[Federal Register Volume 69, Number 237 (Friday, December 10, 2004)]
[Rules and Regulations]
[Pages 72020-72047]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-26830]



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Part III





Federal Communications Commission





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47 CFR Parts 1, 2, et al.



Facilitating the Provision of Fixed and Mobile Broadband Access, 
Educational and Other Advanced Services in the 2150-2162 and 2500-2690 
MHz Bands; Final Rule and Proposed Rule

  Federal Register / Vol. 69, No. 237 / Friday, December 10, 2004 / 
Rules and Regulations  

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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 1, 2, 11, 15, 21, 27, 73, 74, 76, 78, 79, and 101

[WT Docket No. 03-66; RM-10586; FCC 04-135]


Facilitating the Provision of Fixed and Mobile Broadband Access, 
Educational and Other Advanced Services in the 2150-2162 and 2500-2690 
MHz Bands

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this rule the Federal Communications Commission (FCC) 
renames the Instructional Television Fixed Service (ITFS) as the 
Educational Broadband Service (EBS) and renames the Multichannel 
Multipoint Distribution Service (MMDS) and the Multipoint Distribution 
Service (MDS) as the Broadband Radio Service (BRS). The rules also 
restructure the 2500-2690 MHz band, designate the 2495-2500 MHz band 
for use in connection with the 2500-2690 MHz band, establish a plan to 
transition licenses to the restructured 2500-2690 MHz band, adopts 
licensing, service, and technical rules to govern licensees in the EBS 
and BRS, permits spectrum leasing for BRS and EBS licensees under the 
Commission's secondary markets leasing policies and procedures, and 
permits unlicensed operation in the 2655-2690 MHz band.

DATES: Effective on January 10, 2005, except for 47 CFR 27.1231(d), 
27.1231(f) and 27.1235, which contain information collection 
modifications that have not been approved by the Office of Management 
and Budget (OMB). The Commission will publish a document in the Federal 
Register announcing the effective date of those sections.

ADDRESSES: In addition to filing comments with the Office of the 
Secretary, a copy of any comments on the Paperwork Reduction Act 
information collection requirements contained herein should be 
submitted to Judith B. Herman, Federal Communications Commission, Room 
1-C804, 445 12th Street, SE., Washington, DC 20554, or via the Internet 
at [email protected].

FOR FURTHER INFORMATION CONTACT: Genevieve Ross or Nancy Zaczek at 202-
418-2487.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Report 
and Order, released on July 29, 2004, FCC 04-135, as modified by a 
subsequent Order, released on October 29, 2004, FCC 04-258. The 
proposed rule was published in the Federal Register on June 10, 2003 
(68 FR 34560). The full text of the R&O and Order is available for 
inspection and copying during normal business hours in the FCC 
Reference Center, Room CY-A257, 445 12th Street, SW., Washington, DC 
20554. The complete text may also be purchased from the Commission's 
duplicating contractor, Best Copy and Printing, Inc., (BCPI), Portals 
II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, 202-488-
5300 or 800-387-3160, e-mail at [email protected]. The complete item is 
also available on the Commission's Web site at http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-04-135A1.doc.
    The complete Order modifying the Report and Order is also available 
on the Commission's Web site at http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-04-258A1.doc.

I. Summary of Report and Order

    1. In this Report and Order (R&O), we take important steps to 
transform our rules and policies governing the licensing of the 
Instructional Television Fixed Service (ITFS), the Multipoint 
Distribution Service (MDS), and the Multichannel Multipoint 
Distribution Service (MMDS) (collectively, the Services) in the 2500-
2690 MHz band. The actions taken in this order initiate a fundamental 
restructuring of the band that will provide both existing ITFS and MDS 
licensees and potential new entrants with greatly enhanced flexibility 
in order to encourage the highest and best use of spectrum domestically 
and internationally, and the growth and rapid deployment of innovative 
and efficient communications technologies and services. By these 
actions, we make significant progress towards the goal of providing all 
Americans with access to ubiquitous wireless broadband connections, 
regardless of their location.
    2. A hallmark of our national communications policy is to encourage 
the provision of new technologies and services to the public. The 
actions taken herein will foster the development of the 2500-2690 MHz 
band by enabling licensees to migrate to more technologically and 
economically efficient uses of the spectrum. The record in this 
proceeding overwhelmingly supports our tentative conclusion that 
providing 2500-2690 MHz licensees with additional flexibility of use 
serves the public interest and allows licensees to provide new and 
innovative services, consistent with the requirements of Section 303(y) 
of the Communications Act.
    3. In recent years, there has been steadily increasing demand for 
mobile telephone and mobile data services. In 2002, the mobile 
telephony sector generated more than $76 billion in revenues, increased 
subscribership from 128.5 million to 141.8 million (from the prior 
year), and produced a nationwide penetration rate of roughly forty-nine 
percent. Estimates of the number of mobile Internet users at the end of 
2001 ranged from approximately eight to ten million, up from 2 to 2.5 
million at the end of 2000. Also in recent years, the MDS industry has 
invested several billion dollars to develop broadband fixed wireless 
data systems in this band, including high-speed access to the Internet 
for residential customers, small and medium businesses, and educational 
institutions. Such systems offer a significant opportunity to provide 
competition to cable and digital subscriber line (DSL) services in the 
provision of broadband services in all areas. Additionally, these 
spectrum-based services will improve the ability of educators to serve 
America's students thereby facilitating educators' use of our national 
spectrum resource. This accomplishes our goal of ensuring that 
educational and medical institutions continue to have access to 
spectrum.
    4. Our actions today also respond to proposals from the ITFS and 
MDS industries for major revision of current regulations so that these 
services will no longer be hindered by outdated and overly restrictive 
regulation. The restructured band plan we adopt will provide ITFS and 
MDS licensees with contiguous spectrum to deploy both existing and 
emerging technologies, and provides for both high and low-power 
operations in the band, thereby preserving the opportunity for 
incumbents to maintain existing operations. We also adopt a transition 
mechanism that will enable incumbents on a region-by-region basis to 
negotiate the transition to new spectrum assignments in the 
restructured band plan, with safeguards to ensure that all relocating 
incumbents are treated equitably. We also propose an alternative 
market-based transition mechanism that would take effect after three 
years for any areas where a negotiated transition has not occurred. We 
will be monitoring the transition closely through the proponents' 
filing of Initiation Plans with the Commission and notifications of the 
completion of the transition in given markets, as well as through 
reports prepared by the Wireless Telecommunications Bureau (Bureau) for 
the Commission.

[[Page 72021]]

    5. In addition to the broader objectives described above, our 
decisions in this proceeding have also been guided by the desire to 
accomplish these additional spectrum management objectives: (i) 
Promoting availability of broadband to all Americans, including 
broadband technologies for educators; (ii) encouraging increased 
competition in wireless broadband through the creation of new 
opportunities for new entrants; (iii) promotion of the economic 
viability of services in this band by ensuring that the spectrum is as 
fungible, tradable, and marketable as possible; (iv) facilitating the 
highest valued use of radio licenses; (v) facilitating speed of 
transition and deployment in the band; (vi) providing incumbents with a 
reasonable opportunity to continue their current uses of the spectrum; 
and (vii) the continued promotion of spectrum-based education services.
    6. In this Report and Order, we:
     Rename the MDS service as the ``Broadband Radio Service'' 
(BRS). This new designation connotes a more accurate description of the 
services we anticipate will develop in the band.
     Rename the ITFS service as the ``Educational Broadband 
Service'' (EBS), which more accurately describes the kinds of the 
services that we anticipate will develop in the band.
     Expand the overall bandwidth of the existing BRS-EBS band 
by reallocating 2495-2500 MHz to fixed and mobile except aeronautical 
mobile services.
     Adopt a band plan that restructures the 2500-2690 MHz band 
into upper and lower-band segments for low-power operations (UBS and 
LBS, respectively), and a mid-band segment (MBS) for high-power 
operations. The LBS extends from 2496-2572 MHz, and is comprised of 
twelve 5.5-megahertz-wide channels, one 6-megahertz-wide channel, and 
one 4-megahertz-wide guard band; the MBS, extends from 2572-2614 MHz, 
and is comprised of seven 6-megahertz wide channels; and the UBS 
extends from 2614-2690 MHz, and is comprised of twelve 5.5-megahertz 
wide channels, one 6-megahertz-wide channel, and one 4-megahertz-wide 
guard band. MDS channel 1 will be relocated from 2150-2156 MHz to 2496-
2502 MHz, the LBS, and MDS channel 2 will be relocated from 2156-2162 
MHz to 2618-2624 MHz, the UBS. By grouping high and low-power spectrum 
uses into separate portions of the band, this band plan creates 
opportunities for spectrum-based systems or devices to migrate to 
compatible bands based on marketplace forces, and reduces the 
likelihood of interference caused by incompatible uses. The new band 
plan also provides new incentives for the development of low-power 
cellularized broadband uses of the 2500-2690 MHz band, which have been 
thwarted by the legacy band structure.
     Make full use of the 4 megahertz of spectrum (I band) 
located at the end of the band at 2686-2690 MHz. The guard bands in the 
low-power LBS and UBS (referred to as the J and K bands, respectively) 
will be designated as 4-megahertz-wide. The use of 4-megahertz J and K 
bands is consistent with conclusions in the 3G Final Report that 4 
megahertz was sufficient to separate low-power and high-power uses. 
Furthermore, reducing the guard band increases the amount of spectrum 
available for low-power and high-power use. These changes will 
accommodate the relocation of incumbents to new spectrum assignments in 
the band that will give them substantially greater flexibility than the 
current band plan, while also facilitating the relocation of MDS 
Channels 1 and 2.
     Assign 16.5 megahertz of contiguous spectrum in either the 
LBS or UBS, a 6 megahertz channel in the MBS, and 1 megahertz of 
contiguous spectrum in either the J or K guard bands to licensees 
presently holding four interleaved 6 megahertz channels and four 
associated 0.125 megahertz response channels. A licensee presently 
assigned one channel in the band will receive one 5.5 megahertz channel 
in either the LBS or UBS or one 6 megahertz channel in the MBS. The 
provision of contiguous spectrum, combined with the deployment of 
compressed digital signals, will provide incumbents with the 
opportunity to maintain their current level of analog operations.
     Implement geographic area licensing for all licensees in 
the band. This will give licensees increased flexibility while greatly 
reducing administrative burdens on both licensees and the Commission. 
Accordingly, BRS and EBS authorization holders will be allowed to place 
transmitters anywhere within their defined service area without prior 
authorization so long as the licensee's operations comply with the 
applicable service rules, do not affect radio-frequency quiet zones, or 
require environmental review or international coordination. As part and 
parcel of geographic area licensing, where an existing license is 
canceled or forfeited, the right to operate in that area automatically 
reverts to the licensee that holds the corresponding BTA license, which 
is consistent with the approach we have taken in other wireless 
services.
     Require geographic area licensees to protect the 
operations of both EBS incumbents and BRS site-based incumbents within 
the incumbent's GSA as defined by this order. For incumbent BRS and EBS 
site-based licensees, the GSA will be based upon the licensee's current 
PSA as provided in Sec. Sec.  21.902(d) or 74.903(d) of the 
Commission's rules. For BRS BTA authorization holders, the boundaries 
of the GSA will be exactly the same as the current PSA pursuant to 
Sec.  21.933(a).
     Direct the Wireless Telecommunications Bureau to dismiss 
all pending applications to modify EBS or BRS stations, except for 
modification applications that could change an applicant's PSA, 
applications that seek to modify or add additional frequency 
assignments, or applications for facilities that would have to be 
separately applied for under the rules we adopt today. We see no public 
interest in processing modification applications that are no longer 
necessary in light of our new geographic area licensing scheme.
     Adopt a transition mechanism that enables incumbent 
licensees to develop regional plans for moving to new spectrum 
assignments in the restructured band plan. Under this mechanism, 
licensees have a three-year period during which they can initiate the 
transition process in their regional area and negotiate a transition 
plan with other regional licensees. Transition plans must conform to 
certain safeguards to ensure a smooth transition and equitable 
treatment of incumbents.
     Consolidate licensing and service rules for the 
Educational Broadband Service and Broadband Radio Services. This action 
promotes regulatory parity, and clarifies and stabilizes the regulatory 
treatment of similar spectrum-based services.
     Extend the rules and policies adopted in the Secondary 
Markets Report and Order to the BRS/EBS spectrum. We will allow pre-
existing MDS and ITFS leases to remain in effect for up to fifteen 
years, consistent with our current rules. With respect to future 
spectrum leasing arrangements entered into pursuant to our part 27 
rules for EBS, however, consistent with our treatment of other 
services, we limit the spectrum lease term to the length of the license 
term in question.
     Allow cable operators and ILECs to acquire or lease BRS/
ITFS spectrum in order to provide non-video services like broadband 
internet access. In light of Sec.  613(a)'s language and context we do, 
however, prohibit cable operators from

