.1OSTP9_GS-35F-0119P_GSAADVANTAGEMOD12GS35F0119P040408.PDF
(last viewed on August 27, 2008); Western State Contracting
Alliance, at http://www.aboutwsca.org/welcome.cfm (last viewed on
August 27, 2008); State of New York, Office of General Services,
Procurement Services Group, Contract Number PS61217, Group Number
77008 (effective August 15, 2007), available at http://www.ogs.state.ny.us/ purchase/prices/7700802459prices1207.pdf (last
viewed on August 27, 2008).
Table 2--Survey: Discounted Wireless Data Plans
----------------------------------------------------------------------------------------------------------------
Monthly service
Contracting entity Wireless operator Service plan \772\ charge
----------------------------------------------------------------------------------------------------------------
General Services Administration Verizon Wireless...... VZAccess (NationalAccess/.. $48.59
\773\. BroadbandAccess)...........
----------------------------------------------------------------------------------------------------------------
Western States Contracting Alliance Verizon Wireless...... BroadbandAccess for 49.19 \775\
\774\. Internet and E-mail.
Sprint PCS............ Sprint PCS Connection Card 49.99
Unlimited Usage (applies
to usage on both 1xRTT and
EVDO networks).
T-Mobile \776\........ T-Mobile Total Internet, 33.99 \777\
Unlimited Usage.
T-Mobile Total Internet for 42.49 \778\
Data Cards, Unlimited
Usage.
AT&T Mobility \779\... Public Safety Unlimited 49.99
Data.
State of New York \780\............ Verizon Wireless...... VZAccess (NationalAccess/ 48.59
BroadbandAccess).
Sprint Nextel......... Unlimited Connection Plan 59.99
EVDO DataLink.
Unlimited Connection Plan 59.99
1xRTT DataLink.
State of Florida \781\............. AT&T Mobility......... Wireless Data Usage Plan, 43.99
Unlimited Usage.
Sprint................ Wireless Data Usage Plan, 44.99
Unlimited Usage.
Verizon Wireless...... Wireless Data Usage Plan, 52.59
Unlimited Usage.
----------------------------------------------------------------------------------------------------------------
391. Generally, the service rates charged by these carriers apply
nationwide, thus providing a useful model for establishing a
nationwide, fixed rate schedule for public safety users of the shared
wireless broadband network. Based on the Commission survey, the average
discounted service charge is approximately $48.50 per month, which thus
may serve as an appropriate amount. In sum, the Commission seeks
comment on its tentative conclusions that it should set a specific
service fee for public safety users and that such fee be based on rates
charged to government users of existing wireless, voice, and data
services. The Commission also seeks comment on whether a rate of $48.50
per user per month as the base rate that will be charged to all public
safety users is reasonable.
---------------------------------------------------------------------------
\772\ The Commission notes that some of these plans contain
restrictions on the use of the wireless data network. For example,
Verizon Wireless' contracts discussed herein stipulate its wireless
data services may only be used for ``(i) Internet browsing, (ii) e-
mail, and (iii) intranet access (including access to corporate
Intranets, e-mail and individual productivity applications like
customer relationship management, sales force and field
automation.'' Verizon Wireless specifically prohibits uses including
the `` (i) continuous uploading, downloading or streaming of audio
or video programming or games, (ii) server devices or with host
computer applications, other than applications required for enhanced
phone applications, including but not limited to web camera posts or
broadcasts, automatic data feeds, automated machine-to-machine
connections, or peer-to-peer file sharing, or (iii) as a substitute
or backup for private lines or dedicated data connections.''
Similarly, Sprint Nextel's contract stipulates that ``[s]ervices are
not available for use in connection with server devices or host
computer applications, other systems that drive continuous heavy
traffic or data sessions.'' See State of New York, Office of General
Services, Verizon Wireless Contract Number PS61217 (effective August
15, 2007), available at http://www.ogs.state.ny.us/purchase/prices/7700802459prices1207.pdf (last viewed on August 27, 2008) (New York
State Verizon Wireless Contract); Sprint Nextel Contract Number
PS60701 (effective July 15, 2007), available at http://www.ogs.state.ny.us/purchase/prices/7700802459prices1207.pdf (last
viewed on August 27, 2008) (New York State Sprint Nextel Contract).
See also General Services Administration, Federal Supply Service,
Cellular/PCS Services, Contract GS-35F-0119P, available at
https://www.gsaadvantage.gov/ref_text/GS35F0119P/0EA660.1OSTP9_GS-35F-0119P_GSAADVANTAGEMOD12GS35F0119P040408.PDF (last viewed on
August 27, 2008) (GSA Verizon Wireless Contract).
\773\ GSA Verizon Wireless Contract.
\774\ The WSCA is comprised of state purchasing directors that
negotiate purchasing contracts for goods and services. WSCA
membership consists of the principal procurement official that heads
the state central procurement organization, or designee for that
state, from the states of Alaska, Arizona, California, Colorado,
Hawaii, Idaho, Minnesota, Montana, Nevada, New Mexico, Oregon, South
Dakota, Utah, Washington and Wyoming. In addition, the following
states use WSCA contracts: Alabama, Arkansas, Florida, Georgia,
Iowa, Illinois, Indiana, Kansas, Kentucky, Massachusetts, Maryland,
Maine, Michigan, Missouri, Mississippi, North Carolina, Nebraska,
New Hampshire, New York, Ohio, Oklahoma, Pennsylvania, Rhode Island,
Tennessee, Texas, Wisconsin, and the District of Columbia.
\775\ This amount reflects an 18% discount that Verizon Wireless
extends to signatories of the WSCA contract. According to Verizon
Wireless, the standard rate is $59.99. See Verizon Wireless, at
https://b2b.verizonwireless.com/b2b/commerce/shop/viewPlanDetail.go?planId=48372 (last viewed on August 27, 2008).
\776\ Under its contract with the WSCA, T-Mobile extends a 15%
discount on recurring monthly charges. See WSCA, Contract for
Services of Independent Contractor, T-Mobile USA, available at
http://purchasing.state.nv.us/Wireless/T-Mobile_Contract.pdf (last
viewed on August 27, 2008).
\777\ This amount reflects a 15% discount off the $39.99 retail
rate.
\778\ This amount reflects a 15% discount off the $49.99 retail
rate.
\779\ See WSCA, Contract for Services of Independent Contractor,
AT&T Mobility, available at http://purchasing.state.nv.us/Wireless/Cingular_BB.pdf (last viewed on August 27, 2008).
\780\ New York State Verizon Wireless Contract; New York State
Sprint Nextel Contract.
\781\ State of Florida, Department of Management Services,
MyFloridaSUNCOM Services, at http://dms.myflorida.com/cits/portfolio_of_services/suncom/wireless_services/wireless_data_services_aircard (last viewed August 27, 2008).
---------------------------------------------------------------------------
392. In developing a proposed base rate, the Commission seeks to
achieve the best approximation of what a competitive, yet discounted
rate should be for these services. The Commission
[[Page 57818]]
seeks to ensure an initial stable service arrangement between the D
Block licensee(s) and the public safety user community by establishing
an initial flat rate for service based on appropriate considerations of
commercial viability and the generally limited financial means of the
public safety community. The Commission believes this is an important
consideration towards ensuring widespread adoption of advanced
interoperable services by the public safety community. The Commission
recognizes, however, that the factors that determine service rates are
not static, and that over time marketplace forces will need to be taken
into account in the adjustment of public safety service rates. Thus,
the Commission tentatively concludes that the Commission will allow the
fixed rates the Commission ultimately adopts to sunset coterminous with
the expiration of the fourth year buildout requirement, at which point
the Commission expects the D Block licensee(s) will be providing
service to a significant portion of the nation's public safety
community. In the fifth year of operation, the Commission expects that
the commercial market for D Block spectrum and services will have
sufficiently developed so that the General Services Administration
likely will have developed a fee schedule for government users of the
commercial spectrum. At that time, the Commission proposes to use that
schedule as the basis for adjusting public safety fees for use of the
network. The Commission seeks comment on this proposal.
c. Other Essential Components
393. Background. In the Second Report and Order, the Commission
established certain minimum criteria that the Public Safety Broadband
Licensee must meet in order to ensure that it ``focuses exclusively on
the needs of public safety entities that stand to benefit from the
interoperable broadband network.'' \782\ In particular, the Commission
established certain criteria for the Public Safety Broadband Licensee
eligibility, including a requirement that the Public Safety Broadband
Licensee must be broadly representative of the public safety
community.\783\ The Commission also required that the Public Safety
Broadband Licensee be governed by a voting board consisting of eleven
members, one each from the nine organizations representative of public
safety, and two at-large members selected by the Public Safety and
Homeland Security Bureau and the Wireless Telecommunications Bureau,
jointly on delegated authority.\784\ On reconsideration, the Commission
revised and expanded the voting board, and increased the at-large
membership to four.\785\
---------------------------------------------------------------------------
\782\ Second Report and Order, 22 FCC Rcd at 15421-22 para. 373.
\783\ Second Report and Order, 22 FCC Rcd at 15421-25 paras.
373-375.
\784\ The nine organizations included: the Association of Public
Safety Communications Officials (APCO); the National Emergency
Number Association (NENA); the International Association of Chiefs
of Police (IACP); the International Association of Fire Chiefs
(IAFC); the National Sheriffs' Association (NSA); the International
City/County Management Association (ICMA); the National Governor's
Association (NGA); the National Public Safety Telecommunications
Council (NPSTC); and the National Association of State Emergency
Medical Services Officials (NASEMSO). Second Report and Order, 22
FCC Rcd at 15422-23 para. 374.
\785\ On reconsideration, the Commission removed NPSTC and
included the Forestry Conservation Communications Association
(FCCA), the American Association of State Highway and Transportation
Officials (AASHTO), and the International Municipal Signal
Association (IMSA), and added two additional at-large positions.
Service Rules for the 698-746, 747-762 and 777-792 MHz Bands, WT
Docket No. 96-86, Order on Reconsideration, 22 FCC Rcd 19935 (2007)
(Order on Reconsideration). The Chiefs of the Public Safety and
Homeland Security Bureau and Wireless Telecommunications Bureau
jointly appointed to the voting board the American Hospital
Association (AHA), the National Fraternal Order of Police (NFOP),
the National Association of State 9-1-1 Administrators (NASNA), and
the National Emergency Management Association (NEMA). See ``Public
Safety and Homeland Security Bureau and Wireless Telecommunications
Bureau Announce the Four At-Large Members of the Public Safety
Broadband Licensee's Board of Directors,'' Public Notice, 22 FCC Rcd
19475 (PSHSB 2007).
---------------------------------------------------------------------------
394. The Commission also required that certain procedural
safeguards be incorporated into the articles of incorporation and
bylaws of the Public Safety Broadband Licensee.\786\ For example, the
Commission specified that the term of the Public Safety Broadband
Licensee officers would be two years, and that election would be by a
two-thirds majority vote.\787\ A two-thirds majority was also required
for certain other Public Safety Broadband Licensee decisions, including
amending the articles of incorporation or bylaws.\788\ The Commission
also recognized the importance of Commission oversight in the affairs
of the Public Safety Broadband Licensee, which the Commission enabled
by requiring the Public Safety Broadband Licensee to submit certain
reports to the Commission, including quarterly financial
disclosures.\789\
---------------------------------------------------------------------------
\786\ Second Report and Order, 22 FCC Rcd at 15423-26 para. 375.
\787\ Second Report and Order, 22 FCC Rcd at 15423-26 para. 375.
\788\ Second Report and Order, 22 FCC Rcd at 15423-26 para. 375.
\789\ Second Report and Order, 22 FCC Rcd at 15426 paras. 376-
77.
---------------------------------------------------------------------------
395. In the Second FNPRM, the Commission sought to reexamine the
structure of the Public Safety Broadband Licensee and the criteria
adopted in the Second Report and Order to ensure they are optimal for
establishing and sustaining a partnership with a commercial entity, and
for efficiently and equitably conducting the business of the Public
Safety Broadband Licensee. As developed more fully below, the
Commission sought comment on whether the Commission should reevaluate
any of these criteria, whether the Commission should clarify or
increase the Commission's oversight of the Public Safety Broadband
Licensee, and whether the Commission should make other changes to the
license or license eligibility criteria.\790\ The Commission further
sought comment on how the Commission can ensure an oversight role for
Congress; whether State governments should assume responsibility for
coordinating the participation of the public safety providers in their
jurisdictions; and whether, in light of possible changes to the
eligibility and other criteria that govern the Public Safety Broadband
Licensee, the Commission should rescind the current 700 MHz Public
Safety Broadband License and seek new applicants.\791\
---------------------------------------------------------------------------
\790\ Second FNPRM, 23 FCC Rcd at 8067 para. 48.
\791\ Second FNPRM, 23 FCC Rcd at 8067 para. 48.
---------------------------------------------------------------------------
(i) Articles of Incorporation and By-Laws
396. Background. With respect to the articles of incorporation and
bylaws that govern the Public Safety Broadband Licensee, the Commission
sought comment on the adequacy of the current requirements.\792\ The
Commission sought comment, for example, on whether the Commission
should require a unanimous or super-majority vote in certain instances,
whether the Commission should provide for Commission review of such
decisions, and whether the Commission should make certain decisions for
the Public Safety Broadband Licensee if unanimity or supermajority is
not achieved.\793\ With respect to the voting board, the Commission
sought comment on the composition, size and qualifications of the
board.\794\ The Commission also sought comment on whether the
Commission should eliminate altogether the requirement of inclusion of
specific
[[Page 57819]]
voting board members, and if so, how the Commission could ensure broad
representation of the public safety community.\795\ With respect to the
leadership of the board, the Commission asked whether the Commission
should revise the terms of the officers; whether the Commission should
require a unanimous vote for appointment of officers; whether the
Commission should require a rotating chairmanship among the voting
board members; and whether the Commission should appoint a chairperson
in the event that unanimous consent cannot be attained on appointing
such person.\796\
---------------------------------------------------------------------------
\792\ Second FNPRM, 23 FCC Rcd at 8067 para. 49.
\793\ Second FNPRM, 23 FCC Rcd at 8067 para. 49.
\794\ Second FNPRM, 23 FCC Rcd at 8067 para. 50.
\795\ Second FNPRM, 23 FCC Rcd at 8067 para. 50.
\796\ Second FNPRM, 23 FCC Rcd at 8067 para. 50.
---------------------------------------------------------------------------
397. Comments. There were a number of comments addressing the
composition of the PSBL board of directors and board transparency and
voting matters.
398. Board Composition. For its part, the PSST indicated that it
``opposes any change in the composition of its Board, including the
possibility of including representatives from a variety of non-public
safety entities.'' \797\ In this regard, the PSST asserted that ``the
PSST is structured in strict compliance with all applicable FCC
requirements,'' \798\ and, as currently constituted, ``collectively
represents virtually every type of public safety and governmental
entity that is eligible to operate on the SWBN pursuant to the PSBL
license and their interests have been well-represented in the Board's
highly collaborative decision making processes.'' \799\ Rather than
revise its organizational make-up, the PSST argued that the Commission
should ``instead work with the organizations represented on the current
PSST Board to address any major concerns about the organizational
structure and governance of the organization.'' \800\ The PSST further
indicated that the Commission should not prohibit the PSST Chairman of
the Board of Directors from also serving as Chief Executive Officer in
favor of creating a separate position of President/CEO to manage the
PSST's business ``unless the Commission has some definite funding
mechanism for the PSST/PSBL to pay for such a position.'' \801\
---------------------------------------------------------------------------
\797\ PSST Reply Comments at 17. See also PSST Comments at 47.
\798\ PSST Comments at 45.
\799\ PSST Comments at 45-46.
\800\ PSST Comments at 47.
\801\ PSST Comments at 46.
---------------------------------------------------------------------------
399. IACP argued that the present PSBL board ``represents not only
the myriad of agencies, but those who finance, operate and manage
public safety systems.'' \802\ IACP further asserted that reducing
``the number of the Board'' would ``dilute'' the link between the Board
and public safety.\803\ IACP also asserted that any expertise needed in
telecommunications, finance and/or management can be obtained through
the retention of experts.\804\ AASHTO asserted that adding any more
PSBL board members ``could create a body so unwieldy it is unable to
react to the ever changing needs of its users in a timely manner.''
\805\ Ericsson advises that changing the PSBL board composition ``at
this time could impose additional delay * * * and create a new source
of uncertainty.'' \806\ Other commenters similarly urged the Commission
not to reassess the composition or size of the Public Safety Broadband
Licensee's board.\807\
---------------------------------------------------------------------------
\802\ IACP Reply Comments at 3.
\803\ IACP Reply Comments at 3.
\804\ IACP Reply Comments at 3.
\805\ AASHTO Comments at 11. In this context, AASHTO advises
against adding a Commission or Congressional representative to the
Board. Id.
\806\ Ericsson Comments at 8.
\807\ See, e.g., IMSA Comments at 11; IMSA Reply Comments at 7-
8; ICMA Reply Comments at 2; NPSTC Reply Comments at 7.
---------------------------------------------------------------------------
400. A number of commenters, however, proposed various changes to
the Public Safety Broadband Licensee's governance structure. APCO, for
example, suggested various modifications regarding membership in the
Public Safety Broadband Licensee. First, APCO asked the Commission to
``clarify that the organizations it names [to the board] must be the
actual members of the PSBL board to the extent that this can be done
without creating undue financial liability to the respective
organizations.'' \808\ Second, APCO contended that ``the large size of
the PSST board has led to over-reliance on the Chairman/CEO and a
three-person executive committee (the chairman, vice-chairman, and
secretary/treasurer),'' and proposed that a ``smaller board would allow
for a more inclusive decision-making.'' \809\ Third, APCO argued that
the PSBL board ``does not provide sufficient diversity of interests or
required expertise to undertake the extraordinary tasks at hand,'' such
as ``designing or operating public safety communications systems'' and
in the fields of ``business, finance, [and] communications
technology.'' \810\ According to APCO, such lack of experience on the
board leads the PSST ``to rely even more heavily on the advice of its
agent/advisor and limits its ability to engage in a thorough critique
of that advice.'' \811\ APCO suggested that the Commission change the
composition of the PSBL board to ``a board of eight to twelve members,
with approximately half of the members being diverse organizations that
represent potential users of the network and those with expertise in
public safety communications matters'' and the other half composed of
``individuals selected by the Commission who do not represent any
particular organization but who would add critical knowledge and
expertise to the PSBL's decision making.'' \812\ APCO further
recommended that the ``position of the Chairman of the board of
directors'' should be separated ``from the position of CEO/President''
because of the very different responsibilities of the two positions.''
\813\ APCO, however, did ``not support term limits or mandatory
rotation of the chairmanship.'' \814\
---------------------------------------------------------------------------
\808\ APCO Comments at 22.
\809\ APCO Comments at 22.
\810\ APCO Comments at 22.
\811\ APCO Comments at 22.
\812\ APCO Comments at 24. NENA agreed with APCO's
recommendations on widening the relevant experience of Board
members. See NENA Comments at 4.
\813\ APCO Comments at 21.
\814\ APCO Comments at 21.
---------------------------------------------------------------------------
401. Region 33 suggested that PSBL board membership be ``limited to
no more than nine members, jointly selected and approved by both the
FCC's PS&HSB and the LMCC.'' \815\ Region 33 indicated that board
membership should be composed ``entirely from the not-for-profit public
safety community,'' although ``ex-officio members could be from the
private sector to serve [in a] technical advisory role but [would] not
vot[e] on the governing issues.'' \816\
---------------------------------------------------------------------------
\815\ RPC 33 Comments at 7.
\816\ RPC 33 Comments at 7. See also Lencioni Comments at 2 (the
PSBL should ``be a[s] broadly representative of the public safety
radio user community as possible'').
---------------------------------------------------------------------------
402. NATOA indicated concern ``that local governments are not
adequately represented by the current makeup of the [PSST].'' \817\
NATOA observed that ``local services, systems, property, and personnel
will be directly affected by the construction of a nationwide public
safety broadband network,'' and argued that ``the exclusion of such
representation deprives the PSBL of the insights and experience of
elected local government officials that represent the entities the PSBL
is charged to serve.'' \818\ Other commenters supported this view.\819\
---------------------------------------------------------------------------
\817\ NATOA et al. Comments at 15.
\818\ NATOA et al. Comments at 16.
\819\ See Philadelphia Comments at 4. Philadelphia expressly
endorses ``the proposal by NATOA'' in this regard. Id. See also
Philadelphia Reply Comments at 2; Florida Comments at 4.
---------------------------------------------------------------------------
403. NRPC requested that the Commission name it as ``a full voting
[[Page 57820]]
member organization on the Public Safety Broadband Licensee.'' \820\ In
this regard, NRPC indicated that it could provide ``a perspective on
the 700 MHz narrowband reallocation issue and transition as well as the
necessary coordination aspects,'' and could ``contribute to the
effectiveness and coordinated use of the 1 MHz Guard Band between 768-
769-798-799 MHz.'' \821\
---------------------------------------------------------------------------
\820\ NRPC Comments at 6.
\821\ NRPC Comments at 6.
---------------------------------------------------------------------------
404. Board Transparency and Voting. The PSST stated that ``for the
most part, conducting open meetings is a good idea to facilitate its
efforts to work cooperatively with members of the public safety
community, as well as with vendors, commercial operators, and other
parties, and believes that appropriate changes in its procedures should
be evaluated by the Board.'' \822\ APCO urged ``that the FCC require
the PSBL board meetings be held in public, with the proviso that the
board may go into executive session to address sensitive matters,'' but
with ``minutes * * * describ[ing] the matters addressed in executive
session to the extent possible without revealing sensitive
information.'' \823\ Peha similarly stated that ``one essential
requirement [of the PSBL] is transparency,'' and that ``requirements
related to transparency should be added to the list [of requirements to
become the [PSBL],'' and that the ``current [PSBL], the PSST, would not
meet such requirements, and would therefore be ineligible.'' \824\
Other commenters expressed similar views.\825\ AASHTO, however, argued
that ``[a]s a private entity the PSST is not required to make its
meetings open to the general public.'' \826\
---------------------------------------------------------------------------
\822\ PSST Reply Comments at 16.
\823\ APCO Comments at 21.
\824\ Peha Comments at 9.
\825\ See, e.g., RPC 20 Reply Comments at 11; NATOA et al. Reply
Comments at 7.
\826\ AASHTO Reply Comments at 5.
---------------------------------------------------------------------------
405. With respect to voting issues, the PSST and other commenters
opposed the adoption of any unanimous voting requirement for the Public
Safety Broadband Licensee board decisions on the basis that such a
requirement could lead to stalemates and dilute leadership
accountability.\827\ NPSTC observed that ``[u]nanimous [voting] rules [
] place in the hands of one or a few the ability to thwart the best
ideas and initiatives.'' \828\ Both the PSST and APCO, however,
supported super-majority voting on certain matters, including election
of officers.\829\ The IMSA urged the Commission not to ``micromanage
the affairs of the PSST by adopting additional rules on voting
majorities.'' \830\
---------------------------------------------------------------------------
\827\ See PSST Comments at 46; NPSTC Comments at 22; APCO
Comments at 21.
\828\ NPSTC Comments at 22.
\829\ PSST Comments at 46; APCO Comments at 21.
\830\ IMSA Comments at 11.
---------------------------------------------------------------------------
406. Discussion. The Commission agrees with commenters who advocate
revising the Public Safety Broadband Licensee's organizational
structure to enhance the Public Safety Broadband Licensee's operational
efficiency and transparency. In light of the unique representative
nature of the license, which the Public Safety Broadband Licensee holds
on behalf of those public safety entities eligible to utilize this
spectrum, the public interest favors any changes to the Public Safety
Broadband Licensee's organizational structure that will better ensure
that its actions reflect due consideration of the broad panoply of
public safety interests it represents. The Commission also considers it
important to hold the PSBL to a standard of transparency that will
ensure that its obligations are met in a manner that instills public
confidence in both the process and the outcome of its actions. The
Commission believes improvements in these areas can be achieved with a
few modifications to the Public Safety Broadband Licensee's current
organizational structure, along with other modifications the Commission
are proposing with respect to the Public Safety Broadband Licensee's
Board's meeting and voting requirements.
407. Board Composition. The Commission tentatively concludes that
the Commission will retain the current PSBL board composition, except
that the Commission proposes to replace the National Emergency
Management Association (NEMA) \831\ on the board with the National
Regional Planning Council (NRPC). The Commission proposes to remove
NEMA as a representative organization on the board because its
initially appointed representative has consistently failed to attend
board meetings and the organization has not otherwise materially
participated in PSBL board activities. Because NEMA has not
meaningfully participated as a member organization of the PSBL, the
Commission tentatively concludes that it no longer would serve the
public interest to include NEMA as a PSBL board member.
---------------------------------------------------------------------------
\831\ NEMA is composed of state directors of emergency
management, and is dedicated to enhancing public safety by improving
the nation's ability to prepare for, respond to and recover from all
emergencies, disasters, and threats to the Commission nation's
security. See http://www.nemaweb.org.
---------------------------------------------------------------------------
408. The Commission proposes adding NRPC as a replacement board
member for a number of reasons. The NRPC is a national organization
drawn from the FCC-authorized Regional Planning Committees (RPCs),
whose affiliation is linked to the states and U.S. Territories. The
NRPC's mission is to serve public safety communications users through
planning and management to meet their spectrum needs.\832\ As the
Commission observed in the Second FNPRM, and consistent with the
Commission tentative conclusions herein, the Commission anticipates
that some of the PSBL's roles and responsibilities will be akin to the
functions presently performed by the 700 MHz RPCs.\833\ Thus, the NRPC
would bring important and relevant experience to the PSBL board by
virtue of its role in assisting regions with coordinating 700 MHz
public safety spectrum use. The Commission also agrees with the NRPC's
comments on its own behalf that its addition to the board would prove
valuable to the PSBL in terms of the narrowband relocation process, and
concerning coordination between the use of the public safety broadband
spectrum and the guard band and narrowband allocations.\834\ The
Commission seeks comment on these tentative conclusions.
---------------------------------------------------------------------------
\832\ See National Regional Planning Council at http://www.nrpc.us/index.jsp.
\833\ Second FNPRM, 22 FCC Rcd at 8091 para. 122.
\834\ See NRPC Comments at 6.
