[Federal Register Volume 60, Number 153 (Wednesday, August 9, 1995)]
[Rules and Regulations]
[Pages 40712-40732]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-19486]




[[Page 40711]]

_______________________________________________________________________

Part V





Federal Communications Commission





_______________________________________________________________________



47 CFR Parts 1 and 26



General Wireless Communications Service; Final Rule

  Federal Register / Vol. 60, No. 153 / Wednesday, August 9, 1995, / 
Rules and Regulations  

[[Page 40712]]


FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 1 and 26

[ET Docket No. 94-32, FCC 95-319]


Wireless Service; General Wireless Communications Service

agency: Federal Communications Commission.

action: Final rule.

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summary: This Second Report and Order creates the General Wireless 
Communications Service and adopts rules for licensing of this service 
in the 4660-4685 MHz band. These rules will be found in newly adopted 
47 CFR Part 26. The creation of the General Wireless Service comes in 
response to the Omnibus Budget Reconciliation Act of 1993 
(Reconciliation Act), and is intended to benefit the public by 
permitting and encouraging the introduction of new services and the 
enhancement of existing services. These new and enhanced services and 
uses will create new jobs, foster economic growth, and improve access 
to communications by industry and the American public.

effective date: August 9, 1995. Section 26.104 which contains 
information collection requirements will not become effective until 
approved by the Office of Management and Budget. Notice of such 
approval and the effective date will be provided in the Federal 
Register.

for further information contact: Karen Rackley, 202-418-0620, or Dan 
Grosh 202-418-1534.

supplementary information:

Type of Review: New collection requirement
Title: In the Matter of Allocation of Spectrum Below 5 GHz Transferred 
from Federal Government Use
OMB Number: None.
Form Number:
Affected Public: Business or other-for-profit organizations, not-for-
profit institutions, and state, local, or tribal governments.
Number of Respondents: 875
Estimated time per response: Approximately 4 hours
Total burden: Approximately 3500 hours five and ten years after initial 
license grant
Needs and Uses: These requirements comply with Congressional directive 
that the Commission adopt performance requirements to ensure prompt 
service to rural areas, prevent stockpiling or warehousing of spectrum 
and encourage investment in and development of new technologies

    This is a synopsis of the Second Report and Order is avaialble for 
inspection and copying during normal business hours in the FCC 
Reference Center (Room 239), 1919 M Street, NW., Washington, DC, and 
also may be purchased from the Commission's copy contractor, 
International Transcription Service, at (202) 857-3800, 2100 M Street, 
NW., Suite 140, Washington, DC 20037.

Synopsis of the Second Report and Order

    1. By this action, the Commission creates the General Wireless 
Communications Service (GWCS), and adopts rules for licensing of this 
service in the 4660-4685 MHz band. The 25 megahertz of spectrum in the 
4660-4685 MHz band was transferred from Federal Government to private 
sector use and was allocated to the Fixed and Mobile services in the 
First Report and Order and Second Notice of Proposal Rule Making (First 
R&O/Second NPRM) in this proceeding. (The Notice of Inquiry in this 
proceeding was published at 59 FR 255589, May 17, 1994; the Notice of 
Proposed Rule Making at 59 FR 19393, May 17, 1994; the Notice of 
Proposed Rule Making at 59 FR 19393, November 17, 1994; and the First 
Report and Order at 60 FR 13102, March 10, 1995.)
    2. The First R&O allocated the 2390-2400 MHz band for use by 
unlicensed Personal Communicationa Services (PCS) devices, provided for 
continued use of the 2402-2417 MHz band by devices operating in 
accordance with Part 15 of our rules, supgraded the allocation of these 
bands for use by the Amateur service on a primary basis, and allocation 
the 5440-4685 MHz band for use by Fixed and Mobile Service. The Second 
NPRM proposed rules for use of the 4660=NPRM proposed rule for use of 
the 4660-4685 MHz band.

Service Rules

    3. The Second NPRM proposed to create a new service, the General 
Wireless Communications Service (GWCS), for licensing of the 4660-4685 
MHz band. This new service would allow a licensee to provide a wide 
range of Fixed or Mobile services. As stated in the Second NPRM, CWCS 
would provide licensees an opportunity to use the spectrum flexibility 
in order to meet the needs of consumers. Services that would not be 
within the proposed GWCS category included Broadcast services, Radio 
location services, and Satellite services.
    4. The Commission proposed to establish the flexible GWCS service 
classification in order to enhance the ability of service providers to 
meet a variety of user needs. The Commission also acknowledged the 
possibility that these needs might better be accommodated by rules that 
prescribe the use of the 4660-4685 MHz frequency band only by specific 
services. Interested parties who opposed the proposed establishment of 
a GWCS category were asked to suggest ways in which use of the 4660-
4685 MHz band could be limited to specific services. For example, the 
Commission sought comment on (1) what services should be treated as 
eligible; (2) whether we should divide channels in the band in a matter 
which assigns Fixed services exclusively to certain channels and Mobile 
services exclusively to other channels in the band; (3) whether we 
should establish priorities for Fixed service or Mobile service use of 
some or all of the channels established in the band; and (4) whether we 
should assign some or all channels established in the band for 
exclusive use by private Fixed or Mobile Services. Proponents of this 
alternative approach for designating services in the 4660-4685 MHz 
frequency band were asked to provide facts and arguments supporting 
their view that such an approach would better serve the Commission's 
objectives and the public interest than would the establishment of 
GWCS, which would permit use of the spectrum for these as well as other 
applications.
    5. The Commission adopts the proposed General Wireless 
Communications Service for the 4660-4685 MHz block, largely as proposed 
in the Second NPRM. This flexible, broadly defined service should 
accommodate a wide variety of potential Fixed and Mobile service uses, 
including all of those identified by the commenters. The flexibility of 
GWCS should also help make frequencies available for new technologies 
and services, including those that have been mentioned in the current 
comments and those that may be developed in the years ahead. In 
addition, as a service category that is not limited to specific past 
and current uses, but is available for the implementation of future 
technologies, GWCS should encourage research and investment to invent, 
develop, and market new technologies, and spur their deployment to 
serve consumers.
    6. Under the Reconciliation Act, the spectrum reallocated from 
Federal Government use is to be allocated and assigned to public use 
under a plan that makes frequencies available for new technologies and 
services, and stimulates the development of such technologies. The 
Commission believes that the General Wireless 

[[Page 40713]]
Communications Service will foster the accomplishment of these goals. 
Additionally, GWCS should stimulate efficient use of the spectrum by 
encouraging licensees to find ways to use the spectrum for the variety 
of services allowed under the license. Of equal importance, GWCS will 
accommodate and spur the development of new technologies and services.
    7. Commenters have not persuaded the Commission that limiting 
assignments to any of their specific proposed uses of the spectrum 
would better meet the goals of the Reconciliation Act, the 
Communications Act, and the public interest. Restricting the 4660-4685 
MHz spectrum to defined uses or services, such as the specific uses 
proposed by various commenters, would tend to reduce the attractiveness 
of this spectrum for new technologies and services. Moreover, as 
discussed above, GWCS is flexible enough to permit the specific uses 
suggested by such commenters, as well as the other uses identified in 
the comments. If GWCS spectrum assignment applications submitted by 
qualified parties now seeking service-specific allocations are not 
mutually exclusive, those parties will be granted licenses to provide 
the specific services they wish to provide, as well as other 
permissible GWCS services. In the event the spectrum is assigned by 
auction because of mutual exclusivity, they will also be able to 
participate and seek to obtain licenses.
    8. The Commission also believes that any interference issues that 
may arise among GWCS licensees can be satisfactorily resolved by 
general non-interference standards and technical rules. Many potential 
sources of unacceptable interference have been eliminated by barring 
use of GWCS for Broadcast services, Radiolocation services, and 
Satellite services. Further, the grant of each GWCS license will be 
made subject to the condition that the licensee not cause unacceptable 
interference with any other licensee or service. Failure to abide by 
this condition will render the licensee subject to fines, damages, or 
forfeiture of the license. The Commission is adopting technical rules 
similar to those in place for PCS. To the extent it proves necessary, 
the Commission can consider whether revisions to those rules are 
warranted after GWCS licenses are assigned.
    9. The Commission finds no merit in arguments that the Fixed and 
Mobile allocation of this spectrum, and use of the flexible GWCS 
designation for assigning this spectrum, are unlawful. As discussed in 
the First Report and Order the provisions of the Communications Act and 
Commission precedent support the legality of allocating frequencies to 
more than one radiocommunication service, and of assigning licenses for 
use by a broadly defined service. The Commission is required by the 
National Telecommunications and Information Administration Organization 
Act (NTIAO Act) to issue regulations to allocate the 50 megahertz of 
spectrum that the Secretary of Commerce identified and recommended for 
immediate reallocation from Federal Government use no later than 18 
months from enactment of the Reconciliation Act.\1\ For purposes of 
this portion of the NTIAO Act, the term ``allocation'' is defined as 
``an entry in the National Table of Frequency Allocations of a given 
frequency band for the purpose of its use by one or more 
radiocommunication services.'' \2\ The Table of Frequency Allocations 
often contains allocations to more than one type of service \3\ and 
such allocations are specifically authorized in this instance by the 
NTIAO Act. Therefore, allocation of the 4660-4685 MHz band to Fixed and 
Mobile Services is permissible and consistent with established 
practice.

    \1\ Section 115(a) of the National Telecommunications and 
Information Administration Organization Act, 47 U.S.C. Sec. 925(a) 
(NTIAO Act).
    \2\ Section 111(1) of the NTIAO Act, 47 U.S.C. Sec. 921(1).
    \3\ See 47 C.F.R. Sec. 2.106.
    10. The Commission also believes that such an allocation is 
consistent with the Commission's obligations under the Communications 
Act. The Commission has broad authority under the Communications Act to 
allocate spectrum. This authority derives from Section 303 of the 
Communications Act. Nothing in the language of Section 303 establishes 
or suggests any limitation or restriction on the Commission's 
discretion to prescribe the nature of the service to be rendered over 
radio frequencies or authority to assign (or allocate) frequencies to 
the various classes of stations. Moreover, nothing in the language of 
Section 303 or its legislative history suggests that the Commission is 
prohibited from assigning spectrum to stations for more than one 
permissible use, or otherwise limits the Commission's discretion in 
making spectrum allocations that it deems to serve the public interest. 
With respect to allocation decisions, courts have accorded 
``substantial deference'' to Commission determinations.\4\ Finally, 
Commission precedent supports the permissibility of allocating spectrum 
in a manner that allows for its use by a broadly defined service.

    \4\ See National Ass'n of Regulatory Util. Comm'ners v. FCC, 525 
F.2d 630, 636 (D.C. Cir.), cert. denied, 425 U.S. 992 (1976); see 
also Telocator Network of America v. FCC, 691 F.2d 525, 549 
(D.C.Cir. 1982).
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    11. The Commission, in the Second NPRM, noted that, in addition to 
the Fixed and Mobile service allocation adopted in the First R&O, 4660-
4685 MHz is allocated on a co-primary basis for non-government fixed-
satellite service (FSS) space-to-Earth links, with use limited to 
international inter-continental systems and subject to a case-by-case 
electromagnetic analysis in accordance with US footnote 245 of the 
Table of Frequency Allocations. The NOI in this proceeding requested 
comment on the necessity of maintaining the US245 restrictions on FSS 
use of this band, considering that it would no longer be available for 
Federal Government use. To facilitate the shared used of this band, the 
Second NPRM proposed to maintain the restrictions set forth in US 
footnote 245 on use of 4660-4685 MHz and requested comments on this 
proposal. The Commission adopts the proposal as contained in the Second 
NPRM and retains the restriction in this footnote.
    12. The Commission next considers public safety issues. Under the 
NTIAO Act, the Commission's plan for allocating and assigning former 
Federal Government spectrum must contain appropriate provisions to 
ensure not only the availability of frequencies for new services, but 
also ``the safety of life and property in accordance with the policies 
of Section 1 of the [Communication Act]'' \5\ In the current record, 
the Association of Public-Safety Communications Officials-
International, Inc. (APCO) proposes designating at least a portion of 
the 4660-4685 MHz band for public safety mobile and aeronautical video 
operations. The current record does not, however, provide a sound basis 
for concluding that any or all of the 4660-4685 MHz band should be 
assigned as APCO suggests.

    \5\ Section 115(b)(2)(C) of the NTIAO Act, codified at 47 U.S.C. 
Sec. 925(b)(2)(C).
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    13. The Commission is firmly committed to ensuring that wireless 
and wired communications resources are deployed to promote the safety 
of life and property, as well as to carry out the other public interest 
goals of the Communications Act. The FCC and NTIA recently formed a 
Public Safety Wireless Advisory Committee to prepare a report on 
operational, technical and spectrum requirements of Federal, state and 
local public safety entities through 

[[Page 40714]]
the year 2010. This Committee is expected to begin its work in the very 
near future. The plan the Commission is developing for the 200 MHz of 
Federal Government spectrum scheduled to be reallocated to non-
Government use over the next 10 years will contain provisions to 
address how the reallocated Federal Government spectrum can best be 
used to satisfy unmet national safety needs. The Commission is directed 
by statute to submit and implement this plan by February 1996.\6\

    \6\ See Section 115(b) of the NTIAO Act, codified at 47 U.S.C. 
Sec. 925(b).
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    14. It is the Commission's hope and intent that the gaps identified 
in the current record regarding the scope of public safety needs for 
additional wireless spectrum, and how those needs might best and most 
efficiently be met, will spur public safety organizations and other 
interested parties to work together to help us develop an effective 
plan for using wireless communications to meet any unmet and future 
public safety needs. The FCC-NTIA Public Safety Wireless Advisory 
Committee will offer one useful forum for such efforts. One of the 
tasks undertaken by the advisory committee will be to identify spectrum 
for federal, state, and local public safety use. As part of that 
process, the Commission suggests that the advisory committee explore 
potential public safety uses of the 4635-4660 MHz band. The Commission 
expects to begin proceedings in the near future to allocate and 
establish rules for assigning this band, which consists of reallocated 
Federal Government spectrum which is scheduled to become available in 
January 1997. This band is directly adjacent to the 4660-4685 MHz band 
we are designating to GWCS in this Order and thus has essentially the 
same technical characteristics and potential uses. Public safety 
organizations may develop proposals to ensure that the Commission has a 
complete, well-developed record to consider whether and how this band 
might be allocated and assigned to meet public safety needs.

Use of Spectrum

    15. The Commission expects that the General Wireless Communications 
Service will benefit the public by providing licensees the opportunity 
to use the spectrum in a variety of ways they find appropriate. The 
Second NPRM tentatively concluded that it is likely that these uses 
will principally involve the provision of subscriber-based services. 
Based on this conclusion, the Commission proposed to use competitive 
bidding as the assignment method for this spectrum if mutually 
exclusive applications are filed. Section 309(j)(2)(A) of the 
Communications Act provides that competitive bidding may be used by the 
Commission to assign spectrum if the ``principal use'' of the spectrum 
involves, or is reasonably likely to involve, the transmission or 
reception of communications signals to subscribers for compensation.
    16. Based on the record, the Second NPRM tentatively concluded that 
the principal use of this spectrum under the Commission's proposed 
General Wireless Communications Service would involve, or was 
reasonably likely to involve, the receipt by the licensee of 
compensation from subscribers in return for enabling those subscribers 
to receive or transmit communications signals. The Commission requested 
further comment on this tentative conclusion. Based on the record in 
response to the Second NPRM, the Commission finds it likely that the 
principal use of this band will be for subscription services.