[[Page 72022]]

acquiring BRS/ITFS licenses outright for the purpose of providing MVPD 
service. We also retain the related ban on cable operators leasing BRS/
ITFS spectrum within their franchise areas for the purpose of providing 
MVPD service, but allow leasing for other purposes.
     For pre-transition operations, limit the signal strength 
at any point along the licensee's GSA boundary to the greater of that 
permitted under the licensee's Commission authorizations as of the 
effective date of the new rules or 47 dB [m[mu]] V/m.
     For post-transition operations in the LBS and UBS, set the 
signal strength limits for the boundaries of the geographic service 
areas to 47 dB[mu]V/m. We retain the current -73.0 + 10log(X/6) dBW/
m\2\ limit (where X is the bandwidth in MHz of the channel) for post-
transition operations in the MBS. In order to efficiently serve 
customers or students near the border, the signal strength, when 
measured, shall be taken over the channel bandwidth (i.e., each 5.5 MHz 
channel in the LBS and UBS for licensees that hold a full channel 
block) at 1.5 meters above ground where most handheld devices are 
likely to be operated. Moreover, to ensure the ubiquitous availability 
of broadband services, and account for the fact that many licensees 
will want to be able to provide service as soon as possible in order to 
gain a competitive advantage, in those instances where there is no 
neighbor licensee that is constructed and providing service to 
customers or students, we will allow a licensee to exceed the 
prescribed power limit at the GSA boundary until there is a licensee 
providing service that would be affected by the higher power level.
     Adopt our proposal to authorize licensees to engage in 
mobile operation by blanket licensing such operations under the 
licensees' geographical service area authorization.
     Limit all mobile and portable response stations, including 
CPE devices, to 2-watts EIRP assuring compliance with our rules.
     Refrain from imposing a limitation on the antenna heights 
of base stations located near the GSA border provided they do not cause 
impermissible interference.
     Require that all LBS and UBS channels emissions be 
attenuated below the transmitter power by at least 43 + 10log(P) dB on 
any channel outside a licensee's spectrum once the transition has been 
completed.
     Require a licensee, upon receiving a documented 
interference complaint from an adjacent channel licensee, to further 
reduce its out-of-band emissions on post-transition operations by at 
least 67 + 10log(P) dB. Additional attenuation will be required where 
base stations are located in close proximity, less than 1.5 km apart. 
Finally, we adopt a mobile station emission mask for post-transition 
operations which extends the attenuation from 43 + 10log(P) at the 
channel's edge to 55 + 10log(P) at 5.5 MHz away from the channel's 
edge.
     Allow pre-transition (and, in the MBS, post-transition) 
analog and digital video operations to operate pursuant to the existing 
out-of-band emission limitations currently in our rules.
     To protect MSS operations below 2495 MHz, MSS licensees 
operating in the adjacent band will be able to request additional 
protection under the same circumstances as adjacent-channel BRS and EBS 
licensees.
     Limit the EIRP of a main, booster or base station to 33 
dBW + 10log(X/Y) dBW, where X is the actual channel width in MHz and Y 
is either (i) 6 MHz if prior to transition or the station is in the MBS 
following transition or (ii) 5.5 MHz if the station is in the LBS and 
UBS following transition. If a main or booster station sectorizes or 
otherwise uses one or more transmitting antennas with a non-
omnidirectional horizontal plane radiation pattern, the maximum EIRP in 
dBW in a given direction shall be determined by the following formula: 
EIRP = 33 dBW + 10 log(X/Y) dBW + 10 log(360/beamwidth) dBW, where X is 
the actual channel width in MHz, Y is either (i) 6 MHz if prior to 
transition or the station is in the MBS following transition or (ii) 
5.5 MHz if the station is in the LBS and UBS following transition, and 
beamwidth is the total horizontal plane beamwidth of the individual 
transmitting antenna for the station or any sector measured at the 
half-power points.
     Restrict the transmitter output power of response stations 
to 2.0 watts upon completion of the transition.
     Provide licensees with the flexibility to employ the 
technologies of their choice in the band.
     Refrain from allowing high-power unlicensed operations in 
the 2500-2690 MHz band, but lift the restriction on unlicensed 
operation in Sec.  15.205 of our rules and permit low-power unlicensed 
devices to operate on frequencies 2655-2690 MHz under our current part 
15 rules.
     Consolidate the BRS and EBS procedural rules into subpart 
F of part 1 of the Commission's Rules, which contains the rules 
applicable to the processing of applications for all services in the 
Universal Licensing System (ULS).
     Adopt service specific rules for BRS and EBS in part 27 of 
the Commission's Rules, thereby providing a single reference point for 
these similar services, as opposed to having the rules for these 
services in three different rule parts.
     Adopt rules that consolidate the modification rules to 
determine major and minor modifications for BRS and EBS licenses under 
our ULS part 1 modification rules. Consequently, at the end of the six 
month transition period to ULS, implementation of mandatory electronic 
filing will begin for BRS and EBS licensees. MDS licensees currently 
submitting FCC Forms 304 or 331 to modify their licenses and EBS 
licensees currently submitting FCC Form 330 must begin using FCC Form 
601 to report modifications to the Commission.
     Adopt the consolidated wireless procedures, contained in 
part 1 of the Commission's Rules, for amendments to BRS and EBS 
applications. Consequently, at the end of the transition period to 
mandatory electronic filing under ULS, BRS and EBS licensees will use 
FCC Form 601 to amend their applications.
     Require that at the end of the transition period to ULS 
implementation, BRS and EBS licensees must use FCC Form 603 and 
associated schedules to apply for consent to assignment of existing 
authorizations (including channel swaps), to apply for Commission 
consent to the transfer of control of entities holding authorizations, 
to notify the Commission of the consummation of assignments or 
transfers, and to request extensions of time for consummation of 
assignments or transfers. These transaction rules for BRS and EBS 
conform to and merge with the ULS requirements in Sec.  1.948 of our 
rules.
     Permit partitioning and disaggregation of licenses for all 
services in the band.
     Adopt the late-filed renewal policy utilized for wireless 
radio services for the BRS/EBS band. Pursuant to this policy, renewal 
applications that are filed up to thirty days after the expiration date 
of the license will be granted nunc pro tunc if the application is 
otherwise sufficient under our rules, but the licensee may be subject 
to an enforcement action for untimely filing and unauthorized operation 
during the time between the expiration of the license and the untimely 
renewal filing. Applicants who file renewal applications more than 
thirty days after the license expiration date may also request that the 
license be renewed nunc pro tunc, but such requests will not be 
routinely granted, will be subject to stricter review, and also may be 
accompanied by enforcement action,

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including more significant fines or forfeitures.
     Adopt our proposal to include BRS and EBS STA requests 
under the same ULS regulatory regime as other Wireless Services.
     Adopt our proposal to require BRS and EBS licensees to 
file Form 602, in lieu of Form 430, to submit ownership information as 
is done by our other wireless licensees under our part I ULS Rules. 
During the transition period, BRS and EBS licensees may continue to 
file the Form 430 manually.
     Permit BRS and EBS applicants to request more than one 
regulatory status for authorization in a single license. BRS and EBS 
applicants must also follow the notification procedures set forth in 
Sec.  27.10(c) of the Commission's Rules.
     Eliminate our forfeiture, cancellation and discontinuance 
of service rules for certain licensees. BRS and EBS Licensees that 
choose to act as fixed common carriers or fixed carriers will be 
subject to Sec.  27.66 of the Commission's Rules.
     Adopt rules for applicants requesting authorization for 
either common carrier or non-common carrier status to file changes in 
foreign ownership information pursuant to those sections.
     Eliminate the requirement that BRS operators file annual 
reports with the Commission.
     Adopt rules that streamline our application procedures for 
BRS and EBS by integrating the Services into ULS.
     Adopt the Commission's uniform rule for dismissal or 
return of defective applications in the Wireless Services to EBS and 
BRS applications along with the Bureau's procedures for complying with 
the Commission's uniform policy.
     Adopt rules to use the ULS forms for BRS and EBS, thereby 
eliminating the current MDS and ITFS forms. We adopt a six-month 
transition period after the effective date of the rules we have adopted 
today before requiring mandatory electronic filing by BRS and EBS 
applicants and licensees in ULS. Consistent with prior actions, WTB 
will release a public notice announcing the relevant commencement date 
for the processing of applications in the Services via ULS.
     Dismiss all applications for ITFS stations that were filed 
prior to adoption of the NPRM where: the applications are mutually 
exclusive, and the applicants filed settlement agreements subsequent to 
the release of the NPRM, and/or applicants filed settlement agreements 
prior to the release of the NPRM, but the settlement agreement did not 
comply with our rules.
    In MM Docket No. 97-217, we address a minor issue concerning 
response stations that are not engaged in communications with their 
associated hubs to restrict their field strengths.

Procedural Matters

A. Paperwork Reduction Analysis

    7. This document contains new information collection requirements. 
The Commission, as part of its continuing effort to reduce paperwork 
burdens, invites the general public to comment on the information 
collection requirements contained in this R&O as required by the 
Paperwork Reduction Act of 1995, Public Law 104-13. Public and agency 
comments are due February 8, 2005. In addition, the Commission notes 
that pursuant to the Small Business Paperwork Relief Act of 2002, 
Public Law 107-198, see 44 U.S.C. 3506(c)(4), we previously sought 
specific comment on how the Commission might ``further reduce the 
information collection burden for small business concerns with fewer 
than 25 employees.''
    8. In this present document, we have assessed the effects of 
requiring licensees to file Initiation Plans and Post Transition 
Notification Plans, and find that these requirements will not adversely 
affect businesses with fewer than 25 employees. First, it is unlikely 
that such businesses will serve as Proponents under our new Transition 
Plan thereby triggering the requirement to file an Initiation Plan as 
we generally expect that Proponents will largely consist of larger 
businesses with sufficient revenue to transition an entire market. To 
the extent that such businesses would serve as Proponents, the filing 
of Initiation Plans will not constitute a burden or require significant 
paperwork preparation because these Proponents will meet this filing 
requirement, by submitting, in whole or in part, their written 
agreements on transition. With regard to the Post Transition 
Notification Plan, we do not believe that such a filing would 
constitute a burden to businesses with fewer than 25 employees because 
such notices will consist of a simple notification to the Commission 
that the transition has been completed. This notification is in the 
public interest because it will help to ensure that the BRS/EBS 
spectrum is properly utilized. We seek comment on these conclusions.

B. Final Regulatory Flexibility Analysis

    9. As required by the Regulatory Flexibility Act of 1980, as 
amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) of the 
possible significant economic impact on a substantial number of small 
entities by the policies and rules proposed in the Notice of Proposed 
Rule Making (NPRM) was incorporated therein. The Commission sought 
written public comment on the proposals in the NPRM, including comment 
on the IRFA. No comments were submitted specifically in response to the 
IRFA; we nonetheless discuss certain general comments below. This 
present Final Regulatory Flexibility Analysis (FRFA) conforms to the 
RFA.

C. Need for, and Objectives of, the Final Rules

    10. In this Report and Order (R&O) we adopt a number of changes 
concerning the rules governing the 2500-2690 MHz band, for the 
Multipoint Distribution Service (MDS), the Multi-channel Multipoint 
Distribution Service (MMDS), and the Instructional Television Fixed 
Service (ITFS). The rules we adopt today include: revising technical 
rules to increase licensee flexibility; revising the band plan to 
eliminate the current interleaved channel scheme to provide licensees 
with contiguous spectrum; implementing service rules for mobile 
operation; retaining eligibility restrictions to preserve the ITFS 
service; simplifying and streamlining the licensing process; and 
implementing application filing and processing electronically via our 
Universal Licensing System with a six-month transition period after 
application processing in ULS begins before requiring mandatory 
electronic filing.
    11. We believe the rules we adopt today will both encourage the 
enhancement of existing services using this band and promote the 
development of new innovative services to the public, such as providing 
wireless broadband services, including high-speed Internet access and 
mobile services. We also believe that our new rules will allow 
licensees to adapt quickly to changing market conditions and the 
marketplace, rather than to government regulation, in determining how 
this band can best be used.

Summary of Significant Issues Raised by Public Comments in Response to 
the IRFA

    12. No comments were submitted specifically in response to the 
IRFA.

Description and Estimate of the Number of Small Entities to Which the 
Proposed Rules Will Apply

    13. The RFA directs agencies to provide a description of and, where 
feasible, an estimate of the number of

[[Page 72024]]

small entities that may be affected by the proposed rules. The RFA 
generally defines the term ``small entity'' as having the same meaning 
as the terms, ``small business,'' ``small organization,'' and ``small 
governmental jurisdiction.'' In addition, the term ``small business'' 
has the same meaning as the term ``small business concern'' under the 
Small Business Act. A small business concern is one which: (i) Is 
independently owned and operated; (ii) is not dominant in its field of 
operation; and (iii) satisfies any additional criteria established by 
the SBA. A small organization is generally ``any not-for-profit 
enterprise which is independently owned and operated and is not 
dominant in its field.''
    14. In this section, we further describe and estimate the number of 
small entity licensees and regulatees that may be affected by rules 
adopted pursuant to this NPRM. The most reliable source of information 
regarding the total numbers of certain common carrier and related 
providers nationwide, as well as the number of commercial wireless 
entities, appears to be the data that the Commission publishes in its 
Trends in Telephone Service report.
    15. Multipoint Distribution Service, Multichannel Multipoint 
Distribution Service, and ITFS. Multichannel Multipoint Distribution 
Service (MMDS) systems, often referred to as ``wireless cable,'' 
transmit video programming to subscribers using the microwave 
frequencies of the Multipoint Distribution Service (MDS) and 
Instructional Television Fixed Service (ITFS). In connection with the 
1996 MDS auction, the Commission established a small business size 
standard as an entity that had annual average gross revenues of less 
than $40 million in the previous three calendar years. The MDS auctions 
resulted in 67 successful bidders obtaining licensing opportunities for 
493 Basic Trading Areas (BTAs). Of the 67 auction winners, 61 met the 
definition of a small business. MDS also includes licensees of stations 
authorized prior to the auction. At this time, we estimate that of the 
61 small business MDS auction winners, 48 remain small business 
licensees. In addition to the 48 small businesses that hold BTA 
authorizations, there are approximately 392 incumbent MDS licensees 
that are considered small entities. After adding the number of small 
business auction licensees to the number of incumbent licensees not 
already counted, we find that there are currently approximately 440 MDS 
licensees that are defined as small businesses under either the SBA or 
the Commission's rules. Some of those 440 small business licensees may 
be affected by the decisions in this R&O.
    16. In addition, the SBA has developed a small business size 
standard for Cable and Other Program Distribution, which includes all 
such companies generating $12.5 million or less in annual receipts. 
According to Census Bureau data for 1997, there were a total of 1,311 
firms in this category, total, that had operated for the entire year. 
Of this total, 1,180 firms had annual receipts of under $10 million and 
an additional 52 firms had receipts of $10 million or more but less 
than $25 million. Consequently, we estimate that the majority of 
providers in this service category are small businesses that may be 
affected by the rules and policies adopted herein. This SBA small 
business size standard is also applicable to ITFS. There are presently 
2,032 ITFS licensees. All but 100 of these licenses are held by 
educational institutions. Educational institutions are included in this 
analysis as small entities. Thus, we estimate that at least 1,932 
licensees are small businesses.
    17. MDS is also heavily encumbered with licensees of stations 
authorized prior to the auction. The SBA has developed a definition of 
small entities for pay television services that includes all such 
companies generating $11 million or less in annual receipts. This 
definition includes multipoint distribution systems, and thus applies 
to MDS licensees and wireless cable operators that did not participate 
in the MDS auction. Information available to us indicates that there 
are [832] of these licensees and operators that do not generate revenue 
in excess of $11 million annually. Therefore, for purposes of this 
IRFA, we find there are approximately [892] small MDS providers as 
defined by the SBA and the Commission's auction rules, and some of 
these providers may take advantage of our amended rules to provide two-
way MDS.
    18. There are presently [2032] ITFS licensees. All but [100] of 
these licenses are held by educational institutions (these [100] fall 
in the MDS category, above). Educational institutions may be included 
in the definition of a small entity. ITFS is a non-profit non-broadcast 
service that, depending on SBA categorization, has, as small entities, 
entities generating either $10.5 million or less, or $11.0 million or 
less, in annual receipts. However, we do not collect, nor are we aware 
of other collections of, annual revenue data for ITFS licensees. Thus, 
we find that up to [1932] of these educational institutions are small 
entities that may take advantage of our amended rules to provide 
additional flexibility to ITFS.