---------------------------------------------------------------------------
409. On a related matter, as noted above, APCO requests that the
Commission clarify that the organizations the Commission names as PSBL
board members ``must be the actual members of the PSBL board'' in order
to avoid ``discourag[ing] organizational input into matters being voted
upon by the PSST Board.'' \835\ One of the core eligibility
requirements of the PSBL is that it be as representative of the public
safety community as possible.\836\ The member organizations were
selected in part based on their representation of various sectors of
the public safety community. While some member organizations may choose
to delegate all decision-making authority to their PSBL representatives
on the board, others may prefer that their representatives seek
internal approvals so that the member organization can assure that the
positions taken by its board representative are reflective of the
organization's core membership. Accordingly, the Commission
[[Page 57821]]
tentatively concludes that representatives of member organizations, in
their service on the PSBL board, should be permitted reasonable
accommodation to seek approval of their respective organization's
leadership. At the same time, the Commission would expect the PSST to
provide sufficient advance notice of issues to be decided so that board
members can obtain any organizational approvals ahead of time, without
causing undue delay to board actions. The Commission seeks comment
accordingly.
---------------------------------------------------------------------------
\835\ APCO Comments at 22.
\836\ See 47 CFR 90.523(e)(3).
---------------------------------------------------------------------------
410. Chief Executive Officer. The Commission agrees with APCO that
the position of Chairman of the PBSL board of directors should be
separated from the position of Chief Executive Officer (CEO) because of
the very different responsibilities of the two positions. The Chairman
primarily has management responsibilities, while the CEO primarily has
charge of day-to-day operations. Separating these positions would allow
for a discrete focus on two very different responsibilities, and thus
increased efficiency. Accordingly, the Commission tentatively concludes
that the Public Safety Broadband Licensee's positions of Chairman of
the Board and Chief Executive Officer must be filled by separate
individuals. The Commission's proposal would require that the PSST
implement such separation within 30 days of adoption of an Order
issuing final rules in this proceeding. Further, the Commission
proposes that the PSST may not hire a new individual to fill the CEO
position until the D Block licensee(s) has made funding available for
the PSBL's administrative and operational costs. In recognition of the
separate functions of these roles, the Commission also proposes that
any individual appointed as CEO cannot have served on the PSBL
executive committee during the period three years prior to his or her
appointment as CEO. In this regard, the Commission proposes that the
Public Safety Broadband Licensee's bylaws be amended to include the
following provision: ``Duties of Chief Executive Officer. The CEO shall
have responsibility for the general supervision and direction of the
business and affairs of the Public Safety Broadband Licensee, subject
to the control of the Board, and shall report directly to the Board. No
CEO shall have served on the Public Safety Broadband Licensee's
Executive Committee for a period of 3 years prior to appointment.''
411. Officers. The Commission also agrees with APCO that some
action should be taken to redress what APCO describes as a previous
``over-reliance on the [PSST's] Chairman/CEO and a three-person
executive committee (the chairman, vice-chairman, and secretary/
treasurer),'' which APCO describes as having exercised ``a substantial
degree of discretion without sufficient opportunities for input from
other board members.'' \837\ The Commission does not agree with APCO,
however, that any such ``over-reliance'' need be resolved by reducing
the size of the PSBL board of directors.\838\ The current members of
the board were appointed with due consideration, and with particular
attention to the need to establish a board that is broadly
representative of the public safety community.\839\ The Commission
believes that any reduction in the number of board members would
diminish this important objective. Instead, the Commission tentatively
concludes that the executive committee should be reformed. Accordingly,
the Commission proposes to require the PSST board to elect a new
executive committee--i.e., the PSST must elect a new Chairman, Vice-
Chairman, and Secretary/Treasurer within 30 days of adoption of an
Order issuing final rules in this proceeding. The Commission proposes
that these executive committee members: (i) Must be limited to a term
of 2 years; and (ii) may not serve consecutive terms in the same
position. The Commission further proposes that no current executive
committee member may be re-elected to the same position on the
committee.\840\ The Commission also proposes to prohibit the PSBL from
expanding its executive committee beyond these three offices. The
Commission seeks comment on these proposals.
---------------------------------------------------------------------------
\837\ APCO Comments at 22.
\838\ See APCO Comments at 22.
\839\ See Second Report and Order, 22 FCC Rcd at 15422 para.
374; Order on Reconsideration 22 FCC Rcd at para. 4; Public Safety
and Homeland Security Bureau and Wireless Telecommunications Bureau
Announce the Four At-Large Members of the Public Safety Broadband
Licensee's Board of Directors, Public Notice, 22 FCC Rcd 19475
(PSHSB 2007).
\840\ Current executive committee members may be elected to
positions on the committee other than the ones they currently hold.
---------------------------------------------------------------------------
412. Supermajority Voting. The Commission tentatively concludes
that the Commission will require three-fourths supermajority voting on
all major decisions by the PSBL board of directors. Specifically, for
selection of the CEO and election of officers, the Commission proposes
to require a three-fourths vote of board members present at the board
meeting. The Commission also proposes to require a three-fourths vote
of all board members (not limited to those present at the board
meeting) for changes in the articles or bylaws, approval of any
contract of a cumulative value exceeding $25,000 per year, and approval
of any expenditure exceeding $25,000 per item. Both the PSST and APCO
supported supermajority voting for certain decisions.\841\ The
Commission believes that requiring a three-fourths vote, instead of the
two-thirds majority vote currently required for most major PSBL board
decisions, will further ensure that the PSBL will only undertake major
actions that have the broad support of the PSBL's representative
constituents.
---------------------------------------------------------------------------
\841\ See PSST Comments at 46; APCO Comments at 21.
---------------------------------------------------------------------------
413. Public Board Meetings. The Commission observes that both the
PSST itself as well as public safety interests support the opening of
PSBL board meetings to the public.\842\ The Commission thus tentatively
concludes that the Commission will require PSBL board meetings to be
open to the public, except that the board will have a right to meet in
closed session to discuss sensitive matters.\843\ Further, the
Commission proposes that the PSBL must make the minutes of each board
meeting publicly available, including portions of meetings held in
closed session, but that the published minutes of closed sessions may
be redacted. The Commission further proposes that the PSBL must provide
the public with no less than 30 days advance notice of meetings.
Relatedly, the Commission tentatively proposes to require that the PSBL
present its annual, independently audited financial report (which is a
new financial reporting obligation the Commission are proposing
elsewhere in this Third FNPRM) in an open meeting. The Commission
expects that all of these measures will improve the efficiency and
transparency of the PSBL's actions, and seek comment accordingly.
---------------------------------------------------------------------------
\842\ See PSST Reply Comments at 16; APCO Comments at 21; NATOA
et al. Reply Comments at 7.
\843\ Sensitive matters warranting closed board meetings would
include, for example, matters involving proprietary or confidential
information provided by vendors or outside parties for the board's
consideration, and matters involving public safety or homeland
security not normally made public.
---------------------------------------------------------------------------
(ii) Commission and/or Congressional Oversight
414. Background. With respect to enhancing oversight of the 700 MHz
Public/Private Partnership, in the Second FNPRM the Commission sought
comment on how the Commission can better exercise oversight over the
activities of both the Public Safety Broadband Licensee and its
commercial partner. The Commission asked, for example, whether
quarterly financial
[[Page 57822]]
reporting is adequate, or whether additional disclosures by the Public
Safety Broadband Licensee or commercial partner would be
necessary.\844\ The Commission also asked what additional measures, if
any, the Commission should take to ensure the appropriate level of
oversight.\845\ The Commission asked, for example, whether the
Commission should require Commission approval of certain Public Safety
Broadband Licensee activities, such as requiring Commission approval
before the Public Safety Broadband Licensee could enter into contracts
of a particular duration or cumulative dollar amount.\846\ The
Commission further asked whether the Commission should require or
reserve the right to have Commission staff attend meetings of the
voting board.\847\ In addition to enhancing Commission oversight of the
700 MHz Public/Private Partnership, the Commission also sought comment
on how the Commission can ensure an oversight role for Congress, both
in the operations of the Public Safety Broadband Licensee and the 700
MHz Public/Private Partnership.\848\ The Commission asked, for example,
whether Congress should designate some of the Public Safety Broadband
Licensee's board members.\849\
---------------------------------------------------------------------------
\844\ See Second FNPRM, 23 FCC Rcd at 8068 para. 51.
\845\ See Second FNPRM, 23 FCC Rcd at 8068 para. 51.
\846\ See Second FNPRM, 23 FCC Rcd at 8068 para. 51.
\847\ See Second FNPRM, 23 FCC Rcd at 8068 para. 51.
\848\ See Second FNPRM, 23 FCC Rcd at 8066 para. 48.
---------------------------------------------------------------------------
415. Comments. The PSST opposed ``requiring [it] to obtain prior
FCC approval for certain decisions'' because this ``would cause delays
that could undermine the PSST's ability to carry out its duties.''
\850\ The PSST observed that it is already required to submit quarterly
financial reporting to the Commission, and to ``the extent that the
Commission believes that additional oversight is necessary, the PSST
can provide additional reports to the FCC on its operational goals and
actions.'' \851\ The PSST stated that a ``monthly discussion, or more
often if needed, with the appropriate persons at the FCC would be [an]
effective means to provide the PSST with guidance and interpretation of
FCC intent * * * particularly in the early years of its operation.''
\852\ The PSST did, however, support a Commission official serving in
an ex officio capacity on the PSBL board, and recommended that a
Commissioner serve in that role.\853\
---------------------------------------------------------------------------
\849\ See Second FNPRM, 23 FCC Rcd at 8066 para. 48.
\850\ PSST Comments at 46.
\851\ PSST Comments at 47.
\852\ PSST Comments at 48.
\853\ PSST Comments at 48.
---------------------------------------------------------------------------
416. APCO, however, argued that ``the formal relationship between
the Commission and the PSBL must be strengthened.'' \854\ Accordingly,
APCO indicated support for ``Commission oversight, quarterly financial
reports, and periodic audits to ensure that the PSBL is operating in
conformance with its public responsibilities and Commission rules,'' as
well as having ``its records be open for public inspection.'' \855\
APCO also indicated support for ``a Commission official serving in an
ex officio capacity on the PSBL board.'' \856\ Most other comments
addressing the issue of Commission oversight of the PSBL's activities
agreed that such oversight is necessary and important.\857\ AASHTO,
however, warned that ``[i]ncreasing the reporting activities of the
PSBL will have a significant impact as the cost of providing reports
and documentation would have to be recovered in additional fees paid by
the network user.'' \858\
---------------------------------------------------------------------------
\854\ APCO Comments at 20.
\855\ APCO Comments at 19.
\856\ APCO Comments at 20, 24.
\857\ See NPSTC Comments at 22 (Commission's ``oversight should
be directed to ensure the PSBL's process results in the handling of
relevant issues, the opportunity for debate, and the generation of
sound and fair decisions''); Region 20 Reply Comments at 12 (``[a]t
a minimum, the books and records of the PSST Board should be always
available to the Commission's Office of Inspector General'');
Televate Comments at 5 (in the context of its revised plan for
implementing a shared broadband network, proposes ``appropriate FCC
oversight'' for the PSST's evaluation of ``all proposals from
bidders''); Ericsson Comments at 7; Peha Comments at 11.
\858\ AASHTO Comments at 11.
---------------------------------------------------------------------------
417. With respect to Congressional oversight, the PSST stated that
it ``would welcome Congressional monitoring'' but noted that the need
for rapid decision-making ``will of necessity limit the types of
Congressional oversight that could be mandated.'' \859\ Region 20
indicated reluctance to mandated Congressional oversight, however,
noting that ``[t]he current provisions of the [Second Report and Order]
allow for certain ``at-large'' appointments and if the PSST Board
determines that Congressional participation is in the best interests of
public safety communications, the Board should be free to reach out to
members of the Congress as ``at large'' participants.'' \860\
---------------------------------------------------------------------------
\859\ PSST Comments at 49.
\860\ RPC 20 Reply Comments at 11-12. See also RPC 33 Comments
at 7.
---------------------------------------------------------------------------
418. Discussion. Given the proposed enhancements to the structure
and functioning of the PSBL discussed elsewhere in this Third FNPRM,
the Commission believes that the Commission has addressed the principal
concerns regarding oversight of the PSBL. In addition to affirming and
enhancing the PSBL's reporting requirements, the Commission is also
proposing to require the submission of the PSBL's proposed annual
budget to the Commission for review and approval. In this manner, the
expected activities and operations of the PSBL can be monitored to
ensure the PSBL is staying within its role as representative of the
public safety community. Part and parcel with those reporting
requirements, the Commission is proposing to require the PSBL to
establish an audited annual budgeting process, conducted by an
external, independent auditor, which will enhance the ability to
oversee the activities and operations of the PSBL. Further, as
discussed elsewhere in this Third FNPRM, the Commission has narrowed
and clarified the mission and responsibilities of the PSBL. With
respect to Congressional oversight, Congress maintains an oversight
role over the Commission's decisions and thus the Commission sees no
need for any extraordinary provisions that would presume to compel
Congress into an oversight role it has not already defined for itself.
(iii) Role of State Governments
419. The Commission also sought comment in the Second FNPRM on
whether providing a nationwide, interoperable broadband network might
be more effectively and efficiently accomplished by allowing state
governments (or other entities that have or plan interoperable networks
for the benefit of public safety) to assume responsibility for
coordinating the participation of the public safety providers in their
jurisdictions.\861\ To that end, the Commission asked parties
supporting such action to comment on the proper relationship between
the state governments and the Public Safety Broadband Licensee and on
the Commission's authority to establish such a role for state
governments.\862\ The Commission asked, for example, whether the Public
Safety Broadband Licensee should be authorized to choose
[[Page 57823]]
a minimum standard for any public safety broadband operation, with the
state governments given the responsibility to work with public safety
providers to implement operations in their jurisdictions.\863\ The
Commission further asked whether such an approach would allow state
governments wanting higher-grade networks to implement separately these
more-advanced systems, while allowing those wanting networks at the
minimum standard to avoid what they may consider unnecessary
expenses.\864\ The Commission also asked whether state governments are
better situated to address implementation challenges that cross public
safety jurisdictions (e.g., coordinating use by sheriffs departments in
neighboring counties) as well as intra-jurisdictional challenges (e.g.,
coordinating use by the police versus fire departments), or whether, in
the event different jurisdictions chose different grades of networks,
there would be a resulting lack of economies of scale and thus higher
equipment costs for all public safety users.\865\
---------------------------------------------------------------------------
\861\ Second FNPRM, 23 FCC Rcd at 8068 para. 52.
\862\ Second FNPRM, 23 FCC Rcd at 8068 para. 52.
\863\ Second FNPRM, 23 FCC Rcd at 8068 para. 52.
\864\ Second FNPRM, 23 FCC Rcd at 8068 para. 52.
\865\ Second FNPRM, 23 FCC Rcd at 8068 para. 52.
---------------------------------------------------------------------------
420. Comments. Commenters expressed mixed views on the issue of
allowing states to coordinate the participation in the shared network
by the public safety providers in their jurisdictions. ASSHTO, for
example, suggested that while there might be benefits in having
``[s]tate governments [ ] assume responsibility for coordinating the
participation of the public safety providers in their jurisdictions,''
the ``networks operated by states for users other than state agencies
is voluntary and cannot be impelled.'' \866\ Similarly, NRPC asserted
that ``[s]tates should be utilized in the development of a nationwide
public safety broadband network to the degree each state wants to
assist and utilize its resources.'' \867\ NRPC, however, also
emphasized that the Commission should ``NOT impose any mandates on
states to facilitate, administer or promote any element associated with
a nationwide public safety broadband network.'' \868\
---------------------------------------------------------------------------
\866\ AASHTO Comments at 11. See also NPSTC Comments at 22
(``[the] proposal to place in state governments the operating and
policy responsibilities now committed to the PSBL lacks any credible
indication that it will work.''); California Comments at 2
(California, ``no organization or entity has the legislated
authority or funding necessary to assume the statewide
responsibility'' for coordinating the participation of public safety
providers in facilitating the interoperable network in its
jurisdiction.).
\867\ NRPC Comments at 9.
\868\ NRPC Comments at 9.
---------------------------------------------------------------------------
421. A number of commenters argued, however, that state and local
participation in the development and management of the network would be
essential. Region 33 stated that ``any `system' without local oversight
would be unmanageable.'' \869\ Wireless RERC suggested that State
Emergency Communications Committees and Local Emergency Communications
Committees should offer guidance in the ``development of any strategic
public safety migration plan.'' \870\ Rivada asserted that ``[b]efore
the Commission can responsibly move forward with a revised public/
private partnership (or any other resolution of the D-Block and
adjacent public safety spectrum) the interests of various public safety
agencies at the State, local and Federal level will all need to be
surveyed and resolved.'' \871\
---------------------------------------------------------------------------
\869\ RPC 33 Comments at 8.
\870\ Wireless RERC Comments at 6.
\871\ Rivada Reply Comments at 4.
---------------------------------------------------------------------------
422. Discussion. While the Commission appreciates the relationships
that the states have with the public safety providers in their
jurisdictions, the Commission does not believe it would be efficient or
beneficial to carve out a specific role for the states in coordinating
their public safety providers' participation in the interoperable
shared broadband network. The Commission expects the Public Safety
Broadband Licensee to work with all public safety interests, whether at
local, Tribal, state or regional levels, to ensure that usage of the
interoperable shared broadband network is coordinated to meet the needs
of all eligible public safety users in the most efficient manner.
Further, the Commission observes that participation on the Public
Safety Broadband Licensee's Board by the National Governors Association
already serves as a vehicle to ensure that states have direct input in
the Public Safety Broadband Licensee's activities.
(iv) Reissuance of the Public Safety Broadband License and Selection
Process
423. Finally, in light of the potential changes contemplated in the
Second FNPRM, and the corresponding changes contemplated with respect
to the D Block, the Commission sought comment on whether the Commission
should rescind the current 700 MHz Public Safety Broadband License and
seek new applicants.\872\ In the event such action is warranted, the
Commission asked whether the Commission should use the same procedures
as before, i.e., delegating authority to the Chief, Public Safety and
Homeland Security Bureau to solicit applications, specifying any
changed criteria that may be adopted following this Third FNPRM, and
having the Commission select the licensee.\873\ The Commission further
asked whether there are other considerations that should be taken into
account in selecting the licensee.\874\ In addition, in light of the
need to identify the licensee quickly to enable the effective
development of the 700 MHz Public/Private Partnership, the Commission
sought comment as to the mechanism the Commission should employ to
assign the Public Safety Broadband License in the event that there was
more than one qualified applicant.\875\
---------------------------------------------------------------------------
\872\ Second FNPRM, 23 FCC Rcd at 8068 para. 53.
\873\ Second FNPRM, 23 FCC Rcd at 8068 para. 53.
\874\ Second FNPRM, 23 FCC Rcd at 8068 para. 53.
\875\ Second FNPRM, 23 FCC Rcd at 8068 para. 53.
---------------------------------------------------------------------------
424. Comments. With respect to the issue of rescinding the current
PSBL license and opening a new application round, the PSST asserted
that ``the Commission should reject any suggestion [to rescind its
license] and instead work with the organizations represented on the
current PSST Board to address any major concerns about the
organizational structure and governance of the organization rather than
starting from scratch.''\876\ The PSST also contended that ``it is our
strong belief that the cost and delay in starting up another nonprofit,
tax-exempt organization will result in irreparable damage to the
substantial efforts of the public safety community to establish a new
Public/Private Partnership and SWBN and creates a substantial risk that
the entire effort to establish a new SWBN will fail.'' \877\ The PSST
noted that ``there were no other applicants during the initial
window.'' \878\ The PSST further argued that ``potential bidders on the
D Block may be discouraged by the uncertainty that would be added to
the process if interested parties have no idea who will be representing
public safety interests going forward other applicants.'' \879\
Finally, the PSST argued that ``the PSST and its individual Board
members have already contributed enormous efforts to the establishment
of the PSST and its related infrastructure [] and it would be wasteful
to walk away from this substantial investment when funding and
resources are so scarce.'' \880\ Other
[[Page 57824]]
commenters also urged the Commission to reject proposals that advocate
rescinding the Public Safety Spectrum Trust's license.\881\ APCO,
however, asserted that, in order to implement its suggested
modifications to the PSBL's structure, APCO is comfortable with either
modification of the PSST's articles and bylaws, or rescission of ``the
PSST's license'' and selection of ``a new PSBL.'' \882\
---------------------------------------------------------------------------
\876\ PSST Comments at 47. See also PSST Reply Comments at 16.
\877\ PSST Reply Comments at 16.
\878\ PSST Reply Comments at 16.
\879\ PSST Reply Comments at 16.
\880\ PSST Reply Comments at 47-48.
\881\ See, e.g., ComCentric Comments at 3; WFCA Comments at 1;
Oregon Comments at 1; IMSA Comments at 11; NAEMT Comments at 3;
NPSTC Reply Comments at 6; NASEMSO Reply Comments at 2; Nextwave
Reply Comments at 5; RPC 20 Reply Comments at 11; ICMA Reply
Comments at 2.
\882\ APCO Comments at 24-25.
---------------------------------------------------------------------------
425. Discussion. As a threshold matter, the Commission tentatively
concludes that the public safety broadband spectrum should continue to
be licensed on a nationwide basis to a single Public Safety Broadband
Licensee. However, the Commission seeks comment on whether the
Commission should license the public safety broadband spectrum on a
regional basis rather than a nationwide basis. Further, if the
Commission were to license the public safety broadband spectrum on a
regional basis, the Commission seeks comment on the procedures and
selection criteria for assigning such licenses, and how multiple public
safety broadband licensees would be able to ensure a nationwide level
of interoperability and otherwise satisfy the roles and
responsibilities of the public safety broadband licensee the Commission
discusses elsewhere. Assuming that the Commission adopts its tentative
conclusion to retain the nationwide Public Safety Broadband Licensee,
the Commission also tentatively concludes that is unnecessary to
rescind the PSST's license and reissue the license to a new licensee in
order to implement the foregoing changes to the PSBL. Pursuant to
section 316(a)(1) of the Act, the Commission has the authority to
modify ``[a]ny station license * * * if in the judgment of the
Commission such action will promote the public interest, convenience,
and necessity, or the provision of this Act.'' \883\ For all of the
reasons set forth in the preceding discussion, it is the Commission's
judgment that the tentative changes that the Commission proposes to the
PSBL will promote the public interest, convenience, and necessity, as
well as the provisions of the Act. Accordingly, except as otherwise
noted above, the Commission expects the PSST to implement the tentative
proposals specific to its structure and internal procedures that the
Commission has set forth in this Third FNPRM, within 90 days of
publication of the relevant final rules in the Federal Register.
---------------------------------------------------------------------------
\883\ 47 U.S.C 316(a)(1).
---------------------------------------------------------------------------
3. Narrowband Relocation
426. Background. In designating the lower half of the 700 MHz
Public Safety band (763-768/793-798 MHz) for broadband communications,
the Second Report and Order consolidated existing narrowband
allocations to the upper half of the 700 MHz Public Safety band (769-
775/799-805 MHz).\884\ To effectuate this consolidation of the
narrowband channels, the Commission required the D Block licensee to
pay the costs of relocating existing narrowband radios from TV channels
63 and 68 (at 764-767 MHz and 794-797 MHz), and the upper one megahertz
of channels 64 and 69 (at 775-776 MHz and 805-806 MHz), and capped the
disbursement amount for relocation costs at $10 million.\885\ The
Commission also cautioned that any narrowband equipment deployed in
channels 63 and 68, or in the upper one megahertz of channels 64 and
69, more than 30 days following the adoption date of the Second Report
and Order--i.e., after August 30, 2007--would be ineligible for
relocation funding.\886\ In addition, the Commission prohibited
authorization of any new narrowband operations in that spectrum, as of
30 days following the adoption date of the Second Report and Order
(i.e., as of August 30, 2007).\887\
---------------------------------------------------------------------------
\884\ Second Report and Order, 22 FCC Rcd at 15406 para. 322.
\885\ Second Report and Order, 22 FCC Rcd at 15412 para. 341.
\886\ Second Report and Order, 22 FCC Rcd at 15412 para. 339.
\887\ Second Report and Order, 22 FCC Rcd at 15412 para. 339.
---------------------------------------------------------------------------
427. In the Second Report and Order, the Commission further found
that, in order to maximize the benefits of the 700 MHz nationwide,
interoperable broadband communications network, 700 MHz narrowband
public safety operations then existing under the old narrowband band
plan needed to be consolidated and cleared no later than the DTV
transition date (i.e., February 17, 2009).\888\ The Commission required
every public safety licensee impacted by the consolidation to file a
certification with the Commission no later than 30 days from the
effective date of the Second Report and Order, including certain
information to account for ``pre-programmed narrowband radios that
public safety agencies may have already taken delivery as of the
adoption date of [the Second Report and Order] and intend to
immediately place into operation.'' \889\ The Commission emphasized
that such information was ``integral to the success of the relocation
process,'' and cautioned public safety entities that failing to file
this information in a timely manner would result in forfeiture of
reimbursement.\890\ As ``an additional measure to define and contain
the costs that would be entitled to reimbursement,'' the Commission
prohibited any new authorizations outside of the consolidated
narrowband segment, stating that such a prohibition would ``ensure that
the relocation proceeds in an orderly manner and without complications
stemming from additional operations being deployed in spectrum being
reallocated.'' \891\ Moreover, as ``an additional means to ensure the
integrity of the relocation process,'' the Commission imposed a $10
million cap based on the best evidence available in the record at the
time of the Second Report and Order.\892\
---------------------------------------------------------------------------
\888\ Second Report and Order, 22 FCC Rcd at 15406 para. 322.
\889\ Second Report and Order, 22 FCC Rcd at 15411 para. 336.
\890\ Second Report and Order, 22 FCC Rcd at 15411 para. 337.
\891\ Second Report and Order, 22 FCC Rcd at 15412 para. 339.
\892\ Second Report and Order, 22 FCC Rcd at 15412 para. 341.
---------------------------------------------------------------------------
428. Two parties filed petitions seeking reconsideration of some or
all of the foregoing requirements in the Second Report and Order.\893\
Among other things, these parties challenged the adequacy of the $10
million cap on relocation expenses.\894\ A number of other parties also
supported revising or eliminating the relocation cap.\895\
---------------------------------------------------------------------------
\893\ See Virginia Petition for Reconsideration; Pierce Transit
Petition for Reconsideration.
\894\ See Virginia Petition for Reconsideration; Pierce Transit
Petition for Reconsideration.
\895\ See National Association of Telecommunications Officers
and Advisors (NATOA) Comments at 9-11; State of Nebraska (Nebraska)
Opposition at 2; Motorola Comments at 1-7.