Assignment Method

    17. Sections 309(j)(1) and 309(j)(2) of the Communications Act \7\ 
permit auctions where mutually exclusive applications for initial 
licenses or construction permits are accepted for filing by the 
Commission and where the principal use of the spectrum will involve or 
is reasonably likely to involve the receipt by the licensee of 
compensation from subscribers in return for enabling those subscribers 
to receive or transmit communications signals. As explained above, The 
Commission believes that the principal use of this spectrum will meet 
these requirements. In addition, Section 309(j)(2)(B) requires the 
Commission, before it may adopt the use of auctions to award licenses, 
to determine that use of competitive bidding will promote the 
objectives described in Sections 1 and 309(j)(3) of the Communications 
Act. The Second NPRM tentatively concluded that the use of competitive 
bidding to assign licenses in the 4660-4685 MHz band would promote 
these objectives. The Second NPRM also requested comments on other 
possible assignment methods.

    \7\ 47 U.S.C. Secs. 309(j)(1), 309(j)(2).
    18. The Commission concludes that, in cases of mutually-exclusive 
applications, GWCS spectrum should be assigned by auction, as we 
tentatively concluded in the Second NPRM. Based on our experience with 
comparative hearings, lotteries, and auctions, the Commission believes 
that auctions will in this case achieve the statutory objectives of 
Section 309(j)(3) of the Communications Act.
    19. One important aspect of any assignment method is determining 
whether applications are mutually exclusive. In the Second NPRM, the 
Commission proposed to use a 30-day filing window or other application 
cut-off method to allow for competing applications. The Second NPRM 
also sought comment on whether some other type of filing group would be 
more appropriate for determining whether initial applications are 
mutually exclusive. None of the commenters addressed this issue or 
suggested alternatives to the proposed 30-day filing window. Therefore, 
the Commission adopts the 30-day filing window as proposed for GWCS 
applications.

Channelization; Aggregation

    20. The Second NPRM next proposed that the 4660-4685 MHz band be 
licensed in five blocks, each of which would be 5 megahertz wide. The 
Second NPRM proposed to limit a single entity from obtaining more than 
three of these blocks in a single geographic licensing area. The Second 
NPRM further proposed that, regardless of the specific service to be 
provided, this spectrum will not count against the 45 megahertz 
spectrum cap that applies to certain commercial mobile radio service 
(CMRS) licensees.
    21. The Commission adopts the proposed channelization plan 
consisting of five 5 megahertz blocks. The Commission also adopts the 
proposed aggregation limit of 15 megahertz of spectrum that may be 
obtained by a single entity. Lastly, the Commission adopts its 
tentative conclusion not to count this spectrum against the 45 
megahertz spectrum cap that applies to certain CMRS licenses.

License Areas

    22. The Commission will issue GWCS licenses based on EA-like 
geographic areas. The complete list of EA and EA-like areas is shown in 
Appendix C of the full text of this Second Report and Order. The five 5 
MHz blocks will be designated as Blocks A through E: Block A (4660-4665 
MHz), Block B (4665-4670 MHz), Block C (4670-4675 MHz), Block D (4675-
4680 MHz) and Block E (4680-4685 MHz).

Eligibility

    23. The Second NPRM proposed, in the event the Commission 
determined it reasonably likely that GWCS services would be commercial 
services, that there be no restrictions on eligibility to apply for 
licenses in this band other 

[[Page 40715]]
than those foreign ownership restrictions that apply to CMRS and common 
carrier fixed system licensees, and the restriction on foreign 
governments or their representatives related to the holding of private 
mobile radio service licenses. Although rural telephone companies would 
be eligible, the Commission did not propose to treat them differently 
than other applicants. The Commission now adopts these proposed broad 
eligibility standards for GWCS applications.

Competitive Bidding Issues

    24. In the Second NPRM, the Commission proposed to use auctions to 
issue licenses for GWCS services in the 4660-4685 MHz band that meet 
the statutory auction criteria and sought comment on a wide range of 
issues related to competitive bidding. For example, regarding 
competitive bidding methodology for licenses in the 4660-4685 MHz band, 
the Second NPRM proposed to use simultaneous multiple round bidding for 
licensing of the proposed 5 MHz-wide MTA spectrum blocks. The 
Commission also tentatively proposed to auction all licenses 
simultaneously, because of the relatively high value and significant 
interdependence of the licenses. Commenters were asked to address these 
tentative conclusions and whether any other competitive bidding designs 
might be more appropriate for the licensing of this spectrum. The 
Commission adopts the tentative conclusion in the Second NPRM and will 
auction this spectrum by simultaneous multiple round bidding. However, 
the Commission reserves the discretion to hold one or more auctions.
    25. The Second NPRM also sought comment on whether to allow 
combinatorial bidding for GWCS services, because it may be necessary or 
at least highly desirable that spectrum used for some services (e.g., 
air-ground service) be licensed to the same entity nationwide. 
Combinatorial bidding is an auction method which allows applicants to 
bid for multiple licenses as all or nothing packages, e.g., all 
licenses nationwide on a particular spectrum block, with the licenses 
awarded as a package if the combinatorial bid is greater than the sum 
of the high bids on the individual licenses in the package. The 
Commission declines to adopt combinatorial bidding in this decision, 
but will establish reduced bid withdrawal penalties for entities 
seeking nationwide licenses that should achieve results similar to 
combinatorial bidding, with far less uncertainty and complexity.
    26. The Second NPRM invited comment on bidding procedures to be 
used in the 4660-4685 MHz auctions, including bid increments, duration 
of bidding rounds, stopping rules, and activity rules. Assuming that 
the Commission would use simultaneous multiple round auctions, the 
Second NPRM generally proposed to use the same or similar bidding 
procedures to those used in simultaneous multiple round bidding for 
MTA-based PCS licenses. The Commission sought comment on whether any 
variations on these procedures should be adopted for licenses in the 
4660-4685 MHz band. Based upon our successful experience in auctioning 
PCS spectrum and the absence of any dispute concerning the efficacy of 
the bidding procedures used there, the Commission adopts essentially 
the same procedures for GWCS licenses. Additional, more detailed 
information on bidding procedures and other auction information will be 
made public prior to the auction.
    27. This Second Report and Order next considers procedural, 
payment, and penalty issues. As discussed below, the Commission will 
generally follow the procedural, payment, and penalty rules established 
in Subpart Q of Part 1 of the Commission's Rules.\8\ First, regarding 
upfront payments, as in the case of other auctionable services, the 
Commission will require participants in the 4660-4685 MHz auction to 
tender to the Commission, in advance of the auction, a substantial 
upfront payment as a condition of bidding in order to ensure that only 
serious, qualified bidders participate in auctions and to ensure 
payment of the penalty in the event of bid withdrawal or default. For 
GWCS, the Commission adopts the standard upfront payment formula of 
$0.02 per pop per MHz for the largest combination of MHz-pops a bidder 
anticipates bidding on in any single round of bidding.

    \8\ 47 C.F.R. Part 1, Subpart Q.
    28. Second, the Commission adopts a requirement for 4660-4685 MHz 
GWCS licensees that successful bidders tender a 20 percent down payment 
on their bids to discourage default between the auction and licensing 
and to ensure payment of the penalty if such default occurs. Third, the 
Commission adopts the bid withdrawal, default, and disqualification 
rules for 4660-4685 MHz licensing based on the procedures established 
in our general competitive bidding rules. Under these procedures, any 
bidder who withdraws a high bid during an auction before the Commission 
declares bidding closed, or defaults by failing to remit the required 
down payment within the prescribed time, will be required to reimburse 
the Commission in the amount of the difference between its high bid and 
the amount of the winning bid the next time the license is offered by 
the Commission, if the subsequent winning bid is lower. One exception 
is that the Commission will limit the bid withdrawal penalties for 
nationwide bidders to 5 percent of the withdrawn bids. A defaulting 
auction winner will be assessed an additional penalty of three percent 
of the subsequent winning bid or three percent of the amount of the 
defaulting bid, whichever is less, up to 5 percent of the withdrawn 
bids. In the event that an auction winner defaults or is otherwise 
disqualified, the Commission will re-auction the license either to 
existing or new applicants. The Commission will retain discretion, 
however, to offer the license to the next highest bidder at its final 
bid level if the default occurs within five business days of the close 
of bidding.
    29. The Commission next considers regulatory safeguards. First, the 
Commission establishes unjust enrichment regulations as directed by the 
Reconciliation Act. Specifically, the Commission adopts the transfer 
disclosure requirements contained in Section 1.2111(a) of our rules for 
all 4660-4685 MHz licenses obtained through the competitive bidding 
process. In addition, the Commission adopts the specific rules 
governing unjust enrichment by designated entities as proposed in the 
Second NPRM. Generally, applicants transferring their licenses within 
three years after the initial license grant will be required to file, 
together with their transfer application, the associated contracts for 
sale, option agreements, management agreements, and all other documents 
disclosing the total consideration received in return for the transfer 
of its license.
    30. Second, the Commission contemplates performance standards, as 
instructed by the Reconciliation Act and finds that no additional 
performance requirements are needed beyond the specific performance 
standards already provided for in the 4660-4685 MHz service rules.
    31. Third, the Commission considers rules prohibiting collusion and 
adopts rules for the 4660-4685 service which are identical to those 
found at 47 CFR Sec. 1.2105(c). Under these procedures, bidders will be 
required to identify on their applications all parties with whom they 
have entered into any consortium arrangements, joint ventures, 
partnerships, or other agreements or 

[[Page 40716]]
understandings that relate to the competitive bidding process. Bidders 
will also be required to certify that they have not entered into any 
explicit or implicit agreements, arrangements, or understandings with 
any parties, other than those identified, regarding the amount of their 
bid, bidding strategies or the particular properties on which they will 
or will not bid.
    32. The Second Report and Order deals with several issues regarding 
eligibility criteria and general rules governing the award of licensing 
preferences to certain designated entities, i.e. minority groups and 
women. In keeping with the general parameters set forth in PR Docket 
93-253, the Second NPRM in the current docket proposed specific 
measures and eligibility criteria for designated entities in the 4660-
4685 MHz service, designed to ensure that such designated entities are 
given the opportunity to participate both in the competitive bidding 
process and in the provision of service in the 4660-4685 MHz band. The 
Commission sought comment on these proposals, and specifically on 
identifying special provisions tailored to the unique characteristics 
of the service or services that might be offered in the 4660-4865 MHz 
band, in order to create meaningful incentives and opportunities in the 
service for small businesses and businesses owned by minorities and/or 
women.
    33. In the Second NPRM, the Commission discussed and sought comment 
on these special provisions for designated entities:
    (1) for businesses owned by women and minorities the Commission 
proposed that installment payments be available on all licenses and 
that a bidding credit of 25 percent be available on one of the five 
proposed spectrum blocks;
    (2) for small business the Commission sought comment on allowing a 
reduced down payment requirement coupled with installment payments;
    (3) the Commission did not believe that special preferences are 
needed to ensure adequate participation of rural telephone companies;
    (4) the Commission sought comments on reducing upfront payments to 
encourage participation in the auction, particularly by all eligible 
designated entities; and
    (5) the Commission sought comment on whether and how to designate 
one 5 MHz spectrum block as an ``entrepreneurs' block.''
    34. The Commission also discussed and solicited comments on issues 
of the eligibility criteria for designated entities and provisions to 
prevent unjust enrichment by trafficking in licenses acquired through 
the use of bidding credits or installment payments.
    35. The Commission concludes that its plan to award licenses for 
the 4660-4685 MHz band based on EA regions, will substantially enhance 
the opportunities for designated entities to participate in the GWCS 
license auction. Partitioning of licenses will further increase the 
opportunities for designated entities. Based on our experience in the 
other auctions held to date, the Commission is also adopting bidding 
and payment provisions that will help ensure that the auction assigns 
licenses to the bidders who value them most highly, while encouraging 
the participation of designated entities. Specifically, the Commission 
will permit small business licensees to make their payments in 
installments computed at a reasonable rate of interest (the rate for 
ten year U.S. Treasury obligations plus 2.5 percent). Small businesses 
will in addition be permitted to make reduced down payments and 
interest-only payments in the first two years of the license term, and 
will be allowed a 10 percent bidding credit on all blocks of spectrum. 
The Commission also adopt rules to prevent unjust enrichment from 
bidding preferences. The Commission does not adopt an entrepreneurial 
set aside, but will apply the designated entity bidding preferences to 
all five spectrum blocks.
    36. The Commission limit eligibility for bidding credits, 
installment payments and reduced down payments to small businesses, 
including those owned by members of minority groups and women. The 
Commission lacks the information necessary to set different eligibility 
criteria for minority and women-owned entities that do not meet our 
small business size standards in order to achieve the goals of Section 
309(j) in the GWCS services. By providing credits on all blocks, 
licensing the blocks based on EA geographic areas, and permitting 
disaggregation and partitioning, the Commission will create substantial 
opportunities for all small businesses, including those owned by 
minorities and women.
    37. The Second NPRM requested comment on whether the Commission 
should utilize the Small Business Association net worth/net income 
definition of a small business (a net worth not in excess of $6 million 
with average net income after Federal income taxes for the preceding 
years not in excess of $2 million) we adopted in the Competitive 
Bidding Second Report and Order or, in the alternative, a gross revenue 
standard like that used in the broadband PCS context (average gross 
revenues for the three preceding years not in excess of $40 million). 
The Commission also proposed to apply the same affiliation and 
attribution rules for calculating revenues that we have previously 
adopted in the PCS context.
    38. The Commission finds that the GWCS overall may be similar to 
broadband PCS in its requirements for capital and adopts the small 
business definition adopted there, namely any firm, together with its 
attributable investors and affiliates, with average gross revenues for 
the three preceding years not in excess of $40 million. The Commission 
also applies to 4660-4685 MHz applicants the same affiliation and 
attribution rules for calculating revenues previously adopted in the 
PCS context.
    39. On the issues of installment payments and down payments, the 
Commission believes that ensuring the opportunity for small businesses 
to participate in providing service in the 4660-4685 MHz band is 
important for the telecommunications industry. The record in PR Docket 
93-253 indicates that small businesses have not become major 
participants in telecommunications. The record in that docket also 
shows that small businesses have particular difficulties obtaining 
capital. As discussed in the Second NPRM, it appears that installment 
payments may have been more effective than bidding credits in 
attracting capital in the regional narrowband PCS auction, possibly 
because installment payments shift some of the financial risk of future 
failure to the Government. Therefore, the Commission adopts installment 
payments for any GWCS licensee meeting the definition of a small 
business.
    40. Under this approach, small business licensees may elect to pay 
their winning bid amount (less upfront payments) in installments over 
the ten year term of the license, with interest charges to be fixed at 
the time of licensing at a rate equal to the rate for ten year U.S. 
Treasury obligations plus 2.5 percent. Installment payments would be 
due quarterly on the anniversary of the day the license was granted. 
Timely payment of all installments would be a condition of the license 
grant and failure to make such timely payments would be grounds for 
revocation of the license.
    41. The Commission also adopts additional payment preferences to 
further reduce the capital needs of small businesses. Small business 
licensees will be permitted to make interest-only installment payments 
during the first two years of the license. The 