Description of Projected Reporting, Recordkeeping, and Other Compliance 
Requirements

    19. Applicants for MDS or ITFS licenses must submit license 
applications through the Universal Licensing System using FCC Form 601, 
and other appropriate forms. Licensees will also be required to apply 
for an individual station license by filing FCC Form 601 for those 
individual stations that (i) require submission of an Environmental 
Assessment of the facilities under Sec.  1.1307 of our Rules; (ii) 
require international coordination of the application; or (iii) require 
coordination with the Frequency Assignment Subcommittee (FAS) of the 
Interdepartment Radio Advisory Committee (IRAC). While these 
requirements are new with respect to potential licensees in the ITFS 
and MDS bands, the Commission has applied these requirements to 
licensees in other bands. Moreover, the Commission is also eliminating 
many burdensome filing requirements that have previously been applied 
to MDS and ITFS.

Steps Taken To Minimize Significant Economic Impact on Small Entities, 
and Significant Alternatives Considered

    20. The RFA requires an agency to describe any significant 
alternatives that it has considered in reaching its proposed approach, 
which may include the following four alternatives: ``(i) The 
establishment of differing compliance or reporting requirements or 
timetables that take into account the resources available to small 
entities; (ii) the clarification, consolidation, or simplification of 
compliance or reporting requirements under the rule for such small 
entities; (iii) the use of performance, rather than design standards; 
and (iv) an exemption from coverage of the rule, or any part thereof, 
for small entities.''
    21. Regarding our decision to retain ITFS eligibility restrictions, 
we realize that certain entities expressed their wishes that 
eligibility restrictions be lifted throughout the entire ITFS spectrum. 
However, this concern is mitigated by the fact that even though only 
qualifying educational institutions can hold licenses in the band, such 
institutions are free to lease out excess capacity to non-educational 
entities. Throughout the years, this has been the dominant practice in 
the band, and in fact, the band is used by non-educational entities. 
Our decision is also mitigated by the fact that non-educational 
entities may also acquire

[[Page 72025]]

this spectrum by entering into negotiations with BRS licensees, who 
occupy the same spectrum.
    22. Herein we have adopted a variation of the band plan recommended 
by the Wireless Communications Association (WCA), National 
Instructional Television Fixed Service (NIA) and Catholic Television 
Network (CTN) (collectively, the Coalition). Our preferred variation 
contains upper and lower band segments for low-power operations (UBS 
and LBS, respectively), and a mid band segment (MBS) for high-power 
operations. We do not anticipate that this variation will have any 
adverse effect on small entities. This is because the new band plan 
provides contiguous blocks of spectrum whereas the old band plan 
provided interleaved channels that prevented licensees from employing 
innovative technologies. Although some entities rejected the three 
segment plan we have adopted and argued that the Commission should 
adopt across-the-board power reductions instead of the three band 
segments which require a shuffling of channel assignments, we believe 
this alternative would have had a significant negative impact on ITFS 
and MDS licensees. This is because many of these licensees use this 
spectrum for high-power operations, and an across-the-board power 
reduction rule would result in the virtual shut down of such licensees' 
operations. In contrast, the approach we have adopted will accommodate 
both high and low-power operations.
    23. Regarding our decision to adopt, with some modifications, the 
Coalition's plan for transitioning licensees to the new band plan, we 
recognize that some commenters were resistant to the Coalition 
transition plan criticizing it for having no deadlines and arguing that 
it would create daisy chains that would actually prevent the transition 
from being completed. However, we believe this concern is mitigated by 
our decision to set a three year deadline for initiating the transition 
process. We have also notified interested parties herein that if they 
do not comply with the three year deadline, we will implement another 
transition plan, and have sought comment on other transition plans we 
can implement if we later find that the one we adopt today is not 
successful. With regard to the possible daisy chain problem, we have 
modified the Coalition plan to transition to the new band plan using 
larger areas than the Coalition recommends.
    24. Finally, licensees that must transition to the new band plan 
will be affected in that some will have to bear the costs of such 
transition. However, the record reflects that licensees unanimously 
agree that the band plan must be modified, and the transition costs are 
outweighed by the value and utility of converting the band plan into 
one which provides licensees with contiguous spectrum.
    25. Regarding our decision to implement geographic area licensing 
for all licensees in the band, we do not anticipate any adverse effect 
on small entities. Instead, our approach here should benefit all 
licensees, including small entities, as it reduces the burdens 
associated with filing applications for new sites.
    26. Regarding our decision to provide licensees with the 
flexibility to employ the technologies of their choice in the band, we 
do not anticipate any adverse effect on small entities. To the 
contrary, this decision will allow licensees to quickly adjust to 
changes in technology and market demand without seeking Commission 
approval.
    27. Regarding our decision to refrain from allowing high-power 
unlicensed operations in the 2500-2690 MHz band, we recognize that some 
small businesses would have liked to deploy unlicensed operations in 
the band. However, we believe this concern is outweighed by the fact 
that allowing such operations would cause interference to primary 
operations in the band, thereby creating uncertainty for licensees and 
discouraging investment in the band. Furthermore, we note that part 15 
of the Commission's Rules provides other opportunities for unlicensed 
operations in the electromagnetic spectrum. We note specifically that 
the Commission has initiated another rulemaking that specifically deals 
with unlicensed operations that may ultimately provide more 
opportunities for unlicensed use.
    28. The regulatory burdens contained in the R&O, such as filing 
applications on appropriate forms and filing transition plans with the 
Commission, are necessary in order to ensure that the public receives 
the benefits of innovative new services, or enhanced existing services, 
in a prompt and efficient manner. Nonetheless, we have reduced burdens 
wherever possible by eliminating a number of unnecessary regulations 
concerning filing requirements.

Federal Rules That May Duplicate, Overlap, or Conflict With the 
Proposed Rule

    29. None.

Report to Congress

    30. The Commission will send a copy of this R&O, including this 
FRFA, in a report to be sent to Congress and the Government 
Accountability Office (GAO) pursuant to the Congressional Review Act, 
see 5 U.S.C. 801(a)(1)(A). In addition, the Commission will send a copy 
of this R&O, including this FRFA, to the Chief Counsel for Advocacy of 
the Small Business Administration. A copy of this R&O and FRFA (or 
summaries thereof) will also be published in the Federal Register.

Ordering Clause

    31. Pursuant to sections 1, 2, 4(i), 7, 10, 201, 214, 301, 302, 
303, 307, 308, 309, 310, 319, 324, 332, 333 and 706 of the 
Communications Act of 1934, 47 U.S.C. 151, 152, 154(i), 157, 160, 201, 
214, 301, 302, 303, 307, 308, 309, 310, 319, 324, 332, 333, and 706, 
that this Report and Order is hereby adopted.
    32. The proceeding entitled Amendment of parts 21 and 74 to Enable 
Multipoint Distribution Service and the Instructional Television Fixed 
Service Amendment of parts 21 and 74 to Engage in Fixed Two-Way 
Transmissions, MM Docket No. 97-217 is terminated.
    33. The Commission's Consumer and Governmental Affairs Bureau, 
Reference Information Center, shall send a copy of this R&O, to the 
Chief Counsel for Advocacy of the Small Business Administration.
    34. The Commission's Consumer and Governmental Affairs Bureau, 
Reference Information Center, shall send a copy of this NPRM, including 
the Initial Regulatory Flexibility Analysis, to the Chief Counsel for 
Advocacy of the U.S. Small Business Administration.

List of Subjects in 47 CFR Parts 1, 2, 11, 15, 21, 27, 73, 74, 76, 
78, 79, and 101

    Communications common carriers, Communications equipment, 
Education, Equal employment opportunity, Radio, Reporting and 
recordkeeping requirements, Television.

Federal Communications Commission.
William F. Caton,
Deputy Secretary.

Final Rules

0
For the reasons discussed in the preamble, the Federal Communications 
Commission amends 47 CFR parts 1, 2, 11, 15, 21, 27, 73, 74, 76, 78, 
79, and 101 as follows:

PART 1--PRACTICE AND PROCEDURE

0
1. The authority citation for part 1 continues to read as follows:

    Authority: 47 U.S.C. 151, 154(i), 154(j), 155, 225, 303(r), 309 
and 325(e).


[[Page 72026]]



0
2. Section 1.65 is amended by revising paragraph (b) to read as 
follows:


Sec.  1.65  Substantial and significant changes in information 
furnished by applicants to the Commission.

* * * * *
    (b) Applications in broadcast services subject to competitive 
bidding will be subject to the provisions of Sec. Sec.  1.2105(b), 
73.5002 and 73.3522 of this chapter regarding the modification of their 
applications.
* * * * *


Sec.  1.815  [Amended]

0
3. Section 1.815 is amended by removing and reserving paragraph (c)(1).

0
4. Section 1.933 is amended by adding paragraphs (c)(8) and (c)(9) to 
read as follows:


Sec.  1.933  Public notices.

* * * * *
    (c) * * *
    (8) Broadband Radio Service; and
    (9) Educational Broadband Service.
* * * * *

0
5. Section 1.1102 is amended by revising section (20) of the table to 
read as follows:


Sec.  1.1102  Schedule of charges for applications and other filings in 
the wireless telecommunication services.

* * * * *

----------------------------------------------------------------------------------------------------------------
                                                                        Payment type
              Action                   FCC Form No.       Fee amount        code                 Address
----------------------------------------------------------------------------------------------------------------
                                           20. Broadband Radio Service
----------------------------------------------------------------------------------------------------------------
a. New Station...................  601 & 159...........      $220.00  CJM.............  Federal Communications
                                                                                         Commission, Wireless
                                                                                         Bureau Applications,
                                                                                         P.O. Box 358155,
                                                                                         Pittsburgh, PA 15251-
                                                                                         5155.
b. Major Modification of License.  601 &159............       220.00  CJM.............  Federal Communications
                                                                                         Commission, Wireless
                                                                                         Bureau Applications,
                                                                                         P.O. Box 358994,
                                                                                         Pittsburgh, PA 15251-
                                                                                         5155.
c. Certification of Commission,    601 & 159...........        80.00  CJM.............  Federal Communications
 Completion of Construction.                                                             Commission, Wireless
                                                                                         Bureau Applications,
                                                                                         P.O. Box 358155,
                                                                                         Pittsburgh, PA 15251-
                                                                                         5155.
d. License Renewal...............  601 & 159...........       220.00  CJM.............  Federal Communications
                                                                                         Commission, Wireless
                                                                                         Bureau Applications,
                                                                                         P.O. Box 358155,
                                                                                         Pittsburgh, PA 15251-
                                                                                         5155.
e. Assignment or Transfer:
  (i) First Station on             603 & 159...........        80.00  CCM.............  Federal Communications
   Application.                                                                          Commission, Wireless
                                                                                         Bureau Applications,
                                                                                         P.O. Box 358155,
                                                                                         Pittsburgh, PA 15251-
                                                                                         5155.
  (ii) Each Additional Station...  603 & 159...........        50.00  CAM.............  Federal Communications
                                                                                         Commission, Wireless
                                                                                         Bureau Applications,
                                                                                         P.O. Box 358155,
                                                                                         Pittsburgh, PA 15251-
                                                                                         5155.
f. Extension of Construction       601 & 159...........       185.00  CHM.............  Federal Communications
 Authorization.                                                                          Commission, Wireless
                                                                                         Bureau Applications,
                                                                                         P.O. Box 358155,
                                                                                         Pittsburgh, PA 15251-
                                                                                         5155.
g. Special Temporary Authority or  Corres & 159........       100.00  CEM.............  Federal Communications
 Request for Waiver of Prior                                                             Commission, Wireless
 Construction Authorization.                                                             Bureau Applications,
                                                                                         P.O. Box 358155,
                                                                                         Pittsburgh, PA 15251-
                                                                                         5155.
----------------------------------------------------------------------------------------------------------------

* * * * *

0
6. Section 1.1152 is amended by revising paragraph (8) to read as 
follows:


Sec.  1.1152  Schedule of annual regulatory fees and filing locations 
for wireless radio services.

----------------------------------------------------------------------------------------------------------------
                                               Fee amount
    Exclusive use services (per license)          (1)                             Address
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
8. Broadband Radio Service (BRS)............         $265  FCC, BRS, P.O. Box 358835, Pittsburgh, PA 15251-5835.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------


0
7. Section 1.1307 is amended by revising Table 1 to read as follows:


Sec.  1.1307  Actions that may have a significant environmental effect, 
for which Environmental Assessments (EAs) must be prepared.

* * * * *

  Table 1.--Transmitters, Facilities and Operations Subject to Routine
                        Environmental Evaluation
------------------------------------------------------------------------
  Service (title 47 CFR rule
            part)                       Evaluation required if--
------------------------------------------------------------------------
Broadband Radio Service and    Non-building-mounted antennas: height
 Educational Broadband          above ground level to lowest point of
 Service (subpart M of part     antenna < 10 m and power > 1640 W EIRP.
 27).