---------------------------------------------------------------------------
429. One petitioner also asked that the Commission make clear that
parties who purchased and began to deploy systems before the August 30,
2007, cut-off date can continue to deploy those systems after August
30, and obtain full reimbursement for the relocation of all such
systems.\896\ Another party asked the Commission to modify the Second
Report and Order to permit continued authorization and deployment of
statewide radio public safety systems that were in the process of
construction and implementation as of the date of the Second Report and
Order in channels 63 and 68 and the upper one megahertz of channels 64
and 69 through January
[[Page 57825]]
31, 2009; allow the owner of any such statewide radio public safety
system to obtain reimbursement for all of its costs incurred in the
installation of such system; and reconsider the $10 million cap on
rebanding costs.\897\
---------------------------------------------------------------------------
\896\ See generally Pierce Transit Petition for Reconsideration.
\897\ See generally Virginia Petition for Reconsideration.
---------------------------------------------------------------------------
430. In the Second FNPRM, mindful of the desire to provide
certainty to potential bidders as to the relocation obligation that
would attach to the winner of the D Block spectrum, the Commission
sought comment on whether the Commission should revise or eliminate the
$10 million cap on relocation expenses.\898\ The Commission asked
parties to provide specific data and cost estimates regarding
relocation expenses, particularly taking into account the
certifications filed in the docket pursuant to the Second Report and
Order.\899\
---------------------------------------------------------------------------
\898\ See Second FNPRM, 23 FCC Rcd at 8111 para. 180.
\899\ See Second FNPRM, 23 FCC Rcd at 8111 para. 180.
---------------------------------------------------------------------------
431. Given the proposed re-auction of the D Block and associated
timing, the Commission also sought comment on the date by which such
relocation must be completed. In particular, the Commission asked
whether the Commission should continue to require that relocation be
completed by the DTV transition date or set an alternative date, and if
so, what such alternate date should be.\900\ The Commission also asked
whether the Commission should allow relocation to occur on a rolling
basis, such that the D Block licensee would be required to relocate
narrowband operations only as the broadband network is built out in a
particular market and, if so, how much notice the D Block licensee
should be required to give to a narrowband licensee in advance of
relocation.\901\ The Commission further sought comment on any other
viable mechanism for facilitating relocation, and the appropriate
timing of such an approach.\902\ The Commission also asked whether the
Commission should retain the requirement that capped costs be deposited
in a trust account to be administered by the Public Safety Broadband
Licensee or, if the Commission were to eliminate the cap, how the trust
mechanism would function.\903\ With respect to management of the
reimbursement process, the Commission asked whether the Commission
should continue to require that the Public Safety Broadband Licensee
manage the reimbursement process for the narrowband licensees.\904\ In
the event that maintaining such requirement is appropriate, the
Commission sought comment on whether the Commission should require that
public safety entities seeking reimbursement provide detailed cost
information to the Public Safety Broadband Licensee, what such cost
information should entail, and whether the Public Safety Broadband
Licensee should be afforded discretion in assessing the soundness of
the cost estimates.\905\ The Commission also asked whether the Public
Safety Broadband Licensee can leverage its status as a nationwide
license holder to negotiate terms with equipment and technology vendors
to relocate multiple narrowband operations, and thus achieve economies
of scale.\906\ The Commission further asked whether the Public Safety
Broadband Licensee should have recourse to the Commission if it
determines the cost estimates provided by individual public safety
entities, including those passed through by technology or equipment
vendors, are unreasonable.\907\
---------------------------------------------------------------------------
\900\ See Second FNPRM, 23 FCC Rcd at 8111 para. 181.
\901\ See Second FNPRM, 23 FCC Rcd at 8111 para. 181.
\902\ See Second FNPRM, 23 FCC Rcd at 8111 para. 181.
\903\ See Second FNPRM, 23 FCC Rcd at 8111 para. 181.
\904\ See Second FNPRM, 23 FCC Rcd at 8111 para. 181.
\905\ See Second FNPRM, 23 FCC Rcd at 8111 para. 181.
\906\ See Second FNPRM, 23 FCC Rcd at 8111 para. 181.
\907\ See Second FNPRM, 23 FCC Rcd at 8111 para. 181.
---------------------------------------------------------------------------
432. With respect to the August 30, 2007 cut-off date established
in the Second Report and Order for narrowband deployments outside of
the consolidated narrowband spectrum, the Commission sought comment on
whether extension of that deadline is inappropriate, and any other
issue related to the reconsideration petitions filed by Virginia and
Pierce Transit.\908\ The Commission received a number of comments
addressing the various issues associated with the narrowband
relocation, as detailed below.
---------------------------------------------------------------------------
\908\ See Second FNPRM, 23 FCC Rcd at 8111 para. 182.
---------------------------------------------------------------------------
(i) February 17, 2009, Relocation Deadline
433. Comments. With respect to the deadline for relocating
narrowband operations that were in place prior to August 30, 2007,
several commenters agree that the Commission should extend the February
17, 2009, deadline for such action adopted in the Second Report and
Order.\909\ The PSST, for example, stated that, ``[s]ince the date for
the D-Block re-auction has not yet been set, and since the successful
auction will be followed by the NSA negotiation process, it does not
seem realistic for the FCC to retain the February 17, 2009 completion
date.'' \910\ The PSST recommended instead that the narrowband
relocation deadline be set ``twelve months after funding from the D
Block winner becomes available.'' \911\
---------------------------------------------------------------------------
\909\ See, e.g., Ada County Sherriff's Office Comments at 1;
APCO Comments at 39; NRPC Comments at 7; NPSTC Comments at 23;
Motorola Comments at 21; Louisiana Comments at 2; TeleCommUnity
Comments at 7; Eads Comments at 4; Lencioni Comments at 1.
\910\ PSST Comments at 51-52.
\911\ PSST Comments at 52.
---------------------------------------------------------------------------
434. Motorola agreed with the PSST that ``a new deadline for
relocation be established twelve months after funding from the D Block
winner becomes available.'' \912\ Motorola further asserted that such
revised deadline would ``provide[ ] a more realistic time frame to
effectuate relocation than the Commission's previously adopted
policies.'' \913\ AASHTO argued that ``the relocation of existing
narrowband users should be grandfathered until there are funding
mechanisms in place to reimburse the public safety agencies for the
costs involved in returning or replacing equipment incapable of being
returned.'' \914\ AASHTO also supported using ``rolling dates for the
relocation of existing users coupled with the availability of the
network in their area.'' \915\
---------------------------------------------------------------------------
\912\ Motorola Reply Comments at 6.
\913\ Motorola Reply Comments at 6.
\914\ AASHTO Comments at 13.
\915\ AASHTO Comments at 13.
---------------------------------------------------------------------------
435. Discussion. As indicated above, in the Second Report and Order
the Commission required narrowband operations that had already been
deployed under the prior 700 MHz band plan on channels 63 and 68, and
the upper one megahertz of channels 64 and 69, to be relocated to and
consolidated within the new narrowband channels (at 769-775 MHz/799-805
MHz) by the DTV transition deadline of February 17, 2009.\916\ Implicit
in the Commission's decision to adopt February 17, 2009, as the
relocation deadline were the assumptions that Auction 73 would yield a
national D Block licensee and that the NSA would be successfully
negotiated and approved with sufficient time to effect the narrowband
relocations prior to February 17, 2009--the deadline by which the
public safety broadband frequency bands must be vacated by current
analog television operations. Those assumptions did not
[[Page 57826]]
materialize and, therefore, an extension of the current February 17,
2009, deadline for completing the relocation of all narrowband
operations to the consolidated narrowband channels appears warranted.
---------------------------------------------------------------------------
\916\ Second Report and Order, 22 FCC Rcd at 15410 para. 332.
---------------------------------------------------------------------------
436. In determining a new narrowband relocation deadline, the
Commission continues to believe that a uniform deadline is required to
allow both the D Block licensee and the public safety community to
concentrate on deploying a shared network in the 700 MHz public safety
broadband spectrum, unconstrained by the presence of narrowband
operations. While the Commission understands that the shared broadband
network will be constructed over time, and may reach some areas of the
country sooner than others, the Commission believes that tying
narrowband relocations to actual or planned buildout of the network on
a rolling or otherwise piecemeal basis would be impractical and
inefficient, and could cause delays in network deployment. The
Commission agrees with the PSST that a single relocation deadline tied
to the availability of funding is the most prudent course.\917\
Accordingly, the Commission proposes to extend the narrowband
relocation deadline to twelve months from the date upon which
narrowband relocation funding is made available by the D Block
licensee(s), which as explained below, will be no later than the date
upon which the executed NSA(s) is submitted to the Commission for
approval.
---------------------------------------------------------------------------
\917\ See PSST Comments at 52. See also Motorola Reply Comments
at 6; NPSTC Comments at 24.
---------------------------------------------------------------------------
(ii) $10 Million Cap
437. Comments. As to the $10 million cap on narrowband relocation
cost reimbursement, several commenters argued that the $10 million cap
is inadequate.\918\ The PSST, for example, recommended that that the
Commission ``replace the current $10 Million cap on the D Block
licensee's reimbursement obligation with a cap of $75 Million.'' \919\
According to the PSST, ``the current cap substantially underestimates
the funds needed to address this situation based on [ ] extensive work
with the affected public safety agencies, equipment vendors and with
organizations such as the NPSTC that have committed time and resources
toward identifying a cost-effective solution.'' \920\ The PSST also
observed that ``it has been determined that the original cost estimate
failed to include one critical equipment category: the vehicular
repeater,'' the retuning of which ``will significantly increase the
total relocation cost.'' \921\ The PSST further asserted that its
proposed $75 million cap ``is but a fraction of the anticipated cost of
purchasing the spectrum at auction and deploying and operating the SWBN
[and] not an amount that should deter an otherwise interested D Block
bidder.'' \922\
---------------------------------------------------------------------------
\918\ See, e.g., Louisiana Comments at 2; APCO Comments at 39;
Pierce Transit Comments at 5; NATOA et al Comments at 16; Virginia
Comments at 5; NPSTC Comments at 24; Eads Comments at 3; Lencioni
Comments at 1; RPC 33 Comments at 20; RPC 20 Reply Comments at 11.
\919\ PSST Comments at 53.
\920\ PSST Comments at 53. See also, Motorola Reply Comments at
5.
\921\ PSST Comments at 53.
\922\ PSST Comments at 53.
---------------------------------------------------------------------------
438. The Ada County Sheriff's Office argued that, ``the $10M cap *
* * is far too low for the actual cost of relocating users to the new
band.'' \923\ According to Ada County Sheriff's Office, relocation
funding should instead be ``based upon actual relocating costs for each
agency affected.'' \924\ The Commonwealth of Virginia argued that ``no
`cap' on public safety relocation is appropriate given the very
substantial proceeds which will be realized from this D Block auction *
* * the commercial users should pay the full relocation costs of the
public safety entities, who generally lack budget flexibility or
surplus funding to allow them to absorb these costs.'' \925\
---------------------------------------------------------------------------
\923\ Ada County Sheriff's Office Comments at 1.
\924\ Ada County Sheriff's Office Comments at 1.
\925\ Commonwealth of Virginia Comments at 5-6.
---------------------------------------------------------------------------
439. Pierce Transit argued that ``the Commission to this day has no
information on which it can rely with any reasonable degree of
confidence, as to what the incumbent public safety licensees' aggregate
relocation costs will be,'' and ``imposing the $10 million cap, without
having any concrete, verifiable information on the true cost of
reconfiguring incumbent operations, raises the specter that the dozens
of affected public organizations may be subject to either pro rata or
first come, first serve reimbursements that cannot hope to fully
compensate affected entities for their full relocation costs.'' \926\
---------------------------------------------------------------------------
\926\ Pierce Transit Comments at 5-6.
---------------------------------------------------------------------------
440. Motorola observed that ``[t]he costs of relocation vary
widely,'' and thus ``[a] complete and accurate estimate of relocation
costs can only be created by soliciting information directly from
individual public safety agencies as relocation costs will vary by
equipment and agency.'' \927\ Motorola further argued that in order to
collect this information, ``the FCC should require public safety
agencies seeking reimbursement to provide detailed cost information to
the PSBL or the FCC directly within 90 days from the date of a
Commission Public Notice that would start this process.'' \928\
---------------------------------------------------------------------------
\927\ Motorola Comments at 19. Motorola asserted in its Reply
Comments that its initial estimate on narrowband relocation costs
``did not include any management costs or other costs that licensees
and the parties actually performing the reconfiguration may
determine are appropriate and reasonable.'' Motorola Reply Comments
at 5.
\928\ Motorola Comments at 19.
---------------------------------------------------------------------------
441. The National Association of Telecommunications Officers and
Advisors et al. asserted that ``[t]he cost of relocation must be borne
by the D Block licensee, and the timing for accomplishing this task
must be more attuned to the timing under which the D Block licensee
will be able to make use of the spectrum.'' \929\
---------------------------------------------------------------------------
\929\ NATOA et al. Reply Comments at 9.
---------------------------------------------------------------------------
442. Discussion. The Commission agrees with the majority of
commenters who suggested that the $10 million cap on narrowband
relocation costs to be reimbursed by the D Block licensee may be
inadequate to fully reimburse public safety entities for the likely
costs of relocation. The Commission adopted the $10 million cap in the
Second Report and Order based upon the record received in response to
the preceding 700 MHz FNPRM, which sought information regarding both
the number of narrowband radios deployed and in use, and the costs
involved in consolidating the narrowband channels.\930\ The Commission
received no information regarding the costs of funding relocation
except for a response from Motorola, in which it estimated 750,000-
800,000 radios currently deployed and a relocation cost of
approximately $10 million.\931\
---------------------------------------------------------------------------
\930\ Implementing a Nationwide, Broadband, Interoperable Public
Safety Network in the 700 MHz Band; Development of Operational,
Technical and Spectrum Requirements for Meeting Federal, State and
Local Public Safety Communications Requirements Through the Year
2010, WT Docket Nos. 06-150, 01-309, 03-264, 06-169, 96-86, CC
Docket No. 94-102, PS Docket No. 06-229, Report and Order and
Further Notice of Proposed Rulemaking, 22 FCC Rcd 8064, 8159 para.
264 (2007) (700 MHz Further Notice).
\931\ See Second Report and Order, 22 FCC Rcd at 15410 para.
333.
---------------------------------------------------------------------------
443. Since the Commission adopted the Second Report and Order, the
Commission has received and reviewed additional information on the
number and types of equipment deployed in the 700 MHz band, in the form
of the certifications from public safety licensees regarding the number
of handsets, base stations and repeaters that they had in operation as
of August 30, 2007.\932\ The Commonwealth of
[[Page 57827]]
Virginia estimates its costs of relocation at $48 to $100 per handset,
$1,000 per repeater unit, and $3,000 per base station.\933\ Similarly,
Motorola estimates the cost of relocation for a mobile/portable unit
would be $100, and the cost for a base transmitter site would be
$3,000.\934\ These costs also are consistent with the Commission's
experience with rebanding efforts in the 800 MHz band. Based on the
Commission's review of the certifications filed, and using the maximum
per-unit estimates suggested by the Commonwealth of Virginia, the
Commission calculates the cost of relocating equipment that public
safety licensees have certified as being in operation by August 30,
2007, at approximately $23.6 million.\935\ This figure also assumes
that every handset and transmitter in operation as of the cut-off date
would require relocation reimbursement. Moreover, while not all of the
entities that have sought waivers of the August 30, 2007, cut-off for
new narrowband deployments outside the consolidated channels have
sought reimbursement for the costs of relocating such equipment, the
Commission notes that even if the Commission assumed full reimbursement
for each waiver requested, taking such action would add approximately
$3 million to the Commission's revised $23.6 million relocation cost
estimate.\936\ Thus, including both the equipment certified as eligible
for reimbursement under the Second Report and Order and equipment
permitted to be deployed after the August 30, 2007, cut-off date
pursuant to a waiver, total reimbursement liability for the D Block
licensee(s) would stand at approximately $26.6 million.\937\
---------------------------------------------------------------------------
\932\ See Second Report and Order, 22 FCC Rcd at 15411 paras.
336, 337; Public Safety and Homeland Security Bureau Announces an
October 23, 2007 Deadline for Filing 700 MHz Relocation
Certification Information, PS Docket No. 06-229, WT Docket No. 96-
86, Public Notice (PSHSB 2007).
\933\ Virginia Petition for Reconsideration at 10. Virginia
suggests that the Commission reopen the record for more information
on costs. Id. at 11. As the Commission has explained, parties have
already had ample notice and opportunity to submit cost information
into the record in this proceeding, including a call again for such
information in the Second FNPRM. See Second FNPRM, 23 FCC Rcd at
8111 para. 180. Moreover, in light of the information received
through the certification process, the Commission finds there is no
need to reopen this issue.
\934\ Motorola June 2007 Ex Parte at 2-3.
\935\ The Commission review of these certifications has
identified approximately: 100,658 mobiles, 6,511 vehicular
repeaters, 3,180 control stations, and 1,170 base stations.
\936\ This $3 million figure represents the aggregate costs that
would apply to relocate the subject waiver narrowband equipment that
was contracted, paid for and received to be deployed in the non-
consolidated narrowband channels (i.e., in the 764-767/775-776 MHz
and 794-797/805-806 MHz frequency bands) prior to the August 10,
2007, release date of the Second Report and Order only. In the
Commission Virginia Waiver Order, the Commission determined that
``[i]t is in the public interest, therefore, to provide interim
waiver relief for continued deployment outside of the consolidated
narrowband channels where there has been a showing of potential
public harm and there is evidence of a comprehensive 700 MHz
deployment plan that predates August 30, 2007 for which equipment
has been received and/or deployed.'' Request for Waiver of
Commonwealth of Virginia, PS Docket No. 06-229, WT Docket No. 96-86,
Order, at para. 7.
\937\ To be clear, this amount represents the aggregate hard
costs directly associated with modifications necessary to implement
the relocation of base stations, mobiles and portables, and not for
any unrelated improvements.
---------------------------------------------------------------------------
444. In light of the foregoing, the Commission tentatively proposes
to cap the narrowband relocation reimbursement costs for which the D
Block licensee(s) would be obligated to pay at $27 million.\938\ The
Commission emphasizes that, based upon the entire record before us,
this figure should be more than sufficient to ensure that all public
safety entities are fully reimbursed their costs for relocating their
narrowband systems to the consolidated narrowband channels. This figure
includes generous assumptions, using maximum per unit costs and
assuming every handset, base station and vehicle repeater, including
those that are the subject of waiver requests, would require relocation
reimbursement. To account for the possibility that the D Block auction
could result in the issuance of regional licenses to more than one
regional licensee, the Commission proposes setting individual caps for
each RPC region based upon the certification and waiver request data
before us, with the aggregate cap remaining at $27 million. The
proposed break-down for the cap for each region is set forth in
Appendix C to this Third FNPRM.\939\ The Commission proposes that each
regional D Block licensee would be responsible for paying the cost of
narrowband relocation within its region(s). In the event that one or
more D Block regional licenses remains unsold, the Commission proposes
that the cost of relocating 700 MHz narrowband facilities in such
region(s) would be prorated among the remaining D Block licensees.
---------------------------------------------------------------------------
\938\ The Commission observe that there is no substantiation in
the record for the PSST's proposed reimbursement cap of $75 million.
\939\ In instances where a state narrowband system operates in
more than one RPC region, the Commission proposes that the state
provide the PSBL with data concerning the location of its narrowband
equipment so that the PSBL can apportion the total reimbursement
amount to be paid by the respective D Block licensee for each
region.
---------------------------------------------------------------------------
(iii) August 30, 2007 Cut-off Date
445. Comments. With respect to the August 30, 2007, cut-off date
for narrowband deployments outside of the consolidated narrowband
spectrum, several commenters proposed that the cut-off date should be
extended.\940\ The Commonwealth of Virginia, for example, asserted
that, ``any absolute August 30, 2007 cutoff date was inappropriate for
systems which had already entered into contractual commitments for
system deployment as of the date of the Second Report and Order * * *
any August 30, 2007 date must apply both to equipment installed as of
that date, and contracted for as of that date.'' \941\ Tyco suggested
that ``the Commission leniently grant `case-by-case' waivers for
narrowband deployments to ensure the proper function of mission-
critical communication systems.'' \942\ According to Tyco, ``[s]uch
time extensions, coupled with the increased funding, will help to avoid
undue burdens on existing public safety users.'' \943\
---------------------------------------------------------------------------
\940\ See, e.g., Louisiana Comments at 2; Pierce Transit
Comments at 6; Motorola Comments at 21; TeleCommUnity Comments at 6;
Eads Comments at 4.
\941\ Virginia Comments at 10. See also Motorola Reply Comments
at 7.
\942\ TE M/A-COM Comments at 9.
\943\ TE M/A-COM Comments at 9.
---------------------------------------------------------------------------
446. The PSST, however, argued that the Commission should
``maintain the August 30, 2007 deadline for equipment whose relocation
costs will be reimbursable.'' \944\ The PSST asserted that it ``is well
aware of the difficulties this presents for certain licensees, but []
sees no reasonable alternative that would not seriously undermine the
deployment of the SWBN in a timely fashion.'' \945\ The Region 33
(Ohio) 700 MHz Regional Planning Committee agreed that the date should
not be changed, stating, ``[t]hat was about 10 months ago and agencies
have had to make adjustments in their rollout of the affected
frequencies. To ask them to change the plan again would be doing them a
disservice.'' \946\
---------------------------------------------------------------------------
\944\ PSST Comments at 52.
\945\ PSST Comments at 52.
\946\ RPC 33 Comments at 20.
---------------------------------------------------------------------------
447. The Virginia Information Technologies Agency (``VITA'')
favored an approach ``that allows for both a post August 30, 2007
deployment strategy and a process that allows for those units deployed
after the August 30, 2007 deployment date to have access to additional
relocation funding opportunities to move them to the consolidated band
plan in a uniform
[[Page 57828]]
manner.'' \947\ According to VITA, such approach would result in ``a
congruent process that allows for uniform deployment, band relocation
and relocation funding.'' \948\
---------------------------------------------------------------------------
\947\ VITA Comments at 5.
\948\ VITA Comments at 5.
---------------------------------------------------------------------------
448. Discussion. As indicated, in the Second Report and Order, the
Commission prohibited new narrowband operations outside of the
consolidated narrowband blocks as of 30 days following the adoption
date of the Second Report and Order--i.e., as of August 30, 2007.\949\
The Commission further required every public safety licensee impacted
by such consolidation to file a certification with the Commission
identifying narrowband deployment information to account for pre-
programmed narrowband radios that public safety agencies may have
already taken delivery as of the adoption date of the Second Report and
Order and which they intended to immediately place into operation.\950\
The Commission emphasized that such information was ``integral to the
success of the relocation process,'' and cautioned public safety
entities that failing to file this information in a timely manner would
result in forfeiture of reimbursement.\951\ The primary purposes behind
the adoption of this cut-off date and associated certification
requirements were to clearly define and contain the costs that would be
entitled to reimbursement, and to ensure that the relocation of
narrowband operations would proceed in an orderly manner and without
complications stemming from additional operations being deployed in
spectrum being reallocated for broadband use.\952\ The Commission made
clear that public safety entities could place into operation narrowband
equipment in the consolidated narrowband blocks 769-775 and 799-805
MHz.\953\
---------------------------------------------------------------------------
\949\ Second Report and Order, 22 FCC Rcd at 15406, 15412 para.
339.
\950\ Second Report and Order, 22 FCC Rcd at 15406, 15411 para.
336.
\951\ Second Report and Order, 22 FCC Rcd at 15406, 15411 para.
337.
\952\ Second Report and Order, 22 FCC Rcd at 15406, 15412 para.
339.
\953\ Second Report and Order, 22 FCC Rcd at 15406, 15412 para.
339.
---------------------------------------------------------------------------
449. As advocated by the PSST and others,\954\ the Commission
tentatively concludes that the existing August 30, 2007, cut-off date
should not be changed. The underlying necessities of adopting this
date--containing relocation costs, encouraging narrowband deployment in
the consolidated narrowband channels and, more generally, carrying out
a swift and thorough narrowband relocation process in order to quickly
and efficiently establish the nationwide, interoperable public safety
broadband network--have not changed since its adoption in the Second
Report and Order. The Commission appreciates the Commonwealth of
Virginia's arguments that the August 30, 2007, cut-off date may have
been inappropriate in cases where entities already entered into
contractual commitments for systems prior to the adoption of the Second
Report and Order.\955\ However, based upon the petitions seeking waiver
of this cut-off date that the Commission has received thus far, it
appears that relatively few entities fall into this category and the
Commission believes such individualized determinations are best made on
a case-by-case basis through the waiver process.\956\
---------------------------------------------------------------------------
\954\ See PSST Comments at 52; RPC 33 Comments at 20.
\955\ See Virginia Comments at 10.
\956\ In establishing the prohibition on new narrowband
operations after August 30, 2007, it was not the Commission's
intention to create hardship or delay systems needed to protect the
safety of life and property, and the Commission has provided interim
waiver relief to various public safety entities for continued
deployment outside of the consolidated narrowband channels where
there has been a showing of potential public harm and there is
evidence of a comprehensive 700 MHz deployment plan that predates
August 30, 2007 for which equipment has been received and/or
deployed. See Virginia Waiver Order at para. 7.
---------------------------------------------------------------------------
450. The Commission recognizes, however, that while the waiver
process has thus far provided continuing operating authority beyond the
August 30, 2007, cut-off deadline for equipment contracted for prior to
the adoption of the Second Report and Order, a decision as to whether
costs for relocating equipment deployed after this date could be
reimbursed was deferred until the outcome of this proceeding.\957\
Accordingly, the Commission tentatively concludes that for those
parties granted waiver relief to date, and seeking reimbursement for
relocating equipment deployed pursuant to such waiver, the costs for
relocating such equipment will be eligible for reimbursement by the D
Block licensee. In this regard, the Commission would delegate authority
to the PSHSB to grant such relief. The Commission also tentatively
concludes that the PSHSB, acting under delegated authority, may grant
similar relief with respect to pending waiver requests, so long as the
request meets the criteria the Commission has established for granting
waiver authority to deploy narrowband systems after the August 30, 2007
cut-off date--i.e., where there has been a showing of potential public
harm and there is evidence of a comprehensive 700 MHz deployment plan
that predates August 30, 2007, for which equipment has been received
and/or deployed. As observed above, the Commission calculates that the
total cost of relocating such equipment is approximately $3 million,
and thus there would be sufficient funding available for waiver
applicants meeting these criteria. The Commission also tentatively
concludes that, as of the release date of this Third FNPRM, the
Commission will not accept any new waiver requests to deploy narrowband
equipment outside of the consolidated narrowband blocks, or amendments
to pending waiver requests that would increase the number of narrowband
radios that would require relocation reimbursement. The Commission
proposes taking this action in the interests of ensuring certainty with
respect to the total relocation costs and in recognition of the fact
that any parties requesting relief would already have submitted waiver
requests.