[[Page 40717]]
Commission also reduces down payments for small businesses to 5 percent 
of the winning bid due five days after the auction closes and the 
remaining 5 percent down payment due five days after Public Notice that 
the license is ready for grant.
    42. The Second NPRM next proposed a 25 percent bidding credit on 
one of the five proposed spectrum blocks for small businesses owned by 
women and minorities. These bidding credits would be available 
exclusively to minority and women-owned businesses. The Commission also 
proposed installment payments for these entities and sought comment on 
whether installment payments should also be available for small 
businesses. The Commission did not believe that special preferences 
were needed to ensure adequate participation of rural telephone 
companies in the provision of services in this spectrum, in view of the 
uncertainty concerning what specific uses may emerge in this band, the 
potential prices that licenses may bring, the effects of provisions for 
partitioning or leasing spectrum, and the advantages of incumbency and 
economies of scale that may already benefit rural telephone companies. 
The Second NPRM sought comment on this analysis.
    43. The Commission adopts a 10 percent bidding credit for small 
businesses. As discussed above, the Commission is adopting installment 
payments for small business bidders and the small EA geographic 
licensing areas. In the Commission's judgment, these and other 
provisions of the licensing and auction rules should ensure that small 
businesses, including small businesses owned by women and minorities, 
will be able to participate effectively in obtaining GWCS licenses, 
whether or not those licenses are auctioned.
    44. The Commission next considers transfer restrictions and unjust 
enrichment provisions. Restrictions on the transfer or assignment of 
licenses acquired by designated entities are intended to promote the 
Congressional intent that designated entities be permitted to 
participate in the provision of spectrum-based services, not simply to 
profit from trafficking in licenses acquired with the help of bidding 
preferences. The Commission adopts the proposal contained in the Second 
NPRM. Specifically, the Commission adopts a payment requirement on 
transfers of such licenses to entities that are not small businesses. 
Small businesses seeking to transfer a license to an entity that is not 
owned by women or minorities would be required to reimburse the 
government for the amount of the bidding credit, plus interest at the 
rate imposed for installment financing at the time the license was 
awarded, before the transfer would be permitted. The amount of the 
penalty would be reduced over time so that a transfer in the first two 
years of the license would result in a payment of 100 percent of the 
value of the bidding credit; in year three of the license term the 
payment would be 75 percent; in year four the penalty would be 50 
percent and in year five the payment would be 25 percent, after which 
there would be no payment.
    45. On the issue of rural telephone company partitions, the 
Commission, in the Second NPRM, proposed to permit partitioning of MTA-
based licenses, to permit licensees to lease the rights to operate a 
GWCS system within portions of their geographic service area or 
transfer their license to partition their service areas geographically, 
allowing another party to be licensed in the partitioned area, subject 
to Commission approval. The Commission elects to adopt partitioning 
procedures similar to those used for cellular licenses and adopted for 
broadband PCS licenses.
    46. The Second NPRM next sought comment on whether to designate one 
5 MHz spectrum block as an ``entrepreneurs' '' block. The Commission 
also invited comment on how eligibility for such a block should be 
defined. The Commission declines to adopt an entrepreneur's block for 
this band, based on our belief that bidding credits, installment 
payment options, and the other approaches also adopted will generate 
sufficient incentives to encourage participation in GWCS licensing. 
Unlike a set-aside, they also should not generate the risk of 
inefficient use of the 4660-4685 MHz spectrum and of dampening 
incentives for innovation.

Technical Rules

    47. The Second NPRM proposed general and minimal technical 
restrictions that are based on the PCS rules. Specifically, the 
Commission proposed to limit the field strength at licensees' service 
area boundaries to 55 dBu unless licensees operating in adjacent areas 
agree to higher field strengths along their mutual border.\9\ The 
Commission stated that licensees would be expected to coordinate their 
operations at the service area boundaries. The Second NPRM further 
stated that the Commission would encourage licensees to resolve 
adjacent channel interference problems. The Commission did, however, 
propose to require licensees to attenuate the power below the 
transmitter power (P) by at least 43 plus 10log10(P) or 80 
decibels, whichever is less, for any emission at the edges of the 4660-
4685 MHz band. Comments were requested on these proposals and any other 
technical rules that commenters believed appropriate.

    \9\ The minimum field strength required for a good quality 
service for mobile reception in an urban environment is 35 dBu (CCIR 
Report 358-5) and the proposed 55 dBu field strength limit allows 20 
dB additional for location variability.
---------------------------------------------------------------------------

    48. Based on the record, the Commission adopts the technical rules 
as proposed in the Second NPRM. The PCS-based technical rules appear to 
be the best available rules to govern the flexible GWCS designation. 
However, the Commission recognizes that the technical rules may need to 
be adjusted to suit the needs of the eventual licensees. The rules also 
anticipate that licensees will in the first instance seek to resolve 
interference problems among themselves.

License Term

    49. The Second NPRM noted that the Communications Act allows the 
Commission to establish a license term of up to 10 years, except for 
television or radio broadcasting stations, which may have a license 
term of up to 5 and 7 years, respectively. For services in the 4660-
4685 MHz band, the Second NPRM proposed to establish a license term of 
10 years, with a renewal expectancy similar to that of PCS and cellular 
telephone licensees. The Second NPRM indicated that this relatively 
long license term, combined with a high renewal expectancy, should help 
provide a stable regulatory environment that will be attractive to 
investors and, thereby, encourage development of this new frequency 
band. The Commission noted, however, that commenters had proposed using 
this band for auxiliary broadcast service and the statute requires that 
the term of any license for the operation of any auxiliary broadcast 
station or equipment must be concurrent with the term of the license 
for such primary television station. Therefore, the Second NPRM asked 
that commenters address whether the Commission should allow differing 
license terms in this band. The Commission finds that the statutory 
provision that requires a shorter license term will generally not 
apply, expect in the case of an applicant seeking to use GWCS for 
auxiliary broadcast use by a single station, within the meaning of 
Section 307(c).

Construction Requirements

    50. The Commission, in the Second NPRM, acknowledged that the very 
wide array of potential services that 

[[Page 40718]]
could be offered in this band makes it difficult to develop 
construction requirements that can be applied fairly and equitably, 
without skewing the workings of the market. The Commission also 
recognized our responsibility to ensure that the spectrum we assign is 
used effectively. Therefore, the Second NPRM proposed, and the 
Commission now adopts, rules that would require build-out rules modeled 
on those adopted for broadband PCS. Specifically, these rules will 
require that within five years licensees in this band offer service to 
one-third of the population in the area in which they are licensed, and 
to serve two-thirds within ten years of being licensed. The Commission 
will also consider waivers or modification of these rules based on 
demonstrations that the spectrum is being used efficiently, not 
warehoused or stockpiled.
Regulatory Status

    51. The Communications Act and Commission rules often apply 
differing requirements based on the type of service and the regulatory 
status of licensees. The new GWCS category for the 4660-4685 band would 
allow licensees to provide a variety or combination of Fixed and Mobile 
services. Under this service, both Fixed and Mobile applications would 
be permitted and an individual licensee could provide a number of Fixed 
and Mobile services. In the Second NPRM, the Commission observed that 
it may be difficult to determine the regulatory status of GWCS 
licensees. The Commission proposed to rely on applicants to identify 
specifically the type of service or services they intend to provide, 
and require them to include sufficient detail to enable the Commission 
to determine if the service will be Fixed or Mobile, and whether it 
will be offered as a commercial mobile radio service, a private mobile 
radio service, a common carrier Fixed service, or a private Fixed 
service. Comment was requested on the most efficient manner in which to 
administer the requirements of the Communications Act and the 
Commission's Rules, and grant licensees as much operational flexibility 
as possible. The Commission also solicited comments on whether to 
develop a new application long form for this general allocation or 
require an applicant to be responsible for filing the appropriate 
license application based upon the nature of the service designated by 
the applicant. Commenters were asked to address whether it is necessary 
for the Commission to require licensees to notify the Commission if 
they change the type of service offered using some or all of their 
licensed spectrum even though the new use would be permissible under 
the Commission's rules.
    52. The Commission adopts the proposed approach of relying on 
applicants to identify the type of GWCS service or services each will 
provide, with sufficient detail to enable the Commission to determine 
the applicant's regulatory status. The proposed added step would 
usually be unnecessary and would tend to delay the offering of new 
services. The Commission believes that it would be in the public 
interest to develop an application form for the new service. To clarify 
and simplify the regulatory status of licensees, the Commission also 
adopts a presumption that GWCS licenses are providing fixed common 
carrier services, which appears from the record to be the most likely 
and common use of this spectrum. This presumption may be rebutted by an 
appropriate showing. The Commission delegates to the Wireless 
Telecommunications Bureau authority to develop forms appropriate to 
collect this data, and to monitor changes in licensee status.

Licensing Issues

    53. The Second NPRM requested comment on whether the Commission is 
required or should find that it is in the public interest to adopt 
additional licensing rules in order to comply with the statutory 
requirement that we adopt assignment rules before August 10, 1995. The 
Commission finds it unnecessary at present to adopt additional license 
rules for GWCS. The Commission will follow the statutory provisions of 
Section 309(d) for public notice and other requirements. With respect 
to other licensing issues, the Commission will consider whether any 
additional rules are necessary, and what form those rules should take, 
after we have proceeded with the application and licensing process. The 
Commission should at that time have a more detailed understanding of 
the services licensees intend to provide and their regulatory status.

Final Regulatory Flexibility Analysis

    54. Pursuant to the Regulatory Flexibility Act of 1980, 5 U.S.C. 
605, it is certified that this decision will have an impact on small 
entities interested in operating on the 4660-4685 MHz band. As detailed 
in the full text of the Second Report and Order, the Commission has 
attempted, wherever possible within the statutory constraints, to 
establish regulations which, to the extent possible, minimize the 
burdens on such small businesses while providing maximum flexibility. 
The full text of the Commission's final regulatory flexibility analysis 
may be found in paragraph ____ of the full text of this decision.

Ordering Clauses

    55. Accordingly, IT IS ORDERED that Part 26 of the Commission's 
Rules is added as set forth below. This action is taken pursuant to 
Sections 4(i) and 303(r) of the Communications Act of 1934, as amended, 
47 U.S.C. Secs. 154(i) and 303(r).
    56. IT IS FURTHER ORDERED that the rule changes made herein WILL 
BECOME EFFECTIVE at the time of their publication in the Federal 
Register.\10\

    \10\ This Order is adopted pursuant to a statutory requirement 
that the Commission, by August 9, 1995, allocate and establish 
licensing rules for 50 megahertz of spectrum that was transferred 
from Federal Government to private sector use, as required by the 
Budget Act. Thus, there is good cause to order the rule changes 
publication. See 5 U.S.C. Sec. 553(d)(3).
---------------------------------------------------------------------------

List of Subjects

47 CFR Part 1

    Telecommunications.

47 CFR Part 26

    General wireless communications service.

Federal Communications Commission.
William F. Canton,
Acting Secretary.
Rule Changes

    Part 1 of Title 47 of the Code of Federal Regulations is amended as 
follows:

PART 1--PRACTICE AND PROCEDURE

    1. The authority citation for Part 1 continues to read as follows:

    Authority: 47 U.S.C. 151, 154, 303, and 309(j) unless otherwise 
noted.

    2. New paragraph (a)(8) is added to Section 1.2102 to read as 
follows:


Sec. 1.2102  Eligibility of applications for competitive bidding.

    (a) * * *
    (8) General Wireless Communications Service (GWCS) (see Part 26 of 
this chapter).
* * * * *
    Part 26 of Chapter I of Title 47 of the Code of Federal Regulations 
is added to read as follows:

[[Page 40719]]


PART 26--GENERAL WIRELESS COMMUNICATIONS SERVICE

Subpart A--General Information

Sec.
26.1  Basis and purpose.
26.2  Other applicable rule parts.
26.3  Permissible communications.
26.4  Terms and definitions.

Subpart B--Applications and Licenses

26.11  Initial authorization.
26.12  Eligibility.
26.13  License period.
26.14  Criteria for comparative renewal proceedings.

Subpart C--Technical Standards

26.51  Equipment authorization.
26.52  RF hazards.
26.53  Emission limits.
26.54  Frequency stability.
26.55  Field strength limits.

Subpart D--Miscellaneous

26.101  Multiple ownership restrictions.
26.102  Service areas.
26.103  Frequencies.
26.104  Construction requirements.

Subpart E--Competitive Bidding Procedures for GWCS

26.201  GWCS subject to competitive bidding.
26.202  Competitive bidding design for GWCS licensing.
26.203  Competitive bidding mechanisms.
26.204  Withdrawal, default and disqualification penalties.
26.205  Bidding application (FCC Form 175 and 175-S Short-Form.
26.206  Submission of upfront payments and down payments.
26.207  Long form applications.
26.208  License grant, denial, default, and disqualification.
26.209  Eligibility for partitioned licenses.
26.210  Provisions for small businesses.

Subpart F--Application, Licensing, and Processing Rules for GWCS

26.301  Authorization required.
26.302  Eligibility.
26.303  Formal and informal applications.
26.304  Filing of GWCS applications, fees, and numbers of copies.
26.305  Standard application forms and permissive changes or minor 
modifications for the General Wireless Communications Service.
26.306  Miscellaneous forms.
26.307  General application requirements.
26.308  Technical content of applications; maintenance of list of 
station locations.
26.309  Station antenna structures.
26.310  Waiver of rules.
26.311  Defective applications.
26.312  Inconsistent or conflicting applications.
26.313  Amendment of application for General Wireless Communications 
Service filed on FCC Form 175.
26.314  Amendment of applications for General Wireless 
Communications Service (other than applications filed on FCC Form 
175).
26.315  Application for temporary authorizations.
26.316  Receipt of application; applications in the General Wireless 
Communications Service filed on FCC Form 175 and other applications 
in the GWCS.
26.317  Public notice period.
26.318  Dismissal and return of applications.
26.319  Ownership changes and agreements to amend or to dismiss 
applications or pleadings.
26.320  Opposition to applications.
26.321  Mutually exclusive applications.
26.322  Consideration of applications.
26.323  Post-auction divestitures.
26.324  Transfer of control or assignment of station authorization.
26.325  Extension of time to complete construction.
26.326  Termination of authorization.

    Authority: 47 U.S.C. Sections 154, 301, 302, 303, 309 and 332, 
unless otherwise noted.

Subpart A--General Information


Sec. 26.1  Basis and purpose.