[[Page 72027]]

 
                               Building-mounted antennas: power > 1640 W
                                EIRP.
                               BRS and EBS licensees are required to
                                attach a label to subscriber transceiver
                                or transverter antennas that: (1)
                                Provide adequate notice regarding
                                potential radiofrequency safety hazards,
                                e.g., information regarding the safe
                                minimum separation distance required
                                between users and transceiver antennas;
                                and (2) reference the applicable FCC-
                                adopted limits for radiofrequency
                                exposure specified in Sec.   1.1310.
Wireless Communications        (1) For the 1390-1392 MHz, 1392-1395 MHz,
 Service (Part 27).             1432-1435 MHz, 1670-1675 MHz and 2385-
                                2390 MHz bands: Non-building-mounted
                                antennas: height above ground level to
                                lowest point of antenna <10 m and total
                                power of all channels > 2000 W ERP (3280
                                W EIRP). Building-mounted antennas:
                                total power of all channels > 2000 W ERP
                                (3280 W EIRP).
                               (2) For the 746-764 MHz, 776-794 MHz,
                                2305-2320 MHz, and 2345-2360 MHz bands.
                                Total power of all channels >1000 W ERP
                                (1640 W EIRP).
------------------------------------------------------------------------

* * * * *

0
8. Section 1.7001 is amended by revising paragraph (b) to read as 
follows:


Sec.  1.7001  Scope and content of filed reports.

* * * * *
    (b) All commercial and government-controlled entities, including 
but not limited to common carriers and their affiliates (as defined in 
47 U.S.C. 153(1)), cable television companies, Broadband Radio Service 
(BRS) ``wireless cable'' carriers, other fixed wireless providers, 
terrestrial and satellite mobile wireless providers, utilities and 
others, which are facilities-based providers and are providing at least 
250 full or one-way broadband lines or wireless channels in a given 
State, or provide full or one-way broadband service to at least 250 
end-user consumers in a given State, shall file with the Commission a 
completed FCC Form 477, in accordance with the Commission's rules and 
the instructions to the FCC Form 477, for each State in which they 
exceed this threshold.
* * * * *

0
9. Section 1.9005 is amended by redesignating paragraphs (h) through 
(bb) as paragraphs (j) through (dd) and adding new paragraphs (h) and 
(i) to read as follows:


Sec.  1.9005  Included services.

* * * * *
    (h) The Broadband Radio Service (part 27 of this chapter);
    (i) The Educational Broadband Service (part 27 of this chapter);
* * * * *

0
10. Section 1.9020 is amended by revising paragraph (d)(2)(i) to read 
as follows:


Sec.  1.9020  Spectrum manager leasing arrangements.

* * * * *
    (d) * * *
    (2) * * *
    (i) The spectrum lessee must meet the same eligibility and 
qualification requirements that are applicable to the licensee under 
its license qualification, except that spectrum lessees entering into 
spectrum leasing arrangements involving licensees in the Educational 
Broadband Service (see Sec.  27.1201 of this chapter) are not required 
to comply with the eligibility requirements pertaining to such 
licensees (see Sec.  27.1201 of this chapter) so long as the spectrum 
lessees meet the other eligibility and qualification requirements 
applicable to part 27 of this chapter services (see Sec.  27.12 of this 
chapter).
* * * * *

0
11. Section 1.9030 is amended by revising paragraph (d)(2)(i) to read 
as follows:


Sec.  1.9030  Long-term de facto transfer leasing arrangements.

* * * * *
    (d) * * *
    (2) * * *
    (i) The spectrum lessee must meet the same eligibility and 
qualification requirements that are applicable to the licensee under 
its license qualification, except that spectrum lessees entering into 
spectrum leasing arrangements involving licensees in the Educational 
Broadband Service (see Sec.  27.1201 of this chapter) are not required 
to comply with the eligibility requirements pertaining to such 
licensees (see Sec.  27.1201 of this chapter) so long as the spectrum 
lessees meet the other eligibility and qualification requirements 
applicable to part 27 of this chapter services (see Sec.  27.12 of this 
chapter).
* * * * *

0
12. Section 1.9047 is added to read as follows:


Sec.  1.9047  Special provisions relating to leases of educational 
broadband service spectrum.

    Licensees in the Educational Broadcasting Service may enter into 
spectrum leasing arrangements with spectrum lessees only insofar as 
such arrangements comply with the applicable requirements for spectrum 
leasing arrangements involving spectrum in that service as set forth in 
Sec.  27.1214 of this chapter.

PART 2--FREQUENCY ALLOCATIONS AND RADIO TREATY MATTERS; GENERAL 
RULES AND REGULATIONS

0
13. The authority citation for part 2 continues to read as follows:

    Authority: 47 U.S.C. 154, 302a, 303, and 336, unless otherwise 
noted.


0
14. Section 2.106, the Table of Frequency Allocations, is amended by 
revising pages 51, 52, and 53 to read as follows.


Sec.  2.106  Table of Frequency Allocations.

* * * * *
BILLING CODE 6712-01-P

[[Page 72028]]

[GRAPHIC] [TIFF OMITTED] TR10DE04.087


[[Page 72029]]


[GRAPHIC] [TIFF OMITTED] TR10DE04.088


[[Page 72030]]


[GRAPHIC] [TIFF OMITTED] TR10DE04.089

BILLING CODE 6712-01-C

[[Page 72031]]

* * * * *

PART 11--EMERGENCY ALERT SYSTEM (EAS)

0
15. The authority citation for part 11 continues to read as follows:

    Authority: 47 U.S.C. 151, 154(i) and (o), 303(r), 544(g), and 
606, unless otherwise noted.


0
16. Section 11.11 is amended by revising the text of paragraph (a) and 
paragraph A. of the table titled ``Wireless Cable System'', and 
paragraphs (c) introductory text and (c)(1) to read as follows:


Sec.  11.11  The Emergency Alert System (EAS).

    (a) The EAS is composed of broadcast networks; cable networks and 
program suppliers; AM, FM Low-power FM (LPFM) and TV broadcast 
stations; Class A television (CA) stations; Low-power TV (LPTV) 
stations; cable systems; wireless cable systems which may consist of 
Broadband Radio Service (BRS), or Educational Broadband Service (EBS) 
stations; and other entities and industries operating on an organized 
basis during emergencies at the National, State and local levels. It 
requires that at a minimum all participants use a common EAS protocol, 
as defined in Sec.  11.31, to send and receive emergency alerts in 
accordance with the effective dates in the following tables:
* * * * *
Wireless Cable Systems (BRS/EBS Stations)
    [A. Wireless cable systems serving fewer than 5,000 subscribers 
from a single transmission site must either provide the National level 
EAS message on all programmed channels--including the required 
testing--by October 1, 2002, or comply with the following EAS 
requirements. All other wireless cable systems must comply with B.]
* * * * *
    (c) For purposes of the EAS, Broadband Radio Service (BRS) and 
Educational Broadband Service (EBS) stations operated as part of 
wireless cable systems in accordance with subpart M of part 27 of this 
chapter are defined as follows:
    (1) A ``wireless cable system'' is a collection of channels in the 
BRS or EBS used to provide video programming services to subscribers. 
The channels may be licensed to or leased by the wireless cable system 
operator.
* * * * *

0
17. In Sec.  11.31, paragraph (c) is amended by revising entry 
``LLLLLLLL'' to read as follows:


Sec.  11.31  EAS protocol.

* * * * *
    (c) * * *
    LLLLLLLL--This is the identification of the broadcast station, 
cable system, BRS/EBS station, NWS office, etc., transmitting or 
retransmitting the message. These codes will be automatically affixed 
to all outgoing messages by the EAS encoder.
* * * * *

0
18. Section 11.35 is amended by revising paragraph (a) to read as 
follows:


Sec.  11.35  Equipment operational readiness.

    (a) Broadcast stations and cable systems and wireless cable systems 
are responsible for ensuring that EAS Encoders, EAS Decoders and 
Attention Signal generating and receiving equipment used as part of the 
EAS are installed so that the monitoring and transmitting functions are 
available during the times the stations and systems are in operation. 
Additionally, broadcast stations and cable systems and wireless cable 
systems must determine the cause of any failure to receive the required 
tests or activations specified in Sec.  11.61(a)(1) and (a)(2). 
Appropriate entries must be made in the broadcast station log as 
specified in Sec. Sec.  73.1820 and 73.1840 of this chapter, cable 
system record as specified in Sec. Sec.  76.1700, 76.1708, and 76.1711 
of this chapter, BRS station records, indicating reasons why any tests 
were not received.
* * * * * t

PART 15--RADIO FREQUENCY DEVICES

0
19. The authority citation for part 15 continues to read as follows:

    Authority: 47 U.S.C. 154, 302(a), 303, 304, 307, 336, and 
544(a), unless otherwise noted.


Sec.  15.205  [Amended]

0
20. Section 15.205(a) is amended in the table by removing ``2655-2900 
MHz'' from the third column and by adding in its place ``2690-2900 
MHz.''
* * * * *

PART 21--DOMESTIC PUBLIC FIXED RADIO SERVICES

0
21. Under the authority of 47 U.S.C. 154, amend 47 CFR chapter I by 
removing part 21.

PART 27--MISCELLANEOUS WIRELESS COMMUNICATIONS SERVICES

0
22. The authority citation for part 27 continues to read as follows:

    Authority: 47 U.S.C. 154, 301, 302, 303, 307, 309, 332, 336 and 
337 unless otherwise noted.

0
23. Section 27.1 is amended by adding paragraph (b)(9) to read as 
follows:


Sec.  27.1  Basis and purpose.

* * * * *
    (9) 2495-2690 MHz.
* * * * *


Sec.  27.3  [Amended]

0
24. Section 27.3 is amended by removing paragraph (h) and by 
redesignating paragraphs (i) through (q) as (h) through (p) to read as 
follows:

0
25. Section 27.4 is amended by adding in alphabetical order the 
following definitions to read as follows:


Sec.  27.4  Terms and definitions.

* * * * *
    Attended operation. Operation of a station by a designated person 
on duty at the place where the transmitting apparatus is located with 
the transmitter in the person's plain view.
* * * * *
    Booster service area. A geographic area to be designated by an 
applicant for a booster station, within which the booster station shall 
be entitled to protection against interference as set forth in this 
part. The booster service area must be specified by the applicant so as 
not to overlap the booster service area of any other booster authorized 
to or proposed by the applicant. However, a booster station may provide 
service to receive sites outside of its booster service area, at the 
licensee's risk of interference. The booster station must be capable of 
providing substantial service within the designated booster service 
area.
    Broadband Radio Service (BRS). A radio service using certain 
frequencies in the 2150-2162 and 2496-2690 MHz bands which can be used 
to provide fixed and mobile services, except for aeronautical services.
* * * * *
    Documented complaint. A complaint that a party is suffering from 
non-consensual interference. A documented complaint must contain a 
certification that the complainant has contacted the operator of the 
allegedly offending facility and tried to resolve the situation prior 
to filing. The complaint must then specify the nature of the 
interference, whether the interference is constant or

[[Page 72032]]

intermittent, when the interference began and the site(s) most likely 
to be causing the interference. The complaint should be accompanied by 
a videotape or other evidence showing the effects of the interference. 
The complaint must contain a motion for a temporary order to have the 
interfering station cease transmitting. The complaint must be filed 
with the Secretary's office and served on the allegedly offending 
party.
    Educational Broadband Service (EBS). A fixed or mobile service, the 
licensees of which are educational institutions or non-profit 
educational organizations, and intended primarily for video, data, or 
voice transmissions of instructional, cultural, and other types of 
educational material to one or more receiving locations.
* * * * *
    Lower Band Segment (LBS). Segment of the BRS/EBS band consisting of 
channels in the frequencies 2496-2572 MHz.
    Middle Band Segment (MBS). Segment of the BRS/EBS band consisting 
of channels in the frequencies 2572-2614 MHz.
* * * * *
    Point-to-point Broadband station. A Broadband station that 
transmits a highly directional signal from a fixed transmitter location 
to a fixed receive location.
* * * * *
    Remote control. Operation of a station by a designated person at a 
control position from which the transmitter is not visible but where 
suitable control and telemetering circuits are provided which allow the 
performance of the essential functions that could be performed at the 
transmitter.
* * * * *
    Sectorization. The use of an antenna system at an broadband 
station, booster station and/or response station hub that is capable of 
simultaneously transmitting multiple signals over the same frequencies 
to different portions of the service area and/or simultaneously 
receiving multiple signals over the same frequencies from different 
portions of the service area.
    Studio to transmitter link (STL). A directional path used to 
transmit a signal from a station's studio to its transmitter.
    Temporary fixed broadband station. A broadband station used for the 
transmission of material from temporary unspecified points to a 
broadband station.
* * * * *
    Unattended operation. Operation of a station by automatic means 
whereby the transmitter is turned on and off and performs its functions 
without attention by a designated person.
* * * * *
    Upper Band Segment (UBS). Segment of the BRS/EBS band consisting of 
channels in the frequencies 2614-2690 MHz
* * * * *

0
26. Section 27.5 is amended by adding paragraph (i) to read as follows:


Sec.  27.5  Frequencies.

* * * * *
    (i) Frequency assignments for the BRS/EBS band.
    (1) Pre-transition frequency assignments.