---------------------------------------------------------------------------
\957\ See, e.g., Virginia Waiver Order at para. 8.
---------------------------------------------------------------------------
(iv) Funding Mechanism
451. Comments. Most commenters addressing the issue of how the
narrowband relocation funding should be processed agreed that the
source of such funding should be the D Block licensee and the
administration of such funding should be handled by the Public Safety
Broadband Licensee. Motorola, for example, asserted that, ``if the
Commission proceeds with a Public/Private Partnership, once the D-Block
is successfully auctioned and appropriate Network Sharing Agreements
are executed, the D-Block licensee(s) should be required to deposit the
reimbursement funds into a trust fund administered by the PSBL.'' \958\
---------------------------------------------------------------------------
\958\ Motorola Comments at 20.
---------------------------------------------------------------------------
452. The State of Louisiana suggested ``a process in which
Louisiana and other public safety agencies impacted by the 700 MHz
narrowband reconfiguration can develop and provide actual cost
estimates for the equipment that we have already deployed, and that now
needs to be relocated per the new narrowband plan.'' \959\
Additionally, the State of Louisiana favored making the PSST ``the
central clearing point for gathering these cost estimates from all
affected public safety agencies.'' \960\
---------------------------------------------------------------------------
\959\ Louisiana Comments at 2.
\960\ Louisiana Comments at 2.
---------------------------------------------------------------------------
453. APCO asserted that ``the Commission should retain the
requirement that the D Block licensee pay the cost of relocating
narrowband licensees,'' because ``regardless of any public/private
partnership, the D Block
[[Page 57829]]
licensee will benefit from the reconfiguration of the 700 MHz band as
it eliminates a potential interference problem.'' \961\ APCO further
stated, however, that the ``Commission should consider relieving the
PSBL of the responsibility of managing the relocation funding,''
because ``it adds a function unrelated to the PSBL's core activity, and
deepens its reliance on outside contractors for which it lacks the
funds to support.'' \962\ APCO contended that ``the Commission should
[instead] appoint a third party (as it did with the 800 MHz Transition
Administrator) or require the D Block licensee to retain the services
of an entity that will manage the process.'' \963\ NPSTC opposed APCO's
position on removing the PSBL from responsibility for overseeing
narrowband relocations, asserting that such action would be a ``set
back to an important facet of the Commission's decision to realign the
700 MHz spectrum and create a public private partnership to deploy and
manage a nationwide broadband network.'' \964\ NPSTC further argued
that ``[t]he PSBL's work with regard to the relocation of 700 MHz
narrowband incumbents demonstrates tangibly not only its dedication to
the Commission's decisions but its ability to work with the often
competing interests.'' \965\
---------------------------------------------------------------------------
\961\ APCO Comments at 39.
\962\ APCO Comments at 39.
\963\ APCO Comments at 39.
\964\ NPSTC Reply Comments at 15.
\965\ NPSTC Reply Comments at 15.
---------------------------------------------------------------------------
454. Discussion. In the Second Report and Order, the Commission
required that the Upper 700 MHz Band D Block licensee pay the costs
associated with relocating public safety narrowband operations, in
recognition of the significant benefits that will accrue to the D Block
licensee.\966\ These fundamental benefits would not change under the
700 MHz Public/Private Partnership construct the Commission is
tentatively proposing here--whether such partnership is implemented on
a regional or nationwide basis. Further, bidders for the D Block
licenses will be able to factor the prospective cost of narrowband
relocation into their auction bids. Accordingly, the Commission
tentatively concludes that the Commission will retain the requirement
that the Upper 700 MHz Band D Block nationwide licensee, or regional
licensees, as determined by the auction, must pay the costs associated
with relocating public safety narrowband operations to the consolidated
narrowband channels.
---------------------------------------------------------------------------
\966\ Second Report and Order, 22 FCC Rcd at 15336 para. 120,
15411 para. 336.
---------------------------------------------------------------------------
455. In terms of funding mechanics, the Commission also continues
to believe that the Public Safety Broadband Licensee is best suited to
administer the relocation process consistent with the requirements and
deadlines set forth herein.\967\ The Public Safety Broadband Licensee
is composed of board members with significant experience and expertise
involved with assuming this role and in fact already has demonstrated
efforts working on the narrowband relocation issues.\968\
---------------------------------------------------------------------------
\967\ Second Report and Order, 22 FCC Rcd at 15413-414, 15426-
427 paras. 343-44, 383.
\968\ See, e.g., PSST Comments at 53.
---------------------------------------------------------------------------
456. The Commission reiterates that under the Commission's proposal
the D Block licensee(s') reimbursement obligation will be limited to
the minimum ``hard'' costs directly associated with modifications
necessary to implement the relocation of base stations, mobiles and
portables, and will not extend to any ``soft'' costs, such as person-
hours expended in effecting such modifications, or costs associated
with unrelated improvements.\969\ The Commission also will not permit
such funding to cover costs associated with any modifications that may
be necessary to the Computer Assisted Pre-Coordination Resource and
Database (CAPRAD) system or other programs used by Regional Planning
Committees to assign channels, or to any costs associated with
amendments to regional plans or narrowband licenses.\970\
---------------------------------------------------------------------------
\969\ Second Report and Order, 22 FCC Rcd at 15411 para. 338.
\970\ Second Report and Order, 22 FCC Rcd at 15411 para. 338.
---------------------------------------------------------------------------
457. The Commission understands that the Public Safety Broadband
Licensee will incur administrative costs in administering the
relocation process. In this respect, the PSBL may recover such costs
along with its other administrative and operating costs through the D
Block licensee(s) funding mechanisms described elsewhere in this Third
FNPRM.
458. The Commission also proposes to retain the narrowband
relocation implementation process developed in the Second Report and
Order, with conforming provisions to address the possibility of
regional licensing. Under this approach, the Commission will require
the winning bidder(s) for the D Block license(s) and the Public Safety
Broadband Licensee jointly to submit for Commission approval a
narrowband relocation plan(s) within 30 days following the NSA
Negotiation Commencement Date.\971\ If the D Block is licensed on a
regional basis, the Public Safety Broadband Licensee and regional D
Block license winners would jointly submit for Commission approval
separate narrowband relocation plans covering each region within 30
days following the NSA Negotiation Commencement Date. If the D Block is
licensed on a regional basis, but not all regional licenses are sold at
auction, the Public Safety Broadband Licensee will be solely
responsible for submitting a separate narrowband relocation plan
covering each unsold region for Commission approval within 30 days
following the NSA Negotiation Commencement Date. The nationwide
narrowband relocation plan, or regional narrowband relocation plans, as
applicable, would address the process and schedule for accomplishing
narrowband relocation, including identification of the 700 MHz
equipment vendor(s), the make and model numbers of the equipment to be
relocated and the relocation cost estimates provided by such vendor(s)
(on that vendor's letterhead), identification of equipment vendors or
other consultants that would perform the necessary technical changes to
handsets, vehicle repeaters, and base stations, and a detailed schedule
for completion of the relocation process for every radio and base
station identified in the certifications the Commission has previously
required and for narrowband equipment operating under previously
granted waivers.\972\ The plan(s) also would specify the total costs to
be incurred for the complete relocation process.\973\
---------------------------------------------------------------------------
\971\ Second Report and Order, 22 FCC Rcd at 15412 para. 340.
\972\ Second Report and Order, 22 FCC Rcd at 15412 para. 340.
\973\ Second Report and Order, 22 FCC Rcd at 15412 para. 340.
---------------------------------------------------------------------------
459. If the D Block auction results in a single nationwide D Block
license winner, that party would be required, no later than the date
upon which the executed NSA is submitted to the Commission, to deposit
the total cost amount identified in the narrowband relocation plan, as
approved by the Chief of the Public Safety and Homeland Security
Bureau, into a trust account established by the Public Safety Broadband
Licensee, to finance the narrowband relocation.\974\ If the D Block
[[Page 57830]]
auction results in one or more regional D Block license winners, that
party(ies) will similarly be required, no later than the date upon
which the executed NSA is submitted to the Commission, to deposit the
total cost amount identified in the narrowband relocation plan(s) that
it, together with the Public Safety Broadband Licensee, submitted to
the Commission into a trust account established by the Public Safety
Broadband Licensee, to finance the narrowband relocation. In the event
that the D Block is licensed on a regional basis, but not all regional
licenses are sold at auction, the narrowband relocation costs
associated with any such unsold region (identified in the individual
narrowband relocation plans submitted for each such region by the
Public Safety Broadband Licensee) will be borne on a pro rata basis by
all the regional D Block license winners. In this latter case, the
Commission will delegate authority to the Public Safety and Homeland
Security Bureau to determine and identify in a public notice the amount
each D Block regional licensee is required to deposit into the
narrowband relocation trust account established by the Public Safety
Broadband Licensee.
---------------------------------------------------------------------------
\974\ Second Report and Order, 22 FCC Rcd at 15412 para. 343. As
the Commission further indicated in the Second Report and Order, and
which the Commission tentatively proposes to continue to follow, the
trust account established by the Public Safety Broadband Licensee
would be for the benefit of public safety licensees being relocated,
with the Public Safety Broadband Licensee acting as trustee of such
account. The Public Safety Broadband Licensee would not be permitted
to draw on this account until the D Block license(s) is granted to
the D Block auction winner(s), and then would be limited to using
these funds solely for relocating eligible narrowband operations
consistent with the requirements and limitations set forth herein.
The Public Safety Broadband Licensee would then be responsible for
implementing the relocation plan, including administering payment of
relocation funds to equipment vendors, and ensuring that all
affected licensees are relocated in accordance with the relocation
schedule contained in the relocation plan as approved by the Chief
of the Public Safety and Homeland Security Bureau. See id.
---------------------------------------------------------------------------
IV. Procedural Matters
A. Initial Regulatory Flexibility Analysis
460. Section 213 of the Consolidated Appropriations Act 2000
provides that the Regulatory Flexibility Act (RFA), 5 U.S.C. 603, shall
not apply to the rules and competitive bidding procedures for
frequencies in the 746-806 MHz Band,\975\ which includes the
frequencies of both the D Block license and the 700 MHz public safety
broadband and narrowband spectrum. Accordingly, the Commission has not
prepared an Initial Regulatory Flexibility Analysis in connection with
the Third FNPRM.
---------------------------------------------------------------------------
\975\ In particular, this exemption extends to the requirements
imposed by Chapter 6 of Title 5, United States Code, Section 3 of
the Small Business Act (15 U.S.C. 632) and Sections 3507 and 3512 of
Title 44, United States Code. Consolidated Appropriations Act 2000,
Pub. L. No. 106-113, 113 Stat. 2502, Appendix E, Sec. 213(a)(4)(A)-
(B); see 145 Cong. Rec. H12493-94 (Nov. 17, 1999); 47 U.S.C.A. 337
note at sec. 213(a)(4)(A)-(B).
---------------------------------------------------------------------------
B. Initial Paperwork Reduction Act Analysis of 1995 Analysis
461. This document contains proposed new or modified information
collection requirements. The Commission notes, however, that Section
213 of the Consolidated Appropriations Act 2000 provides that rules
governing frequencies in the 746-806 MHz Band, which encompass the
spectrum associated with both the D Block license and the 700 MHz
public safety broadband and narrowband spectrum, become effective
immediately upon publication in the Federal Register without regard to
certain sections of the Paperwork Reduction Act.\976\ The Commission is
therefore not inviting comment pursuant to the Paperwork Reduction Act
on any information collections proposed in this document.
---------------------------------------------------------------------------
\976\ Id.
---------------------------------------------------------------------------
C. Other Procedural Matters
1. Ex Parte Presentations
462. The rulemaking shall be treated as a ``permit-but-disclose''
proceeding in accordance with the Commission's ex parte rules.\977\
Persons making oral ex parte presentations are reminded that memoranda
summarizing the presentations must contain summaries of the substance
of the presentations and not merely a listing of the subjects
discussed. More than a one or two sentence description of the views and
arguments presented generally is required.\978\ Other requirements
pertaining to oral and written presentations are set forth in Section
1.1206(b) of the Commission's rules.\979\
---------------------------------------------------------------------------
\977\ 47 CFR 1.200 et seq.
\978\ See 47 CFR 1.1206(b)(2).
\979\ 47 CFR 1.1206(b).
---------------------------------------------------------------------------
2. Comment Filing Procedures
463. Pursuant to Sections 1.415 and 1.419 of the Commission's
rules,\980\ interested parties may file comments on or before the dates
indicated on the first page of this document. All filings related to
this Third FNPRM should refer to WT Docket No. 06-150 and PS Docket No.
06-229. Comments may be filed using: (1) The Commission's Electronic
Comment Filing System (ECFS), (2) the Federal Government's eRulemaking
Portal, or (3) by filing paper copies.\981\
---------------------------------------------------------------------------
\980\ 47 CFR 1.415, 1.419.
\981\ See Electronic Filing of Documents in Rulemaking
Proceedings, 63 Fed. Reg. 24121 (May 1, 1998).
---------------------------------------------------------------------------
Electronic Filers: Comments may be filed electronically
using the Internet by accessing the ECFS: http://www.fcc.gov/cgb/ecfs/
or the Federal eRulemaking Portal: http://www.regulations.gov. Filers
should follow the instructions provided on the website for submitting
comments.
ECFS filers must transmit one electronic copy of the
comments for WT Docket No. 06-150 and PS Docket No. 06-229. In
completing the transmittal screen, filers should include their full
name, U.S. Postal Service mailing address, and WT Docket No. 06-150 and
WT Docket No. 06-229. Parties may also submit an electronic comment by
Internet e-mail. To get filing instructions, filers should send an e-
mail to [email protected] and include the following words in the body of the
message, ``get form.'' A sample form and directions will be sent in
response.
Paper Filers: Parties who choose to file by paper must
file an original and four copies of each filing. If more than one
docket or rulemaking number appears in the caption of this proceeding,
filers must submit two additional copies for each additional docket or
rulemaking number. Filings can be sent by hand or messenger delivery,
by commercial overnight courier, or by first-class or overnight U.S.
Postal Service mail (although the Commission continues to experience
delays in receiving U.S. Postal Service mail). All filings must be
addressed to the Commission's Secretary, Marlene H. Dortch, Office of
the Secretary, Federal Communications Commission, 445 12th Street, SW.,
Washington, DC 20554.
The Commission's contractor will receive hand-delivered or
messenger-delivered paper filings for the Commission's Secretary at 236
Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing
hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be
held together with rubber bands or fasteners. Any envelopes must be
disposed of before entering the building.
Commercial overnight mail (other than U.S. Postal Service
Express Mail and Priority Mail) must be sent to 9300 East Hampton
Drive, Capitol Heights, MD 20743.
U.S. Postal Service first-class, Express, and Priority
mail should be addressed to 445 12th Street, SW., Washington DC 20554.
464. Parties should send a copy of their filings to: Ne[scedil]e
Guendelsberger, Wireless Telecommunications Bureau, 445 12th Street,
SW., Washington, DC 20554, or by e-mail to [email protected];
and Jeff Cohen, Public Safety and Homeland Security Bureau, 445 12th
Street, SW., Washington, DC 20554, or by e-mail to [email protected].
Parties shall also serve one copy with the Commission's
[[Page 57831]]
copy contractor, Best Copy and Printing, Inc. (BCPI), Portals II, Room
CY-B402, 445 12th Street, SW., Washington, DC 20554, (800) 378-3160, or
via e-mail to [email protected].
465. Comments filed in response to this notice of proposed
rulemaking will be available for public inspection and copying during
business hours at the FCC Reference Information Center, Portals II,
Room CY-A257, 445 12th Street, SW., Washington, DC 20554 and via the
Commission's Electronic Comment Filing System (ECFS) by entering the
docket numbers WT Docket No. 06-150 and PS Docket No. 06-229. The
documents may also be purchased from BCPI, telephone (800) 378-3160,
facsimile (202) 488-5563, TTY (202) 488-5562, e-mail [email protected].
3. Accessible Formats
466. To request materials in accessible formats for people with
disabilities (Braille, large print, electronic files, audio format),
send an e-mail to [email protected] or call the Consumer & Governmental
Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (TTY). Contact the
FCC to request reasonable accommodations for filing comments
(accessible format documents, sign language interpreters, CARTS, etc.)
by e-mail: [email protected]; phone: 202-418-0530 (voice), 202-418-0432
(TTY).
V. Ordering Clauses
467. Accordingly, it is ordered pursuant to sections 1, 2, 4(i),
5(c), 7, 10, 201, 202, 208, 214, 301, 302, 303, 307, 308, 309, 310,
311, 314, 316, 319, 324, 332, 333, 336, 337, 614, 615, and 710 of the
Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i),
155(c), 157, 160, 201, 202, 208, 214, 301, 302, 303, 307, 308, 309,
310, 311, 314, 316, 319, 324, 332, 333, 336, and 337, that this third
further notice of proposed rulemaking in WT Docket No. 06-150 and PS
Docket No. 06-229 is adopted. The third further notice of proposed
rulemaking shall become effective upon publication in the Federal
Register.
468. It is further ordered that pursuant to applicable procedures
set forth in Sections 1.415 and 1.419 of the Commission's Rules, 47 CFR
1.415, 1.419, interested parties may file comments on the third further
notice of proposed rulemaking on or before November 3, 2008, and reply
comments on or before November 12, 2008.
469. It is further ordered that the Commission shall send a copy of
this third further notice of proposed rulemaking in a report to be sent
to Congress and the General Accounting Office pursuant to the
Congressional Review Act, 5 U.S.C. 801(a)(1)(A).
List of Subjects
47 CFR Part 27
Communications common carriers, Radio, Wireless radio services.
47 CFR Part 90
Civil defense, Common carriers, Emergency medical services, Radio,
Reporting and recordkeeping requirements.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
For the reasons discussed in the preamble, the Federal
Communications Commission proposes to amend 47 CFR parts 27 and 90 as
follows:
PART 27--MISCELLANEOUS WIRELESS COMMUNICATIONS SERVICES
1. The authority citation for part 27 continues to read as follows:
Authority: 47 U.S.C. 154, 301, 302, 303, 307, 309, 332, 336, and
337 unless otherwise noted.
2. Section 27.4 is amended by revising the following definitions to
read as follows:
Sec. 27.4 Terms and definitions.
* * * * *
Network Sharing Agreement (NSA). An agreement entered into between
the winning bidder of an Upper 700 MHz D Block license, the Upper 700
MHz D Block licensee, the Network Assets Holder, the Operating Company,
the Public Safety Broadband Licensee, and any other related entities
that the Commission may require or allow regarding the shared wireless
broadband network associated with that 700 MHz Public/Private
Partnership that will operate on the 758-763 MHz and 788-793 MHz bands
and the 763-768 MHz and 793-798 MHz bands.
* * * * *
Upper 700 MHz D Block license. The Upper 700 MHz D Block license
authorizes services in the 758-763 MHz and 788-793 MHz bands.
* * * * *
3. Section 27.6 is amended by revising paragraphs (a) introductory
text and (b)(3) to read as follows:
Sec. 27.6 Service areas.
(a) WCS service areas include Economic Areas (EAs), Major Economic
Areas (MEAs), Regional Economic Area Groupings (REAGs), cellular
markets comprising Metropolitan Statistical Areas (MSAs) and Rural
Service Areas (RSAs), Public Safety Regions (PSRs) and a nationwide
area. MEAs and REAGs are defined in the Table immediately following
paragraph (a)(1) of this section. Both MEAs and REAGs are based on the
U.S. Department of Commerce's EAs. See 60 FR 13114 (March 10, 1995). In
addition, the Commission shall separately license Guam and the Northern
Mariana Islands, Puerto Rico and the United States Virgin Islands,
American Samoa, and the Gulf of Mexico, which have been assigned
Commission-created EA numbers 173-176, respectively. PSRs are comprised
of the fifty-five 700 MHz Regional Planning Committee regions, See 66
FR 51669-02 (October 10, 2001) (as modified by Public Notice DA 01-
2112, Public Safety 700 MHz Band--General Use Channels: Approval of
Changes to Regional Planning Boundaries of Connecticut and Michigan
(rel. Sept. 10, 2001), and three additional regions. The three
additional PSR regions cover the same areas that are covered by the EAs
for: The Gulf of Mexico; Guam and the Northern Mariana Islands; and
American Samoa. PSRs are defined in the table immediately following
paragraph (b)(3)(ii) of this section. The nationwide area is comprised
of the geographic areas covered by the 58 PSRs and covers the same area
covered by contiguous 48 states, Alaska, Hawaii, the Gulf of Mexico,
and all of the U.S. territories included in Commission-created EAs.
Maps of the EAs, MEAs, MSAs, RSAs, and REAGs and the Federal Register
notice that established the 172 EAs are available for public inspection
and copying at the Reference Information Center, Consumer and
Governmental Affairs Bureau, Federal Communications Commission, 445
12th Street, SW., Washington, DC 20554. Maps of the PSRs are also
available for public inspection and copying at the Reference
Information Center, Consumer and Governmental Affairs Bureau, Federal
Communications Commission, 445 12th Street, SW., Washington, DC 20554.
* * * * *
(b) * * *
(3) Service areas for Block D in the 758-763 MHz and 788-793 MHz
bands will be determined based on the results of the auction for
licenses with respect to Block D. The Commission will offer in such an
auction licenses for the following geographic service areas:
(i) A nationwide area as defined in paragraph (a) of this section.
(ii) Public Safety Regions (PSRs) as defined in paragraph (a) of
this section. The geographic boundaries of the PSRs are defined in the
table below:
[[Page 57832]]
------------------------------------------------------------------------
Geographical boundaries of public safety
regions (PSRS)
PSR No. ------------------------------------------------
States, counties and territories included in
regions
------------------------------------------------------------------------
1...................... Alabama.
2...................... Alaska.
3...................... Arizona.
4...................... Arkansas.
5...................... California-South (to the northernmost borders
of San Luis Obispo, Kern, and San Bernardino
Counties).
6...................... California-North (that part of California not
included in California-South).
7...................... Colorado.
8...................... New York-Metropolitan--New York: Bronx, Kings,
Nassau, New York, Orange, Putnam, Queens,
Richmond, Rockland, Suffolk, Sullivan, Ulster,
Dutchess, and Westchester Counties; New
Jersey: Bergen, Essex, Hudson, Morris,
Passaic, Sussex, Union, Warren, Middlesex,
Somerset, Hunterdon, Mercer, and Monmouth
Counties.
9...................... Florida.
10..................... Georgia.
11..................... Hawaii.
12..................... Idaho.
13..................... Illinois (all except area in Region 54).
14..................... Indiana (all except area in Region 54).
15..................... Iowa.
16..................... Kansas.
17..................... Kentucky.
18..................... Louisiana.
19..................... New England--Maine; New Hampshire; Vermont;
Massachusetts; Rhode Island; Connecticut.
20..................... Maryland; Washington, DC; Virginia--Northern
(Arlington, Fairfax, Fauquier, Loudoun, Prince
William and Stafford Counties; and Alexandria,
Fairfax, Falls Church, Manassas and Manassas
Park Cities).
21..................... Michigan.
22..................... Minnesota.
23..................... Mississippi.
24..................... Missouri.
25..................... Montana.
26..................... Nebraska.
27..................... Nevada.
28..................... New Jersey (except for counties included in the
New York-Metropolitan, Region 8, above);
Pennsylvania (Bucks, Chester, Montgomery,
Philadelphia, Berks, Delaware, Lehigh,
Northampton, Bradford, Carbon, Columbia,
Dauphin, Lackawanna, Lancaster, Lebanon,
Luzerne, Lycoming, Monroe, Montour,
Northumberland, Pike, Schuylkill, Sullivan,
Susquehanna, Tioga, Wayne, Wyoming and York
Counties); Delaware.
29..................... New Mexico.
30..................... New York--Albany (all except area in New York--
Metropolitan, Region 8, and New York--Buffalo,
Region 55).
31..................... North Carolina.
32..................... North Dakota.
33..................... Ohio.
34..................... Oklahoma.
35..................... Oregon.
36..................... Pennsylvania (all except area in Region 28,
above).
37..................... South Carolina.
38..................... South Dakota.
39..................... Tennessee.
40..................... Texas--Dallas (including the counties of Cooke,
Grayson, Fannin, Lamar, Red River, Bowie,
Wise, Denton, Collin, Hunt, Delta, Hopkins,
Franklin, Titus, Morris, Cass, Tarrant,
Dallas, Palo Pinto, Parker, Rockwall, Kaufman,
Rains, VanZandt, Wood, Smith, Camp, Upshur,
Gregg, Marion, Harrison, Panola, Rusk,
Cherokee, Anderson, Henderson, Navarro, Ellis,
Johnson, Hood, Somervell and Erath).
41..................... Utah.
42..................... Virginia (all except area in Region 20, above).
43..................... Washington.
44..................... West Virginia.
45..................... Wisconsin (all except area in Region 54).
46..................... Wyoming.
47..................... Puerto Rico.
48..................... U.S. Virgin Islands.
49..................... Texas--Austin (including the counties of
Bosque, Hill, Hamilton, McLennan, Limestone,
Freestone, Mills, Coryell, Falls, Robertson,
Leon, San Saba, Lampasas, Bell, Milam, Brazos,
Madison, Grimes, Llano, Burnet, Williamson,
Burleson, Lee, Washington, Blanco, Hays,
Travis, Caldwell, Bastrop, and Fayette).
50..................... Texas--El Paso (including the counties of Knox,
Kent, Stonewall, Haskell, Throckmorton,
Gaines, Dawson, Borden, Scurry, Fisher, Jones,
Shackelford, Stephens, Andrews, Martin,
Howard, Mitchell, Nolan, Taylor, Callahan,
Eastland, Loving, Winkler, Ector, Midland,
Glasscock, Sterling, Coke, Runnels, Coleman,
Brown, Comanche, Culberson, Reeves, Ward,
Crane, Upton, Reagan, Irion, Tom Green,
Concho, McCulloch, Jeff Davis, Hudspeth, El
Paso, Pecos, Crockett, Schleicher, Menard,
Mason, Presidio, Brewster, Terrell, Sutton,
and Kimble).