    This section contains the statutory basis for this part of the 
rules and provides the purpose for which this part is issued.
    (a) Basis. The rules for the general wireless communications 
service (GWCS) in this part are promulgated under the provisions of the 
Communications Act of 1934, as amended, that vests authority in the 
Federal Communications Commission to regulate radio transmission and to 
issue licenses for stations.
    (b) Purpose. This part states the conditions under which portions 
of the radio spectrum are made available and licensed for GWCS.
    (c) Scope. The rules in this part apply only to stations authorized 
under this part.


Sec. 26.2  Other applicable rule parts.

    Other FCC rule parts applicable to licensees in the general 
wireless communications service include the following:
    (a) Part 0. This part describes the Commission's organization and 
delegations of authority. Part 0 of this chapter also lists available 
Commission publications, standards and procedures for access to 
Commission records, and location of Commission Field Offices.
    (b) Part 1. This part includes rules of practice and procedure for 
license applications, adjudicatory proceedings, procedures for 
reconsideration and review of the Commission's actions; provisions 
concerning violation notices and forfeiture proceedings; and the 
environmental requirements that, if applicable, must be complied with 
prior to the initiation of construction.
    (c) Part 2. This part contains the Table of Frequency Allocations 
and special requirements in international regulations, recommendations, 
agreements, treaties. This part also contains standards and procedures 
concerning the marketing and importation of radio frequency devices, 
and for obtaining equipment authorization.
    (d) Part 5. This part contains rules prescribing the manner in 
which parts of the radio frequency spectrum may be made available for 
experimentation.
    (e) Part 17. This part contains requirements for construction, 
marking and lighting of antenna towers.
    (f) Part 68. This part contains technical standards for connection 
of terminal equipment to the telephone network.


Sec. 26.3  Permissible communications.

    GWCS licensees may provide any fixed or mobile communications 
service on their assigned spectrum. Broadcasting services, 
Radiolocation services and satellite services as defined in Sec. 2.1 of 
this chapter are prohibited.


Sec. 26.4  Terms and definitions.

    Assigned frequency. The center of the frequency band assigned to a 
station.
    Authorized bandwidth. The maximum width of the band of frequencies 
permitted to be used by a station. This is normally considered to be 
the necessary or occupied bandwidth, whichever is greater.
    Average terrain. The average elevation of terrain between 3 and 16 
kilometers from the antenna site.
    Effective radiated power (e.r.p.) (in a given direction). The 
product of the power supplied to the antenna and its gain relative to a 
half-wave dipole in a given direction.
    Equivalent isotropically radiated power (e.i.r.p.). The product of 
the power supplied to the antenna and the antenna gain in a given 
direction relative to an isotropic antenna.
    Fixed service. A radio communication service between specified 
fixed points.
    Fixed station. A station in the fixed service.
    Gross revenues. Gross revenues shall mean all income received by an 
entity, whether earned or passive, before any deductions are made for 
costs of doing business (e.g. cost of goods sold), as evidenced by 
audited financial statements for the relevant number of calendar years 
preceding January 1, 1994, or, if audited financial statements were not 
prepared on a calendar-year basis, for the most recently completed 
fiscal years preceding the filing of the applicant's short-form 
application (Form 175). For applications filed after December 31, 1995, 
gross revenues shall 

[[Page 40720]]
be evidenced by audited financial statements for the preceding relevant 
number of calendar or fiscal years. If an entity was not in existence 
for all or part of the relevant period, gross revenues shall be 
evidenced by the audited financial statements of the entity's 
predecessor-in-interest or, if there is no identifiable predecessor-in-
interest, unaudited financial statements certified by the applicant as 
accurate.
    Land mobile service. A mobile service between base stations and 
land mobile stations, or between land mobile stations.
    Land mobile station. A mobile station in the land mobile service 
capable of surface movement within the geographic limits of a country 
or continent.
    Land station. A station in the mobile service not intended to be 
used while in motion.
    Mobile service. A radio communication service between mobile and 
land stations, or between mobile stations.
    Mobile station. A station in the mobile service intended to be used 
while in motion or during halts at unspecified points.
    National Geodetic Reference System (NGRS): The name given to all 
geodetic control data contained in the National Geodetic Survey (NGS) 
data base. (Source: National Geodetic Survey, U.S. Department of 
Commerce)
    Rural telephone company. A rural telephone company is a local 
exchange carrier having 100,000 or fewer access lines, including all 
affiliates.
    Small business: consortium of small businesses.
    (1) A small business is an entity that, together with its 
affiliates and persons or entities that hold interest in such entity 
and their affiliates, has average annual gross revenues that are not 
more than $40 million for the preceding three years.
    (2) A small business consortium is a conglomerate organization 
formed as a joint venture between or among mutually-independent 
business firms, each of which individually satisfies the definition of 
a small business.
    Total assets. Total assets shall mean the book value (except where 
generally accepted accounting principles (GAAP) require market 
valuation) of all property owned by an entity, whether real or 
personal, tangible or intangible, as evidenced by the most recent 
audited financial statements.

Subpart B--Applications and Licenses


Sec. 26.11  Initial authorization.

    (a) An applicant must file an application for an initial 
authorization in each market and frequency block desired.
    (b) Blanket licenses are granted for each market and frequency 
block. Applications for individual sites are not required and will not 
be accepted.


Sec. 26.12  Eligibility.

    Any entity, other than those precluded by section 310 of the 
Communications Act of 1934, as amended, 47 U.S.C. Sec. 310, is eligible 
to hold a license under this part.


Sec. 26.13  License period.

    Licenses for service areas will be granted for ten year terms from 
the date of original issuance or renewal.


Sec. 26.14  Criteria for comparative renewal proceedings.

    A renewal applicant involved in a comparative renewal proceeding 
shall receive a preference, commonly referred to as a renewal 
expectancy, which is the most important comparative factor to be 
considered in the proceeding, if its past record for the relevant 
license period demonstrates that the renewal applicant:
    (a) Has provided ``substantial'' service during its past license 
term. ``Substantial'' service is defined as service which is sound, 
favorable, and substantially above a level of mediocre service which 
might just minimally warrant renewal; and
    (b) Has substantially complied with applicable Commission rules, 
policies and the Communications Act.

Subpart C--Technical Standards


Sec. 26.51  Equipment authorization.

    (a) Each transmitter utilized for operation under this part and 
each transmitter marketed, as set forth in Sec. 2.803 of this chapter, 
must be of a type that has been authorized by the Commission under its 
type acceptance procedure.
    (b) The Commission periodically publishes a list of type accepted 
equipment, entitled ``Radio Equipment List, Equipment Accepted for 
Licensing.'' Copies of this list are available for public reference at 
the Commission's offices in Washington, D.C., at each of its field 
offices, and may be ordered from its copy contractor.
    (c) Any manufacturer of radio transmitting equipment to be used in 
these services may request equipment authorization following the 
procedures set forth in Subpart J of part 2 of this chapter. Equipment 
authorization for an individual transmitter may be requested by an 
applicant for a station authorization by following the procedures set 
forth in part 2 of this chapter. Such equipment if approved or accepted 
will not normally be included in the Commission's Radio Equipment List 
but will be individually enumerated on the station authorization.
    (d) Applicants for type acceptance of transmitters that operate in 
these services must determine that the equipment complies with IEEE 
C95.1-1991, (ANSI/IEEE C95.1-1991), ``IEEE Standards for Safety Levels 
with Respect to Human Exposure to Radio Frequency Electromagnetic 
Fields, 3 kHz to 300 GHz'' as measured using methods specified in IEEE 
C95.3-1991, (ANSI/IEEE C95.3-1991), ``Recommended Practice for the 
Measurement of Potentially Hazardous Electromagnetic Fields--RF and 
Microwave.'' The applicant for type acceptance is required to submit a 
statement affirming that the equipment complies with these standards as 
measured by an approved method and to maintain a record showing the 
basis for the statement of compliance with IEEE C.95.1-1991. (See 
Sec. 26.52 for availability of IEEE standards.)


Sec. 26.52  RF hazards.
    (a) Licensees and manufacturers are required to ensure that their 
facilities and equipment comply with IEEE C95.1-1991. Measurement 
methods are specified in IEEE C95.3-1991. Copies of these standards are 
available from IEEE Standards Board, 445 Hoes Lane, P.O. Box 1331, 
Piscataway, NJ 08855-1331. Telephone: 1-800-678-4333. The limits for 
both ``controlled'' and ``uncontrolled'' environments, as defined by 
IEEE C95.1-1991, will apply to all GWCS base and mobile stations, as 
appropriate. The application for equipment authorization must contain a 
statement confirming compliance with IEEE C95.1-1991. Technical 
information showing the basis for this statement must be submitted to 
the Commission upon request.
    (b) GWCS hand-held devices whose maximum radiated power is 100 
milliwatts or less are not required to be evaluated for compliance with 
ANSI/IEEE SAR (specific absorption rate) requirements, as long as 2.5 
cm separation distance is maintained between the radiating structure 
and the body of the user. (The ANSI/IEEE standard uses the term 
``radiated power,'' meaning input power to the antenna.)
    (c) For further information on the Commission's environmental rules 
see Secs. 1.1301 through 1.1319 of this chapter.

[[Page 40721]]



Sec. 26.53  Emission limits.

    (a) The power of any emission at the edges of the 4660-4685 MHz 
band shall be attenuated below the transmitter power (P) by at least 43 
+ 10 log10(P) or 80 decibels, whichever is less.
    (b) Compliance with these provisions is based on the use of 
measurement instrumentation employing a resolution bandwidth of 1 MHz 
or greater. However, in the 1 MHz bands immediately outside and 
adjacent to the frequency block a resolution bandwidth of at least one 
percent of the emission bandwidth of the fundamental emission of the 
transmitter may be employed. The emission bandwidth is defined as the 
width of the signal between two points, one below the carrier center 
frequency and one above the carrier center frequency, outside of which 
all emission are attenuated at least 26 dB below the transmitter power.
    (c) When measuring the emission limits, the nominal carrier 
frequency shall be adjusted as close to the license's frequency block 
edges, both upper and lower, as the design permits.
    (d) The measurements of emission power can be expressed in peak or 
average values, provided that they are expressed in the same parameters 
as the transmission power.
    (e) When an emission outside of the authorized bandwidth causes 
harmful interference, the Commission may, at its discretion, require 
greater attenuation than specified in this section.


Sec. 26.54  Frequency stability.

    The frequency stability shall be sufficient to ensure that the 
fundamental emission stays within the authorized frequency block.


Sec. 26.55  Field strength limits.

    The predicted or measured median field strength at any location on 
the border of the GWCS service area shall not exceed 55 dBu unless 
licensees operating in adjacent areas agree to higher field strength 
along their mutual borders.

Subpart D--Miscellaneous


Sec. 26.101  Multiple ownership restrictions.

    (a) GWCS licensees shall not have an ownership interest in more 
than three of the five, 5 megahertz wide channels available in any 
geographic area. For purposes of this restriction, a GWCS licensee is:
    (1) Any institutional investor, as defined in Sec. 26.4, with an 
ownership interest of ten or more percent in a GWCS license; and
    (2) Any other person or entity with an ownership interest of five 
or more percent in a GWCS license.
    (b) In cases where a party had indirect ownership, through an 
interest in an intervening entity (or entities) that has ownership in 
the GWCS license, that indirect ownership shall be attributable if the 
percentages of ownership at each level, multiplied together, equal five 
or more percent ownership of the GWCS license, except that if the 
ownership percentage for an interest in any link in the chain exceeds 
50 percent or represents actual control, it shall be treated as if it 
were a 100 percent interest.

    Example. Party X has a non-controlling ownership interest of 25 
percent in Company Y, which in turn has a non-controlling ownership 
interest of 10 percent in Company Z, the GWCS licensee. Party X's 
effective ownership interest in Company Z is Party X's ownership 
interest in Company Y (25 percent) times Company Y's ownership 
interest in Company Z (10 percent). Therefore, Party X's effective 
ownership interest in Company Z is 2.5 percent, and is not 
attributable.

    (c) Notwithstanding paragraph (b) of this section, the following 
interests shall not constitute attributable ownership interests for 
purposes of paragraph (a) of this section.
    (1) A limited partnership interest held by an institutional 
investor (as defined Sec. 26.4) where the limited partner is not 
materially involved, directly or indirectly, in the management or 
operation of the GWCS holdings of the partnership, and the licensee so 
certifies. The criteria which would assure adequate insulation for the 
purposes of this certification require:
    (i) Prohibiting limited partners from acting as employees of the 
limited partnership if responsibilities relate to the carrier 
activities of the licensee;
    (ii) Barring the limited partners from serving as independent 
contractors;
    (iii) Restricting communication among limited partners and the 
general partner regarding day-to-day activities of the licensee;
    (iv) Empowering the general partner to veto admissions of new 
general partners;
    (v) Restricting the circumstances in which the limited partners can 
remove the general partner;
    (vi) Prohibiting the limited partners from providing services to 
the partnership relating to the GWCS holdings of the licensee; and
    (vii) Stating that the limited partners may not become involved in 
the management or operation of the licensee.


Sec. 26.102  Service areas.