BRS Channel 1: 2150-2156 MHz
BRS Channel 2: 2156-2162 MHz
BRS Channel 2A: 2156-2160 MHz
EBS Channel A1: 2500-2506 MHz
EBS Channel B1: 2506-2512 MHz
EBS Channel A2: 2512-2518 MHz
EBS Channel B2: 2518-2524 MHz
EBS Channel A3: 2524-2530 MHz
EBS Channel B3: 2530-2536 MHz
EBS Channel A4: 2536-2542 MHz
EBS Channel B4: 2542-2548 MHz
EBS Channel C1: 2548-2554 MHz
EBS Channel D1: 2554-2560 MHz
EBS Channel C2: 2560-2566 MHz
EBS Channel D2: 2566-2572 MHz
EBS Channel C3: 2572-2578 MHz
EBS Channel D3: 2578-2584 MHz
EBS Channel C4: 2584-2590 MHz
EBS Channel D4: 2590-2596 MHz
BRS Channel E1: 2596-2602 MHz
BRS Channel F1: 2602-2608 MHz
BRS Channel E2: 2608-2614 MHz
BRS Channel F2: 2614-2620 MHz
BRS Channel E3: 2620-2626 MHz
BRS Channel F3: 2626-2632 MHz
BRS Channel E4: 2632-2638 MHz
BRS Channel F4: 2638-2644 MHz
EBS Channel G1: 2644-2650 MHz
BRS Channel H1: 2650-2656 MHz
EBS Channel G1: 2656-2662 MHz
BRS Channel H1: 2662-2668 MHz
EBS Channel G1: 2668-2674 MHz
BRS Channel H1: 2674-2680 MHz
EBS Channel G1: 2680-2686 MHz
I Channels: 2686-2690 MHz

    (2) Post transition frequency assignments. The frequencies 
available in the Broadband Radio Service (BRS) and Educational 
Broadband Service (EBS) are listed in this section in accordance with 
the frequency allocations table of Sec.  2.106 of this chapter.
    (i) Lower Band Segment (LBS): The following channels shall 
constitute the Lower Band Segment:

BRS Channel 1: 2496-2502 MHz
EBS Channel A1: 2502-2507.5 MHz
EBS Channel A2: 2507.5-2513 MHz
EBS Channel A3: 2513-2518.5 MHz
EBS Channel B1: 2518.5-2524 MHz
EBS Channel B2: 2524-2529.5 MHz
EBS Channel B3: 2529.5-2535 MHz
EBS Channel C1: 2535-2540.5 MHz
EBS Channel C2: 2540.5-2546 MHz
EBS Channel C3: 2546-2551.5 MHz
EBS Channel D1: 2551.5-2557 MHz
EBS Channel D2: 2557-2562.5 MHz
EBS Channel D3: 2562.5-2568 MHz
EBS Channel JA1: 2568.00000-2568.33333 MHz
EBS Channel JA2: 2568.33333-2568.66666 MHz
EBS Channel JA3: 2568.66666-2569.00000 MHz
EBS Channel JB1: 2569.00000-2569.33333 MHz
EBS Channel JB2: 2569.33333-2569.66666 MHz
EBS Channel JB3: 2569.66666-2570.00000 MHz
EBS Channel JC1: 2570.00000-2570.33333 MHz
EBS Channel JC2: 2570.33333-2570.66666 MHz
EBS Channel JC3: 2570.66666-2571.00000 MHz
EBS Channel JD1: 2571.00000-2571.33333 MHz
EBS Channel JD2: 2571.33333-2571.66666 MHz
EBS Channel JD3: 2571.66666-2572.00000 MHz

    (ii) Middle Band Segment (MBS): The following channels shall 
constitute the Middle Band Segment:

EBS Channel A4: 2572-2578 MHz
EBS Channel B4: 2578-2584 MHz
EBS Channel C4: 2584-2590 MHz
EBS Channel D4: 2590-2596 MHz
EBS Channel G4: 2596-2602 MHz
BRS Channel F4: 2602-2608 MHz
BRS Channel E4: 2608-2614 MHz

    (iii) Upper Band Segment (UBS): The following channels shall 
constitute the Upper Band Segment:

BRS Channel KH1: 2614.00000-2614.33333 MHz
BRS Channel KH2: 2614.33333-2614.66666 MHz
BRS Channel KH3: 2614.66666-2615.00000 MHz
EBS Channel KG1: 2615.00000-2615.33333 MHz
EBS Channel KG2: 2615.33333-2616.66666 MHz
EBS Channel KG3: 2615.66666-2616.00000 MHz
BRS Channel KF1: 2616.00000-2616.33333 MHz
BRS Channel KF2: 2616.33333-2616.66666 MHz
BRS Channel KF3: 2616.66666-2617.00000 MHz
BRS Channel KE1: 2617.00000-2617.33333 MHz
BRS Channel KE2: 2617.33333-2617.66666 MHz
BRS Channel KE3: 2617.66666-2618.00000 MHz
BRS Channel 2: 2618-2624 MHz
BRS Channel E1: 2624-2629.5 MHz
BRS Channel E2: 2629.5-2635 MHz
BRS Channel E3: 2635-2640.5 MHz
EBS Channel F1: 2640.5-2646 MHz
EBS Channel F2: 2646-2651.5 MHz
EBS Channel F3: 2651.5-2657 MHz
BRS Channel H1: 2657-2662.5 MHz

[[Page 72033]]

BRS Channel H2: 2662.5-2668 MHz
BRS Channel H3: 2668-2673.5 MHz
BRS Channel G1: 2673.5-2679 MHz
BRS Channel G2: 2679-2684.5 MHz
BRS Channel G3: 2684.5-2690 MHz

    Note to paragraph (i)(2): No 125 kHz channels are provided for 
channels in operation in this service. The 125 kHz channels previously 
associated with these channels have been reallocated to Channel H3 in 
the upper band segment.
    (3) Frequencies will be assigned as follows:
    (i) An EBS licensee is limited to the assignment of no more than 
one 6 MHz channel in the MBS and three channels in the LBS or UBS for 
use in a single area of operation. Applicants shall not apply for more 
channels than they intend to construct within a reasonable time, simply 
for the purpose of reserving additional channels. The number of 
channels authorized to an applicant will be based on the demonstration 
of need for the number of channels requested. The Commission will take 
into consideration such factors as the amount of use of any currently 
assigned channels and the amount of proposed use of each channel 
requested, the amount of, and justification for, any repetition in the 
schedules, and the overall demand and availability of broadband 
channels in the community. For those applicant organizations formed for 
the purpose of serving accredited institutional or governmental 
organizations, evaluation of the need will only consider service to 
those specified receive sites which submitted supporting documentation.
    (ii) An applicant leasing excess capacity and proposing a schedule 
which complies in all respects with the requirements of Sec.  1.9047 
will have presumptively demonstrated need for no more than four 
channels. This presumption is rebuttable by demonstrating that the 
application does not propose to comport with our educational usage 
requirements as defined in Sec.  27.1203, and to transmit the requisite 
minimum educational usage of Sec.  1.9047 of this chapter for genuinely 
educational purposes.
    (4) A temporary fixed broadband station may use any available 
broadband channel on a secondary basis, except that operation of 
temporary fixed broadband stations is not allowed within 56.3 km (35 
miles) of Canada.
    (5)(i) A point-to-point EBS station on the E and F-channel 
frequencies, may be involuntarily displaced by a BRS applicant or 
licensee, provided that suitable alternative spectrum is available and 
that the BRS entity bears the expenses of the migration. Suitability of 
spectrum will be determined on a case-by-base basis; at a minimum, the 
alternative spectrum must be licensable by broadband operators on a 
primary basis (although it need not be specifically allocated to the 
broadband service), and must provide a signal that is equivalent to the 
prior signal in picture quality and reliability, unless the broadband 
licensee will accept an inferior signal. Potential expansion of the BRS 
licensee may be considered in determining whether alternative available 
spectrum is suitable.
    (ii) If suitable alternative spectrum is located pursuant to 
paragraph (h)(6)(i) of this section, the initiating party must prepare 
and file the appropriate application for the new spectrum, and must 
simultaneously serve a copy of the application on the EBS licensee to 
be moved. The initiating party will be responsible for all costs 
connected with the migration, including purchasing, testing and 
installing new equipment, labor costs, reconfiguration of existing 
equipment, administrative costs, legal and engineering expenses 
necessary to prepare and file the migration application, and other 
reasonable documented costs. The initiating party must secure a bond or 
establish an escrow account to cover reasonable incremental increase in 
ongoing expenses that may fall upon the migrated licensee. The bond or 
escrow account should also account for the possibility that the 
initiating party subsequently becomes bankrupt. If it becomes necessary 
for the Commission to assess the sufficiency of a bond or escrow 
amount, it will take into account such factors as projected incremental 
increase in electricity or maintenance expenses, or relocation 
expenses, as relevant in each case.
    (iii) The EBS licensee to be moved will have a 60-day period in 
which to oppose the involuntary migration. The broadband party should 
state its opposition to the migration with specificity, including 
engineering and other challenges, and a comparison of the present site 
and the proposed new site. If involuntary migration is granted, the new 
facilities must be operational before the initiating party will be 
permitted to begin its new or modified operations. The migration must 
not disrupt the broadband licensee's provision of service, and the 
broadband licensee has the right to inspect the construction or 
installation work.

0
27. Section 27.12 is revised to read as follows:


Sec.  27.12  Eligibility.

    Except as provided in Sec. Sec.  27.604, 27.1201, and 27.1202, any 
entity other than those precluded by section 310 of the Communications 
Act of 1934, as amended, 47 U.S.C. 310, is eligible to hold a license 
under this part.

0
28. Section 27.50 is amended by redesignating paragraph (h) as (i) and 
adding a new paragraph (h) to read as follows:


Sec.  27.50  Power limits.

* * * * *
    (h) The following power limits shall apply in the BRS and EBS:
    (1) Main, booster and base stations.
    (i) The maximum EIRP of a main, booster or base station shall not 
exceed 33 dBW + 10log(X/Y) dBW, where X is the actual channel width in 
MHz and Y is either 6 MHz if prior to transition or the station is in 
the MBS following transition or 5.5 MHz if the station is in the LBS 
and UBS following transition, except as provided in paragraph 
(h)(1)(ii) of this section.
    (ii) If a main or booster station sectorizes or otherwise uses one 
or more transmitting antennas with a non-omnidirectional horizontal 
plane radiation pattern, the maximum EIRP in dBW in a given direction 
shall be determined by the following formula: EIRP = 33 dBW + 10 log(X/
Y) dBW + 10 log(360/beamwidth) dBW, where X is the actual channel width 
in MHz, Y is either (i) 6 MHz if prior to transition or the station is 
in the MBS following transition or (ii) 5.5 MHz if the station is in 
the LBS and UBS following transition, and beamwidth is the total 
horizontal plane beamwidth of the individual transmitting antenna for 
the station or any sector measured at the half-power points.
    (2) Mobile and other user stations. Mobile stations are limited to 
2.0 watts EIRP. All user stations are limited to 2.0 watts transmitter 
output power.
* * * * *

0
29. Section 27.53 is amended by redesignating paragraph (l) as 
paragraph (m) and by adding a new paragraph (l) to read as follows:


Sec.  27.53  Emission limits.

* * * * *
    (l) For BRS and EBS stations, the power of any emissions outside 
the licensee's frequency bands of operation shall be attenuated below 
the transmitter power (P) measured in watts.
    (1) Prior to the transition, and thereafter, solely within the MBS, 
for analog operations with an EIRP in excess of -9 dBW, the signal 
shall be attenuated at the channel edges by at least 38 dB relative to 
the peak visual carrier, then linearly sloping from that

[[Page 72034]]

level to at least 60 dB of attenuation at 1 MHz below the lower band 
edge and 0.5 MHz above the upper band edge, and attenuated at least 60 
dB at all other frequencies.
    (2) For fixed and temporary fixed digital stations, the attenuation 
shall be not less than 43 + 10 log (P) dB, unless a documented 
interference complaint is received from an adjacent channel licensee. 
Provided that the complaint cannot be mutually resolved between the 
parties, both licensees of existing and new systems shall reduce their 
out-of-band emissions by at least 67 + 10 log (P) dB measured at 3 MHz 
from their channel's edges for distances between stations exceeding 1.5 
km. For stations separated by less than 1.5 km, the new licensee shall 
reduce attenuation at least 67 + 10 log (P) - 20 log(Dkm/
1.5), or when colocated, limit the undesired signal level at the 
affected licensee's base station receiver(s) at the colocation site to 
no more than -107 dBm. Mobile Service Satellite licensees operating on 
frequencies below 2495 MHz may also submit a documented interference 
complaint against BRS licensees operating on channel BRS1 on the same 
terms and conditions as adjacent channel BRS or EBS licensees.
    (3) Prior to transition and thereafter solely within the MBS, and 
notwithstanding paragraph (l)(2) of this section, the maximum out-of-
band power of a digital transmitter operating on a single 6 MHz channel 
with an EIRP in excess of -9 dBW employing digital modulation for the 
primary purpose of transmitting video programming shall be attenuated 
at the 6 MHz channel edges at least 25 dB relative to the licensed 
average 6 MHz channel power level, then attenuated along a linear slope 
to at least 40 dB at 250 kHz beyond the nearest channel edge, then 
attenuated along a linear slope from that level to at least 60 dB at 3 
MHz above the upper and below the lower licensed channel edges, and 
attenuated at least 60 dB at all other frequencies.
    (4) For mobile digital stations, the attenuation factor shall be 
not less than 43 + 10 log (P) dB at the channel edge and 55 + 10 log 
(P) dB at 5.5 MHz from the channel edges. Mobile Service Satellite 
licensees operating on frequencies below 2495 MHz may also submit a 
documented interference complaint against BRS licensees operating on 
channel BRS1 on the same terms and conditions as adjacent channel BRS 
or EBS licensees.
    (5) Notwithstanding the provisions of paragraphs (l)(2) and (l)(4) 
of this section, prior to transition, a licensee may continue to 
operate facilities deployed as of January 10, 2005 provided that such 
facilities operate in compliance with the emission mask applicable to 
those services prior to January 10, 2005.
* * * * *

0
30. Section 27.55 is amended by adding paragraph (a)(4) to read as 
follows:


Sec.  27.55  Signal strength limits.

    (a) * * *
    (4) BRS and EBS: The predicted or measured median field strength at 
any location on the geographical border of a licensee's service area 
shall not exceed the value specified unless the adjacent affected 
service area licensee(s) agree(s) to a different field strength. This 
value applies to both the initially offered services areas and to 
partitioned services areas. Licensees may exceed this signal level 
where there is no affected licensee that is constructed and providing 
service. Once the affected licensee is providing service, the original 
licensee will be required to take whatever steps necessary to comply 
with the applicable power level at its GSA boundary, absent consent 
from the affected licensee.
    (i) Prior to transition, the signal strength at any point along the 
licensee's GSA boundary does not exceed the greater of that permitted 
under the licensee's Commission authorizations as of January 10, 2005 
or 47 dB [m[mu]] V/m.
    (ii) Following transition, for stations in the LBS and UBS, the 
signal strength at any point along the licensee's GSA boundary must not 
exceed 47 dB [m[mu]] V/m. This field strength is to be measured at 1.5 
meters above the ground over the channel bandwidth (i.e., each 5.5 MHz 
channel for licensees that hold a full channel block, and for the 5.5 
MHz channel for licensees that hold individual channels).
    (iii) Following transition, for stations in the MBS, the signal 
strength at any point along the licensee's GSA boundary must not exceed 
-73.0 + 10log(X/6) dBW/m\2\, where X is the bandwidth in MHz of the 
channel.
* * * * *

0
31. Section 27.58 is amended by revising the section heading and 
paragraphs (a), (d) and (e) to read as follows:


Sec.  27.58  Interference to BRS/EBS Receivers.