51..................... Texas--Houston (including the counties of
Shelby, Nacogdoches, San Augustine, Sabine,
Houston, Trinity, Angelina, Walker, San
Jacinto, Polk, Tyler, Jasper, Newton,
Montgomery, Liberty, Hardin, Orange, Waller,
Harris, Chambers, Jefferson, Galveston,
Brazoria, Fort Bend, Austin, Colorado,
Wharton, and Matagorda).
[[Page 57833]]
52..................... Texas--Lubbock (including the counties of
Dallam, Sherman, Hansford, Ochiltree,
Lipscomb, Hartley, Moore, Hutchinson, Roberts,
Hemphill, Oldham, Potter, Carson, Grey,
Wheeler, Deaf Smith, Randall, Armstrong,
Donley, Collingsworth, Parmer, Castro,
Swisher, Briscoe, Hall, Childress, Bailey,
Lamb, Hale, Floyd, Motley, Cottle, Hardeman,
Foard, Wilbarger, Witchita, Clay, Montague,
Jack, Young, Archer, Baylor, King, Dickens,
Crosby, Lubbock, Kockley, Cochran, Yoakum,
Terry, Lynn, and Garza).
53..................... Texas--San Antonio (including the counties of
Val Verde, Edwards, Kerr, Gillespie, Real,
Bandera, Kendall, Kinney, Uvalde, Medina,
Bexar, Comal, Guadalupe, Gonzales, Lavaca,
Dewitt, Karnes, Wilson, Atascosa, Frio,
Zavala, Maverick, Dimmit, LaSalle, McMullen,
Live Oak, Bee, Goliad, Victoria, Jackson,
Calhoun, Refugio, Aransas, San Patricio,
Nueces, Jim Wells, Duval, Webb, Kleberg,
Kenedy, Brooks, Jim Hogg, Zapata, Starr,
Hidalgo, Willacy, and Cameron).
54..................... Chicago--Metropolitan--Illinois: Winnebago,
McHenry, Cook, Kane, Kendall, Grundy, Boone,
Lake, DuPage, DeKalb, Will, and Kankakee
Counties; Indiana: Lake, LaPorte, Jasper,
Starke, St. Joseph, Porter, Newton, Pulaski,
Marshall, and Elkart Counties; Wisconsin:
Kenosha, Milwaukee, Washington, Dodge,
Walworth, Jefferson, Racine, Ozaukee,
Waukesha, Dane, and Rock Counties.
55..................... New York--Buffalo (including the counties of
Niagara, Chemung, Schuyler, Seneca, Erie,
Chautauqua, Cattaraugus, Allegany, Wyoming,
Genesee, Orleans, Monroe, Livingston, Steuben,
Ontario, Wayne, and Yates).
56..................... Guam and the Northern Mariana Islands.
57..................... American Samoa.
58..................... Gulf of Mexico.
------------------------------------------------------------------------
* * * * *
4. Section 27.13 is amended by revising paragraphs (b) and (c) to
read as follows:
Sec. 27.13 License period.
* * * * *
(b) 698-757 MHz, 775-787 MHz and 805-806 MHz bands. Initial
authorizations for the 698-757 MHz and 776-787 MHz bands will extend
for a term not to exceed ten years from February 17, 2009, except that
initial authorizations for a part 27 licensee that provides broadcast
services, whether exclusively or in combination with other services,
will not exceed eight years. Initial authorizations for the 775-776 MHz
and 805-806 MHz bands shall not exceed January 1, 2015. Licensees that
initiate the provision of a broadcast service, whether exclusively or
in combination with other services, may not provide this service for
more than eight years or beyond the end of the license term if no
broadcast service had been provided, whichever period is shorter in
length.
(c) The paired 758-763 and 788-793 MHz bands. Initial WCS
authorizations for the paired 758-763 MHz and 788-793 MHz bands will
have a term not to exceed 15 years from the date of initial issuance or
renewal.
* * * * *
5. Section 27.14 is amended by revising paragraphs (e), (m), (n),
and (o), redesignating paragraph (o) as paragraph (q) and adding a new
paragraph (p), to read as follows:
Sec. 27.14 Construction requirements; Criteria for renewal.
* * * * *
(e) Comparative renewal proceedings do not apply to WCS licensees
holding authorizations for the 698-757 MHz and 776-787 MHz bands. These
licensees must file a renewal application in accordance with the
provisions set forth in Sec. 1.949 of this chapter, and must make a
showing of substantial service, independent of its performance
requirements, as a condition for renewal at the end of each license
term.
* * * * *
(m) A WCS licensee holding an authorization for the D Block in the
758-763 MHz and 788-793 MHz bands (the Upper 700 MHz D Block licensee)
shall meet the following construction requirements in each PSR, except
for the Gulf of Mexico PSR, comprising its license area.
(1) The Upper 700 MHz D Block licensee shall provide signal
coverage and offer terrestrial service to at least 40 percent of the
population in each PSR by the end of the fourth year, and 75 percent by
the end of the tenth year of its license term. At the end of 15 years,
the licensee must meet one of the following final benchmarks depending
on the population density of the PSR:
(i) For PSRs with a population density equal to or greater than 500
people per square mile, the licensee will be required to provide signal
coverage and offer terrestrial service to at least 98 percent of the
population by the end of the fifteenth year;
(ii) For PSRs with a population density equal to or greater than
100 people per square mile and less than 500 people per square mile,
the licensee will be required to provide signal coverage and offer
terrestrial service to at least 94 percent of the population by the end
of the fifteenth year; and
(iii) For PSRs with a population density less than 100 people per
square mile, the licensee will be required to provide signal coverage
and offer terrestrial service to at least 90 percent of the population
by the end of the fifteenth year.
(2) The Upper 700 MHz D Block licensee may modify its population-
based construction benchmarks with the agreement of the Public Safety
Broadband Licensee and the prior approval of the Commission, where such
a modification would better serve to meet commercial and public safety
needs. Such modifications must be incorporated into the Network Sharing
Agreement.
(3) The Upper 700 MHz D Block licensee shall meet the population
benchmarks based using the most recent decennial U.S. Census Data
available at the time of measurement for each PSR comprising its
license area. The network and signal levels employed to meet these
benchmarks must be consistent with the requirements in Sec. 27.1305.
(4) A build-out schedule must be specified in the Network Sharing
Agreement consistent with the requirements in this section. The build-
out schedule shall include coverage for major highways and interstates,
as well as such additional areas that are necessary to provide coverage
for all incorporated communities with a population in excess of 3,000,
unless the Public Safety Broadband Licensee and the Upper 700 MHz D
Block licensee jointly determine, in consultation with a relevant
community, that such additional coverage will not provide significant
public benefit. Any coverage agreed under the Network Sharing Agreement
to extend to major highways, interstates, and incorporated communities
with populations greater than 3,000 beyond the network coverage
required by the population benchmarks must be completed no later than
the end
[[Page 57834]]
of the D Block license term. To the extent that coverage of major
highways, interstates and incorporated communities with populations in
excess of 3,000 requires the D Block licensee to extend coverage beyond
what is required to meet its population benchmarks, the licensee shall
be permitted to meet that additional coverage through non-terrestrial
means, such as Mobile Satellite Service or other such technologies.
(n) The Upper 700 MHz D Block licensee holding an authorization for
the Gulf of Mexico PSR shall negotiate with the Public Safety Broadband
Licensee, as part of the Network Sharing Agreement, a coverage and
service plan for public safety use in that region. Any disputes shall
be resolved by the Commission pursuant to the dispute resolution
procedures.
(o) The Upper 700 MHz D Block licensee shall demonstrate compliance
with performance requirements by filing a construction notification
with the Commission within 15 days of the expiration of the applicable
benchmark, in accordance with the provisions set forth in Sec.
1.946(d) of this chapter. The licensee must certify whether it has met
the applicable performance requirement and must file a description and
certification of the areas for which it is providing service. The
construction notifications must include the following:
(1) Certifications of the areas that were scheduled for
construction and service by that date under the Network Sharing
Agreement for which it is providing service, the type of applications
it is providing for each area, and the type of technology it is
utilizing to provide these applications.
(2) Electronic coverage maps and supporting technical documentation
providing the assumptions used by the licensee to create the coverage
maps, including the propagation model and the signal strength necessary
to provide service.
(p) At the end of its license term, the Upper 700 MHz D Block
licensee must, in order to renew its license, make a showing of its
success in meeting the material requirements set forth in the Network
Sharing Agreement as well as all other license conditions, including
the performance benchmark requirements set forth in this section.
* * * * *
6. Section 27.501 is revised to read as follows:
Sec. 27.501 746-763 MHz, 775-793 MHz, and 805-806 MHz bands subject
to competitive bidding.
(a) Mutually exclusive applications for initial licenses in the
746-763 MHz, 775-793 MHz, and 805-806 MHz bands are subject to
competitive bidding. The general competitive bidding procedures set
forth in part 1, subpart Q of this chapter will apply unless otherwise
provided in this subpart.
(b) Competitive bidding rules for licenses in Block D in the 758-
763 MHz and 788-793 MHz bands.
(1) Applications for licenses in the 758-763 MHz and 788-793 MHz
bands are mutually exclusive if the licenses provide for use of
different broadband platform technologies;
(2) For an auction of licenses in the 758-763 MHz and 788-793 MHz
bands covering the entire nation, no licenses will be assigned based on
the results of an auction unless at the close of bidding in such
auction there are provisionally winning bids for licenses that cover at
least fifty percent (50%) of the nation's population, as determined
consistent with the Commission's pre-auction announcement of the
population for which each license will authorize service;
(3) Notwithstanding any provision of Sec. 1.2104(g)(2)(ii),
whether or not combinatorial bidding is available in the auction, the
percentage for the additional payment portion of any applicable default
payment pursuant to Sec. 1.2104(g)(2) will equal between 3 and 20
percent of the applicable bid, according to a percentage (or
percentages) established by the Commission in advance of the auction;
(4) Notwithstanding any provision of Sec. 1.2108, the Commission
may defer the resolution of any petition to deny an application for any
licenses in the 758-763 MHz and 788-793 MHz bands until the applicant,
the Public Safety Broadband Licensee, and any other party the
Commission may require or allow execute a Commission-approved NSA and
such other agreements as the Commission may require or allow, and
(5) Notwithstanding any provisions of Sec. 1.2109(b) or (c),
whether or not combinatorial bidding is available in the auction, if
the Commission for any reason does not assign a license to the
applicant holding the winning bid for that license at the close of the
auction, the Commission may, at its discretion, offer the same license
to another party making the next highest bid for that license.
7. Section 27.502 is amended by revising the introductory text and
adding paragraph (c) to read as follows:
Sec. 27.502 Designated entities.
Eligibility for small business provisions:
* * * * *
(c) The spectrum capacity of any Upper 700 MHz D Block license that
is subject to any arrangements for the lease or resale (including under
a wholesale agreement) of spectrum capacity shall not be considered
when applying the provisions of Sec. 1.2110(b)(1)(iv)(A) of this
chapter.
7A. Section 27.1303 is amended by revising paragraph (e) to read as
follows:
Sec. 27.1303 Upper 700 MHz D Block license conditions.
* * * * *
(e) The Upper 700 MHz D Block licensee must provide the Public
Safety Broadband Licensee with priority access during emergencies, as
specified in Sec. 27.1317(e).
* * * * *
7B. Section 27.1305 is revised to read as follows:
Sec. 27.1305 Shared wireless broadband network.
The Shared Wireless Broadband Network developed by the 700 MHz
Public/Private Partnership must be designed to meet requirements
associated with an interoperable, nationwide public safety broadband
network as specified in this section. All specified mandatory
requirements as defined in this section must be incorporated in the
Network Sharing Agreement, and shall be used in the determination of
compliance under Sec. 27.14(p). The Public Safety Broadband Licensee
and the Upper 700 MHz D Block licensee may add any capabilities or
features beyond those in these rules based on mutually agreeable terms
under the Network Sharing Agreement. The Shared Wireless Broadband
Network shall incorporate the following:
(a) A design for public safety operations over a broadband IP-based
technology platform that utilizes standardized commercial technology;
provides fixed and mobile voice, video, and data capability that is
interoperable across public safety local and state agencies,
jurisdictions, and geographic areas; and includes current and evolving
state-of-the-art technologies reasonably made available in the
commercial marketplace with features beneficial to the public safety
community.
(1) Such a design shall provide a nationwide common radio access
network air interface to enable the Shared Wireless Broadband Network
to support nationwide level interoperability. The common air interface
shall allow migration to future
[[Page 57835]]
technology upgrades. In the case of regional Upper 700 MHz D Block
licensees, the common radio access network air interface will be
determined via the auction process and each regional Upper 700 MHz D
Block licensee will be required to enter into arrangements both with
other regional Upper 700 MHz D Block licensees and with the Public
Safety Broadband Licensee as necessary to ensure interoperability
between their networks. Such arrangements must provide, at a minimum,
that each regional Upper 700 MHz D Block licensee will provide the
ability to roam on its network to public safety users of all other
Shared Wireless Broadband Networks. Regional Upper 700 MHz D Block
licensees are not permitted to assess special roaming charges (over and
above service fees charged for in-region use) in cases where public
safety users require roaming for mutual aid or emergencies.
(2) The technology selected for the Shared Wireless Broadband
Network shall be permitted to evolve based on commercial wireless
upgrade timeframes, except that future upgrades shall include user
equipment backward compatibility, as supported by commercial product
availability and specified in the technology standards, to allow for
commercially reasonable transition periods for public safety entities'
user equipment. The notification and impact management processes
relating to technology upgrades, and migration to such upgrades, shall
be defined and agreed to in the Network Sharing Agreement.
(3) To promote interoperability between the Shared Wireless
Broadband Network and voice-based public safety networks in other
frequency bands, the Upper 700 MHz D Block licensee will publish IP-
based specifications describing how such other public safety networks
may access the Upper 700 MHz D Block licensee's Shared Wireless
Broadband Network via bridges and/or gateways. The Upper 700 MHz D
Block licensee shall charge these other public safety networks for such
access no more than the relevant fee established or approved by the
Commission. Public safety users shall bear the costs of the bridges and
gateways, including installation and maintenance costs.
(4) The Shared Wireless Broadband Network shall support a Voice
over Internet Protocol (VoIP) capability to complement existing public
safety mission critical voice communication systems. The VoIP
capability shall allow interconnection with the Public Switched
Telephone Network as well as with other public safety VoIP users on the
network. VoIP features will include but not be limited to Push-To-Talk.
(b) Availability, robustness, and hardening requirements as
follows:
(1) The Shared Wireless Broadband Network shall provide 99.6
percent network availability for all terrestrial elements of operation
in the coverage areas certified pursuant to Sec. 27.14(o)(1),
calculated over each license area annually, starting four years after
license issuance. The Upper 700 MHz D Block licensee shall use
commercially reasonable efforts to provide network availability above
this requirement, with the target of 99.9 percent network availability.
(2) The method for measuring availability shall be defined in the
Network Sharing Agreement, which shall:
(i) Be a measure of infrastructure availability as measured from
the cell site radio antenna through and across the core network;
(ii) Exclude radio signal coverage and scheduled maintenance
downtime with prior notice to the Public Safety Broadband Licensee;
(iii) Exclude outages caused by actions or events outside the
reasonable control of the Upper 700 MHz D Block licensee; and
(iv) Exclude outages only affecting limited applications.
(3) The Shared Wireless Broadband Network design specifications
shall include commercial best practices, such as Network Reliability
and Interoperability Council best practices, that take into
consideration local influencing factors such as weather, geology, and
building codes on network attributes such as hardening of transmission
facilities and antenna towers, extended backup power, seismic safety
standards, and accommodations for wind, ice, and other natural
phenomenon.
(4) The Upper 700 MHz D Block licensee and the Public Safety
Broadband Licensee, in consultation with the relevant community, shall
jointly designate ``critical'' sites. The designation of sites as
``critical'' shall not be required to cover more than 35 percent of the
Shared Wireless Broadband Network sites for the Upper 700 MHz D Block
license; however, the Upper 700 MHz D Block licensee shall use
commercially reasonable efforts to designate as ``critical'' additional
sites requested by the Public Safety Broadband Licensee, up to 50
percent of all the licensee's sites. Sites designated as ``critical''
shall have battery backup power of 8 hours, and shall have generators
with a fuel supply sufficient to operate the generators for at least 48
hours. The Upper 700 MHz D Block licensee shall make commercially
reasonable efforts to provide a fuel supply at ``critical'' sites above
this requirement sufficient for a minimum of 5 days. The Upper 700 MHz
D Block licensee and the Public Safety Broadband Licensee, in
consultation with the relevant community, shall jointly determine the
sites that will require redundant backhaul in order to comply with the
network availability requirements in this section.
(5) The Upper 700 MHz D Block Licensee and the Public Safety
Broadband Licensee may agree on other methods to improve network
resiliency in lieu of designating ``critical'' cell sites as described
in paragraph (b)(4) of this section. These may include deployment of
mobile assets or the use of satellite facilities.
(c) A capability incorporated into the Shared Wireless Broadband
Network infrastructure to provide monthly usage reports covering
network capacity and priority access so that the Public Safety
Broadband Licensee can monitor usage and provide appropriate feedback
to the Upper 700 MHz D Block licensee on operational elements of the
network.
(d) Security and encryption consistent with commercial best
practices. For purposes of complying with this paragraph, the Upper 700
MHz D Block licensee shall:
(1) Comply with U.S. government standards, guidelines, and models
that are commercial best practices for wireless broadband networks.
(2) Implement controls to ensure that public safety priority and
secure network access are limited to authorized public safety users and
devices, and utilize an open standard protocol for authentication.
(3) Allow for public safety network authentication, authorization,
automatic logoff, transmission secrecy and integrity, audit control
capabilities, and other unique attributes.
(e) A mechanism to ensure Quality of Service (QoS) for public
safety and to establish various levels of priority for public safety
communications. The Upper 700 MHz D Block licensee shall not be
obligated to implement this provision before appropriate standards are
developed and appropriate hardware and software are available on
commercially reasonable terms. The Upper 700 MHz D Block Licensee and
the Public Safety Broadband Licensee shall use reasonable efforts to
work with applicable standards organizations, network equipment
manufacturers, and other suppliers to accelerate the commercially
reasonable availability of these features for the Shared Wireless
[[Page 57836]]
Broadband Network. The Public Safety Broadband Licensee shall have
authority to establish access priority and service levels, and
authenticate and authorize public safety users. In addition, the
following provisions for QoS shall be incorporated into the operational
capabilities of the Shared Wireless Broadband Network.
(1) Priority shall be defined as Public Safety Broadband Licensee-
approved user or class of users, network, application, and services
priorities that, via user or class of users or device identification,
or both, offer the highest assignable levels of priority for network
access and use of network resources, services, and applications.
(2) The Shared Wireless Broadband Network shall provide emergency
priority access pursuant to Sec. 27.1307(e).
(3) The Shared Wireless Broadband Network shall provide an
appropriate priority to 9-1-1 calls.
(4) QoS resource reservation and session control mechanisms shall
be incorporated into the operational capabilities of the Shared
Wireless Broadband Network.
(5) QoS shall be considered to be the full class of mechanisms that
are found at multiple IP layers in the network (both radio access
network and core), and that provision and apply priority for IP packet
based traffic.
(6) The assignment of network resources shall enable user or
service priority, or both, in addition to the QoS requirements of the
application.
(7) The Shared Wireless Broadband Network shall support multiple IP
data services and application session flows between a user device and
network, where each flow may have a different QoS requirement and
priority level.
(8) If network resources are not available to meet a resource
reservation request, the Shared Wireless Broadband Network shall have
the ability to provide a new QoS consistent with the limited network
resources.
(f) Operational capabilities to support public safety systems as
specified below:
(1) The Shared Wireless Broadband Network shall provide access for
all applications and services, hosted applications and services, and
third party public safety applications and services specified in the
Network Sharing Agreement. The Public Safety Broadband Licensee shall
give consideration of particular applications to the overall impact on
overall system performance.
(2) The Shared Wireless Broadband Network shall provide for the
application data rates shown in Table 1.
(3) The Shared Wireless Broadband Network shall be designed to
provide edge of cell data rates shown in Table 2. Typical data rates
should be designed for at least 1 Mbs downlink and 600 kbps uplink. The
data link speeds for public safety users must be at least as fast as
the best data speeds provided to commercial users of the Shared
Wireless Broadband Network.
(4) The Shared Wireless Broadband Network must provide indoor
coverage for VoIP consistent with the propagation parameters shown in
Table 3.
(5) For purposes of these Tables 2 and 3, the following definitions
apply in terms of population per square mile: Dense urban: 15,000
people or greater; urban 2,500-14,999; suburban 200-2499; and rural 0-
199.
(6) The data rates in this section are design objectives and are
not to be applied for a particular device, time or location.
(7) Signal coverage, propagation, and capacity parameters in Table
2 and 3 shall be reviewed by the Upper 700 MHz D Block licensee and the
Public Safety Broadband Licensee no less than every four years to
assess the impact of benefits from technology evolution and general
improvement in network coverage consistent with paragraph (a)(2) of
this section.
Table 1 to Sec. 27.1305--Applications and Services QoS Attributes
------------------------------------------------------------------------
Application/service Description Data rate
------------------------------------------------------------------------
File transfer................. FTP and general data Greater than
upload/download. 256kb/s.
E-mail........................ Both Web based and Less than 16kb/
Entity Hosted E-Mail s.
Service.
Web browsing.................. Intranet, extranet, Greater than
and internet. 32kb/s.
Mobile voice.................. Equivalent to current Minimum 15 kb/s.
commercial mobile
voice.
Push to talk (PTT) voice...... Commercial grade PTT/ 4-25 kb/s.
PoC offerings with
group call, alerting,
and monitoring
capability.
Indoor video.................. Video that is 20-384 kb/sF.
transmitted from
inside a building.
Outdoor video................. Video that is 32-384 kb/s.
transmitted from the
street.
Location services............. All location based Less than 16kb/
services. s.
Database transactions......... Remote databases Less than 32kb/
access both under the s.
entities' direct
control as well as
databases that are
local.
Messaging..................... Instant messaging, Less than 16kb/
SMS, and Push to X s.
services.
Network Operations data....... Network operational Less than 32kb/
and maintenance data s.
including over the
air programming and
remote client
management.
Dispatch data................. Data as it relates to Less than 64kb/
computer aided s.
dispatching.
Generic traffic............... General category for Less than 64kb/
traffic that does not s.
fall within any of
the categories
described above, and
that generates less
than 64kb of data per
second.
Telemetry..................... Remote measurement and 70-120 kb/s.
reporting of
information for radio
devices, vehicles,
and sensor data.
Virtual Private Networking.... Secure remote access 64-256 kb/s.
to entity LAN and WAN
environments.
------------------------------------------------------------------------
[[Page 57837]]
Table 2 to Sec. 27.1305--Data Propagation and Capacity Parameters
----------------------------------------------------------------------------------------------------------------
Forward Reverse
link link
Cell throughput throughput
coverage Sector on-street on-street
Morphology area loading single user single user
reliability factor (%) average average
(%) cell-edge cell-edge
(kbps) (kbps)
----------------------------------------------------------------------------------------------------------------
Dense Urban................................................. 95 70 256 256
Urban....................................................... 95 70 256 256
Suburban.................................................... 95 70 128 128
Rural....................................................... 95 70 128 128
Highway..................................................... 95 70 64 64
----------------------------------------------------------------------------------------------------------------
Table 3 to Sec. 27.1305--Voice Propagation and Capacity Parameters
----------------------------------------------------------------------------------------------------------------
In-building Cell coverage
Morphology penetration area reliability Sector loading
margin (dB) (%) factor (%)
----------------------------------------------------------------------------------------------------------------
Dense Urban............................................ 22 95 70
Urban.................................................. 19 95 70
Suburban............................................... 13 95 70
Rural.................................................. 6 95 70
Highway................................................ 6 95 70
----------------------------------------------------------------------------------------------------------------
7C. Section 27.1307 is amended by revising paragraph (d) and adding
paragraph (e) to read as follows:
Sec. 27.1307 Spectrum use in the network.
* * * * *
(d) The Upper 700 MHz D Block licensee may construct and operate
the Shared Wireless Broadband Network using both the 758-763 MHz and
788-793 MHz bands as well as the 763-768 MHz and 793-798 MHz bands as a
combined resource. If the Upper 700 MHz D Block licensee chooses to
operate the spectrum as a combined resource, however, 50 percent of the
capacity available from the combined 20 megahertz of spectrum must be
assigned to public safety users and the other 50 percent must be
assigned to the commercial users, consistent with the respective
capacity and priority rights of the Upper 700 MHz D Block license and
the Public Safety Broadband License and with rules in this part.
(e) Emergency Priority Access. (1) The Upper 700 MHz D Block
licensee must provide public safety users priority access to, but not
preemptive use of, up to 40 percent of the commercial spectrum capacity
(two megahertz in each of the uplink and downlink blocks), assuming the
full public safety broadband block spectrum capacity is being used, for
an aggregate total of 14 megahertz of overall network capacity in the
following circumstances:
(i) The President or a state governor declares a state of
emergency.
(ii) The President or a state governor issues an evacuation order
impacting areas of significant scope.
(iii) The national or airline sector threat level is set to red.
(2) The D Block licensee must provide priority access to, but not
preemptive use of, up to 20 percent of the commercial spectrum capacity
(one megahertz in each of the uplink and downlink blocks) in the
following circumstances:
(i) The National Weather Service issues a hurricane or flood
warning likely to impact a significant area.
(ii) The occurrence of other major natural disasters, such as
tornado strikes, tsunamis, earthquakes, or pandemics.
(iii) The occurrence of manmade disasters or acts of terrorism of a
substantial nature.
(iv) The occurrence of power outages of significant duration and
scope.
(v) The national threat level is set to orange.
(3) The Upper 700 MHz D Block licensee must assign the next
available channel to the requesting public safety user over a
commercial user--i.e., the public safety user would be placed at the
top of the queue--and should not preempt a commercial call in progress.
Emergency priority access is limited to the time and geographic scope
of the emergency.
(4) To trigger emergency priority access, the Public Safety
Broadband Licensee must request, on behalf of the impacted public
safety agencies, that the Upper 700 MHz D Block licensee provide such
access. Emergency priority access requests initiated by the Public
Safety Broadband Licensee will cover a 24-hour time period, and must be
reinitiated by the Public Safety Broadband Licensee for each 24-hour
time period thereafter that the priority access is required.
(5) In the event that the Upper 700 MHz D Block licensee and the
Public Safety Broadband Licensee do not agree that an emergency has
taken place, the Public Safety Broadband Licensee may request the
Defense Commissioner to resolve the dispute.