    GWCS service areas are based on Economic Areas developed by the 
Bureau of Economic Analysis, Department of Commerce, referred to as 
``EAs'' and three additional EA-like service areas: Guam and the 
Northern Mariana Islands (combined as one service area), Puerto Rico 
and the United States Virgin Islands (combined as one service area), 
and American Samoa.
    (a) Economic Areas. Codes from 001 to 172 are assigned to the EAs 
in approximate geographic order, beginning with 001 in northern Maine, 
continuing south to Florida, then north to the Great Lakes, and 
continuing in a serpentine pattern to the West Coast. Except for the 
Western Oklahoma EA (126), the Northern Michigan EA (058), and the 17 
EAs that mainly correspond to consolidated metropolitan statistical 
areas (CMSAs), each EA is named for the metropolitan area or city that 
is the node of its largest component economic area (CEA) and that is 
usually, but not always, the largest metropolitan area or city in the 
EA. Each CEA consists of a single economic node and the surrounding 
counties that are economically related to the node. The following list 
provides EA codes and names.
Code and Name
001  Bangor, ME
002  Portland, ME
003  Boston-Worcester-Lawrence-Lowell-Brockton, MA-NH
004  Burlington, VT
005  Albany-Schenectady-Troy, NY
006  Syracuse, NY
007  Rochester, NY
008  Buffalo-Niagara Falls, NY
009  State College, PA
010  New York-No. New Jersey-Long Island, NY-NJ-CT-PA
011  Harrisburg-Lebanon-Carlisle, PA
012  Philadelphia-Wilmington-Atlantic City, PA-NJ-DE-MD
013  Washington-Baltimore, DC-MD-VA-WV
014  Salisbury, MD
015  Richmond-Petersburg, VA
016  Staunton, VA
017  Roanoke, VA
018  Greensboro-Winston-Salem-High Point, NC
019  Raleigh-Durham-Chapel Hill, NC
020  Norfolk-Virginia Beach-Newport News, VA-NC
021  Greensville, NC
022  Fayettesville, NC
023  Charlotte-Gastonia-Rock Hill, NC-SC
024  Columbia, SC
025  Wilmington, NC
026  Charleston-North Charleston, SC
027  Augusta-Aiken, GA-SC
028  Savannah, GA
029  Jacksonville, FL

[[Page 40722]]

030  Orlando, FL
031  Miami-Fort Lauderdale, FL
032  Fort Myers-Cape Coral, FL
033  Sarasota-Bradenton, FL
034  Tampa-St. Petersburg-Clearwater, FL
035  Tallahassee, FA
036  Dothan, AL
037  Albany, GA
038  Macon, GA
039  Columbus, GA-AL
040  Atlanta, GA
041  Greenville-Spartanburg-Anderson, SC
042  Asheville, NC
043  Chattanooga, TN-GA
044  Knoxville, TN
045  Johnson City-Kingsport-Bristol, TN-VA
046  Hickory-Morganton, NC
047  Lexington, KY
048  Charleston, WV
049  Cincinnati-Hamilton, OH-KY-IN
050  Dayton-Springfield, OH
051  Columbus, OH
052  Wheeling, WV-OH
053  Pittsburgh, PA
054  Erie, PA
055  Cleveland-Akron, OH
056  Toledo, OH
057  Detroit-Ann Arbor-Flint, MI
058  Northern Michigan, MI
059  Green Bay, WI
060  Appleton-Oshkosh-Neenah, WI
061  Traverse City, MI
062  Grand Rapids-Muskegon-Holland, MI
063  Milwaukee-Racine, WI
064  Chicago-Gary-Kenosha, IL-IN-WI
065  Elkhart-Goshen, IN
066  Fort Wayne, IN
067  Indianapolis, IN
068  Champaign-Urbana, IL
069  Evansville-Henderson, IN-KY
070  Louisville, KY-IN
071  Nashville, TN
072  Paducah, KY
073  Memphis, TN-AR-MS
074  Huntsville, AL
075  Tupelo, MS
076  Greenville, MS
077  Jackson, MS
078  Birmingham, AL
079  Montgomery, AL
080  Mobile, AL
081  Pensacola, FL
082  Biloxi-Gulfport-Pascagoula, MS
083  New Orleans, LA
084  Baton Rouge, LA
085  Lafayette, LA
086  Lake Charles, LA
087  Beaumont-Port Arthur, TX
088  Shreveport-Bossier City, LA
089  Monroe, LA
090  Little Rock-North Little Rock, AR
091  Fort Smith, AR-OK
092  Fayetteville-Springdale-Rogers, AR
093  Joplin, MO
094  Springfield, MO
095  Jonesboro, AR
096  St. Louis, MO-IL
097  Springfield, IL
098  Columbia, MO
099  Kansas City, MO-KS
100  Des Moines, IA
101  Peoria-Pekin, IL
102  Davenport-Moline-Rock Island, IA-IL
103  Cedar Rapids, IA
104  Madison, WI
105  La Crosse, WI-MN
106  Rochester, MN
107  Minneapolis-St. Paul, MN-WI
108  Wausau, WI
109  Duluth-Superior, MN-WI
110  Grand Forks, ND-MN
111  Minot, ND
112  Bismarck, ND
113  Fargo-Moorhead, ND-MN
114  Aberdeen, SD
115  Rapid City, SD
116  Sioux Falls, SD
117  Sioux City, IA-NE
118  Omaha, NE-IA
119  Lincoln, NE
120  Grand Island, NE
121  North Platte, NE
122  Wichita, KS
123  Topeka, KS
124  Tulsa, OK
125  Oklahoma City, OK
126  Western Oklahoma, OK
127  Dallas-Fort Worth, TX
128  Abilene, TX
129  San Angelo, TX
130  Austin-San Marcos, TX
131  Houston-Galveston-Brazoria, TX
132  Corpus Christi, TX
133  McAllen-Edinburg-Mission, TX
134  San Antonio, TX
135  Odessa-Midland, TX
136  Hobbs, NM
137  Lubbock, TX
138  Amarillo, TX
139  Santa Fe, NM
140  Pueblo, CO
141  Denver-Boulder-Greeley, CO
142  Scottsbluff, NE
143  Casper, WY
144  Billings, MT
145  Great Fallas, MT
146  Missoula, MT
147  Spokane, WA
148  Idaho Falls, ID
149  Twin Falls, ID
150  Boise City, ID
151  Reno, NV
152  Salt Lake City-Ogden, UT
153  Las Vegas, NV-AZ
154  Flagstaff, AZ
155  Farmington, NM
156  Albuquerque, NM
157  El Paso, TX
158  Phoenix-Mesa, AZ
159  Tucson, AZ
160  Los Angeles-Riverside-Orange County, CA
161  San Diego, CA
162  Fresno, CA
163  San Francisco-Oakland-San Jose, CA
164  Sacramento-Yolo, CA
165  Redding, CA
166  Eugene-Springfield, OR
167  Portland-Salem, OR-WA
168  Pendleton, OR
169  Richland-Kennewick-Pasco, WA
170  Seattle-Tacoma-Bremerton, WA
171  Anchorage, AK
172  Honolulu, HI

    (b) Other eligible areas not included in the Bureau of Economic 
Analysis's list of EAs include: Guam and the Northern Mariana Islands, 
Puerto Rico and United States Virgin Islands, and American Samoa.


Sec. 26.103  Frequencies.

    The following frequencies are available for GWCS in the Economic 
Areas and other areas described in Sec. 26.102 as shown below.
Channel Block and Frequency Band
Block A: 4660-4665 MHz
Block B: 4665-4670 MHz
Block C: 4670-4675 MHz
Block D: 4675-4680 MHz
Block E: 4680-4685 MHz


Sec. 26.104  Construction requirements.

    (a) GWCS licensees shall within five years of initial license grant 
date offer service to one-third of the population in the area in which 
they are licensed. Licensees shall serve two-thirds of the population 
in the area in which they are licensed within ten years of initial 
license grant date.
    (b) In demonstrating compliance with the above construction 
requirements, licensees must base their calculations on signal field 
strengths that ensure reliable service for the technology utilized. 
Licensees may use any service radius contour formula developed or 
generally used by industry, provided that such formula is based on the 
technical characteristics of their system.
    (c) Upon meeting the five and ten year benchmarks in paragraph (a) 
of this section, licensees shall file a map and other supporting 
documentation that demonstrates compliance with the geographic area or 
population coverage requirement. Licensees shall file a statement 
indicating commencement of service. The filing must be received at the 
Commission on or before expiration of the relevant period.
    (d) If the sale of a license is approved, the new licensee is held 
to the original build-out requirement.
    (e) Failure by a licensee to meet the above construction 
requirements may result in forfeiture of the license and ineligibility 
to regain it.


[[Page 40723]]

    Note to Sec. 26.104: Population-based construction requirements 
contained in this section shall be based on the 1990 census.

Subpart E--Competitive Bidding Procedures for GWCS
Sec. 26.201  GWCS subject to competitive bidding.

    Mutually exclusive initial applications to provide GWCS service are 
subject to competitive bidding procedures. The general competitive 
bidding procedures found in 47 CFR Part 1, Subpart Q, will apply unless 
otherwise provided in this part.


Sec. 26.202  Competitive bidding design for GWCS licensing.

    (a) The Commission will employ the following competitive bidding 
designs when choosing from among mutually exclusive initial 
applications to provide GWCS service:
    (1) Simultaneous multiple round actions
    (2) Sequential oral auctions
    (b) The Commission may design and test alternative procedures. The 
Commission will announce by Public Notice before each auction the 
competitive bidding design to be employed in a particular auction.
    (c) The Commission may use single combined auctions, which combine 
bidding for two or more substitutable licenses and award licenses to 
the highest bidders until the available licenses are exhausted. This 
technique may be used in conjunction with any type of auction.


Sec. 26.203  Competitive bidding mechanisms.

    (a) Sequencing. The Commission will establish and may vary the 
sequence in which GWCS licenses will be auctioned.
    (b) Reservation price. The Commission may establish a reservation 
price, either disclosed or undisclosed, below which a license subject 
to auction will not be awarded.
    (c) Minimum bid increments. The Commission may, by announcement 
before or during an auction, require minimum bid increments in dollar 
or percentage terms. The Commission may also establish by Public Notice 
a suggested opening bid or a minimum opening bid on each license.
    (d) Stopping rules. The Commission may establish stopping rules 
before or during multiple round auctions in order to terminate an 
auction within a reasonable time.
    (e) Activity rules. The Commission may establish activity rules 
which require a minimum amount of bidding activity. In the event that 
the Commission establishes an activity rule in connection with a 
simultaneous multiple round auction, each bidder will be entitled to 
request and will be automatically granted one activity rule waiver 
during each stage of an auction, or one automatic waiver during a 
specified number of bidding rounds. The Commission may change by Public 
Notice the number and frequency of such automatic activity rule waivers 
for a specific auction.
    (f) Bidder identification during auctions. The Commission may 
choose, on an auction-by-auction basis, to release the identity of the 
bidders associated with bidder identification numbers. The Commission 
will announce by Public Notice before each auction whether bidder 
identities will be revealed.
    (g) Nationwide bidders. Bidders seeking to aggregate EA-based GWCS 
licenses into nationwide licenses are required to declare the number of 
nationwide aggregations for which they will bid and to be active in 
every round of bidding on sufficient licenses to create the number of 
declared aggregations.


Sec. 26.204  Withdrawal, default and disqualification penalties.

    (a) When the Commission conducts a simultaneous multiple round 
auction pursuant to Sec. 26.202(a)(1), the Commission will impose 
penalties on bidders who withdraw high bids during the course of an 
auction, or who default on payments due after an auction closes or who 
are disqualified.
    (1) Bid withdrawal prior to close of auction. A bidder who 
withdraws a high bid during the course of an auction will be subject to 
a penalty equal to the difference between the amount bid and the amount 
of the winning bid the next time the license is offered by the 
Commission. No withdrawal penalty would be assessed if the subsequent 
winning bid exceeds the withdrawn bid. This penalty amount will be 
deducted from any upfront payments or down payments that the 
withdrawing bidder has deposited with the Commission. The withdrawal 
penalty for a nationwide bidder for each aggregation is limited to 5 
percent of the aggregate withdrawn bids. The withdrawal penalty for a 
nationwide bidder is calculated between the sum of the withdrawn bids 
and the sum of the subsequent high bids on the withdrawn licenses.
    (2) Default or disqualification after close of auction. If a high 
bidder defaults or is disqualified after the close of such an auction, 
the defaulting bidder will be subject to the penalty in paragraph 
(a)(1) of this section plus an additional penalty equal to three (3) 
percent of the subsequent winning bid. If the subsequent winning bid. 
If the subsequent winning bid exceeds the defaulting bidder's bid 
amount, the 3 percent penalty will be calculated based on the 
defaulting bidder's bid amount. These amounts will be deducted from any 
upfront payments or down payments that the defaulting or disqualified 
bidder has deposited with the Commission.
    (b) When the Commission conducts sequential oral auctions, the 
Commission may modify the penalties to be paid in the event of bid 
withdrawal, default disqualification; provided, however, that such 
penalties shall not exceed the penalties specified above.
    (c) In the case of single round bidding for GWCS licenses:
    (1) If a bid is withdrawn before the Commission releases the 
initial Public Notice announcing the winning bidder(s), no bid 
withdrawal penalty will be assessed.
    (2) If a bid is withdrawn after the Commission releases the initial 
Public Notice announcing the winning bidder(s), the bid withdrawal 
penalty will be equal to the difference between the high bid amount and 
the amount of the next highest valid bid. A bid will be considered 
valid for this purpose if the bidder has not already been designated 
the winning bidder on more licenses than it is permitted to be awarded. 
Losing bidders will only be subject to this bid withdrawal penalty for 
a period of 30 days after the Commission releases the initial Public 
Notice announcing the winning bidders.
    (d) In the case of oral sequential bidding for GWCS licenses:
    (1) If a bid is withdrawn before the Commission has declared the 
bidding to be closed for the license bid on, no bid withdrawal penalty 
will be assessed.
    (2) If a bid is withdrawn after the Commission has declared the 
bidding to be closed for the license bid on, the bid withdrawal penalty 
of Sec. 1.2104(g) of this chapter and paragraphs (a)(1) and (a)(2) of 
this section will apply.


Sec. 26.205  Bidding application (FCC) Form 175 and 175-S Short-Form).

    All applicants for initial provision of GWCS service must submit 
applications on FCC Forms 175 and 175-S pursuant to the procedures set 
forth in Sec. 1.2105 of this chapter. The Commission will issue a 
Public Notice announcing the date of a GWCS auction, the licenses which 
are to be auctioned, and the date on or before which applicants 
intending to participate in an upcoming GWCS auction must file their 
applications in order to be eligible for that auction. The 

[[Page 40724]]
Public Notice will also contain information necessary for completion of 
the application as well as other important information such as the 
materials which must accompany the Forms, any filing fee that must 
accompany the application or any upfront payment that will need to be 
submitted, and the location where the application must be filed.


Sec. 26.206  Submission of upfront payments and down payments.

    (a) Where the Commission uses simultaneous multiple round auctions 
or oral sequential auctions bidders will be required to submit an 
upfront payment pursuant to the procedures set forth in Sec. 1.2106 of 
this chapter.
    (b) Winning bidders in an auction must submit a down payment to the 
Commission in accordance with the procedures set forth in Sec. 1.2107 
(a) and (b) of this chapter.
    (c) Notwithstanding paragraphs (a) and (b) of this section, 
eligible small businesses may submit a down payment of 5 percent of the 
winning bid five days after the auction closes and 5 percent five days 
after public notice that the license is ready for grant.


Sec. 26.207  Long form applications.

    Winning bidders will be required to submit long form applications 
on FCC form XXX, as modified, within ten (10) business days after being 
notified that they are the winning bidder. Applications on FCC Form XXX 
shall be submitted pursuant to the procedures set forth in subpart G of 
this part and Sec. 1.2107 (c) and (d) of this chapter and any 
associated Public Notices. Only auction winners will be eligible to 
file applications on FCC Form XXX for initial GWCS licenses in the 
event of mutual exclusivity between applicants filing Form 175. Winning 
bidders need not complete Schedule B to Form XXX.


Sec. 26.208  License grant, denial, default, and disqualification.

    (a) Unless eligible for installment payments and/or a bidding 
credit, each winning bidder is required to pay the balance of its 
winning bid in a lump sum payment within five (5) business days 
following the award of the license. Grant of the license will be 
conditioned upon full and timely payment of the winning bid amount.
    (b) A bidder who withdraws its bid, defaults on a payment or is 
disqualified will be subject to the penalties specified in Sec. 1.2109 
of this Chapter.
    (c) An eligible small business may elect to pay its winning bid, 
less up-front payments, over the terms of the license. Interest charges 
are fixed at the time of licensing at the rate equal to U.S. Treasury 
obligation plus 2.5 percent. Installment payments are due quarterly on 
the anniversary of the day the license was granted, except that 
interest-only installment payments are permitted during the first two 
years of the license.


Sec. 26.209  Eligibility for partitioned licenses.