    (a) WCS licensees shall bear full financial obligation to remedy 
interference to BRS/EBS block downconverters if all of the following 
conditions are met:
    (1) The complaint is received by the WCS licensee prior to February 
20, 2002;
    (2) The BRS/EBS downconverter was installed prior to August 20, 
1998;
    (3) The WCS fixed or land station transmits at 50 or more watts 
peak EIRP;
    (4) The BRS/EBS downconverter is located within a WCS transmitter's 
free space power flux density contour of -34 dBW/m\2\; and
    (5) The BRS/EBS customer or licensee has informed the WCS licensee 
of the interference within one year from the initial operation of the 
WCS transmitter or within one year from any subsequent power increases 
at the WCS station.
* * * * *
    (d) If the WCS licensee cannot otherwise eliminate interference 
caused to BRS/EBS reception, then that licensee must cease operations 
from the offending WCS facility.
    (e) At least 30 days prior to commencing operations from any new 
WCS transmission site or with increased power from any existing WCS 
transmission site, a WCS licensee shall notify all BRS/EBS licensees in 
or through whose licensed service areas they intend to operate of the 
technical parameters of the WCS transmission facility. WCS and BRS/EBS 
licensees are expected to coordinate voluntarily and in good faith to 
avoid interference problems and to allow the greatest operational 
flexibility in each other's operations.

0
32. Part 27 is amended by adding subpart M to read as follows:

Subpart M--Broadband Radio Service and Educational Broadband Service

27.1200 Change to BRS and EBS.
27.1201 EBS eligibility.
27.1202 Cable/BRS cross-ownership.
27.1203 EBS programming requirements.
27.1206 Geographic service area.
27.1207 BTA license authorization.
27.1208 Service areas.
27.1209 Conversion of incumbent EBS and BRS stations to geographic 
area licensing.
27.1210 Remote control operation.
27.1211 Unattended operation.
27.1212 License term.
27.1213 Designated entity provisions for BRS in Commission auctions 
commencing prior to January 1, 2004.
27.1214 EBS spectrum leasing arrangements and grandfathered leases.
27.1215 BRS grandfathered leases.

Technical Standards

27.1220 Transmission standards.
27.1221 Interference protection.
27.1222 Operations in the 2568-2572 and 2614-2618 bands.

[[Page 72035]]

Policies Governing the Transition of the 2500-2690 MHz Band for BRS and 
EBS

27.1230 Conversion of the 2500-2690 MHz band.
27.1231 Initiating the transition.
27.1232 Planning the transition.
27.1233 Reimbursement costs of transitioning.
27.1234 Terminating existing operations in transitioned markets.
27.1235 Post-transition notification.

Subpart M--Broadband Radio Service and Educational Broadband 
Service


Sec.  27.1200  Change to BRS and EBS.

    (a) As of January 10, 2005, licensees assigned to the Multipoint 
Distribution Service (MDS) and the Multichannel Multipoint Distribution 
Service (MMDS) shall be reassigned to the Broadband Radio Service (BRS) 
and licensees in the Instructional Television Fixed Service (ITFS) 
shall be reassigned to the Educational Broadband Service (EBS).


Sec.  27.1201  EBS eligibility.

    (a) With certain limited exceptions set forth in paragraph (c) of 
this section, a license for an Educational Broadband Service station 
will be issued only to an accredited institution or to a governmental 
organization engaged in the formal education of enrolled students or to 
a nonprofit organization whose purposes are educational and include 
providing educational and instructional television material to such 
accredited institutions and governmental organizations, and which is 
otherwise qualified under the statutory provisions of the 
Communications Act of 1934, as amended.
    (1) A publicly supported educational institution must be accredited 
by the appropriate State department of education.
    (2) A privately controlled educational institution must be 
accredited by the appropriate State department of education or the 
recognized regional and national accrediting organizations.
    (3) Those applicant organizations whose eligibility is established 
by service to accredited institutional or governmental organizations 
must submit documentation from proposed receive sites demonstrating 
that they will receive and use the applicant's educational usage. In 
place of this documentation, a state educational television (ETV) 
commission may demonstrate that the public schools it proposes to serve 
are required to use its proposed educational usage. Documentation from 
proposed receive sites which are to establish the eligibility of an 
entity not serving its own enrolled students for credit should be in 
letter form, written and signed by an administrator or authority who is 
responsible for the receive site's curriculum planning. No receive site 
more than 35 miles from the transmitter site shall be used to establish 
basic eligibility. The administrator must indicate that the applicant's 
program offerings have been viewed and that such programming will be 
incorporated in the site's curriculum. The letter should discuss the 
types of programming and hours per week of formal and informal 
programming expected to be used and the site's involvement in the 
planning, scheduling and production of programming. If other levels of 
authority must be obtained before a firm commitment to utilize the 
service can be made, the nature and extent of such additional 
authorization(s) must be provided.
    (4) Nonlocal applicants, in addition to submitting letters from 
proposed receive sites, must demonstrate the establishment of a local 
program committee in each community where they apply. Letters submitted 
on behalf of a nonlocal entity must confirm that a member of the 
receive site's staff will serve on the local program committee and 
demonstrate a recognition of the composition and power of the 
committee. The letter should show that the staff member will aid in the 
selection, scheduling and production of the programming received over 
the system.
    (b) No numerical limit is placed on the number of stations which 
may be licensed to a single licensee. A single license may be issued 
for more than one transmitter if they are to be located at a common 
site and operated by the same licensee. Applicants are expected to 
accomplish the proposed operation by the use of the smallest number of 
channels required to provide the needed service.
    (c)(1) Notwithstanding paragraph (a) of this section, a wireless 
cable entity may be licensed on EBS frequencies in areas where at least 
eight other EBS channels remain available in the community for future 
EBS use. Channels will be considered available for future EBS use if 
there are no co-channel operators or applicants within 80.5 km (50 
miles) of the transmitter site of the proposed wireless cable 
operation, and if the transmitter site remains available for use at 
reasonable terms by new EBS applicants on those channels within three 
years of commencing operation.
    (2) No more than eight EBS channels per community may be licensed 
to wireless cable entities.
    (3) To be licensed on EBS channels, a wireless cable applicant must 
hold a license or a lease, or must have filed an unopposed application 
for at least four BRS channels to be used in conjunction with the 
facilities proposed on the EBS frequencies. An unopposed application is 
one that faces no competing application(s) or petition(s) to deny. 
Applicants will be required to confirm their unopposed status after the 
period for filing competing applications and petitions to deny has 
passed. If a BRS application is opposed, the companion EBS application 
will be returned.
    (4) To be licensed on EBS channels, a wireless cable applicant must 
show that there are no BRS channels available for application, purchase 
or lease that could be used in lieu of the EBS frequencies applied for. 
A wireless cable entity may apply for EBS channels at the same time it 
applies for the related BRS frequencies, but if that BRS application is 
opposed by a timely filed mutually exclusive application or petition to 
deny, the application for EBS facilities will be returned.
    (5) If an EBS application and a wireless cable application for 
available EBS facilities are mutually exclusive, the EBS application 
will be granted if the applicant is qualified. An EBS applicant may not 
file an application mutually exclusive with a wireless cable 
application if there are other EBS channels available for the proposed 
EBS facility.
    (6)(i) An educational institution or entity that would be eligible 
for EBS channels that are licensed to a wireless cable entity may be 
entitled to access to those channels. Requests for access may be made 
by filing a request with the Commission. A cover letter must clearly 
indicate that the application is for EBS access to a wireless cable 
entity's facilities on EBS channels.
    (ii) An EBS entity determined by the Commission to have right of 
access to wireless cable licensed facilities may have access to a 
maximum of 40 hours per channel per week. The EBS entity has the right 
to designate 20 of those hours as follows: 3 hours of the EBS entity's 
choice each day, Monday through Friday, between 8 a.m. and 10 p.m., 
excluding weekends, holidays and school vacations; and the remaining 
five hours any time of the EBS entity's choice between 8 a.m. and 10 
p.m., Monday through Saturday.
    (iii) No time-of-day and day-of-week obligations will be imposed on 
either party with respect to the other 20 hours of access time.
    (iv) The EBS user must provide the wireless cable licensee with its 
planned schedule of use four months in advance.

[[Page 72036]]

No minimum amount of programming will be required of an EBS operator 
seeking access to one channel; for access to a second channel, the EBS 
user must use at least 20 hours per week on the first channel from 8 
a.m. to 10 p.m., Monday through Saturday; for access to a third 
channel, the EBS entity must use at least 20 hours per week on the 
first channel and on the second channel during the hours prescribed 
above, and so on. Only one educational institution or entity per 
wireless cable licensed channel will be entitled to access from the 
wireless cable entity. Access will not be granted to a single entity 
for more than four channels, unless it can satisfy the waiver 
provisions of Sec.  27.5(i)(3).
    (v) When an EBS entity is granted access to an EBS channel of a 
wireless cable licensee, the wireless cable licensee will be required 
to pay half of the cost of five standard receive sites on that channel. 
The wireless cable entity may, at its option, pay the costs of an 
application and facility construction for such EBS entity on other 
available EBS channels, including half of the cost of five receive 
sites per channel.
    (vi) After three years of operation, a wireless cable entity 
licensed to use EBS channels will not be required to grant new or 
additional access to such EBS channels, or provide any alternative 
facilities to any EBS entity seeking access to its facilities, if there 
are suitable EBS frequencies available for the EBS entity to build its 
own system.
    (vii) The parties may mutually agree to modify any requirements or 
obligations imposed by these provisions, except for the requirement 
that an educational entity use at least 20 hours per week on a channel 
of a wireless cable licensee before requesting access to an additional 
channel.


Sec.  27.1202  Cable/BRS cross-ownership.

    (a) Initial or modified authorizations for BRS stations may not be 
granted to a cable operator if a portion of the BRS station's protected 
services area is within the portion of the franchise area actually 
served by the cable operator's cable system and the cable operator will 
be using the BRS station as a multichannel video programming 
distributor (as defined in Sec.  76.64(d) of this chapter). No cable 
operator may acquire such authorization either directly, or indirectly 
through an affiliate owned, operated, or controlled by or under common 
control with a cable operator if the cable operator will use the BRS 
station as a multichannel video programming distributor.
    (b) No licensee of a station in this service may lease transmission 
time or capacity to a cable operator either directly, or indirectly 
through an affiliate owned, operated, controlled by, or under common 
control with a cable operator, if a portion of the BRS station's 
protected services area is within the portion of the franchise area 
actually served by the cable operator's cable system the cable operator 
will use the BRS station as a multichannel video programming 
distributor.
    (c) Applications for new stations, station modifications, 
assignments or transfers of control by cable operators of BRS stations 
shall include a showing that no portion of the PSA of the BRS station 
is within the portion of the franchise area actually served by the 
cable operator's cable system, or of any entity indirectly affiliated, 
owned, operated, controlled by, or under common control with the cable 
operator. Alternatively, the cable operator may certify that it will 
not use the BRS station to distribute multichannel video programming.
    (d) In applying the provisions of this section, ownership and other 
interests in BRS licensees or cable television systems will be 
attributed to their holders and deemed cognizable pursuant to the 
following criteria:
    (1) Except as otherwise provided herein, partnership and direct 
ownership interests and any voting stock interest amounting to 5% or 
more of the outstanding voting stock of a corporate BRS licensee or 
cable television system will be cognizable;
    (2) Investment companies, as defined in 15 U.S.C. 80a-3, insurance 
companies and banks holding stock through their trust departments in 
trust accounts will be considered to have a cognizable interest only if 
they hold 20% or more of the outstanding voting stock of a corporate 
BRS licensee or cable television system, or if any of the officers or 
directors of the BRS licensee or cable television system are 
representatives of the investment company, insurance company or bank 
concerned. Holdings by a bank or insurance company will be aggregated 
if the bank or insurance company has any right to determine how the 
stock will be voted. Holdings by investment companies will be 
aggregated if under common management.
    (3) Attribution of ownership interests in a BRS licensee or cable 
television system that are held indirectly by any party through one or 
more intervening corporations will be determined by successive 
multiplication of the ownership percentages for each link in the 
vertical ownership chain and application of the relevant attribution 
benchmark to the resulting product, except that wherever the ownership 
percentage for any link in the chain exceeds 50%, it shall not be 
included for purposes of this multiplication. For purposes of paragraph 
(d)(9) of this section, attribution of ownership interests in a BRS 
licensee or cable television system that are held indirectly by any 
party through one or more intervening organizations will be determined 
by successive multiplication of the ownership percentages for each link 
in the vertical ownership chain and application of the relevant 
attribution benchmark to the resulting product, and the ownership 
percentage for any link in the chain that exceeds 50% shall be included 
for purposes of this multiplication. For example, except for purposes 
of paragraph (d)(9) of this section, if A owns 10% of company X, which 
owns 60% of company Y, which owns 25% of ``Licensee,'' then X's 
interest in ``Licensee'' would be 25% (the same as Y's interest because 
X's interest in Y exceeds 50%), and A's interest in ``Licensee'' would 
be 2.5% (0.1 x 0.25). Under the 5% attribution benchmark, X's interest 
in ``Licensee'' would be cognizable, while A's interest would not be 
cognizable. For purposes of paragraph (d)(9) of this section, X's 
interest in ``Licensee'' would be 15% (0.6 x 0.25) and A's interest in 
``Licensee'' would be 1.5% (0.1 x 0.6 x 0.25). Neither interest would 
be attributed under paragraph (d)(9) of this section.
    (4) Voting stock interests held in trust shall be attributed to any 
person who holds or shares the power to vote such stock, to any person 
who has the sole power to sell such stock, and to any person who has 
the right to revoke the trust at will or to replace the trustee at 
will. If the trustee has a familial, personal or extra-trust business 
relationship to the grantor or the beneficiary, the grantor or 
beneficiary, as appropriate, will be attributed with the stock 
interests held in trust. An otherwise qualified trust will be 
ineffective to insulate the grantor or beneficiary from attribution 
with the trust's assets unless all voting stock interests held by the 
grantor or beneficiary in the relevant BRS licensee or cable television 
system are subject to said trust.
    (5) Subject to paragraph (d)(9) of this section, holders of non-
voting stock shall not be attributed an interest in the issuing entity. 
Subject to paragraph (d)(9) of this section, holders of debt and 
instruments such as warrants, convertible debentures, options or other 
non-voting interests with rights of conversion to voting interests 
shall not be attributed unless and until conversion is effected.