8. Section 27.1310 is amended by revising paragraphs (c), (d), (f),
(g), and (j), and adding paragraphs (k) through (n), to read as
follows:
Sec. 27.1310 Network sharing agreement.
* * * * *
(c) The definition of ``emergency'' for purposes of emergency
priority access, as described in Sec. 27.1307(e).
(d) All service fees to be imposed for services to public safety,
including fees for normal network service, interconnected service, and
fees for priority access to the D Block spectrum in an emergency.
* * * * *
(f) The right of the Public Safety Broadband Licensee to determine
and approve the specifications of public safety equipment used on the
network and the right to purchase its own subscriber equipment from any
vendor it chooses, to the extent such specifications and equipment are
[[Page 57838]]
consistent with reasonable network management requirements.
(g) The terms, conditions, and timeframes pursuant to which the
Upper 700 MHz D Block licensee must make available at least one handset
suitable for public safety use that includes an integrated satellite
solution.
* * * * *
(j) To the extent that interoperability arrangements between the
Upper 700 MHz D Block licensee and the Public Safety Broadband Licensee
are required under Sec. 27.1305(a)(1), the terms and conditions of the
arrangement, including the terms and conditions under which roaming
will be provided to public safety users of other Shared Wireless
Broadband Networks.
(k) The terms of a standard agreement under which public safety
networks operating in other frequency bands may connect to the Shared
Wireless Broadband Network pursuant to and in accordance with Sec.
27.1305(a)(1).
(l) Terms regarding the establishment of access priorities, service
levels and related requirements, and approval of public safety
applications and end user devices, by the Public Safety Broadband
Licensee.
(m) A process for forecasting demand for public safety usage.
(n) A contract term, not to exceed a 15 year period that coincides
with the terms of the Upper 700 MHz D Block license and the Public
Safety Broadband License.
8A. Section 27.1315 is amended by revising paragraphs (a), (b),
(c), (f)(4), and (g) to read as follows:
Sec. 27.1315 Establishment, execution, and application of the network
sharing agreement.
* * * * *
(a) Approval of NSA as pre-condition for granting the Upper 700 MHz
D Block License. The Commission shall not grant an Upper 700 MHz D
Block license until the winning bidder for the subject Upper 700 MHz D
Block license has negotiated an NSA and such other agreements as the
Commission may require or allow with the Public Safety Broadband
Licensee, and the NSA and related agreements, or documents have been
approved by the Commission and executed by the required parties.
Parties to the NSA must also include the Upper 700 MHz D Block
licensee, a Network Assets Holder, and an Operating Company, as these
entities are defined in Sec. 27.4.
(b) Requirement of negotiation. Negotiation of an NSA between a
winning bidder for an Upper 700 MHz D Block license and the Public
Safety Broadband Licensee must commence by the date the winning bidder
files its long form application or the date on which the Commission
designates the Public Safety Broadband Licensee, whichever is later,
and must conclude within six months of that date. Parties to this
negotiation are required to negotiate in good faith. Two members of the
Commission staff, one from the Wireless Telecommunications Bureau and
one from the Public Safety and Homeland Security Bureau, shall be
present at all stages of the negotiation as neutral observers.
(c) Reporting requirements. A winning bidder for the Upper 700 MHz
D Block license must file a report with the Commission within 10
business days of the commencement of the negotiation period certifying
that active and good faith negotiations have begun, providing the date
on which they commenced, and providing a schedule of the initial dates
on which the parties intend to meet for active negotiations, covering
at a minimum the first 30-day period. Beginning three months from the
triggering of the six-month negotiation period, the winning bidder for
a Upper 700 MHz D Block license and the Public Safety Broadband
Licensee must jointly provide detailed reports, on a monthly basis and
subject to a request for confidential treatment, on the progress of the
negotiations throughout the remainder of the negotiations. These
reports must include descriptions of all material issues that the
parties have yet to resolve.
* * * * *
(f) * * *
(4) Determining that no resolution of the disputed issues can be
made consistent with the public interest.
(g) Lack of a Commission-approved NSA and such other agreements as
the Commission may require or allow. If a winning bidder chooses not to
execute a Commission-approved NSA or such other agreements as the
Commission may require or allow within 10 business days of Commission
approval, the winning bidder's long-form application will be dismissed,
the winning bidder will be deemed to have defaulted under Sec.
1.2109(c) of this chapter, and the winning bidder will be liable for
the default payment specified in Sec. 1.2104(g)(2) of this chapter and
Sec. 27.501(b)(3). In all other circumstances in which the parties do
not submit executed copies of a Commission-approved NSA and such other
agreements within the time permitted by this section, and the
Commission does not dismiss the winning bidder's long-form application
for reasons other than the lack of a Commission-approved NSA, the
winning bidder's long-form application will be dismissed and any
payments made toward the winning bid will be returned to the payor(s)
of record.
8B. Section 27.1330 is amended by revising paragraph (b)
introductory text and (b)(4) to read as follows:
Sec. 27.1330 Local public safety build-out and operation.
* * * * *
(b) Rights to early build-out in areas with a build-out commitment.
In an area where the Upper 700 MHz D Block licensee has committed, in
the NSA, to build out by a certain date, a public safety entity may,
with the pre-approval of the Public Safety Broadband Licensee and the
Upper 700 MHz D Block licensee, and subject to the requirements set
forth herein, construct a broadband network in that area at its own
expense so long as the network is capable of operating on the Shared
Wireless Broadband Network and meets all the requirements and
specifications of the network required under the NSA.
* * * * *
(4) Attribution of early build-out to applicable construction
benchmarks. Upon completion of construction, transfer of ownership to
the Upper 700 MHz D Block licensee, and compensation as required
herein, if applicable, the Upper 700 MHz D Block licensee may include
the network constructed pursuant to the early build-out provisions
herein for purposes of determining whether it has met its build-out
benchmarks and the build-out requirements of the NSA.
* * * * *
9. Section 27.1340 is amended by adding paragraph (c) to read as
follows:
Sec. 27.1340 Reporting obligations.
* * * * *
(c) The Upper 700 MHz D Block licensee must provide regular monthly
reports on network usage to the Public Safety Broadband Licensee.
PART 90--PRIVATE LAND MOBILE RADIO SERVICES
10. The authority citation for part 90 continues to read as
follows:
Authority: Sections 4(i), 11, 303(g), 303(r), and 332(c)(7) of
the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 161,
303(g), 303(r), and 332(c)(7) unless otherwise noted.
11. Section 90.7 is amended by revising the following definitions
to read as follows:
Sec. 90.7 Definitions.
* * * * *
[[Page 57839]]
Network Sharing Agreement (NSA). An agreement entered into between
the winning bidder of an Upper 700 MHz D Block license, the Upper 700
MHz D Block licensee, the Network Assets Holder, the Operating Company,
the Public Safety Broadband Licensee, and any other related entities
that the Commission may require or allow regarding the shared wireless
broadband network associated with that 700 MHz Public/Private
Partnership that will operate on the 758-763 MHz and 788-793 MHz bands
and the 763-768 MHz and 793-798 MHz bands.
* * * * *
Upper 700 MHz D Block license. The Upper 700 MHz D Block license
authorizes services in the 758-763 MHz and 788-793 MHz bands.
* * * * *
12. Section 90.18 is revised to read as follows:
Sec. 90.18 Public Safety 700 MHz Nationwide Broadband Network.
The 763-768/793-798 MHz band is dedicated to a broadband public
safety communications system with a nationwide level of
interoperability. A nationwide license for this spectrum is held by a
single entity, the Public Safety Broadband Licensee, which must enter
into the 700 MHz Public/Private Partnership with the Upper 700 MHz D
Block licensee, pursuant to a Network Sharing Agreement and such other
agreements as the Commission may require. The specific provisions
relating to the 700 MHz Public/Private Partnership are set forth in
subpart AA of this part and subpart N of part 27. The Public Safety 700
MHz Nationwide Broadband Network is established in PS Docket No. 06-
229.
13. Section 90.523 is revised to read as follows:
Sec. 90.523 Eligibility.
This section implements the definition of public safety services
contained in 47 U.S.C. 337(f)(1).
(a) Public Safety Narrowband Spectrum Eligibility Criteria. The
eligibility criteria to hold Commission authorizations to deploy and
operate systems in the 769-775 MHz and 799-805 MHz (public safety
narrowband) frequency bands are as follows:
(1) Public Safety Services. Authorizations to deploy and operate
systems in the 769-775 MHz and 799-805 MHz frequency bands are limited
to services the sole or principal use of which is to protect the safety
of life, health, or property, and which are not made commercially
available to the public by the license holder. Public Safety Services
may be provided either by:
(i) State or Local Government Entities, including any territory,
possession, state, city, county, town, or similar State or local
governmental entity, or
(ii) Nongovernmental Organizations (NGO) that are authorized by a
state or local government entity whose primary mission is the provision
of Public Safety Services, provided that the NGO:
(A) Has the ongoing authorization of a state or local governmental
entity whose mission is the provision of Public Safety Services;
(B) Operates such authorized system consistent with the limitations
in paragraph (a)(1) of this section; and
(C) Submits with its applications a written certification of
support by the state or local governmental entity referenced in
paragraph (a)(1)(ii)(A) of this section.
(2) NGOs assume all risks associated with operating under the
conditions specified in paragraph (a)(1)(ii) of this section.
Authorizations issued to NGOs to operate systems in the 769-775 MHz and
799-805 MHz frequency bands include the following condition: If at any
time the authorizing governmental entity notifies the Commission in
writing of such governmental entity's termination of its authorization
of a NGO's operation of a system in the 769-775 MHz and 799-805 MHz
frequency bands, the NGO's authorization shall terminate automatically.
(b) Public Safety Broadband Spectrum Use Eligibility Criteria. Only
entities that meet the public safety narrowband spectrum eligibility
criteria in paragraph (a) of this section, shall be eligible to access
the Shared Wireless Broadband Network, operating in the 763-768 MHz and
793-798 MHz (public safety broadband) frequency bands, under the
authorization of the Public Safety Broadband Licensee, in accordance
with the terms of the Network Sharing Agreement governing the use of
this network.
(c) Public Safety Broadband License Eligibility Criteria. The
minimum eligibility requirements to hold the Public Safety Broadband
License covering the 763-768 MHz and 793-798 MHz public safety
broadband frequency bands are as follows:
(1) No commercial interest may be held in the Public Safety
Broadband Licensee, and no commercial interest may participate in the
management of the Public Safety Broadband Licensee.
(2) The Public Safety Broadband Licensee must be a non-profit
organization.
(3) The Public Safety Broadband Licensee must be as broadly
representative of the public safety radio user community as possible.
(4) The Public Safety Broadband Licensee must be in receipt of
written certifications from no less than ten geographically diverse
state and local governmental entities (the authorizing entities), with
at least one certification from a state government entity and one from
a local government entity, verifying that:
(i) They have authorized the Public Safety Broadband Licensee to
use spectrum at 763-768 MHz and 793-798 MHz to provide the authorizing
entities with public safety services; and
(ii) The authorizing entities' primary mission is the provision of
public safety services.
(5) The sole or principal purpose of the services provided under
the Public Safety Broadband Licensee's authorization must be to protect
the safety of life, health, or property. These services must comply
with the terms of the Network Sharing Agreement(s) and must not be made
commercially available to the public.
14. Section 90.528 is amended by revising paragraph (d) and adding
new paragraphs (h) and (i) to read as follows:
Sec. 90.528 Public safety broadband license.
* * * * *
(d) The term of the Public Safety Broadband License shall not
exceed fifteen years from the date upon which the first D Block license
is granted. The Public Safety Broadband Licensee is entitled to a
renewal expectancy barring violations of law, rules or policy
warranting denial of renewal.
* * * * *
(h) Annual Budgeting Process. The Public Safety Broadband Licensee
shall establish an audited annual budgeting process, conducted by an
external, independent auditor. Such audited budget shall be submitted
to the Commission and presented at an open meeting of the Board of
Directors. The Chief, Public Safety and Homeland Security Bureau, may
request an audit of the Public Safety Broadband Licensee's expenses at
any time.
(i) Proposed Annual Budget. As part of its annual budgeting
process, the Public Safety Broadband Licensee shall submit for approval
to the Chief, Public Safety and Homeland Security Bureau, and Chief,
Wireless Telecommunications Bureau its proposed budget for each such
upcoming fiscal year.
15. Section 90.1403 is amended by revising paragraphs (a) and
(b)(1),(2),(3),(5),(8) and (9) and by adding paragraph (b)(10) to read
as follows:
[[Page 57840]]
Sec. 90.1403 Public safety broadband license conditions.
(a) The Public Safety Broadband Licensee shall comply with all of
the applicable requirements set forth in this subpart and shall comply
with the terms of the Network Sharing Agreement(s) and such other
agreements as the Commission may require or allow.
(b) * * *
(1) Negotiation of the NSA and such other agreements as the
Commission may require or allow with the winning bidder at auction for
a Upper 700 MHz Band D Block license, pursuant to the requirements set
forth in Sec. 90.1410.
(2) General administration of access to the 763-768 MHz and 793-798
MHz bands by individual public safety entities, as facilitated through
the establishment of priority access, service levels and related
requirements within the NSA process, approving public safety
applications and end user devices, and related frequency coordination
duties.
(3) Regular interaction with and promotion of the needs of the
public safety entities with respect to access and use of the 763-768
MHz and 793-798 MHz bands, within the technical and operational
confines of the governing NSA.
* * * * *
(5) Sole authority, which cannot be waived in the NSA(s), to
approve, in consultation with the Upper 700 MHz D Block licensee,
equipment and applications for use by public safety entities on the
public safety broadband network. State or local entities may seek
review of a decision by the Public Safety Broadband Licensee not to
permit certain equipment or applications, or particular specifications
for equipment or applications, from the Chief, Public Safety and
Homeland Security Bureau.
* * * * *
(8) Exercise of sole discretion, pursuant to Sec. 2.103 of this
chapter, whether to permit Federal public safety agency use of the
public safety broadband spectrum, with any such use subject to the
terms and conditions of the governing NSA.
(9) Review of requests for early construction and operation of
local public safety broadband networks on the 700 MHz public safety
broadband spectrum in areas with and without a preexisting build-out
commitment in the applicable NSA, pursuant to the procedures and
requirements outlined for such waivers as described in Sec. 90.1430.
(10) Review of requests for waiver submitted by public safety
entities to conduct wideband operations pursuant to the procedures and
restrictions in connection with such waivers as described in Sec.
90.1432.
16. Section 90.1405 is revised to read as follows:
Sec. 90.1405 Shared wireless broadband network.
The Shared Wireless Broadband Network developed by the 700 MHz
Public/Private Partnership must be designed to meet requirements
associated with an interoperable, nationwide public safety broadband
network as specified in this section. All specified mandatory
requirements as defined in this section must be incorporated in the
Network Sharing Agreement, and shall be used in the determination of
compliance under Sec. 27.14(p) of this chapter. The Public Safety
Broadband Licensee and the Upper 700 MHz D Block licensee may add any
capabilities or features beyond those in these rules based on mutually
agreeable terms under the Network Sharing Agreement. The Shared
Wireless Broadband Network shall incorporate the following:
(a) A design for public safety operations over a broadband IP-based
technology platform that utilizes standardized commercial technology;
provides fixed and mobile voice, video, and data capability that is
interoperable across public safety local and state agencies,
jurisdictions, and geographic areas; and includes current and evolving
state-of-the-art technologies reasonably made available in the
commercial marketplace with features beneficial to the public safety
community.
(1) Such a design shall provide a nationwide common radio access
network air interface to enable the Shared Wireless Broadband Network
to support nationwide level interoperability. The common air interface
shall allow migration to future technology upgrades. In the case of
regional Upper 700 MHz D Block licensees, the common radio access
network air interface will be determined via the auction process and
each regional Upper 700 MHz D Block licensee will be required to enter
into arrangements both with other regional Upper 700 MHz D Block
licensees and with the Public Safety Broadband Licensee as necessary to
ensure interoperability between their networks. Such arrangements must
provide, at a minimum, that each regional Upper 700 MHz D Block
licensee will provide the ability to roam on its network to public
safety users of all other Shared Wireless Broadband Networks. Regional
Upper 700 MHz D Block licensees are not permitted to assess special
roaming charges (over and above service fees charged for in-region use)
in cases where public safety users require roaming for mutual aid or
emergencies.
(2) The technology selected for the Shared Wireless Broadband
Network shall be permitted to evolve based on commercial wireless
upgrade timeframes, except that future upgrades shall include user
equipment backward compatibility, as supported by commercial product
availability and specified in the technology standards, to allow for
commercially reasonable transition periods for public safety entities'
user equipment. The notification and impact management processes
relating to technology upgrades, and migration to such upgrades, shall
be defined and agreed to in the Network Sharing Agreement.
(3) To promote interoperability between the Shared Wireless
Broadband Network and voice-based public safety networks in other
frequency bands, the Upper 700 MHz D Block licensee will publish IP-
based specifications describing how such other public safety networks
may access the Upper 700 MHz D Block licensee's Shared Wireless
Broadband Network via bridges and/or gateways. The Upper 700 MHz D
Block licensee shall charge these other public safety networks for such
access no more than the relevant fee established or approved by the
Commission. Public safety users shall bear the costs of the bridges and
gateways, including installation and maintenance costs.
(4) The Shared Wireless Broadband Network shall support a Voice
over Internet Protocol (VoIP) capability to complement existing public
safety mission critical voice communication systems. The VoIP
capability shall allow interconnection with the Public Switched
Telephone Network as well as with other public safety VoIP users on the
network. VoIP features will include but not be limited to Push-To-Talk.
(b) Availability, robustness, and hardening requirements as
follows:
(1) The Shared Wireless Broadband Network shall provide 99.6
percent network availability for all terrestrial elements of operation
in the coverage areas certified pursuant to Sec. 27.14(o)(1),
calculated over each license area annually, starting four years after
license issuance. The Upper 700 MHz D Block licensee shall use
commercially reasonable efforts to provide network availability above
this requirement, with the target of 99.9 percent network availability.
(2) The method for measuring availability shall be defined in the
Network Sharing Agreement, which shall
[[Page 57841]]
(i) Be a measure of infrastructure availability as measured from
the cell site radio antenna through and across the core network;
(ii) Exclude radio signal coverage and scheduled maintenance
downtime with prior notice to the Public Safety Broadband Licensee;
(iii) Exclude outages caused by actions or events outside the
reasonable control of the Upper 700 MHz D Block licensee; and
(iv) Exclude outages only affecting limited applications.
(3) The Shared Wireless Broadband Network design specifications
shall include commercial best practices, such as Network Reliability
and Interoperability Council best practices, that take into
consideration local influencing factors such as weather, geology, and
building codes on network attributes such as hardening of transmission
facilities and antenna towers, extended backup power, seismic safety
standards, and accommodations for wind, ice, and other natural
phenomenon.
(4) The Upper 700 MHz D Block licensee and the Public Safety
Broadband Licensee, in consultation with the relevant community, shall
jointly designate ``critical'' sites. The designation of sites as
``critical'' shall not be required to cover more than 35 percent of the
Shared Wireless Broadband Network sites for the Upper 700 MHz D Block
license; however, the Upper 700 MHz D Block licensee shall use
commercially reasonable efforts to designate as ``critical'' additional
sites requested by the Public Safety Broadband Licensee, up to 50
percent of all the licensee's sites. Sites designated as ``critical''
shall have battery backup power of 8 hours, and shall have generators
with a fuel supply sufficient to operate the generators for at least 48
hours. The Upper 700 MHz D Block licensee shall make commercially
reasonable efforts to provide a fuel supply at ``critical'' sites above
this requirement sufficient for a minimum of 5 days. The Upper 700 MHz
D Block licensee and the Public Safety Broadband Licensee, in
consultation with the relevant community, shall jointly determine the
sites that will require redundant backhaul in order to comply with the
network availability requirements in this section.
(5) The Upper 700 MHz D Block Licensee and the Public Safety
Broadband Licensee may agree on other methods to improve network
resiliency in lieu of designating ``critical'' cell sites as described
in paragraph (b)(4) of this section. These may include deployment of
mobile assets or the use of satellite facilities.
(c) A capability incorporated into the Shared Wireless Broadband
Network infrastructure to provide monthly usage reports covering
network capacity and priority access so that the Public Safety
Broadband Licensee can monitor usage and provide appropriate feedback
to the Upper 700 MHz D Block licensee on operational elements of the
network.
(d) Security and encryption consistent with commercial best
practices. For purposes of complying with this paragraph, the Upper 700
MHz D Block licensee shall:
(1) Comply with U.S. government standards, guidelines, and models
that are commercial best practices for wireless broadband networks.
(2) Implement controls to ensure that public safety priority and
secure network access are limited to authorized public safety users and
devices, and utilize an open standard protocol for authentication.
(3) Allow for public safety network authentication, authorization,
automatic logoff, transmission secrecy and integrity, audit control
capabilities, and other unique attributes.
(e) A mechanism to ensure Quality of Service (QoS) for public
safety and to establish various levels of priority for public safety
communications. The Upper 700 MHz D Block licensee shall not be
obligated to implement this provision before appropriate standards are
developed and appropriate hardware and software are available on
commercially reasonable terms. The Upper 700 MHz D Block Licensee and
the Public Safety Broadband Licensee shall use reasonable efforts to
work with applicable standards organizations, network equipment
manufacturers, and other suppliers to accelerate the commercially
reasonable availability of these features for the Shared Wireless
Broadband Network. The Public Safety Broadband Licensee shall have
authority to establish access priority and service levels, and
authenticate and authorize public safety users. In addition, the
following provisions for QoS shall be incorporated into the operational
capabilities of the Shared Wireless Broadband Network.
(1) Priority shall be defined as Public Safety Broadband Licensee-
approved user or class of users, network, application, and services
priorities that, via user or class of users or device identification,
or both, offer the highest assignable levels of priority for network
access and use of network resources, services, and applications.
(2) The Shared Wireless Broadband Network shall provide emergency
priority access pursuant to Sec. 27.1307(e).
(3) The Shared Wireless Broadband Network shall provide an
appropriate priority to 9-1-1 calls.
(4) QoS resource reservation and session control mechanisms shall
be incorporated into the operational capabilities of the Shared
Wireless Broadband Network.
(5) QoS shall be considered to be the full class of mechanisms that
are found at multiple IP layers in the network (both radio access
network and core), and that provision and apply priority for IP packet
based traffic.
(6) The assignment of network resources shall enable user or
service priority, or both, in addition to the QoS requirements of the
application.
(7) The Shared Wireless Broadband Network shall support multiple IP
data services and application session flows between a user device and
network, where each flow may have a different QoS requirement and
priority level.
(8) If network resources are not available to meet a resource
reservation request, the Shared Wireless Broadband Network shall have
the ability to provide a new QoS consistent with the limited network
resources.
(f) Operational capabilities to support public safety systems as
specified below:
(1) The Shared Wireless Broadband Network shall provide access for
all applications and services, hosted applications and services, and
third party public safety applications and services specified in the
Network Sharing Agreement. The Public Safety Broadband Licensee shall
give consideration of particular applications to the overall impact on
overall system performance.
(2) The Shared Wireless Broadband Network shall provide for the
application data rates shown in Table 1.
(3) The Shared Wireless Broadband Network shall be designed to
provide edge of cell data rates shown in Table 2. Typical data rates
should be designed for at least 1 Mbs downlink and 600 kbps uplink. The
data link speeds for public safety users must be at least as fast as
the best data speeds provided to commercial users of the Shared
Wireless Broadband Network.
(4) The Shared Wireless Broadband Network must provide indoor
coverage for VoIP consistent with the propagation parameters shown in
Table 3.
(5) For purposes of these Tables 2 and 3, the following definitions
apply in terms of population per square mile: dense urban: 15,000
people or greater;
[[Page 57842]]
urban 2,500-14,999; suburban 200-2,499; and rural 0-199.
(6) The data rates in this section are design objectives and are
not to be applied for a particular device, time or location.
(7) Signal coverage, propagation, and capacity parameters in Table
2 and 3 shall be reviewed by the Upper 700 MHz D Block licensee and the
Public Safety Broadband Licensee no less than every four years to
assess the impact of benefits from technology evolution and general
improvement in network coverage consistent with paragraph (a)(2) of
this section.
Table 1 to Sec. 90.1405--Applications and Services QoS Attributes
----------------------------------------------------------------------------------------------------------------
Application/service Description Data rate
----------------------------------------------------------------------------------------------------------------
File transfer.......................... FTP and general data upload / Greater than 256kb/s.
download.
Email.................................. Both Web based and Entity Less than 16kb/s.
Hosted E-Mail Service.
Web browsing........................... Intranet, extranet, and Greater than 32kb/s.
internet.
Mobile voice........................... Equivalent to current Minimum 15kb/s.
commercial mobile voice.
Push to talk (PTT) voice............... Commercial grade PTT / PoC 4-25kb/s.
offerings with group call,
alerting, and monitoring
capability.
Indoor video........................... Video that is transmitted from 20-384kb/sF.
inside a building.
Outdoor video.......................... Video that is transmitted from 32-384kb/s.
the street.
Location services...................... All location based services.... Less than 16kb/s.
Database transactions.................. Remote databases access both Less than 32kb/s.
under the entities' direct
control as well as databases
that are local.
Messaging.............................. Instant messaging, SMS, and Less than 16kb/s.
Push to X services.
Network Operations data................ Network operational and Less than 32kb/s.
maintenance data including
over the air programming and
remote client management.
Dispatch data.......................... Data as it relates to computer Less than 64kb/s.
aided dispatching..
Generic traffic........................ General category for traffic Less than 64kb/s.
that does not fall within any
of the categories described
above, and that generates less
than 64kb of data per second.
Telemetry.............................. Remote measurement and 70-120 kb/s.
reporting of information for
radio devices, vehicles, and
sensor data.
Virtual Private Networking............. Secure remote access to entity 64--256 kb/s.
LAN and WAN environments.