    (a) Notwithstanding Sec. 26.102, an applicant that is a rural 
telephone company, as defined in Sec. 26.4, may be granted a GWCS 
license that is geographically partitioned from a separately licensed 
EA, so long as the EA applicant or licensee has voluntarily agreed (in 
writing) to partition a portion of the license to the rural telephone 
company.
    (b) If partitioned licenses are being applied for in conjunction 
with a license(s) to be awarded through competitive biding procedures--
    (1) The applicable procedures for filing short-form applications 
and for submitting upfront payments and down payments contained in this 
part and Part 1 of this chapter shall be followed by the applicant, who 
must disclose as part of its short-form application all parties to 
agreement(s) with or among rural telephone companies to partition the 
license pursuant to this section, if won at auction (see 
Sec. 1.2105(a)(2)(viii));
    (2) Each rural telephone company that is a party to an agreement to 
partition the license shall file a long-form application for its 
respective, mutually agreed-upon geographic area together with the 
application for the remainder of the EA filed by the auction winner.
    (c) If the partitioned license is being applied for as a partial 
assignment of the EA license following grant of the initial license, 
request for authorization for partial assignment of a license shall be 
made pursuant to Sec. 26.324.
    (d) Each application for a partitioned area (long-form initial 
application or partial assignment application) shall contain a 
partitioning plan that must propose to establish a partitioned area to 
be licensed that meets the following criteria:
    (1) Conforms to established geopolitical boundaries (such as county 
lines);
    (2) Includes the wireline service area of the rural telephone 
company applicant; and
    (3) Is reasonably related to the rural telephone company's wireline 
service area.

    Note to paragraph (d)(3): A partitioned service area will be 
presumed to be reasonably related to the rural telephone company's 
wireline service area if the partitioned service area contains no 
more than twice the population overlap between the rural telephone 
company's wireline service area and the partitioned area.

    (e) Each licensee in each partitioned area will be responsible for 
meeting the construction requirements in its area (see Sec. 26.104).


Sec. 26.210  Provisions for small businesses.

    (a) Bidding credits. A winning bidder that qualifies as a small 
business or a consortium of small businesses may use a bidding credit 
of ten percent to lower the cost of its winning bid.
    (b) Installment payments. A winning bidder that qualifies as a 
small business may pay its winning bid amount (less upfront payments) 
in installments over the ten year term of the license, with interest 
charges to be fixed at the time of licensing at a rate equal to the 
rate for ten year U.S. Treasury obligations plus 2.5 percent. 
Installment payments are due quarterly on the anniversary of the day 
the license is granted. Failure to make timely installment payments may 
result in revocation of the license. Small businesses are permitted to 
make interest-only installment payments during the first two years of 
the license.
    (c) Down payments. A winning bidder that qualifies as a small 
business is permitted to make a down payment equal to 5 percent of the 
winning bid due five days after the auction closes with the remaining 5 
percent down payment dues five days after Public Notice that the 
license is ready for grant.
    (d) Unjust enrichment. If a licensee that utilizes a bidding credit 
under this section seeks to assign or transfer control of its license 
to an entity not meeting the eligibility standards for bidding credits 
or seeks to make any other change in ownership that would result in the 
licensee no longer qualifying for bidding credits under this section, 
the licensee must seek Commission approval and reimburse the government 
for the amount of the bidding credit, plus interest at the rate imposed 
for installment financing at the time the license was awarded as a 
condition of the approval of such assignment, transfer or other 
ownership change. The amount of the payment would be reduced over time 
so that a transfer in the first two years of the license would result 
in a payment of 100 percent of the value of the bidding credit; in year 
three of the license term the payment would be 75 percent; in year four 
the payment would be 50 percent and in year five the payment would be 
25 percent, after which there would be no payment. Transfer of control 
or assignment of station license is also subject to provisions of 
Sec. 1.2111 of this chapter.

[[Page 40725]]


Subpart F--Application, Licensing, and Processing Rules for GWCS


Sec. 26.301  Authorization required.

    No person shall use or operate any device for the transmission of 
energy or communications by radio in the services authorized by this 
part except as provided in this part.


Sec. 26.302  Eligibility.

    (a) General. Authorizations will be granted upon proper application 
if:
    (1) The applicant is qualified under the applicable laws and the 
regulations, policies and decisions issued under those laws, including 
Secs. 26.101 and 26.12;
    (2) There are frequencies available to provide satisfactory 
service; and
    (3) The public interest, convenience or necessity would be served 
by a grant.
    (b) Alien ownership. A GWCS authorization to provide Commercial 
Mobile Radio Service may not be granted to or held by:
    (1) Any alien or the representative of any alien.
    (2) Any corporation organized under the laws of any foreign 
government.
    (3) Any corporation of which any officer or director is an alien or 
of which more than one-fifth of the capital stock is owned of record or 
voted by aliens or their representatives or by a foreign government or 
representative thereof or any corporation organized under the laws of a 
foreign country.
    (4) Any corporation directly or indirectly controlled by any other 
corporation of which any officer or more than one-fourth of the 
directors are aliens, or of which more than one-fourth of the capital 
stock is owned of record or voted by aliens, their representatives, or 
by a foreign government or representative thereof, or by any 
corporation organized under the laws of a foreign country, if the 
Commission finds that the public interest will be served by the refusal 
or revocation of such license.
    (c) A GWCS authorization to provide Private Mobile Radio Service 
may not be granted to or held by a foreign government or a 
representative thereof.


Sec. 26.303  Formal and informal applications.

    (a) Except for an authorization under any of the conditions stated 
in section 308(a) of the Communications Act of 1934 (47 U.S.C. 308(a)), 
the Commission may grant only upon written application received by it, 
the following authorization: station licenses; modifications of 
licenses; renewals of licenses; transfers and assignments of station 
licenses, or any right thereunder.
    (b) Except as may be otherwise permitted by this part, a separate 
written application shall be filed for each instrument of authorization 
requested. Applications may be:
    (1) ``Formal applications'' where the Commission has prescribed in 
this Part a standard form; or
    (2) ``Informal applications'' (normally in letter form) where the 
Commission has not prescribed a standard form.
    (c) An information application will be accepted for filing only if:
    (1) A standard form is not prescribed or clearly applicable to the 
authorization requested;
    (2) It is a document submitted, in duplicate, with a caption which 
indicates clearly the nature of the request, radio service involved, 
location of the station, and the application file number (if known); 
and
    (3) It contains all the technical details and informational 
showings required by the rules and states clearly and completely the 
facts involved and authorization desired.


Sec. 26.304  Filing of GWCS applications, fees, and numbers of copies.

    (a) As prescribed by Secs. 26.304 and 26.307, standard formal 
application forms applicable to the GWCS may be obtained from either:
    (1) Federal Communications Commission, Washington, DC 20554; or
    (2) By calling the Commission's Forms Distribution Center, (202) 
418-3676.
    (b) Applications for the initial provision of GWCS service must be 
filed on FCC Form 175 in accordance with the rules in Sec. 26.305 and 
Part 1, Subpart Q of this chapter. In the event of mutual exclusivity 
between applicants filing FCC Form 175, only auction winners will be 
eligible to file subsequent long form applications on FCC Form XXX for 
initial GWCS licenses. Mutually exclusive applications filed on Form 
175 are subject to competitive bidding under those rules. GWCS 
applicants filing Form XXX need not complete Schedule B.
    (c) All applications for GWCS radio station authorizations (other 
than applications for initial provision of GWCS service filed on FCC 
Form 175) shall be submitted for filing to: Federal Communications 
Commission, Washington, DC 20554, Attention: GWCS Processing Section. 
Applications requiring fees as set forth at Part 1, Subpart G, of this 
chapter must be filed in accordance with Sec. 0.401(b) of this chapter.
    (d) All correspondence or amendments concerning a submitted 
application shall clearly identify the name of the applicant, applicant 
identification number or Commission file number (if known) or station 
call sign of the application involved, and may be sent directly to the 
Wireless Telecommunications Bureau, Washington, DC 20554, GWCS 
Processing Section.
    (e) Except as otherwise specified, all applications, amendments, 
correspondence, pleadings and forms (including FCC Form 175) shall be 
submitted on one original paper copy and with thee microfiche copies, 
including exhibits and attachments thereto, and shall be signed as 
prescribed by Sec. 1.743 of this chapter. Unless otherwise provided by 
the FCC, filings of five pages or less are exempt from the requirement 
to submit on microfiche, as well as emergency filings like letters 
requesting special temporary authority. Those filing any amendments, 
correspondence, pleadings, and forms must simultaneously submit the 
original hard copy which must be stamped ``original''. In addition to 
the original hard copy, those filing pleadings, including pleadings 
under Sec. 1.2108 of this chapter shall also submit 2 paper copies as 
provided in Sec. 1.51 of this chapter.
    (1) Microfiche copies. Each microfiche copy must be a copy of the 
signed original. Each microfiche copy shall be a 148mm 0A 105mm 
negative (clear transparent characters appearing on an opaque 
background) at 240A to 270A reduction for microfiche or microfiche 
jackets. One of the microfiche sets must be a silver halide camera 
master or a copy made on silver halide film such as Kodak Direct 
Duplicatory Film. The microfiche must be placed in paper microfiche 
envelopes and submitted in a B6 (125mm 0A 176 mm) or 5 0A 7.5 inch 
envelope. All applicants must leave Row ``A'' (the first row for page 
images) of the first fiche blank for in-house identification purposes.
    (2) All applications and all amendments must have the following 
information printed on the mailing envelope, the microfiche envelope, 
and on the title area at the top of the microfiche:
    (i) The name of the applicant;
    (ii) The type of application (e.g. nationwide, or EA);
    (iii) The month and year of the document;
    (iv) Name of the document;
    (v) File number, applicant identification number, and call sign, if 
assigned; and
    (vi) The identification number and date of the Public Notice 
announcing the auction in response to which the application was filed 
(if applicable). 

[[Page 40726]]
Each microfiche copy of pleadings shall include:
    (A) The month and year of the document;
    (B) Name of the document;
    (C) Name of the filing party;
    (D) File number, applicant identification number, and call sign, if 
assigned;
    (E) The identification number and date of the Public Notice 
announcing the auction in response to which the application was filed 
(if applicable). Abbreviations may be used if they are easily 
understood.


Sec. 26.305  Standard application forms and permissive changes or minor 
modifications for the General Wireless Communications Service.

    (a) Applications for the initial provision of GWCS service must be 
filed on FCC Forms 175 and 175-S.
    (b) Subsequent application by auction winners or non-mutually 
exclusive applicants for GWCS radio station(s) under Part 26. FCC Form 
XXX (``Application for New or Modified General Wireless Communications 
Service Under Part 26'') shall be submitted by each auction winner for 
each GWCS license applied for on FCC Form 175. In the event that mutual 
exclusivity does not exist between applicants filing FCC Form 175, the 
Commission will so inform the applicant and the applicant will also 
file FCC Form XXX. Blanket licenses are granted for each market 
frequency block. Applications for individual sites are not needed and 
will not be accepted. See Sec. 26.11. GWCS applicants filing Form XXX 
need not complete Schedule B.
    (c) Extensions of time and reinstatement. When a licensee cannot 
complete construction in accordance with the provisions of Sec. 26.104, 
a timely application for extension of time (FCC Form 489) must be 
filed.


Sec. 26.306  Miscellaneous forms.

    (a) Licensee qualifications. FCC Form 430 (``Common Carrier and 
Satellite Radio Licensee Qualifications Report'') shall be filed by 
General Wireless Communications Service licensees only as required by 
Form 490 (Application for Assignment or Transfer of Control Under part 
22).
    (b) Renewal of station license. Except for renewal of special 
temporary authorizations, FCC Form 405 (``Application for Renewal of 
Station License'') must be filed in duplicate by the licensee between 
thirty (30) and sixty (60) days prior to the expiration date of the 
license sought to be renewed.


Sec. 26.307  General application requirements.

    (a) Each application (including applications filed on forms 175 and 
XXX) for a radio station authorization or for consent to assignment or 
transfer of control in the GWCS shall disclose fully the real party or 
parties in interest and must include the following information:
    (1) A list of its subsidiaries, if any. Subsidiary means any 
business five per cent or more whose stock, warrants, options or debt 
securities are owned by the applicant or an officer, director, 
stockholder or key management personnel of the applicant. This list 
must include a description of each subsidiary's principal business and 
a description of each subsidiary's relationship to the applicant.
    (2) A list of its affiliates, if any. Affiliates means any business 
which holds a five per cent or more interest in the applicant, or any 
business in which a five per cent or more interest is held by another 
company which holds a five per cent interest in the applicant (e.g. 
Company A owns 5% of Company B and 5% of Company B and 5% of Company C; 
Companies B and C are affiliates).
    (3) A list of the names, addresses, citizenship and principal 
business of any person holding five per cent or more of each class of 
stock, warrants, options or debt securities together with the amount 
and percentage held, and the name, address, citizenship and principal 
place of business of any person on whose account, if other than the 
holder, such interest is held. If any of these persons are related by 
blood or marriage, include such relationship in the statement.
    (4) In the case of partnerships, the name and address of each 
partner, each partner's citizenship and the share or interest 
participation in the partnership. This information must be provided for 
all partners, regardless of their respective ownership interests in the 
partnership. A signed and dated copy of the partnership agreement must 
be included in the application. This information must be included in 
Exhibit V of the application.
    (b) Each application for a radio station authorization in the GWCS 
must:
    (1) Submit the information required by the Commission's rules, 
requests, and application forms;
    (2) Be maintained by the applicant substantially accurate and 
complete in all significant respects in accordance with the provisions 
of Sec. 1.65 of this chapter; and
    (3) Show compliance with and make all special showings that may be 
applicable.
    (c) Where documents, exhibits, or other lengthy showings already on 
file with the Commission contain information which is required by an 
application form, the application may specifically refer to such 
information, if:
    (1) The information previously filed is over one A4 (21 cm x 29.7 
cm) or 8.5 x 11 inch (21.6 cm x 27.9 cm) page in length, and all 
information referenced therein is current and accurate in all 
significant respects under Sec. 1.65 of this chapter; and
    (2) The reference states specifically where the previously filed 
information can actually be found, including mention of:
    (i) The station call sign or application file number whenever the 
reference is to station files or previously filed applications;
    (ii) The title of the proceeding, the docket number, and any legal 
citations, whenever the reference is to a docketed proceeding. However, 
questions on an application form which call for specific technical 
data, or which can be answered by a ``yes'' or ``no'' or other short 
answer shall be answered as appropriate and shall not be cross-
referenced to a previous filing.
    (d) In addition to the general application requirements of Subpart 
F of this part and Sec. 1.2105 of this chapter, applicants shall submit 
any additional documents, exhibits, or signed written statements of 
fact:
    (1) As may be required by these rules; and
    (2) As the Commission, at any time after the filing of an 
application and during the term of any authorization, may require from 
any applicant, permittee, or licensee to enable it to determine whether 
a radio authorization should be granted, denied, or revoked.
    (e) Except when the Commission has declared explicitly to the 
contrary, an informational requirement does not in itself imply the 
processing treatment of decisional weight to be accorded the response.
    (f) All applicants (except applicants filing FCC Form 175) are 
required to indicate at the time their application is filed whether or 
not a Commission grant of the application may have a significant 
environmental impact as defined by Sec. 1.1307 of this chapter. If 
answered affirmatively, the requisite environmental assessment as 
prescribed in Sec. 1.1311 of this chapter must be filed with the 
application and Commission environmental review must be completed prior 
to construction. See Sec. 1.1312 of this chapter. All GWCS licensees 
are subject to a continuing obligation to determine whether subsequent 
construction may have a 

[[Page 40727]]
significant environmental impact prior to undertaking such construction 
and to otherwise comply with Secs. 1.1301 through 1.1319 of this 
chapter. See Sec. 1.1312 of this chapter.
Sec. 26.308  Technical content of applications; maintenance of list of 
station locations.