[[Page 72037]]

    (6)(i) A limited partnership interest shall be attributed to a 
limited partner unless that partner is not materially involved, 
directly or indirectly, in the management or operation of the BRS or 
cable television activities of the partnership and the licensee or 
system so certifies. An interest in a Limited Liability Company 
(``LLC'') or Registered Limited Liability Partnership (``RLLP'') shall 
be attributed to the interest holder unless that interest holder is not 
materially involved, directly or indirectly, in the management or 
operation of the BRS or cable television activities of the partnership 
and the licensee or system so certifies.
    (ii) For a licensee or system that is a limited partnership to make 
the certification set forth in paragraph (d)(6)(i) of this section, it 
must verify that the partnership agreement or certificate of limited 
partnership, with respect to the particular limited partner exempt from 
attribution, establishes that the exempt limited partner has no 
material involvement, directly or indirectly, in the management or 
operation of the BRS or cable television activities of the partnership. 
For a licensee or system that is an LLC or RLLP to make the 
certification set forth in paragraph (d)(6)(i) of this section, it must 
verify that the organizational document, with respect to the particular 
interest holder exempt from attribution, establishes that the exempt 
interest holder has no material involvement, directly or indirectly, in 
the management or operation of the BRS or cable television activities 
of the LLC or RLLP. Irrespective of the terms of the certificate of 
limited partnership or partnership agreement, or other organizational 
document in the case of an LLC or RLLP, however, no such certification 
shall be made if the individual or entity making the certification has 
actual knowledge of any material involvement of the limited partners, 
or other interest holders in the case of an LLC or RLLP, in the 
management or operation of the BRS or cable television businesses of 
the partnership or LLC or RLLP.
    (iii) In the case of an LLC or RLLP, the licensee or system seeking 
installation shall certify, in addition, that the relevant state 
statute authorizing LLCs permits an LLC member to insulate itself as 
required by our criteria.
    (7) Officers and directors of a BRS licensee or cable television 
system are considered to have a cognizable interest in the entity with 
which they are so associated. If any such entity engages in businesses 
in addition to its primary business of BRS or cable television service, 
it may request the Commission to waive attribution for any officer or 
director whose duties and responsibilities are wholly unrelated to its 
primary business. The officers and directors of a parent company of a 
BRS licensee or cable television system, with an attributable interest 
in any such subsidiary entity, shall be deemed to have a cognizable 
interest in the subsidiary unless the duties and responsibilities of 
the officer or director involved are wholly unrelated to the BRS 
licensee or cable television system subsidiary, and a statement 
properly documenting this fact is submitted to the Commission. The 
officers and directors of a sister corporation of a BRS licensee or 
cable television system shall not be attributed with ownership of these 
entities by virtue of such status.
    (8) Discrete ownership interests will be aggregated in determining 
whether or not an interest is cognizable under this section. An 
individual or entity will be deemed to have a cognizable investment if:
    (i) The sum of the interests held by or through ``passive 
investors'' is equal to or exceeds 20 percent; or
    (ii) The sum of the interests other than those held by or through 
``passive investors'' is equal to or exceeds 5 percent; or
    (iii) The sum of the interests computed under paragraph (d)(8)(i) 
of this section plus the sum of the interests computed under paragraph 
(d)(8)(ii) of this section equal to or exceeds 20 percent.
    (9) Notwithstanding paragraphs (d)(5) and (d)(6) of this section, 
the holder of an equity or debt interest or interests in a BRS licensee 
or cable television system subject to the BRS/cable cross-ownership 
rule (``interest holder'') shall have that interest attributed if:
    (i) The equity (including all stockholdings, whether voting or 
nonvoting, common or preferred) and debt interest or interests, in the 
aggregate, exceed 33 percent of the total asset value (all equity plus 
all debt) of that BRS licensee or cable television system; and
    (ii) The interest holder also holds an interest in a BRS licensee 
or cable television system that is attributable under this section 
(other than this paragraph) and which operates in any portion of the 
franchise area served by that cable operator's cable system.
    (10) The term ``area served by a cable system'' means any area 
actually passed by the cable operator's cable system and which can be 
connected for a standard connection fee.
    (11) As used in this section ``cable operator'' shall have the same 
definition as in Sec.  76.5 of this chapter.
    (e) The Commission will entertain requests to waive the 
restrictions in paragraph (a) of this section where necessary to ensure 
that all significant portions of the franchise area are able to obtain 
multichannel video service.
    (f) The provisions of paragraphs (a) through (e) of this section 
will not apply to one BRS channel used to provide locally-produced 
programming to cable headends. Locally-produced programming is 
programming produced in or near the cable operator's franchise area and 
not broadcast on a television station available within that franchise 
area. A cable operator will be permitted one BRS channel for this 
purpose, and no more than one BRS channel may be used by a cable 
television company or its affiliate or lessor pursuant to this 
paragraph. The licensee for a cable operator providing local 
programming pursuant to a lease must include in a notice filed with the 
Wireless Telecommunications Bureau a cover letter explicitly 
identifying itself or its lessees as a local cable operator and stating 
that the lease was executed to facilitate the provision of local 
programming. The first application or the first lease notification in 
an area filed with the Commission will be entitled to the exemption. 
The limitations on one BRS channel per party and per area include any 
cable/BRS operations or cable/EBS operations. The cable operator must 
demonstrate in its BRS application that the proposed local programming 
will be provided within one year from the date its application is 
granted. Local programming service pursuant to a lease must be provided 
within one year of the date of the lease or one year of grant of the 
licensee's application for the leased channel, whichever is later. If a 
BRS license for these purposes is granted and the programming is 
subsequently discontinued, the license will be automatically forfeited 
the day after local programming service is discontinued.
    (g) Applications filed by cable television companies, or 
affiliates, for BRS channels prior to February 8, 1990, will not be 
subject to the prohibitions of this section. Applications filed on 
February 8, 1990, or thereafter will be returned. Lease arrangements 
between cable and BRS entities for which a lease or a firm agreement 
was signed prior to February 8, 1990, will also not be subject to the 
prohibitions of this section. Leases between cable television 
companies, or affiliates, and BRS station licensees, conditional 
licensees, or

[[Page 72038]]

applicants executed on February 8, 1990, or thereafter, are invalid.
    (1) Applications filed by cable operators, or affiliates, for BRS 
channels prior to February 8, 1990, will not be subject to the 
prohibitions of this section. Except as provided in paragraph (g)(2)of 
this section, applications filed on February 8, 1990, or thereafter 
will be returned. Lease arrangements between cable and BRS entities for 
which a lease or a firm agreement was signed prior to February 8, 1990, 
will also not be subject to the prohibitions of this section. Except as 
provided in paragraph (g)(2) of this section, leases between cable 
operators, or affiliates, and BRS/EBS station licensees, conditional 
licensees, or applicants executed on or before February 8, 1990, or 
thereafter are invalid.
    (2) Applications filed by cable operators, or affiliates for BRS 
channels after February 8, 1990, and prior to October 5, 1992, will not 
be subject to the prohibition of this section, if, pursuant to the then 
existing overbuild or rural exceptions, the applications were allowed 
under the then existing cable/BRS cross-ownership prohibitions. Lease 
arrangements between cable operators and BRS entities for which a lease 
or firm agreement was signed after February 8, 1990, and prior to 
October 5, 1992, will not be subject to the prohibitions of this 
section, if, pursuant to the then existing rural and overbuild 
exceptions, the lease arrangements were allowed.
    (3) The limitations on cable television ownership in this section 
do not apply to any cable operator in any franchise area in which a 
cable operator is subject to effective competition as determined under 
section 623(l) of the Communications Act.


Sec.  27.1203  EBS programming requirements.

    (a) Except as provided in paragraphs (b), (c), and (d) of this 
section, BRS and EBS licensees are authorized to provide fixed or 
mobile service, except aeronautical mobile service, subject to the 
technical requirements of subparts C and M of this part.
    (b) Educational Broadband Service stations are intended primarily 
through video, data, or voice transmissions to further the educational 
mission of accredited public and private schools, colleges and 
universities providing a formal educational and cultural development to 
enrolled students. Authorized educational broadband channels must be 
used to further the educational mission of accredited schools offering 
formal educational courses to enrolled students, with limited 
exceptions as set forth in Sec.  27.1201(c).
    (c) In furtherance of the educational mission of accredited 
schools, Educational Broadband Service stations may be used for:
    (1) In-service training and instruction in special skills and 
safety programs, extension of professional training, informing persons 
and groups engaged in professional and technical activities of current 
developments in their particular fields, and other similar endeavors;
    (2) Transmission of material directly related to the administrative 
activities of the licensee, such as the holding of conferences with 
personnel, distribution of reports and assignments, exchange of data 
and statistics, and other similar uses.
    (d) Stations, including high-power EBS signal booster stations, may 
be licensed in the EBS as originating or relay stations to interconnect 
educational broadband fixed stations in adjacent areas, to deliver 
instructional and cultural material to, and obtain such material from, 
commercial and noncommercial educational television broadcast stations 
for use on the educational broadband system, and to deliver 
instructional and cultural material to, and obtain such material from, 
nearby terminals or connection points of closed circuit educational 
television systems employing wired distribution systems or radio 
facilities authorized under other parts of this chapter, or to deliver 
instructional and cultural material to any cable television system 
serving a receiving site or sites which would be eligible for direct 
reception of EBS signals under the provisions of Sec.  27.1201.


Sec.  27.1206  Geographic Service Area.

    (a) The Geographic Service Area (GSA) is either:
    (1) The area for incumbent site-based licensees that is bounded by 
a circle having a 35 mile radius and centered at the station's 
reference coordinates, which was the previous PSA entitled to incumbent 
licensees prior to January 10, 2005, and is bounded by the chord(s) 
drawn between intersection points of the licensee's previous 35 mile 
PSA and those of respective adjacent market, co-channel licensees; or:
    (2) The BTA that is licensed to the respective BRS BTA 
authorization holder subject to the exclusion of overlapping, co-
channel incumbent GSAs as described in paragraph (a)(1) of this 
section.
    (b) If the license for an incumbent BRS station cancels or is 
forfeited, the GSA area of the incumbent station shall dissolve and the 
right to operate in that area automatically reverts to the GSA licensee 
that held the corresponding BTA.


Sec.  27.1207  BTA license authorization.

    (a) Winning bidders must file an application (FCC Form 601) for an 
initial authorization in each market and frequency block.
    (b) Blanket licenses are granted for each market and frequency 
block. Blanket licenses cover all mobile and response stations. Blanket 
licenses also cover all fixed stations anywhere within the authorized 
service area, except as follows:
    (1) A station would be required to be individually licensed if
    (i) International agreements require coordination;
    (ii) Submission of an Environmental Assessment is required under 
Sec.  1.1307 of this chapter;
    (iii) The station would affect the radio quiet zones under Sec.  
1.924 of this chapter.
    (2) Any antenna structure that requires notification to the Federal 
Aviation Administration (FAA) must be registered with the Commission 
prior to construction under Sec.  17.4 of this chapter.


Sec.  27.1208  Service areas.

    Most BRS/EBS service areas are Basic Trading Areas (BTAs). BTAs are 
based on the Rand McNally 1992 Commercial Atlas & Marketing Guide, 
123rd Edition, at pages 38-39. The following are additional BRS or EBS 
service areas in places where Rand McNally has not defined BTAs: 
American Samoa; Guam; Northern Mariana Islands; Mayaguez/Aguadilla-
Ponce, Puerto Rico; San Juan, Puerto Rico; and the United States Virgin 
Islands. The Mayaguez/Aguadilla-Ponce, PR, service area consists of the 
following municipios: Adjuntas, Aguada, Aguadilla, Anasco, Arroyo, Cabo 
Rojo, Coamo, Guanica, Guayama, Guayanilla, Hormigueros, Isabela, 
Jayuya, Juana Diaz, Lajas, Las Marias, Maricao, Maunabo, Mayaguez, 
Moca, Patillas, Penuelas, Ponce, Quebradillas, Rincon, Sabana Grande, 
Salinas, San German, Santa Isabel, Villalba and Yauco. The San Juan 
service area consists of all other municipios in Puerto Rico.


Sec.  27.1209  Conversion of incumbent EBS and BRS stations to 
geographic area licensing.

    (a) Any EBS or BRS station licensed by the Commission, other than 
BTA authorizations and facilities authorized pursuant to BTA 
authorizations, shall be considered an incumbent station.

[[Page 72039]]

    (b) As of January 10, 2005, all incumbent EBS and BRS licenses 
shall be converted to a geographic area license. Pursuant to that 
geographic area license, such incumbent licensees may modify their 
systems provided the modified system complies with the applicable 
rules. The blanket license covers all fixed stations anywhere within 
the authorized service area, except as follows:
    (1) A station would be required to be individually licensed if
    (i) International agreements require coordination;
    (ii) Submission of an Environmental Assessment is required under 
Sec.  1.1307 of this chapter;
    (iii) The station would affect the radio quiet zones under Sec.  
1.924 of this chapter.
    (2) Any antenna structure that requires notification to the Federal 
Aviation Administration (FAA) must be registered with the Commission 
prior to construction under Sec.  17.4 of this chapter.
    (c) The frequencies associated with incumbent authorizations that 
have been cancelled automatically or otherwise been recovered by the 
Commission will automatically revert to the applicable BTA licensee.


Sec.  27.1210  Remote control operation.

    Licensed BRS/EBS stations may be operated by remote control without 
further authority.


Sec.  27.1211  Unattended operation.

    Unattended operation of licensed BRS/EBS stations is permitted 
without further authority. An unattended relay station may be employed 
to receive and retransmit signals of another station provided that the 
transmitter is equipped with circuits which permit it to radiate only 
when the signal intended to be retransmitted is present at the receiver 
input terminals.


Sec.  27.1212  License term.