----------------------------------------------------------------------------------------------------------------
Table 2 to Sec. 90.1405--Data Propagation and Capacity Parameters
----------------------------------------------------------------------------------------------------------------
Forward link
Cell coverage throughput on- Reverse link throughput on-
Morphology area Sector loading street single street single user average
reliability factor user average cell- cell-edge
edge
----------------------------------------------------------------------------------------------------------------
Dense Urban.................... 95% 70% 256 kbps......... 256 kbps
Urban.......................... 95% 70% 256 kbps......... 256 kbps
Suburban....................... 95% 70% 128 kbps......... 128 kbps
Rural.......................... 95% 70% 128 kbps......... 128 kbps
Highway........................ 95% 70% 64 kbps.......... 64 kbps
----------------------------------------------------------------------------------------------------------------
Table 3 to Sec. 90.1405--Voice Propagation and Capacity Parameters
----------------------------------------------------------------------------------------------------------------
Cell coverage
Morphology In-building penetration margin area Sector loading
reliability factor
----------------------------------------------------------------------------------------------------------------
Dense Urban................................... 22 dB........................... 95% 70%
Urban......................................... 19 dB........................... 95% 70%
Suburban...................................... 13 dB........................... 95% 70%
Rural......................................... 6 dB............................ 95% 70%
Highway....................................... 6 dB............................ 95% 70%
----------------------------------------------------------------------------------------------------------------
17. Section 90.1407 is amended by adding paragraphs (d) and (e) to
read as follows:
Sec. 90.1407 Spectrum use in the network.
* * * * *
(d) The Upper 700 MHz D Block licensee may construct and operate
the Shared Wireless Broadband Network using both the 758-763 MHz and
788-793 MHz bands as well as the 763-768 MHz and 793-798 MHz bands as a
combined resource. If the Upper 700 MHz D Block licensee chooses to
operate the spectrum as a combined resource, however, 50 percent of the
capacity available from the combined 20 megahertz of spectrum must be
assigned to public safety users and the other 50 percent must be
assigned to the commercial users, consistent with the respective
capacity and priority rights of the Upper 700 MHz D Block license and
the Public Safety Broadband License and with rules in this Part.
(e) Emergency Priority Access. (1) The Upper 700 MHz D Block
licensee must provide public safety users priority access to, but not
preemptive use of, up to 40 percent of the commercial spectrum capacity
(two megahertz in each of the uplink and downlink blocks), assuming the
full public safety broadband block spectrum capacity is being used, for
an aggregate total of 14 megahertz of overall network capacity in the
following circumstances:
(i) The President or a state governor declares a state of
emergency.
(ii) The President or a state governor issues an evacuation order
impacting areas of significant scope.
[[Page 57843]]
(iii) The national or airline sector threat level is set to red.
(2) The D Block licensee must provide priority access to, but not
preemptive use of, up to 20 percent of the commercial spectrum capacity
(one megahertz in each of the uplink and downlink blocks) in the
following circumstances:
(i) The National Weather Service issues a hurricane or flood
warning likely to impact a significant area.
(ii) The occurrence of other major natural disasters, such as
tornado strikes, tsunamis, earthquakes, or pandemics.
(iii) The occurrence of manmade disasters or acts of terrorism of a
substantial nature.
(iv) The occurrence of power outages of significant duration and
scope.
(v) The national threat level is set to orange.
(3) The Upper 700 MHz D Block licensee must assign the next
available channel to the requesting public safety user over a
commercial user--i.e., the public safety user would be placed at the
top of the queue--and should not preempt a commercial call in progress.
Emergency priority access is limited to the time and geographic scope
of the emergency.
(4) To trigger emergency priority access, the Public Safety
Broadband Licensee must request, on behalf of the impacted public
safety agencies, that the Upper 700 MHz D Block licensee provide such
access. Emergency priority access requests initiated by the Public
Safety Broadband Licensee will cover a 24-hour time period, and must be
reinitiated by the Public Safety Broadband Licensee for each 24-hour
time period thereafter that the priority access is required.
(5) In the event that the Upper 700 MHz D Block licensee and the
Public Safety Broadband Licensee do not agree that an emergency has
taken place, the Public Safety Broadband Licensee may request the
Defense Commissioner to resolve the dispute.
18. Section 90.1410 is amended by revising paragraphs (c), (d),
(f), (g), and (j), and adding paragraphs (k) through (n), to read as
follows:
Sec. 90.1410 Network sharing agreement.
* * * * *
(c) The definition of ``emergency'' for purposes of emergency
priority access, as described in Sec. 90.1407(e).
(d) All service fees to be imposed for services to public safety,
including fees for normal network service, interconnected service, and
fees for priority access to the D Block spectrum in an emergency.
* * * * *
(f) The right of the Public Safety Broadband Licensee to determine
and approve the specifications of public safety equipment used on the
network and the right to purchase its own subscriber equipment from any
vendor it chooses, to the extent such specifications and equipment are
consistent with reasonable network management requirements.
(g) The terms, conditions, and timeframes pursuant to which the
Upper 700 MHz D Block licensee must make available at least one handset
suitable for public safety use that includes an integrated satellite
solution.
* * * * *
(j) To the extent that interoperability arrangements between the
Upper 700 MHz D Block licensee and the Public Safety Broadband Licensee
are required under Sec. 90.1405(a)(1), the terms and conditions of the
arrangement, including the terms and conditions under which roaming
will be provided to public safety users of other Shared Wireless
Broadband Networks.
(k) The terms of a standard agreement under which public safety
networks operating in other frequency bands may connect to the Shared
Wireless Broadband Network pursuant to and in accordance with Sec.
90.1405(a)(1).
(l) Terms regarding the establishment of access priorities, service
levels and related requirements, and approval of public safety
applications and end user devices, by the Public Safety Broadband
Licensee.
(m) A process for forecasting demand for public safety usage.
(n) A contract term, not to exceed a 15 year period that coincides
with the terms of the Upper 700 MHz D Block license and the Public
Safety Broadband License.
19. Section 90.1415 is amended by revising paragraphs (a), (b),
(c), (f)(4), and (g) to read as follows:
Sec. 90.1415 Establishment, execution, and application of the network
sharing agreement.
* * * * *
(a) Approval of NSA as pre-condition for granting the Upper 700 MHz
D Block License. The Commission shall not grant an Upper 700 MHz D
Block license until the winning bidder for the subject Upper 700 MHz D
Block license has negotiated an NSA and such other agreements as the
Commission may require or allow with the Public Safety Broadband
Licensee, and the NSA and related agreements, or documents have been
approved by the Commission and executed by the required parties.
Parties to the NSA must also include the Upper 700 MHz D Block
licensee, a Network Assets Holder, and an Operating Company, as these
entities are defined in Sec. 27.4 of this chapter.
(b) Requirement of negotiation. Negotiation of an NSA between a
winning bidder for an Upper 700 MHz D Block license and the Public
Safety Broadband Licensee must commence by the date the winning bidder
files its long form application or the date on which the Commission
designates the Public Safety Broadband Licensee, whichever is later,
and must conclude within six months of that date. Parties to this
negotiation are required to negotiate in good faith. Two members of the
Commission staff, one from the Wireless Telecommunications Bureau and
one from the Public Safety and Homeland Security Bureau, shall be
present at all stages of the negotiation as neutral observers.
(c) Reporting requirements. A winning bidder for the Upper 700 MHz
D Block license must file a report with the Commission within 10
business days of the commencement of the negotiation period certifying
that active and good faith negotiations have begun, providing the date
on which they commenced, and providing a schedule of the initial dates
on which the parties intend to meet for active negotiations, covering
at a minimum the first 30-day period. Beginning three months from the
triggering of the six-month negotiation period, the winning bidder for
a Upper 700 MHz D Block license and the Public Safety Broadband
Licensee must jointly provide detailed reports, on a monthly basis and
subject to a request for confidential treatment, on the progress of the
negotiations throughout the remainder of the negotiations. These
reports must include descriptions of all material issues that the
parties have yet to resolve.
* * * * *
(f) * * *
(4) Determining that no resolution of the disputed issues can be
made consistent with the public interest.
(g) Lack of a Commission-approved NSA and such other agreements as
the Commission may require or allow. If a winning bidder chooses not to
execute a Commission-approved NSA or such other agreements as the
Commission may require or allow within 10 business days of Commission
approval, the winning bidder's long-form application will be dismissed,
the winning bidder will be deemed to have defaulted under Sec.
1.2109(c) of this chapter, and the winning bidder will be liable for
the
[[Page 57844]]
default payment specified in Sec. 1.2104(g)(2) of this chapter and
Sec. 27.501(b)(3). In all other circumstances in which the parties do
not submit executed copies of a Commission-approved NSA and such other
agreements within the time permitted by this section, the winning
bidder's long-form application will be dismissed and any payments made
toward the winning bid will be returned to the payor(s) of record.
20. Section 90.1430 is amended by revising paragraph (b)
introductory text and paragraph (b)(4) to read as follows:
Sec. 90.1430 Local public safety build-out and operation.
* * * * *
(b) Rights to early build-out in areas with a build-out commitment.
In an area where the Upper 700 MHz D Block licensee has committed, in
the NSA, to build out by a certain date, a public safety entity may,
with the pre-approval of the Public Safety Broadband Licensee and the
Upper 700 MHz D Block licensee, and subject to the requirements set
forth herein, construct a broadband network in that area at its own
expense so long as the network is capable of operating on the Shared
Wireless Broadband Network and meets all the requirements and
specifications of the network required under the NSA.
* * * * *
(4) Attribution of early build-out to applicable construction
benchmarks. Upon completion of construction, transfer of ownership to
the Upper 700 MHz D Block licensee, and compensation as required
herein, if applicable, the Upper 700 MHz D Block licensee may include
the network constructed pursuant to the early build-out provisions
herein for purposes of determining whether it has met its build-out
benchmarks and the build-out requirements of the NSA.
* * * * *
21. Section 90.1440 is amended by adding paragraph (c) to read as
follows:
Sec. 90.1440 Reporting obligations.
* * * * *
(c) The Upper 700 MHz D Block licensee must provide regular monthly
reports on network usage to the Public Safety Broadband Licensee.
Note: The following appendices will not appear in the code of
Federal Regulations:
Appendix A
Geographical Boundaries of the 58 Public Safety Regions
------------------------------------------------------------------------
States, counties and territories included in
Number regions
------------------------------------------------------------------------
1.................... Alabama.
2.................... Alaska.
3.................... Arizona.
4.................... Arkansas.
5.................... California--South (to the northernmost borders of
San Luis Obispo, Kern, and San Bernardino
Counties).
6.................... California--North (that part of California not
included in California-South).
7.................... Colorado.
8.................... New York-Metropolitan--New York: Bronx, Kings,
Nassau, New York, Orange, Putnam, Queens,
Richmond, Rockland, Suffolk, Sullivan, Ulster,
Dutchess, and Westchester Counties; New Jersey:
Bergen, Essex, Hudson, Morris, Passaic, Sussex,
Union, Warren, Middlesex, Somerset, Hunterdon,
Mercer, and Monmouth Counties.
9.................... Florida.
10................... Georgia.
11................... Hawaii.
12................... Idaho.
13................... Illinois (all except area in Region 54).
14................... Indiana (all except area in Region 54).
15................... Iowa.
16................... Kansas.
17................... Kentucky.
18................... Louisiana.
19................... New England--Maine; New Hampshire; Vermont;
Massachusetts; Rhode Island; Connecticut.
20................... Maryland; Washington, D.C.; Virginia--Northern
(Arlington, Fairfax, Fauquier, Loudoun, Prince
William and Stafford Counties; and Alexandria,
Fairfax, Falls Church, Manassas and Manassas
Park Cities).
21................... Michigan.
22................... Minnesota.
23................... Mississippi.
24................... Missouri.
25................... Montana.
26................... Nebraska.
27................... Nevada.
28................... New Jersey (except for counties included in the
New York--Metropolitan, Region 8, above)
Pennsylvania (Bucks, Chester, Montgomery,
Philadelphia, Berks, Delaware, Lehigh,
Northampton, Bradford, Carbon, Columbia,
Dauphin, Lackawanna, Lancaster, Lebanon,
Luzerne, Lycoming, Monroe, Montour,
Northumberland, Pike, Schuylkill, Sullivan,
Susquehanna, Tioga, Wayne, Wyoming and York
Counties); Delaware.
29................... New Mexico.
30................... New York--Albany (all except area in New York--
Metropolitan, Region 8, and New York--Buffalo,
Region 55).
31................... North Carolina.
32................... North Dakota.
33................... Ohio.
34................... Oklahoma.
35................... Oregon.
36................... Pennsylvania (all except area in Region 28,
above).
37................... South Carolina.
38................... South Dakota.
39................... Tennessee.
40................... Texas--Dallas (including the counties of Cooke,
Grayson, Fannin, Lamar, Red River, Bowie, Wise,
Denton, Collin, Hunt, Delta, Hopkins, Franklin,
Titus, Morris, Cass, Tarrant, Dallas, Palo
Pinto, Parker, Rockwall, Kaufman, Rains,
VanZandt, Wood, Smith, Camp, Upshur, Gregg,
Marion, Harrison, Panola, Rusk, Cherokee,
Anderson, Henderson, Navarro, Ellis, Johnson,
Hood, Somervell and Erath).
[[Page 57845]]
41................... Utah.
42................... Virginia (all except area in Region 20, above).
43................... Washington.
44................... West Virginia.
45................... Wisconsin (all except area in Region 54).
46................... Wyoming.
47................... Puerto Rico.
48................... U.S. Virgin Islands.
49................... Texas--Austin (including the counties of Bosque,
Hill, Hamilton, McLennan, Limestone, Freestone,
Mills, Coryell, Falls, Robertson, Leon, San
Saba, Lampasas, Bell, Milam, Brazos, Madison,
Grimes, Llano, Burnet, Williamson, Burleson,
Lee, Washington, Blanco, Hays, Travis, Caldwell,
Bastrop, and Fayette).
50................... Texas--El Paso (including the counties of Knox,
Kent, Stonewall, Haskell, Throckmorton, Gaines,
Dawson, Borden, Scurry, Fisher, Jones,
Shackelford, Stephens, Andrews, Martin, Howard,
Mitchell, Nolan, Taylor, Callahan, Eastland,
Loving, Winkler, Ector, Midland, Glasscock,
Sterling, Coke, Runnels, Coleman, Brown,
Comanche, Culberson, Reeves, Ward, Crane, Upton,
Reagan, Irion, Tom Green, Concho, McCulloch,
Jeff Davis, Hudspeth, El Paso, Pecos, Crockett,
Schleicher, Menard, Mason, Presidio, Brewster,
Terrell, Sutton, and Kimble).
51................... Texas--Houston (including the counties of Shelby,
Nacogdoches, San Augustine, Sabine, Houston,
Trinity, Angelina, Walker, San Jacinto, Polk,
Tyler, Jasper, Newton, Montgomery, Liberty,
Hardin, Orange, Waller, Harris, Chambers,
Jefferson, Galveston, Brazoria, Fort Bend,
Austin, Colorado, Wharton, and Matagorda).
52................... Texas--Lubbock (including the counties of Dallam,
Sherman, Hansford, Ochiltree, Lipscomb, Hartley,
Moore, Hutchinson, Roberts, Hemphill, Oldham,
Potter, Carson, Grey, Wheeler, Deaf Smith,
Randall, Armstrong, Donley, Collingsworth,
Parmer, Castro, Swisher, Briscoe, Hall,
Childress, Bailey, Lamb, Hale, Floyd, Motley,
Cottle, Hardeman, Foard, Wilbarger, Witchita,
Clay, Montague, Jack, Young, Archer, Baylor,
King, Dickens, Crosby, Lubbock, Kockley,
Cochran, Yoakum, Terry, Lynn, and Garza).
53................... Texas--San Antonio (including the counties of Val
Verde, Edwards, Kerr, Gillespie, Real, Bandera,
Kendall, Kinney, Uvalde, Medina, Bexar, Comal,
Guadalupe, Gonzales, Lavaca, Dewitt, Karnes,
Wilson, Atascosa, Frio, Zavala, Maverick,
Dimmit, LaSalle, McMullen, Live Oak, Bee,
Goliad, Victoria, Jackson, Calhoun, Refugio,
Aransas, San Patricio, Nueces, Jim Wells, Duval,
Webb, Kleberg, Kenedy, Brooks, Jim Hogg, Zapata,
Starr, Hidalgo, Willacy, and Cameron).
54................... Chicago--Metropolitan--Illinois: Winnebago,
McHenry, Cook, Kane, Kendall, Grundy, Boone,
Lake, DuPage, DeKalb, Will, and Kankakee
Counties; Indiana: Lake, LaPorte, Jasper,
Starke, St. Joseph, Porter, Newton, Pulaski,
Marshall, and Elkart Counties; Wisconsin:
Kenosha, Milwaukee, Washington, Dodge, Walworth,
Jefferson, Racine, Ozaukee, Waukesha, Dane, and
Rock Counties.
55................... New York--Buffalo (including the counties of
Niagara, Chemung, Schuyler, Seneca, Erie,
Chautauqua, Cattaraugus, Allegany, Wyoming,
Genesee, Orleans, Monroe, Livingston, Steuben,
Ontario, Wayne, and Yates).
56................... Guam and the Northern Mariana Islands.
57................... American Samoa.
58................... Gulf of Mexico.
------------------------------------------------------------------------
Appendix B
Performance Tiers by Public Safety Region
----------------------------------------------------------------------------------------------------------------
Coverage required
PSR PSR name Total pops* Land area Density at end of 15th year
(SqM)* of license term
----------------------------------------------------------------------------------------------------------------
8................ New York--Metropolitan.. 19,092,214 9,841 1,940.1 Tier 1: 98%
coverage required
for PSRs with a
population density
equal to or
greater than 500
pops per square
mile.
47............... Puerto Rico............. 3,808,610 3,425 1,112.1 ...................
48............... U.S. Virgin Islands..... 108,612 134 810.5 ...................
57............... American Samoa.......... 57,291 77 744.0 ...................
54............... Chicago--Metropolitan... 12,685,330 17,100 741.8 ...................
20............... Maryland; Washington, 7,831,327 12,070 648.8 ...................
DC; Virginia--Northern.
56............... Guam and the Northern 224,026 389 575.9 ...................
Mariana Islands.
28............... New Jersey, 10,526,480 22,729 463.1 Tier 2: 94%
Pennsylvania, Delaware. coverage required
for PSRs with a
population density
equal to or
greater than 100
pops per square
mile and less than
500 pops per
square mile.
5................ California--South....... 20,637,512 56,512 365.2 ...................
9................ Florida................. 15,982,378 53,927 296.4 ...................
33............... Ohio.................... 11,353,140 40,948 277.3 ...................
55............... New York--Buffalo....... 2,852,351 11,780 242.1 ...................
51............... Texas--Houston.......... 5,618,958 25,166 223.3 ...................
19............... Maine, New Hampshire, 13,922,517 62,809 221.7 ...................
Vermont, Massachusetts,
Rhode Island,
Connecticut.
40............... Texas--Dallas........... 6,503,125 30,589 212.6 ...................
11............... Hawaii.................. 1,211,537 6,423 188.6 ...................
[[Page 57846]]
21............... Michigan................ 9,938,444 56,804 175.0 ...................
36............... Pennsylvania............ 4,801,690 27,672 173.5 ...................
31............... North Carolina.......... 8,049,313 48,711 165.2 ...................
14............... Indiana................. 4,763,619 31,283 152.3 ...................
10............... Georgia................. 8,186,453 57,906 141.4 ...................
39............... Tennessee............... 5,689,283 41,217 138.0 ...................
42............... Virginia................ 5,115,733 37,360 136.9 ...................
37............... South Carolina.......... 4,012,012 30,109 133.2 ...................
6................ California--North....... 13,234,136 99,447 133.1 ...................
30............... New York--Albany........ 3,182,726 29,379 108.3 ...................
18............... Louisiana............... 4,468,976 43,562 102.6 ...................
17............... Kentucky................ 4,041,769 39,728 101.7 ...................
49............... Texas--Austin........... 2,254,226 24,263 92.9 Tier 3: 90%
coverage required
for PSRs with a
population density
less than 100 pops
per. square mile.
43............... Washington.............. 5,894,121 66,544 88.6 ...................
1................ Alabama................. 4,447,100 50,744 87.6 ...................
24............... Missouri................ 5,595,211 68,886 81.2 ...................
13............... Illinois................ 3,722,488 49,049 75.9 ...................
44............... West Virginia........... 1,808,344 24,078 75.1 ...................
53............... Texas--San Antonio...... 3,916,309 53,562 73.1 ...................
22............... Minnesota............... 4,919,479 79,610 61.8 ...................
23............... Mississippi............. 2,844,658 46,907 60.6 ...................
45............... Wisconsin............... 2,692,016 48,327 55.7 ...................
15............... Iowa.................... 2,926,324 55,869 52.4 ...................
4................ Arkansas................ 2,673,400 52,068 51.3 ...................
34............... Oklahoma................ 3,450,654 68,667 50.3 ...................
3................ Arizona................. 5,130,632 113,635 45.2 ...................
7................ Colorado................ 4,301,261 103,718 41.5 ...................
35............... Oregon.................. 3,421,399 95,997 35.6 ...................
16............... Kansas.................. 2,688,418 81,815 32.9 ...................
41............... Utah.................... 2,233,169 82,144 27.2 ...................
26............... Nebraska................ 1,711,263 76,872 22.3 ...................
50............... Texas--El Paso.......... 1,472,545 72,617 20.3 ...................
52............... Texas--Lubbock.......... 1,086,657 55,600 19.5 ...................
27............... Nevada.................. 1,998,257 109,826 18.2 ...................
12............... Idaho................... 1,293,953 82,747 15.6 ...................
29............... New Mexico.............. 1,819,046 121,356 15.0 ...................
38............... South Dakota............ 754,844 75,885 9.9 ...................
32............... North Dakota............ 642,200 68,976 9.3 ...................
25............... Montana................. 902,195 145,552 6.2 ...................
46............... Wyoming................. 493,782 97,100 5.1 ...................
2................ Alaska.................. 626,932 571,951 1.1 ...................
58............... Gulf of Mexico.......... .............. 250,922 .............. ...................
----------------------------------------------------------------------------------------------------------------
* Based on 2000 U.S. Census Data.
The first 55 Public Safety Regions are defined in Public Safety 700 MHz Band--General Use Channels: Approval of
Changes to Regional Planning Boundaries of Connecticut and Michigan, Public Notice, 16 FCC Rcd 16359 (2001).
[[Page 57847]]
Appendix C
Relocation Costs By 700 MHz RPC Region
---------------------------------------------------------------------------
\982\ Illinois' narrowband certification for Region 13 also
includes narrowband facilities in Region 54 (Chicago Metro area).
\983\ Region 19 (New England) includes six states: Maine, New
Hampshire, Vermont, Massachusetts, Rhode Island, and Connecticut.
\984\ New York's narrowband certification for Region 30 also
includes narrowband facilities in Region 55 (New York--Buffalo) and
Region 8 (New York City Metro area).
\985\ Virginia's narrowband certification for Region 42 also
includes narrowband facilities in Region 20 (Northern Virginia/DC
Metro).
------------------------------------------------------------------------
Region Amount
------------------------------------------------------------------------
Region 3 (Arizona).................................... $1,610,100.00
Region 4 (Arkansas)................................... 1,124,900.00
Region 7 (Colorado)................................... 2,276,800.00
Region 11 (Hawaii).................................... 53,000.00
Region 12 (Idaho)..................................... 723,200.00
Region 13 (Illinois) \982\............................ 2,885,800.00
Region 17 (Kentucky).................................. 2,472,600.00
Region 18 (Louisiana)................................. 3,979,700.00
Region 19 (New England) \983\......................... 414,400.00
Region 22 (Minnesota)................................. 186,000.00
Region 23 (Mississippi)............................... 401,000.00
Region 24 (Missouri).................................. 244,100.00
Region 26 (Nebraska).................................. 366,400.00
Region 27 (Nevada).................................... 783,000.00
Region 30 (New York--Albany) \984\.................... 78,100.00
Region 31 (North Carolina)............................ 826,200.00
Region 33 (Ohio)...................................... 3,893,000.00
Region 35 (Oregon).................................... 7,200.00
Region 39 (Tennessee)................................. 231,100.00
Region 41 (Utah)...................................... 204,100.00
Region 42 (Virginia) \985\............................ 2,614,800.00
Region 43 (Washington)................................ 209,700.00
Region 49 (Texas--Austin)............................. 63,800.00
Region 51 (Texas--Houston)............................ 1,034,600.00
-----------------
Total Relocation Costs............................ 26,683,600.00
------------------------------------------------------------------------
Appendix D
NSA Term Sheet
Draft Network Sharing Agreement (NSA) Term Sheet Public/Private
Partnership
The following terms are to be incorporated into all Network
Sharing Agreements between each D Block licensee and the Public
Safety Broadband Licensee, to effectuate the 700 MHz public/private
partnership.
Term of Agreement
The term of the Network Sharing Agreement is 15 years.
Extension of the term of the NSA or amendments to any of the major
terms must be submitted to the Federal Communications Commission for
approval.
Spectrum Use
The D Block licensee(s) must provide public safety users with
primary access to 10 megahertz of spectrum capacity at all times.
During Emergencies
The D Block licensee must provide public safety users
emergency access to the D Block commercial capacity only in the
event of an ``emergency,'' which is defined as follows:
The declaration of a state of emergency by the
President or a state governor.
The issuance of an evacuation order by the President or
a state governor impacting areas of significant scope.
The issuance by the National Weather Service of a
hurricane or flood warning likely to impact a significant area.
The occurrence of other major natural disasters, such
as tornado strikes, tsunamis, earthquakes, or pandemics.
The occurrence of manmade disasters or acts of
terrorism of a substantial nature.
The occurrence of power outages of significant duration
and scope.
The elevation of the national threat level to either
orange or red for any portion of the United States, or the elevation
of the threat level in the airline sector or any portion thereof, to
red.
The D Block licensee(s) must provide public safety
users priority access to, but not preemptive use of, up to 40
percent of the commercial D Block spectrum capacity (i.e., 2
megahertz in each of the uplink and downlink blocks), assuming the
full public safety broadband block spectrum capacity is being used,
for an aggregate total of 14 megahertz of overall network capacity
in the following circumstances: The President or a state governor
declares a state of emergency; the President or a state governor
issues an evacuation order impacting areas of significant scope; or
the national or airline sector threat is set to red. In these
circumstances, the D Block licensee(s) must assign the next
available channel to the requesting public safety user over a
commercial user--i.e., the public safety user would be placed at the
top of the queue--and would not preempt a commercial call in
progress. The right to priority access must be limited to the time
and geographic scope of the emergency.