    All applications required by this part shall contain all technical 
information required by the application forms or associated Public 
Notice(s). Applications other than initial applications for a GWCS 
license must also comply with all technical requirements of the rules 
governing the GWCS (see Subparts C and D as appropriate).


Sec. 26.309  Station antenna structures.

    (a) Unless the GWCS licensee has received prior approval from the 
FCC, no antenna structure, including radiating elements, tower, 
supports and all appurtenances, may be higher than 61 m (200 feet) 
above ground level at its site.
    (b) Unless the GWCS licensee has received prior approval from the 
FCC, no antenna structure at an airport or heliport that is available 
for public use and is listed in the Airport Directory of the current 
Airman's Information Manual or in either the Alaska or Pacific Airman's 
Guide and Chart Supplement; or at an airport or heliport under 
construction that is the subject of a notice or proposal on file with 
the FAA, and except for military airports, it is clearly indicated that 
the airport will be available for public use; or at an airport or 
heliport that is operated by the armed forces of the United States; or 
at a place near any of these airports or heliports, may be higher than:
    (1) 1 m above the airport elevation for each 100 m from the airport 
runway longer than 1 km within 6.1 km of the antenna structure.
    (2) 2 m above the airport elevation for each 100 m from the nearest 
runway shorter than 1 km within 3.1 km of the antenna structure.
    (3) 4 m above the airport elevation for each 100 m from the nearest 
landing pad within 1.5 km of the antenna structure.
    (c) A GWCS station antenna structure no higher than 6.1 m (10 feet) 
above ground level at its site or no higher than 6.1 m above any 
natural object or existing manmade structure, other than an antenna 
structure, is exempt from the requirements of paragraphs (a) and (b) of 
this section.
    (d) Further details as to whether an aeronautical study and/or 
obstruction marking and lighting may be required, and specifications 
for obstruction marking and lighting are contained in Part 17 of this 
chapter, Construction, Marking and Lighting of Antenna Structures. To 
request approval to place an antenna structure higher than the limits 
specified in paragraphs (a), (b), and (c) of this section, the licensee 
must notify the Federal Aviation Administration (FAA) on FAA Form 7460-
1 and the FCC on FCC Form 854.


Sec. 26.310  Waiver of rules.

    (a) Request for waivers. (1) Waivers of these rules may be granted 
upon application or by the Commission on its own motion. Requests for 
waivers shall contain a statement of reasons sufficient to justify a 
waiver. Waivers will not be granted except upon an affirmative showing:
    (i) That the underlying purpose of the rule will not be served, or 
would be frustrated, by its application in a particular case, and that 
grant of the waiver is otherwise in the public interest; or
    (ii) That the unique facts and circumstances of a particular case 
render application of the rule inequitable, unduly burdensome or 
otherwise contrary to the public interest. Applicants must also show 
the lack of a reasonable alternative.
    (2) If the information necessary to support a waiver request is 
already on file, the applicant may cross-reference to the specific 
filing where it may be found.
    (b) Denial of waiver, alternate showing required. If a waiver is 
not granted, the application will be dismissed as defective unless the 
applicant has also provided an alternative proposal which complies with 
the Commission's rules (including any required showings).
Sec. 26.311  Defective applications.

    (a) Unless the Commission shall otherwise permit, an application 
will be unacceptable for filing and will be returned to the applicant 
with a brief statement as to the omissions or discrepancies if:
    (1) The application is defective with respect to completeness of 
answers to questions, informational showings, executive, or other 
matters of a formal character; or
    (2) The application does not comply with the Commission's rules, 
regulations, specific requirements for additional information or other 
requirements. See also Sec. 1.2105 of this chapter.
    (b) Some examples of common deficiencies which result in defective 
applications under paragraph (a) of this section are:
    (1) The application is not filled out completely and signed;
    (2) The application (other an application filed on FCC Form 175) 
does not include an environmental assessment as required for an action 
that may have a significant impact upon the environment, as defined in 
Sec. 1.1307 of this chapter.
    (3) The application is filed prior to the Public Notice issued 
under Sec. 26.317 announcing the application filing date for the 
relevant auction or after the cutoff date prescribed in that Public 
Notice;
    (c) If an applicant is requested by the Commission to file any 
documents or any supplementary or explanatory information not 
specifically required in the prescribed application form, a failure to 
comply with such request within a specified time period will be deemed 
to render the application defective and will subject it to dismissal.


Sec. 26.312  Inconsistent or conflicting applications.

    While an application is pending and undecided, no subsequent 
inconsistent or conflicting application may be filed by the same 
applicant, his successor or assignee, or on behalf or for the benefit 
of the same applicant, his successor or assignee.


Sec. 26.313  Amendment of application for General Wireless 
Communications Service filed on FCC Form 175.

    (a) The Commission will provide bidders a limited opportunity to 
cure defects in FCC Form 175 specified herein except for failure to 
sign the application and to make certifications. These are defects 
which may not be cured. See also Sec. 1.2105 of this chapter.
    (b) For GWCS, applicants will be permitted to amend their Form 175 
applications to make minor amendments to correct minor errors or 
defects such as typographical errors. Applicants will also be permitted 
to amend FCC Form 175, to make ownership changes or changes in the 
identification of parties to bidding consortia, provided such changes 
do not result in a change in control of the applicant and do not 
involve another applicant (or parties in interest to an applicant) who 
has applied for any of the same licenses as the applicant. Amendments 
which change control of the applicant will be considered major 
amendments. An FCC Form 175 which is amended by a major amendment will 
be considered to be newly filed and cannot be resubmitted after 
applicable filing deadlines. See also Sec. 1.2105 of this chapter.

[[Page 40728]]



Sec. 26.314  Amendment of applications for General Wireless 
Communications Service (other than applications filed on FCC Form 175).

    This section applies to all applications for General Wireless 
Communications Service other than applications filed on FCC Form 175.
    (a) Amendments as of right. A pending application may be amended as 
a matter or right if the application has not been designated for 
hearing.
    (1) Amendments shall comply with Sec. 26.319, as applicable; and
    (2) Amendments which resolve interference conflicts or amendments 
under Sec. 26.319 may be filed at any time.
    (b) The Commission or the presiding officer may grant requests to 
amend an application designated for hearing only if a written petition 
demonstrating good cause is submitted and properly served upon the 
parties of record.
    (c) Major amendments, minor amendments. The Commission will 
classify all amendments as minor except in the cases listed below. An 
amendment shall be deemed to be a major amendment subject to 
Sec. 26.317 under any of the following circumstances:
    (1) Change in technical proposal. If the amendment results in a 
substantial change in the engineering proposal such as (but not 
necessarily limited to) a change in, or an addition of, a radio 
frequency; or
    (2) Amendment to proposed service area. If the amendment extends 
the reliable service area of the proposed facilities outside its EA or 
other applicable market area as defined in Sec. 26.102; or
    (3) A substantial change in ownership or control.
    (d) If a petition to deny (or other formal objection) has been 
filed, any amendment, requests for waiver, (or other written 
communications) shall be served on the petitioner, unless waiver of 
this requirement is granted pursuant to paragraph (e) of this section. 
See also Sec. 1.2108 of this chapter.
    (e) The Commission may waive the service requirements of paragraph 
(d) of this section and prescribe such alternative procedures as may be 
appropriate under the circumstances to protect petitioners' interests 
and to avoid undue delay in a proceeding, if an applicant submits a 
request for waiver which demonstrates that the service requirement is 
unreasonably burdensome.
    (f) Any amendment to an application shall be signed and shall be 
submitted in the same manner, and with the same number of copies, as 
was the original application. Amendments may be made in letter form if 
they comply in all other respects with the requirements of this 
chapter.
    (g) An application will be considered to be a newly filed 
application if it is amended by a major amendment (as defined in this 
section), except in the following circumstances:
    (1) The amendment reflects only a change in ownership or control 
found by the Commission to be in the public interest;
    (2) The amendment corrects typographical transcription, or similar 
clerical errors which are clearly demonstrated to be mistakes by 
reference to other parts of the application, and whose discovery does 
not create new or increased frequency conflicts;
    (3) The amendment does not create new or increased frequency 
conflicts, and is demonstrably necessitated by events which the 
applicant could not have reasonably foreseen at the time of filing, 
such as, for example:
    (i) The loss of a transmitter or receiver site by condemnation, 
natural causes, or loss of lease or option; or
    (ii) Obstruction of a proposed transmission path caused by the 
erection of a new building or other structure.


Sec. 26.315  Application for temporary authorizations.

    (a) In circumstances requiring immediate or temporary use of 
facilities, request may be made for special temporary authority to 
install and/or operate new or modified equipment. Any such request may 
be submitted as an informal application in the manner set forth in 
Sec. 26.303 and must contain full particulars as to the proposed 
operation including all facts sufficient to justify the temporary 
authority sought and the public interest therein. No such request will 
be considered unless the request is received by the Commission at least 
10 days prior to the date of proposed construction or operation or, 
where an extension is sought, expiration date of the existing temporary 
authorization. A request received within less than 10 days may be 
accepted upon due showing of sufficient reasons for the delay in 
submitting such request.
    (b) Special temporary authorizations may be granted without regard 
to the 30-day public notice requirements of Sec. 26.317 when:
    (1) The authorization is for a period not to exceed 30 days and no 
application for regular operation is contemplated to be filed;
    (2) The authorization is for a period not to exceed 60 days pending 
the filing of an application for such regular operation;
    (3) The authorization is to permit interim operation to facilitate 
completion of authorized construction or to provide substantially the 
same service as previously authorized; or
    (4) The authorization is made upon a finding that there are 
extraordinary circumstances requiring operation in the public interest 
and that delay in the institution of such service would seriously 
prejudice the public interest.
    (c) Temporary authorizations of operation not exceed 180 days may 
be granted under the standards of section 309(f) of the Communications 
Act where extraordinary circumstances so require. Extensions of the 
temporary authorization for a period of 180 days each may also be 
granted, but the renewal applicant bears a heavy burden to show that 
extraordinary circumstances warrant such an extension.
    (d) In cases of emergency found by the Commission, involving danger 
to life or property or due to damage of equipment, or during a national 
emergency proclaimed by the president or declared by the Congress or 
during the continuance of any war in which the United States is engaged 
and when such action is necessary for the national defense or safety or 
otherwise in furtherance of the war effort, or in cases of emergency 
where the Commission finds that it would not feasible to secure renewal 
applications from existing licensees or otherwise to follow normal 
licensing procedure, the Commission will grant radio station 
authorizations and station licenses, or modifications or renewals 
thereof, during the emergency found by the Commission or during the 
continuance of any such national emergency or war, as special temporary 
licenses, only for the period of emergency or war requiring such 
action, without the filing of formal applications.


Sec. 26.316  Recept of application; applications in the General 
Wireless Communications Service filed on FCC Form 175 and other 
applications in the GWCS Service.

    All applications for the initial provision of GWCS service must be 
submitted on FCC Forms 175 and 175-S. Mutually exclusive initial 
applications in the General Wireless Communications Services are 
subject to competitive bidding. FCC Form XXX (``Application for New or 
Modified General Wireless Communications Service Radio Station Under 
Part 26'') must be submitted by each winning bidder for each GWCS 
license applied 

[[Page 40729]]
for on FCC Form 175. In the event that mutual exclusivity does not 
exist between applicants filing FCC Form 175, the applicant will also 
file FCC Form 401. The aforementioned Forms 175, 175-S, and XXX are 
subject to the provisions of Part 1, Subpart Q of this chapter 
(``Competitive Bidding Proceedings'') and subpart E of this part. 
Blanket licenses are granted for each market frequency block. 
Applications for individual sites are not needed and will not be 
accepted. See Sec. 26.11.
    (b) Applications received for filing are given a file number. The 
assignment of a file number to an application is merely for 
administrative convenience and does not indicate the acceptance of the 
application for filing and processing. Such assignment of a file number 
will not preclude the subsequent return or dismissal of the application 
if it is found to be not in accordance with the Commission's rules.
    (c) Acceptance of an application for filing merely means that it 
has been the subject of a preliminary review as to completeness. Such 
acceptance will not preclude the subsequent return or dismissal of the 
application if it is found to be defective or not in accordance with 
the Commission's rules.
Sec. 26.317  Public notice period.

    (a) At regular intervals, the Commission will issue a public notice 
listing:
    (1) The acceptance for filing of all applications and major 
amendments thereto:
    (2) Significant Commission actions concerning applications listed 
as acceptable for filing;
    (3) Information which the Commission in its discretion believes of 
public significance. Such notices are solely for the purpose of 
informing the public and do not create any rights in an applicant or 
any other person.
    (4) Special environmental considerations as required by part 1 of 
this chapter.
    (b) The Commission will not grant any application until expiration 
of a period of thirty (30) days following the issuance date of a public 
notice listing the application, or any major amendments thereto, as 
acceptable for filing. Provided, that the Commission will not grant an 
application filed on Form XXX filed either by a winning bidder or by an 
applicant whose Form 175 application is not mutually exclusive with 
other applicants, until the expiration of a period of forty (40) days 
following the issuance of a public notice listing the application, or 
any major amendments thereto, as acceptable for filing. See also 
Sec. 1.2108 of this chapter.
    (c) As an exception to paragraphs (a)(1), (a)(2) of this section, 
the public notice provisions are not applicable to applications:
    (1) For authorization of a minor technical change in the facilities 
of an authorized station where such a change would not be classified as 
a major amendment (as defined by Sec. 26.314) were such a change to be 
submitted as an amendment to a pending application;
    (2) For issuance of a license subsequent to a radio station 
authorization or, pending application for a grant of such license, any 
special or temporary authorization to permit interim operation to 
facilitate completion of authorized construction or to provide 
substantially the same service as would be authorized by such license;
    (3) For extension of time to complete construction of authorized 
facilities, see Sec. 26.104;
    (4) For temporary authorization pursuant to Sec. 25.315;
    (5) For an authorization under any of the proviso clauses of 
section 308(a) of the Communications Act of 1934 (47 U.S.C. 308(a));
    (6) For consent to an involuntary assignment or transfer of control 
of a radio authorization; or
    (7) For consent to a voluntary assignment or transfer of control of 
a radio authorization, where the assignment or transfer does not 
involve a substantial change in ownership or control.


Sec. 26.318  Dismissal and return of applications.

    (a) Any application may be dismissed without prejudice as a matter 
of right if the applicant requests its dismissal prior to designation 
for hearing or, in the case of applications filed on Forms 175 and 175-
S, prior to auction. An applicant's request for the return of his 
application after it has been accepted for filing will be considered to 
be a request for dismissal without prejudice. Applicants requesting 
dismissal of their applications are also subject to Sec. 1.2104 of this 
chapter.
    (b) A request to dismiss an application without prejudice will be 
considered after designation for hearing only if:
    (1) A written petition is submitted to the Commission and is 
properly served upon all parties of record, and
    (2) The petition complies with the provisions of this Section and 
demonstrates good cause.
    (c) The Commission will dismiss an application for failure to 
prosecute or for failure to respond substantially within a specified 
time period to official correspondence or requests for additional 
information. Dismissal shall be without prejudice if made prior to 
designation for hearing or prior to auction, but dismissal may be made 
with prejudice for unsatisfactory compliance or after designation for 
hearing or after the applicant is notified that it is the winning 
bidder under the auction process.


Sec. 26.319  Ownership changes and agreements to amend or to dismiss 
applications or pleadings.
    (a) Applicability. Subject to the provisions of Sec. 1.2105 of this 
chapter (Bidding Application and Certification Procedures; Prohibition 
of Collusion), this section applies to applicants and all other parties 
interested in pending applications who wish to resolve contested 
matters among themselves with a formal or an informal agreement or 
understanding. This section applies only when the agreement or 
understanding will result in:
    (1) A major change in the ownership of an applicant to which 
Sec. 26.323 and 26.324 would apply, or
    (2) The individual or mutual withdrawal, amendment or dismissal of 
any pending application, amendment, petitioner or other pleading.
    (b) Parties that have filed an application in the GWCS that is 
mutually exclusive with one or more other applications, and then enter 
into an agreement to resolve the mutual exclusivity by withdrawing or 
requesting dismissal of the application or an amendment thereto, must 
obtain the approval of the FCC. Parties that have filed a petition to 
deny, informal objection or other pleading against a pending 
application, and then seek to withdraw or request dismissal of the 
petition, either unilaterally or in exchange for a financial 
consideration, must obtain the approval of the FCC.
    (1) The party withdrawing or requesting dismissal of its 
application, petition to deny, informal objection or other pleading 
must submit to the FCC a request for approval of the withdrawal or 
dismissal, a copy of any written agreement related to the withdrawal or 
dismissal, and an affidavit setting forth:
    (i) A certification that neither the party nor its principals has 
received or will receive any money or other consideration in excess of 
the legitimate and prudent expenses incurred in prosecuting the 
application, petition to deny, informal objection or other pleading in 
exchange for the withdrawal or dismissal of the application, petition 
to deny, informal objection or other 

[[Page 40730]]
pleading, except that this provision does not apply to dismissal or 
withdrawal of applications pursuant to bona fide merger agreements;
    (ii) The exact nature and amount of any consideration received or 
promised;
    (iii) An itemized accounting of the expenses for which it seeks 
reimbursement; and
    (iv) The terms of any oral agreement related to the withdrawal or 
dismissal of the application, petition to deny, informal objection or 
other pleading.
    (2) In addition, within 5 days of the filing date of the 
applicant's or petitioner's request for approval, each remaining party 
to any written or oral agreement must submit an affidavit setting 
forth:
    (i) A certification that neither the applicant nor its principals 
has paid or will pay money or other consideration in excess of the 
legitimate and prudent expenses of the petitioner in exchange for 
withdrawing or dismissing the application, petition to deny, informal 
objection or other pleading; and
    (ii) The terms of any oral agreement relating to the withdrawal or 
dismissal of the application, petition to deny, informal objection or 
other pleading.
    (3) For the purposes of this section:
    (i) Affidavits filed pursuant to this section must be executed by 
the filing party, if an individual, a partner having personal knowledge 
of the facts, if a partnership, or an officer having personal knowledge 
of the facts, if a corporation or association.
    (ii) Applications, petitions to deny, informal objections and other 
pleadings are deemed to be pending before the FCC from the time the 
application or petition to deny is filed with the FCC until such time 
as an order of the FCC granting, denying or dismissing the application, 
petition to deny, informal objection or other pleading is no longer 
subject to reconsideration by the FCC or to review by any court.
    (iii) ``Legitimate and prudent expenses'' are those expenses 
reasonably incurred by a party in preparing to file, filing, 
prosecuting and/or settling its application, petition to deny, informal 
objection or other pleading for which reimbursement is sought.
    (iv) ``Other consideration'' consists of financial concessions, 
including, but not limited to, the transfer of assets or the provision 
of tangible pecuniary benefit, as well as non-financial concessions 
that confer any type of benefit on the recipient.
    (v) Reimbursement by an applicant of the legitimate and prudent 
expenses of a potential petitioner or objector, incurred reasonably and 
directly in preparing to file a petition to deny, will not be 
considered to be payment for refraining from filing a petition to deny 
or an informal objection. Payments made directly to a potential 
petitioner or objector, or a person related to a potential petitioner 
or objector, to implement non-financial promises are prohibited unless 
specifically approved by the FCC.


Sec. 26.320  Opposition to applications.

    (a) Petitions to deny (including petitions for other forms or 
relief) and responsive pleadings for Commission consideration must 
comply with Sec. 1.2108 of this chapter and must:
    (1) Identify the application or applications (including applicant's 
name, station location, Commission file numbers and radio service 
involved) with which it is concerned;
    (2) Be filed in accordance with the pleading limitations, filing 
periods, and other applicable provisions Secs. 1.41 through 1.52 of 
this chapter except where otherwise provided in Sec. 1.2108 of this 
chapter;
    (3) Contain specific allegations of fact which, except for facts of 
which official notice may be taken, shall be supported by affidavit of 
a person or persons with personal knowledge thereof, and which shall be 
sufficient to demonstrate that the petitioner (or respondent) is a 
party in interest and that a grant of, or other Commission action 
regarding, the application would be prima facie inconsistent with the 
public interest;
    (4) Be filed within thirty (30) days after the date of public 
notice announcing the acceptance for filing of any such application or 
major amendment thereto (unless the Commission otherwise extends the 
filing deadline); and
    (5) Contain a certificate of service showing that it has been 
mailed to the applicant no later than the date of filing thereof with 
the Commission.
    (b) A petition to deny a major amendment to a previously filed 
application may only raise matters directly related to the amendment 
which could not have been raised in connection with the underlying, 
previously filed application. This does not apply to petitioners who 
gain standing because of the major amendment.
    (c) parties who file frivolous petitions to deny may be subject to 
sanctions including monetary forfeitures, license revocation, if they 
are FCC licensees, and may be prohibited from participating in future 
auctions.
Sec. 26.321  Mutually exclusive applications.

    (a) The Commission will consider applications to be mutually 
exclusive if their conflicts are such that the grant of one application 
would effectively preclude by reason of harmful electrical 
interference, or other practical reason, the grant of one or more of 
the other applications. The Commission will presume ``harmful 
electrical interference'' to mean interference which would result in a 
material impairment to service rendered to the public despite full 
cooperation in good faith by all applicants or parties to achieve 
reasonable technical adjustments which would avoid electrical conflict.
    (b) Mutually exclusive applications filed on Form 175 for the 
initial provision of GWCS service are subject to competitive bidding in 
accordance with the procedures in Subpart F of this part and in Part 1, 
Subpart Q of this chapter.
    (c) An application will be entitled to comparative consideration 
with one or more conflicting applications only if the Commission 
determines that such comparative consideration will serve the public 
interest.


Sec. 26.322  Consideration of applications.

    (a) Applications for an instrument of authorization will be granted 
if, upon examination of the application and upon consideration of such 
other matters as it may officially notice, the Commission finds that 
the grant will serve the public interest, convenience, and necessity. 
See also Sec. 1.2108 of this chapter.
    (b) The grant shall be without a formal hearing if, upon 
consideration of the application, any pleadings or objections filed, or 
other matters which may be officially noticed, the Commission finds 
that:
    (1) The application is acceptable for filing, and is in accordance 
with the Commission's rules, regulations, and other requirements;
    (2) The application is not subject to a post-auction hearing or to 
comparative consideration pursuant to Sec. 26.321 with another 
application(s);
    (3) A grant of the application would not cause harmful electrical 
interference to an authorized station;
    (4) There are no substantial and material questions of fact 
presented; and
    (5) The applicant is qualified under current FCC regulations and 
policies.
    (c) If the Commission should grant without a formal hearing an 
application for an instrument of authorization which is subject to a 
petition to deny filed in accordance with Sec. 26.320, the Commission 
will deny the petition by the issuance of a Memorandum Opinion 

[[Page 40731]]
and Order which will concisely report the reasons for the denial and 
dispose of all substantial issues raised by the petition.
    (d) Whenever the Commission, without a formal hearing, grants any 
application in part, or subject to any terms or conditions other than 
those normally applied to applications of the same type, it shall 
inform the applicant of the reasons therefor, and the grant shall be 
considered final unless the Commission should revise its action (either 
by granting the application as originally requested, or by designating 
the application for a formal evidentiary hearing) in response to a 
petition for reconsideration which:
    (1) Is filed by the applicant within thirty (30) days from the date 
of the letter or order giving the reasons for the partial or 
conditioned grant;
    (2) Rejects the grant as made and explains the reasons why the 
application should be granted as originally requested; and,
    (3) Returns the instrument of authorization.
    (e) The Commission will designate an application for a formal 
hearing, specifying with particularly the matters and things in issue, 
if, upon consideration of the application, any pleadings or objections 
filed, or other matters which be officially noticed, the Commission 
determines that:
    (1) A substantial and material question of fact is presented (see 
also Sec. 1.2108 of this chapter);
    (2) The Commission is unable for any reason to make the findings 
specified in paragraph (a) of this section and the application is 
acceptable for filing, complete, and in accordance with the 
Commission's rules, regulations, and other requirements; or
    (3) The application is entitled to comparative consideration (under 
Sec. 26.321) with another application (or applications).
    (f) The Commission may grant, deny or take other action with 
respect to an application designated for a formal hearing pursuant to 
paragraph (e) of this section or Part 1 of this chapter.
    (g) Reconsideration or review of any final action taken by the 
Commission will be in accordance with Part 1, Subpart A of this 
chapter.


Sec. 26.323  Post-action divestitures.

    Any parties sharing a common non-controlling ownership interests 
who aggregate more GWCS spectrum among them than a single entity is 
entitled to hold will be permitted to divest sufficient properties 
within 90 days of the license grant to come into compliance with the 
spectrum aggregation limits as follows:
    (a) The GWCS applicant shall submit a signed statement with its 
long-form application stating that sufficient properties will be 
divested within 90 days of the license grant. If the licensee is 
otherwise qualified, the Commission will grant the applications subject 
to a condition that the licensee come into compliance with the GWCS 
spectrum aggregation limits within 90 days of grant.
    (b) Within 90 days of license grant, the licensee must certify that 
the applicant and all parties to the application have come into 
compliance with the GWCS spectrum aggregation limits. If the licensee 
fails to submit the certification within 90 days, the Commission will 
immediately cancel all broadband GWCS licenses won by the applicant, 
impose the default payment and, based on the facts presented, take any 
other action it deems appropriate. Divestiture may be an interim 
trustee if a buyer has not been secured in the required time frame, as 
long as the applicant has no interest in or control of the trustee, and 
the trustee may dispose of the property as it sees fit. In no event may 
the trustee retain the property for longer than six months from grant 
of license.
Sec. 26.324  Transfer of control or assignment of station 
authorization.

    (a) Authorizations shall be transferred or assigned to another 
party, voluntarily (for example, by contract) or involuntarily (for 
example, by death, bankruptcy, or legal disability), directly or 
indirectly or by transfer of control of any corporation holding such 
authorization, only upon application and approval by the Commission. A 
transfer of control or assignment of station authorization in the 
General Wireless Communications Service is also subject to Sec. 1.2111 
of this chapter (Assignment or transfer of control: unjust enrichment).
    (1) A change from less than 50% ownership to 50% or more ownership 
shall always be considered a transfer of control.
    (2) In other situations a controlling interest shall be determined 
on a case-by-case basis considering the distribution of ownership, and 
the relationships of the owners, including family relationships.
    (b) Form required:
    (1) Assignment.
    (i) FCC Form 490 shall be filed to assign a license or permit.
    (ii) In the case of involuntary assignment, FCC Form 490 shall be 
filed within 30 days of the event causing the assignment.
    (2) Transfer of control.
    (i) FCC Form 490 shall be submitted in order to transfer control of 
a corporation holding a license or permit.
    (ii) In the case of involuntary transfer of control, FCC Form 490 
shall be filed within 30 days of the event causing the transfer.
    (3) Form 430. Whenever an application must be filed under 
paragraphs (a)(1) or (a)(2) of this section, the assignee or transferee 
shall file FCC Form 430 (``Common Carrier Radio License Qualification 
Report'') unless an accurate report is on file with the Commission.
    (4) Notification of completion. The Commission shall be notified by 
letter of the date of completion of the assignment or transfer of 
control.
    (5) If the transfer of control of a license is approved, the new 
licensee is held to the original build-out requirement of Sec. 26.104.
    (c) In acting upon applications for transfer of control or 
assignment, the Commission will not consider whether the public 
interest, convenience, and necessity might be served by the transfer or 
assignment of the authorization to a person other than the proposed 
transferee or assignee.
    (d) Applicants seeking to transfer their licenses within three 
years after the initial license grant date are required to file, 
together with their transfer application, the associated contracts for 
sale, option agreements, management agreements, and all other documents 
disclosing the total consideration to be received in return for the 
transfer of the license.


Sec. 26.325  Extension of time to complete construction.

    (a) If construction is not completed within the time period set 
forth in Sec. 26.104, the authorization will automatically expire. 
Before the period for construction expires an application for an 
extension of time to complete construction (FCC Form 489) may be filed. 
See paragraph (b) of this section. Within 30 days after the 
authorization expires an application for reinstatement may be filed on 
FCC Form 489.
    (b) An application for extension of time to complete construction 
may be made on FCC Form 489. Extension of time requests must be filed 
prior to the expiration of the construction period. Extensions will be 
granted only if the licensee shows that the failure to complete 
construction is due to causes beyond his control. An application for 
modification of an authorization (under construction) does not extend 
the initial 

[[Page 40732]]
construction period. If additional time to construct is required, an 
FCC Form 489 must be submitted.


Sec. 26.326  Termination of authorization.

    (a) (1) All authorizations shall terminate on the date specified on 
the authorization or on the date specified by these rules, unless a 
timely application for renewal has been filed.
    (2) If no application for renewal has been made before the 
authorization's expiration date, a late application for renewal will 
only be considered if it is filed within 30 days of the expiration date 
and shows that the failure to file a timely application was due to 
causes beyond the applicant's control. During this 30 day period 
reinstatement applications must be filed on FCC Form 489. Service to 
subscribers need not be suspended while a late filed renewal 
application is pending, but such service shall be without prejudice to 
Commission action on the renewal application and any related sanctions. 
See also Sec. 26.14 (Criteria for Comparative Renewal Proceedings).
    (b) Special Temporary Authority. A special temporary authorization 
shall automatically terminate upon failure to comply with the 
conditions in the authorization.

[FR Doc. 95-19486 Filed 8-8-95; 8:45 am]
BILLING CODE 6712-01-M