The D Block licensee(s) must provide priority access
to, but not preemptive use of, up to 20 percent of the commercial
spectrum capacity (i.e., 1 megahertz in each of the uplink and
downlink blocks) in the following circumstances: The issuance by the
National Weather Service of a hurricane or flood warning likely to
impact a significant area; the occurrence of other major natural
disasters, such as tornado strikes, tsunamis, earthquakes, or
pandemics; the occurrence of manmade disasters or acts of terrorism
of a substantial nature; the occurrence of power outages of
significant duration and scope; or the elevation of the national
threat level to orange for any portion of the United States. The
right to priority access must be limited to the time and geographic
scope of the emergency.
To trigger priority access, the PSBL must request, on
behalf of the impacted public safety agencies, that the D Block
licensee provide such access. Priority access requests initiated by
the PSBL will cover a 24-hour
[[Page 57848]]
time period, and must be reinitiated by the PSBL for each 24-hour
time period thereafter that the priority access is required.
In the event that the D Block licensee and the PSBL do
not agree that an emergency has taken place, the PSBL may ask the
Defense Commissioner to resolve the dispute.
Performance Requirements
D Block licensee(s) are required to provide signal
coverage and offer service to at least 40 percent of the population
in each PSR by the end of the fourth year, and 75 percent by the end
of the tenth year. D Block licensee(s) will be required to meet the
following final benchmarks 15 years after the issuance of their
license(s):
PSRs with a population density less than 100 people per
square mile, the licensee(s) will be required to provide signal
coverage and offer service to at least 90 percent of the population
by the end of the fifteenth year;
PSRs with a population density equal to or greater than
100 people per square mile and less than 500 people per square mile,
the licensee(s) will be required to provide signal coverage and
offer service to at least 94 percent of the population by the end of
the fifteenth year; and
PSRs with a population density equal to or greater than
500 people per square mile, the licensee(s) will be required to
provide signal coverage and offer service to at least 98 percent of
the population by the end of the fifteenth year.
These population coverage requirements must be met on a
PSR basis, and licensees will have to use the most recently
available U.S. Census data at the time of measurement to meet the
requirements.
To the extent that the D Block licensee chooses to
provide terrestrial commercial services to population levels in
excess of the relevant benchmarks, the D Block licensee must make
the same level of coverage and service available to public safety
entities.
In addition to the required population benchmarks, D
Block licensee(s) must provide service to major highways,
interstates, and incorporated communities with populations greater
than 3,000 no later than the end of the D Block license term. To the
extent that coverage of major highways, interstates and incorporated
communities with populations in excess of 3,000 requires the D Block
licensee to extend coverage beyond what is required to meet its
population benchmarks, coverage can be provided through non-
terrestrial means, such as MSS or other such technologies.
The D Block licensee and the Public Safety Broadband
Licensee must reach agreement on a detailed build-out schedule that
is consistent with the performance benchmarks. The build-out
schedule must identify the specific areas of the country that will
be built out and the extent to which interstates within the D Block
licensee's service area will be covered by each of the performance
deadlines. The D Block licensee may determine, in consultation with
the Public Safety Broadband Licensee, which particular areas of the
country will be built out by each deadline.
The D Block licensee may modify its population-based
construction benchmarks where the D Block licensee and the Public
Safety Broadband Licensee reach agreement and the Commission gives
its prior approval for a modification. No increase in the
performance requirements will be permitted unless it is acceptable
to the D Block licensee.
For the D Block licensee for the Gulf of Mexico, the
population-based benchmarks shall be inapplicable, and the D Block
licensee for the Gulf of Mexico and the Public Safety Broadband
Licensee may flexibly negotiate a coverage and service plan for
public safety use for that region as needed.
Role and Responsibilities of the D Block Licensee
The D Block licensee has exclusive responsibility for
all traditional network service provider operations, including
customer acquisition, network monitoring and management, operational
support and billing systems, and customer care, in connection with
services provided to public safety users.
The D Block licensee is subject to monthly network
usage reporting requirements that will enable monitoring of its
operations by the Commission and the PSBL.
The D Block Licensee will allow the Public Safety
Broadband Licensee to determine and approve the specifications of
public safety equipment used on the network. The public safety
subscribers will have right to purchase their own subscriber
equipments and applications from any vendor they choose, to the
extent such specifications, equipments, and applications are
consistent with reasonable network management requirements and
compatible with the network.
If the D Block licensee chooses to adopt a wholesale-
only model with respect to the D Block spectrum, it must ensure,
though arrangements such as the creation of a subsidiary or by
contracting with a third party, that retail service will be provided
to public safety entities that complies with the Commission's
regulatory requirements. This arrangement to provide service to
public safety should be made part of the NSA.
Role and Responsibilities of the Public Safety Broadband Licensee
The Public Safety Broadband Licensee's assigned duties will be
as follows:
General administration of access to the 763-768 MHz and
793-798 MHz bands by individual public safety entities, as
facilitated through the establishment of priority access, service
levels and related requirements negotiated into the NSA, approving
public safety applications and end user devices, and related
frequency coordination duties.
Regular interaction with and promotion of the needs of
the public safety entities with respect to accessing and use of the
national public safety broadband network, within the technical and
operational confines of the NSA.
Interfacing with equipment vendors on its own or in
partnership with the D Block licensee, as appropriate, to achieve
and pass on the benefits of economies of scale concerning network
and subscriber equipment and applications.
Sole authority, which cannot be waived in the NSA, to
approve, in consultation with the D Block licensee, equipment and
applications for use by public safety entities on the public safety
broadband network.
Responsibility to establish a means to authorize and
authenticate public safety users. The Public Safety Broadband
Licensee may accomplish this by establishing its own system that
would accomplish these functions or defining parameters that are
compatible with commercial technology and can be easily implemented
by the D Block Licensee.
Responsibility to facilitate negotiations between the D
Block license winner and local and state entities to build out local
and state-owned lands.
Coordination of stations operating on 700 MHz public
safety broadband spectrum with 700 MHz public safety narrowband
stations, including management of the internal public safety guard
band.
Oversight and implementation of the relocation of
narrowband public safety operations in channels 63 and 68, and the
upper 1 megahertz of channels 64 and 69.
Exercise of sole discretion, pursuant to Section 2.103
of the Commission's rules, whether to permit Federal public safety
agency use of the public safety broadband spectrum, with any such
use subject to the terms and conditions of the NSA.
Responsibility for reviewing and approving requests for
early construction and operation of local public safety broadband
networks on the 700 MHz public safety broadband spectrum in areas
with and without a preexisting build-out commitment in the NSA,
pursuant to the procedures and requirements outlined for such
waivers as described in 47 CFR 90.1430.
Responsibility for reviewing and approving requests for
waiver submitted by public safety entities to conduct wideband
operations pursuant to the procedures and restrictions in connection
with such waivers as described in 47 CFR 90.1432.
Public Safety Network Service Fees
The NSA must include a schedule of fees for public
safety access to broadband network services.
Public safety users of the D Block public safety
spectrum will be charged a base rate of $[--.--] per user per month.
The initial fixed rates in the NSA will sunset at the
end of the fourth year of the D Block licensee's license term. After
the sunset, applicable rates will be negotiated based on fee
schedules developed by the General Services Administration for
government users of the commercial spectrum.
Roaming Arrangement
Each regional D Block licensee must public safety users
of all other 700 MHz public safety regional networks with the
ability to roam on its network.
The NSA should further specify the relevant terms and
conditions under which roaming will be provided.
[[Page 57849]]
Dispute Resolution Process
The Commission may resolve any impasse between the
parties to the NSA, including, should the Commission find it in the
public interest, requiring the parties to accept specified terms
resolving the dispute. The Commission's resolution will be final.
In resolving any disputes between a winning D Block
bidder and the PSBL with respect to the terms of the NSA, the
Commission will use its discretion to determine how best to take
into account the winning D Block bidder's business plan, as well as
the requirements of public safety users, when mandating a
resolution.
Safeguards for Protection of Public Safety Service
The D Block licensee must provide to the Public Safety
Broadband Licensee monthly network usage statistics.
The D Block licensee may not discontinue service to
public safety entities without the Commission's approval.
The parties must jointly file quarterly reports with
the Commission. These reports must include detailed information on
the areas where broadband service has been deployed, how the
specific requirements of public safety are being met, audited
financial statements, which public safety entities (e.g., police,
fire departments) are using the broadband network in each area of
operation; what types of applications (e.g., voice, data, video) are
in use in each area of operation to the extent known; and the number
of declared emergencies in each area of operation.
Funding of the PSBL Through the D Block Licensee
The Public Safety Broadband Licensee must annually
create and submit for FCC approval a budget for its administrative
and operational expenses. The Public Safety Broadband Licensee also
must have an annual audit conducted by an external, independent
auditor. The proposed annual budget to be submitted by the Public
Safety Broadband Licensee will provide the Commission with an
ability to ensure that the Public Safety Broadband Licensee is
acting in a fiscally responsible manner and not engaging in
activities that exceed the scope of its prescribed roles and
responsibilities.
The Public Safety Broadband Licensee must submit a full
financial accounting on a quarterly basis.
The D Block licensee must make an annual payment to the
Public Safety Broadband Licensee of the sum total of $5 million per
year in the aggregate in consideration for the D Block licensee's
leased access on a secondary basis to the public safety broadband
spectrum.
[cir] In the event that the D Block is licensed on a regional
basis, the Commission will specify after the close of the auction
the annual payments required for each license won at auction, such
that the total $5 million in annual payments to the Public Safety
Broadband Licensee is apportioned on a per region basis, based upon
total pops per region.
The annual payment funds will be placed into an escrow
account managed by an unaffiliated third party, such as a major
commercial financial institution, for the benefit of the Public
Safety Broadband Licensee. The Public Safety Broadband Licensee must
seek approval of its selected escrow account manager from the Chief,
PSHSB. The Public Safety Broadband Licensee can draw funds on this
account to cover its annual operating and administrative expenses in
a manner consistent with its submitted annual budget for that fiscal
year. The entirety of the Public Safety Broadband Licensee's annual
operating budget shall be based on these annual payments.
To the extent that the Public Safety Broadband
Licensee's actual operating expenses for a given fiscal year turn
out to be less than its proposed budget, such that there are excess
funds left over at the end of that fiscal year from the annual
payment(s) made by the D Block licensee(s) at the beginning of that
year, those excess funds may be applied towards the Public Safety
Broadband Licensee's funding of administrative or operational
expenses for the following fiscal year, or to fund secondary
activities, such as the purchase of equipment for the benefit of
individual public safety agencies.
The Public Safety Broadband Licensee is not permitted
to: charge a separate lease fee to the D Block licensee(s) for their
use of the public safety broadband spectrum or obtain loans or
financing from any other sources.
Technical Requirements
Interoperability:
[cir] The network or networks are required to use the same air
interface and provide voice, video, and data capabilities that are
interoperable across agencies, jurisdictions, and geographic areas.
Interoperable means that the technology, equipment, applications,
and frequencies employed will allow all participating public safety
entities, whether on the same network or different regional 700 MHz
public safety broadband networks, to communicate with one another.
[cir] All networks are required to support roaming of public
safety users from other networks.
[cir] Satellite Support: D Block licensees must also ensure the
availability to PS users in their area at least one handset with an
integrated satellite solution.
Greater Technical Requirements Can Be Purchased: If a
particular public safety agency wishes, for example, greater
capabilities than required by the Commission's rules or this NSA,
the Public Safety Broadband Licensee may negotiate on its behalf for
such improvements, provided the public safety agency provides the
requisite financing.
Appendix E
Proposed Minimum Opening Bids
Nationwide License
--------------------------------------------------------------------------------------------------------------------------------------------------------
Minimum
Area Population MHz opening bid
--------------------------------------------------------------------------------------------------------------------------------------------------------
Nationwide.................................. 285,620,445 ............ ............................ 10 ............ ........... $750,000,000
--------------------------------------------------------------------------------------------------------------------------------------------------------
Regional Licenses
--------------------------------------------------------------------------------------------------------------------------------------------------------
Population
PSR Population density/ Density category* MHz MHz*pops $/MHz*pop Minimum
square mile opening bid**
--------------------------------------------------------------------------------------------------------------------------------------------------------
8.................... New York--Metropolitan..... 19,092,214 1,940.1 A 10 190,922,140 0.45 $86,335,000
5.................... California--South.......... 20,637,512 365.2 B 10 206,375,120 0.30 62,215,000
54................... Chicago--Metropolitan...... 12,685,330 741.8 A 10 126,853,300 0.45 57,363,000
9.................... Florida.................... 15,982,378 296.4 B 10 159,823,780 0.30 48,182,000
19................... Maine, New Hampshire, 13,922,517 221.7 B 10 139,225,170 0.30 41,972,000
Vermont, Massachusetts,
Rhode Island, Connecticut.
6.................... California--North.......... 13,234,136 133.1 B 10 132,341,360 0.30 39,896,000
20................... Maryland; Washington, DC; 7,831,327 648.8 A 10 78,313,270 0.45 35,413,000
Virginia--Northern.
33................... Ohio....................... 11,353,140 277.3 B 10 113,531,400 0.30 34,226,000
28................... New Jersey, Pennsylvania, 10,526,480 463.1 B 10 105,264,800 0.30 31,734,000
Delaware.
21................... Michigan................... 9,938,444 175.0 B 10 99,384,440 0.30 29,961,000
[[Page 57850]]
10................... Georgia.................... 8,186,453 141.4 B 10 81,864,530 0.30 24,679,000
31................... North Carolina............. 8,049,313 165.2 B 10 80,493,130 0.30 24,266,000
40................... Texas--Dallas.............. 6,503,125 212.6 B 10 65,031,250 0.30 19,605,000
39................... Tennessee.................. 5,689,283 138.0 B 10 56,892,830 0.30 17,151,000
51................... Texas--Houston............. 5,618,958 223.3 B 10 56,189,580 0.30 16,939,000
42................... Virginia................... 5,115,733 136.9 B 10 51,157,330 0.30 15,422,000
36................... Pennsylvania............... 4,801,690 173.5 B 10 48,016,900 0.30 14,475,000
14................... Indiana.................... 4,763,619 152.3 B 10 47,636,190 0.30 14,361,000
18................... Louisiana.................. 4,468,976 102.6 B 10 44,689,760 0.30 13,472,000
17................... Kentucky................... 4,041,769 101.7 B 10 40,417,690 0.30 12,185,000
37................... South Carolina............. 4,012,012 133.2 B 10 40,120,120 0.30 12,095,000
30................... New York--Albany........... 3,182,726 108.3 B 10 31,827,260 0.30 9,595,000
55................... New York--Buffalo.......... 2,852,351 242.1 B 10 28,523,510 0.30 8,599,000
43................... Washington................. 5,894,121 88.6 C 10 58,941,210 0.10 5,923,000
24................... Missouri................... 5,595,211 81.2 C 10 55,952,110 0.10 5,623,000
3.................... Arizona.................... 5,130,632 45.2 C 10 51,306,320 0.10 5,156,000
22................... Minnesota.................. 4,919,479 61.8 C 10 49,194,790 0.10 4,944,000
1.................... Alabama.................... 4,447,100 87.6 C 10 44,471,000 0.10 4,469,000
7.................... Colorado................... 4,301,261 41.5 C 10 43,012,610 0.10 4,322,000
53................... Texas--San Antonio......... 3,916,309 73.1 C 10 39,163,090 0.10 3,935,000
13................... Illinois................... 3,722,488 75.9 C 10 37,224,880 0.10 3,741,000
11................... Hawaii..................... 1,211,537 188.6 B 10 12,115,370 0.30 3,652,000
34................... Oklahoma................... 3,450,654 50.3 C 10 34,506,540 0.10 3,468,000
35................... Oregon..................... 3,421,399 35.6 C 10 34,213,990 0.10 3,438,000
15................... Iowa....................... 2,926,324 52.4 C 10 29,263,240 0.10 2,941,000
23................... Mississippi................ 2,844,658 60.6 C 10 28,446,580 0.10 2,859,000
45................... Wisconsin.................. 2,692,016 55.7 C 10 26,920,160 0.10 2,705,000
16................... Kansas..................... 2,688,418 32.9 C 10 26,884,180 0.10 2,702,000
4.................... Arkansas................... 2,673,400 51.3 C 10 26,734,000 0.10 2,686,000
49................... Texas--Austin.............. 2,254,226 92.9 C 10 22,542,260 0.10 2,265,000
41................... Utah....................... 2,233,169 27.2 C 10 22,331,690 0.10 2,244,000
27................... Nevada..................... 1,998,257 18.2 C 10 19,982,570 0.10 2,008,000
29................... New Mexico................. 1,819,046 15.0 C 10 18,190,460 0.10 1,828,000
44................... West Virginia.............. 1,808,344 75.1 C 10 18,083,440 0.10 1,817,000
26................... Nebraska................... 1,711,263 22.3 C 10 17,112,630 0.10 1,720,000
50................... Texas--El Paso............. 1,472,545 20.3 C 10 14,725,450 0.10 1,480,000
12................... Idaho...................... 1,293,953 15.6 C 10 12,939,530 0.10 1,300,000
52................... Texas--Lubbock............. 1,086,657 19.5 C 10 10,866,570 0.10 1,092,000
47................... Puerto Rico................ 3,808,610 1,112.1 D 10 38,086,100 0.02 765,000
25................... Montana.................... 902,195 6.2 D 10 9,021,950 0.02 181,000
38................... South Dakota............... 754,844 9.9 D 10 7,548,440 0.02 152,000
32................... North Dakota............... 642,200 9.3 D 10 6,422,000 0.02 129,000
2.................... Alaska..................... 626,932 1.1 D 10 6,269,320 0.02 126,000
46................... Wyoming.................... 493,782 5.1 D 10 4,937,820 0.02 99,000
56................... Guam and the Northern 224,026 575.9 D 10 2,240,260 0.02 45,000
Mariana Islands.
48................... U.S.Virgin Islands......... 108,612 810.5 D 10 1,086,120 0.02 22,000
57................... American Samoa............. 57,291 744.0 D 10 572,910 0.02 12,000
58................... Gulf of Mexico............. ........... N/A N/A 10 0 N/A 10,000
-----------------------------------------------------------------------------------------------------
285,620,445 ........... ........................ ...... ........... ........... 750,000,000
--------------------------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------
Density categories* $/MHz*pop
------------------------------------------------------------------------
A....................... density >= 500.................... $0.45
B....................... 100 <= density < 500.............. 0.30
C....................... 10 <= density < 100............... 0.10
D....................... density < 10...................... 0.02
------------------------------------------------------------------------
* Density Category D also includes PSRs 47, 48, 56, and 57 regardless of
population density.
** The proposed minimum opening bids for the regional licenses were
calculated using the $/MHz*pop for the corresponding density category,
except as noted above. The resulting amounts totaled nearly $750
million. These amounts were then adjusted and rounded so that the
total of the minimum opening bids for a set of regional licenses
equals the proposed minimum opening bid for the nationwide license.
Appendix F
Comments and Reply Comments
List of Comments and Reply Comments In the 700 MHz Third FNPRM (WT
Docket No. 06-150 and PS Docket 06-229)
This is a list of parties who filed comments and reply comments
within the designated comment periods in this proceeding. The
complete record in this proceeding is available in the Electronic
Comment Filing System located at http://www.fcc.gov/cgb/ecfs/.
Comments
700 MHz Regional Planning Committee, Region 6 (Northern California)
(RPC 6)
[[Page 57851]]
Ada County Sheriff's Office
Advanced Communications Technology, Inc. (ACT)
Alcatel-Lucent (ALU)
American Association of State Highway and Transportation Officials
(AASHTO)
American Hospital Association (AHA)
Andrew M. Seybold (Seybold)
Association of Public-Safety Communications Officials-International,
Inc. (APCO)
AT&T Inc. (AT&T)
Big Bend Telephone Company (Big Bend)
Bill Reimann (Reimann)
Capt V. M. Sanders (Sanders)
Carol Barta (Barta)
CDMA Development Group, Inc. (CDG)
Cellular South, Inc. (Cellular South)
Charles L. Jackson, Dorothy Robyn and Coleman Bazelon (Jackson,
Robyn, Bazelon)
City and County of San Francisco (San Francisco)
City of Philadelphia (Philadelphia)
Claire Nilles (Nilles)
Coleman Bazelon (Bazelon)
ComCentric Inc. (ComCentric)
Commonwealth of Virginia (Virginia)
Consumer Electronics Association (CEA)
Council Tree Communications, Inc (Council Tree)
Coverage Co (Coverage Co)
Cox Communications, Inc. (Cox)
Craig T. Rowland (Rowland)
CTC Telcom, Inc. (CTC)
CTIA--The Wireless Association (CTIA)
David Wills (Wills)
District of Columbia (District)
Ericsson Inc (Ericsson)
Florida Region 9, Regional Planning Committee (Region 9 RPC)
GEOCommand, Inc. (GEOCommand)
Gerard Eads (Eads)
Google Inc. (Google)
Hypres, Inc. (Hypres)
Inmarsat plc (Inmarsat)
Interisle Consulting Group (Interisle)
International Association of Fire Fighters (IAFF)
International Municipal Signal Association, International
Association of Fire Chiefs, Inc., Congressional Fire Services
Institute, and Forestry Conservation Communications Association
(IMSA et al.)
James Lencioni (Lencioni)
Jessica Scheeler (Scheeler)
Jon M. Peha (Peha)
Kennebec Telephone Company, Inc. (Kennebec)
Kentucky Wireless Interoperability Executive Committee (KWIEC)
Kevin Mann (Mann)
King County Washington Regional Communications Board (King County)
Leap Wireless International, Inc. (Leap Wireless)
Mayo Clinic (Mayo)
Mercatus Center at George Mason University (Mercatus)
MetroPCS Communications, Inc. (MetroPCS)
Michael Stiles (Stiles)
Mobile Satellite Users Association (MSUA)
Mobile Satellite Ventures Subsidiary LLC (MSV)
Motorola, Inc. (Motorola)
National Association of Emergency Medical Technicians (NAEMT)
National Association of Telecommunications Officers and Advisors,
National Association of Counties, National League of Cities, and
U.S. Conference of Mayors (NATOA et al.)
National Emergency Number Association (NENA)
National Public Safety Telecommunications Council (NPSTC)
National Regional Planning Council (NRPC)
New York City Police Department (NYPD)
Northrop Grumman Information Technology, Inc. (Northrop Grumman)
NTCH, Inc. (NTCH)
Oregon State Interoperability Executive Council (Oregon SIEC)
Penasco Valley Telephone Cooperative, Inc. (PVTC)
Peter G. Cook Consultancy, Inc. (PGCC)
Phil Stalheim (Stalheim)
Pierce County Public Transportation Benefit Area Corporation (Pierce
Transit)
Ponderosa Telephone (Ponderosa)
Public Interest Spectrum Coalition (PISC)
Public Safety Spectrum Trust Corporation (PSST)
QUALCOMM Incorporated (QUALCOMM)
Region 33 (Ohio) 700 MHz. Regional Planning Committee (RPC 33)
Rehabilitation Engineering Research Center for Wireless Technologies
(Wireless RERC)
Rivada Networks (Rivada)
Rural Cellular Association (RCA)
Rural Telecommunications Group, Inc. (RTG)
Sandro Brusco, Giuseppe Lopomo, and Leslie M. Marx (Brusco et al.)
Satellite Industry Association (SIA)
Senator Daniel K. Inouye (Senator Inouye)
Smithville Telephone Company, Inc. (Smithville)
Society of Broadcast Engineers, Incorporated (SBE)
Software Defined Radio Forum (SDR Forum)
Space Data Corporation (Space Data)
Spectrum Acquisitions Inc. (SAI)
Spring Grove Communications (Spring Grove)
Sprint Nextel Corporation (Sprint Nextel)
State of California (California)
State of Louisiana (Louisiana)
State of Mississippi Department of Public Safety (Mississippi)
State of Washington Military Department (Washington)
Stagg Newman (Newman)
Telecommunications Development Corporation (TDC)
Telecommunications Industry Association (TIA)
Telecommunity, Charlotte, NC, Houston, TX, & Montgomery Co., MD
(Telecommunity)
Televate, LLC (Televate)
Tyco Electronics M/A-COM (TE M/A-COM)
United States Cellular Corporation (USCC)
Van Buren Telephone Company, Inc. (Van Buren)
Verizon Wireless (Verizon)
Virginia Fire Chiefs Association, Inc. (VFCA)
Virginia Information Technologies Agency (VITA)
Western Fire Chiefs Association (WFCA)
Wiggins Telephone Association (Wiggins)
Wirefree Partners III, LLC (Wirefree)
Xanadoo Corp. (Xanadoo)
Reply Comments
American Association of State Highway and Transportation Officials
(AASHTO)
American Petroleum Institute (API)
Association of Public-Safety Communications Officials-International,
Inc. (APCO)
AT&T Inc. (AT&T)
City of Philadelphia (Philadelphia)
Council Tree Communications, Inc. (Council Tree)
CTIA--The Wireless Association (CTIA)
Cyren Call Communications Corporation (Cyren Call)
Google Inc. (Google)
Intelligent Transportation Society of America (ITS America)
International Assn. of Chiefs of Police & National Sheriffs' Assn.
(IACPNSA)
International City/County Management Association (ICCMA)
International Municipal Signal Association, International
Association of Fire Chiefs, Inc., Congressional Fire Services
Institute, and Forestry Conservation Communications Association
(IMSA et al.)
Joe Hanna (Hanna)
Leap Wireless International, Inc. (Leap Wireless)
Maryland Broadband Cooperative (MBC)
Michael Dasso (Dasso)
Motorola, Inc. (Motorola)
National Association of Telecommunications Officers and Advisors,
National Association of Counties, National League of Cities, and
U.S. Conference of Mayors (NATOA et al.)
National Association of State Emergency Medical Services Officials
(NASEMSO)
National Public Safety Telecommunications Council (NPSTC)
New York City Police Department (NYPD)
Nextwave Wireless, Inc. (Nextwave)
Northrop Grumman Information Technology, Inc. (Northrop Grumman)
Public Safety Spectrum Trust Corporation (PSST)
Regional Planning Committee Twenty (RPC 20)
Bill Reimann (Reimann)
Rivada Networks (Rivada)
Satellite Industry Association (SIA)
SouthernLINC Wireless (SouthernLINC)
Space Data Corporation (Space Data)
Sprint Nextel Corporation (Sprint Nextel)
Telecommunity, Charlotte, NC, Houston, TX, & Montgomery Co., MD
Televate, LLC (Televate)
Tyco Electronics M/A-COM (TE M/A-COM)
United States Cellular Corporation (USCC)
Verizon Wireless (Verizon)
[FR Doc. E8-23045 Filed 10-2-08; 8:45 am]
BILLING CODE 6712-01-P