    (a) BRS/EBS licenses shall be issued for a period of 10 years 
beginning with the date of grant.
    (b) An initial BTA authorization shall be issued for a period of 
ten years from the date the Commission declared bidding closed in the 
MDS auction.


Sec.  27.1213  Designated entity provisions for BRS in Commission 
auctions commencing prior to January 1, 2004.

    (a) Eligibility for small business provisions. For purposes of 
Commission auctions commencing prior to January 1, 2004 for BRS 
licenses, a small business is an entity that together with its 
affiliates has average annual gross revenues that are not more than $40 
million for the preceding three calendar years.
    (b) Designated entities. As specified in this section, designated 
entities that are winning bidders in Commission auctions commencing 
prior to January 1, 2004 for BTA service areas are eligible for special 
incentives in the auction process. See 47 CFR 1.2110.
    (c) Installment payments. Small businesses and small business 
consortia may elect to pay the full amount of their winning bids in 
Commission auctions commencing prior to January 1, 2004 for BTA service 
areas in installments over a ten (10) year period running from the date 
that their BTA authorizations are issued.
    (1) Upon issuance of a BTA authorization to a winning bidder in a 
Commission auction commencing prior to January 1, 2004 that is eligible 
for installment payments, the Commission will notify such eligible BTA 
authorization holder of the terms of its installment payment plan. For 
BRS, such installment payment plans will:
    (i) Impose interest based on the rate of ten (10) year U.S. 
Treasury obligations at the time of issuance of the BTA authorization, 
plus two and one half (2.5) percent;
    (ii) Allow installment payments for a ten (10) year period running 
from the date that the BTA authorization is issued;
    (iii) Begin with interest-only payments for the first two (2) 
years; and
    (iv) Amortize principal and interest over the remaining years of 
the ten (10) year period running from the date that the BTA 
authorization is issued.
    (2) Conditions and obligations. See Sec.  1.2110(f)(4) of this 
chapter.
    (3) Unjust enrichment. If an eligible BTA authorization holder that 
utilizes installment financing under this subsection seeks to 
partition, pursuant to applicable rules, a portion of its BTA 
containing one-third or more of the population of the area within its 
control in the licensed BTA to an entity not meeting the eligibility 
standards for installment payments, the holder must make full payment 
of the remaining unpaid principal and any unpaid interest accrued 
through the date of partition as a condition of approval.
    (d) Reduced upfront payments. For purposes of Commission auctions 
commencing prior to January 1, 2004 for BRS licenses, a prospective 
bidder that qualifies as a small business, or as a small business 
consortia, is eligible for a twenty-five (25) percent reduction in the 
amount of the upfront payment otherwise required. To be eligible to bid 
on a particular BTA, a small business will be required to submit an 
upfront payment equal to seventy-five (75) percent of the upfront 
payment amount specified for that BTA in the public notice listing the 
upfront payment amounts corresponding to each BTA service area being 
auctioned.
    (e) Bidding credits. For purposes of Commission auctions commencing 
prior to January 1, 2004 for BRS licenses, a winning bidder that 
qualifies as a small business, or as a small business consortia, may 
use a bidding credit of fifteen (15) percent to lower the cost of its 
winning bid on any of the BTA authorizations awarded in the Commission 
BRS auctions commencing prior to January 1, 2004.
    (f) Short-form application certification; Long-form application or 
statement of intention disclosure. A BRS applicant in a Commission 
auction commencing prior to January 1, 2004 claiming designated entity 
status shall certify on its short-form application that it is eligible 
for the incentives claimed. A designated entity that is a winning 
bidder for a BTA service area(s) shall, in addition to information 
otherwise required, file an exhibit to either its initial long-form 
application for a BRS station license, or to its statement of intention 
with regard to the BTA, which discloses the gross revenues for each of 
the past three years of the winning bidder and its affiliates. This 
exhibit shall describe how the winning bidder claiming status as a 
designated entity satisfies the designated entity eligibility 
requirements, and must list and summarize all agreements that affect 
designated entity status, such as partnership agreements, shareholder 
agreements, management agreements and other agreements, including oral 
agreements, which establish that the designated entity will have both 
de facto and de jure control of the entity. See 47 CFR 1.2110(i).
    (g) Records maintenance. All holders of BTA authorizations acquired 
in a Commission auction commencing prior to January 1, 2004 that claim 
designated entity status shall maintain, at their principal place of 
business or with their designated agent, an updated documentary file of 
ownership and revenue information necessary to establish their status. 
Holders of BTA authorizations or their successors in interest shall 
maintain such files for a ten (10) year period running from the date 
that their BTA authorizations are issued. The files must be made 
available to the Commission upon request.


Sec.  27.1214  EBS spectrum leasing arrangements and grandfathered 
leases.

    (a) A licensee in the EBS that is solely utilizing analog 
transmissions may enter

[[Page 72040]]

into a spectrum leasing arrangement to transmit material other than the 
educational programming defined in Sec.  27.1203(b) and (c) subject to 
the following conditions:
    (1) Before entering into a spectrum leasing arrangement involving 
material other than educational programming on any one channel, the 
licensee must provide at least 20 hours per week of EBS educational 
programming (as defined in Sec.  27.1203(b) and (c)) on that channel, 
except as provided in paragraphs (a)(2) and (a)(3) of this section. An 
additional 20 hours per week per channel must be strictly reserved for 
EBS use and not used for non-EBS purposes, or reserved for recapture by 
the EBS licensee for its EBS educational usage, subject to one year's 
advance, written notification by the EBS licensee to its lessee and 
accounting for all recapture already exercised, with no economic or 
operational detriment to the licensee. These hours of recapture are not 
restricted as to time of day or day of the week, but may be established 
by negotiations between the EBS licensee and the lessee. The 20 hours 
per channel per week EBS educational usage requirement and the 
recapture and/or reservation requirement of an additional 20 hours per 
channel per week shall apply spectrally over the licensee's whole 
actual service area.
    (2) For the first two years of operation, an EBS entity may enter 
into a spectrum leasing arrangement involving material other than 
educational programming if it provides EBS educational usage for at 
least 12 hours per channel per week, provided that the entity does not 
employ channel loading technology.
    (3) The licensee may shift its requisite EBS educational usage onto 
fewer than its authorized number of channels, via channel mapping or 
channel loading technology, so that it can enter into a spectrum 
leasing arrangement involving full-time channel capacity on its EBS 
station and/or associated EBS booster stations, subject to the 
condition that it provide a total average of at least 20 hours per 
channel per week of EBS educational usage on its authorized channels. 
The use of channel mapping or channel loading consistent with the Rules 
shall not be considered adversely to the EBS licensee in seeking a 
license renewal. The licensee also retains the unabridgeable right to 
recapture, subject to six months' advance written notification by the 
EBS licensee to the spectrum lessee, an average of an additional 20 
hours per channel per week, accounting for all recapture already 
exercised. Regardless of whether the licensee has educational receive 
sites within its GSA, the licensee may lease booster stations in the 
entire GSA, provided that the licensee maintains the unabridgeable 
right to ready recapture at least 40 hours per channel per week for EBS 
educational usage. The licensee may agree to the transmission of this 
recapture time on channels not authorized to it, but which are included 
in the wireless system of which it is a part. A licensee under this 
paragraph which enters into a spectrum leasing arrangement on any one 
of its channels to an operator may ``channel shift'' pursuant to and 
under the conditions of paragraph (d)(2) of this section.
    (b) A licensee utilizing digital transmissions on any of its 
licensed channels may enter into a spectrum leasing arrangement to 
transmit material other than the educational programming defined in 
Sec.  27.1203(b) and (c), subject to the following conditions:
    (1) The licensee must reserve a minimum of 5% of the capacity of 
its channels for instructional purposes only, and may not enter into a 
spectrum leasing arrangement involving this reserved capacity. In 
addition, before leasing excess capacity, the licensee must provide at 
least 20 hours per licensed channel per week of EBS educational usage. 
This 5% reservation and this 20 hours per licensed channel per week EBS 
educational usage requirement shall apply spectrally over the 
licensee's whole actual service area. However, regardless of whether 
the licensee has an educational receive site within its GSA served by a 
booster, the licensee may lease excess capacity without making at least 
20 hours per licensed channel per week of EBS educational usage, 
provided that the licensee maintains the unabridgeable right to 
recapture on one months' advance notice such capacity as it requires 
over and above the 5% reservation to make at least 20 hours per channel 
per week of EBS educational usage.
    (2) The licensee may shift its requisite EBS educational usage onto 
fewer than its authorized number of channels, via channel mapping or 
channel loading technology, and may shift its requisite EBS educational 
usage onto channels not authorized to it, but which are included in the 
wireless system of which it is a part (``channel shifting''), so that 
it can enter into a spectrum leasing arrangement involving full-time 
channel capacity on its EBS station, associated EBS booster stations, 
and/or EBS response stations and associated response station hubs, 
subject to the condition that it provide a total average of at least 20 
hours per licensed channel per week of EBS educational usage. The use 
of channel mapping, channel loading, and/or channel shifting consistent 
with the Rules shall not be considered adversely to the EBS licensee in 
seeking a license renewal. In addition, an EBS entity receiving 
interference protection will continue to receive such protection if it 
elects to swap channels with another EBS or BRS station.
    (c) All spectrum leasing arrangements involving EBS spectrum must 
afford the EBS licensee an opportunity to purchase or to lease EBS 
equipment in the event that the spectrum leasing arrangement is 
terminated as a result of action by the spectrum lessee.
    (d) All leases of current EBS spectrum entered into prior to 
January 10, 2005 and in compliance with leasing rules formerly 
contained in part 74 of this chapter may continue in force and effect, 
notwithstanding any inconsistency between such leases and the rules 
applicable to spectrum leasing arrangements set forth in this chapter. 
Such leases entered into pursuant to the former part 74 rules of this 
chapter may be renewed and assigned in accordance with the terms of 
such lease. All spectrum leasing arrangements leases entered into after 
January 10, 2005, pursuant to the rules set forth in part 1 and part 27 
of this chapter, must comply with the rules in those parts.


Sec.  27.1215  BRS grandfathered leases.

    (a) All leases of current BRS spectrum entered into prior to 
January 10, 2005 and in compliance with rules formerly contained in 
part 21 of this chapter may continue in force and effect, 
notwithstanding any inconsistency between such leases and the rules 
applicable to spectrum leasing arrangements set forth in this chapter. 
Such leases entered into pursuant to the former part 21 of this chapter 
may be renewed and assigned in accordance with the terms of such lease. 
All spectrum leasing arrangements leases entered into after January 10, 
2005, pursuant to the rules set forth in part 1 and part 27 of this 
chapter must comply with the rules in those parts.

Technical Standards


Sec.  27.1220  Transmission standards.

    The width of a channel in the LBS and UBS is 5.5 MHz, with the 
exception of BRS channels 1 and 2 which are 6.0 MHz. The width of all 
channels in the MBS is 6 MHz. However, the licensee may subchannelize 
its authorized bandwidth, provided that digital modulation is employed 
and the aggregate power does not exceed the authorized power for the 
channel. The licensee may also, jointly with other

[[Page 72041]]

licensees, transmit utilizing bandwidth in excess of its authorized 
bandwidth, provided that digital modulation is employed, all power 
spectral density requirements set forth in this part are met and the 
out-of-band emissions restrictions set forth in Sec.  27.53 are met at 
the edges of the channels employed.


Sec.  27.1221  Interference protection.

    (a) Interference protection will be afforded to BRS on a station by 
station basis based on the heights of the stations in the LBS and UBS 
and also on height benchmarking, although the heights of antennas 
utilized are not restricted.
    (b) Height Benchmarking. Height benchmarking is defined for pairs 
of base stations, one in each of two neighboring service areas. The 
height benchmark for a particular station in a service area relative to 
a base station in an adjacent service area is the distance'squared 
between the station and the GSA service area boundary measured along 
the radial between the respective stations, divided by 17. That is, the 
height benchmark is hb = D\2\/17. Interference protection 
will be afforded on a station by station basis based on the actual 
antenna height above the radial average terrain (calculated along the 
straight line between the two base stations in accordance with Sec.  
24.53(b) and (c) of this chapter) and this height benchmark.


Sec.  27.1222  Operations in the 2568-2572 and 2614-2618 bands.

    All operations in the 2568-2572 and 2614-2618 MHz bands shall be 
secondary to adjacent-channel operations. Stations operating in the 
2568-2572 and 2614-2618 MHz must not cause interference to licensees in 
operation in the LBS, MBS, and UBS and must accept any interference 
from any station operating in the LBS, MBS, and UBS in compliance with 
the rules established in this subpart. Stations operating in the 2568-
2572 and 2614-2618 bands may cause interference to stations in 
operation in the LBS, MBS, and UBS if the affected licensees consent to 
such interference.

Policies Governing the Transition of the 2500-2690 MHz Band for BRS and 
EBS


Sec.  27.1230  Conversion of the 2500-2690 MHz band.

    BRS and EBS licensees in the 2500-2690 MHz band on the pre-
transiton A-I Channels will be transitioned from the frequencies 
assigned to them under Sec.  27.5(i)(1) to the frequencies assigned to 
them under Sec.  27.5(i)(2). The transition, which will be undertaken 
by one or more proponent(s), will occur in the following five phases: 
initiating the transition process (see Sec.  27.1231), planning the 
transition (see Sec.  27.1232), reimbursing transition costs (see 
27.1233), terminating existing operations in transitioned markets that 
do not comport with Sec.  27.5(i)(2) (see Sec.  27.1234), and filing 
the post-transition notification (see Sec.  27.1235).


Sec.  27.1231  Initiating the transition.

    (a) The transition will occur by MEA. MEAs are based on the U.S. 
Department of Commerce's 172 Economic Area (EAs). There are 52 MEAs 
composed of one or more EAs. Additionally, there are three EA-like 
areas: Guam and Northern Mariana Islands; Puerto Rico and the U.S. 
Virgin Islands; and American Samoa, which will also be transitioned to 
the band plan in Sec.  27.5(i)(2). The MEA associated with the Gulf of 
Mexico will not be transitioned. MEAs are identified in the Table to 
Sec.  27.6(a).
    (b) Sections 27.1231 through 27.1235 apply only to transitions 
initiated by a proponent(s) within 3 years of January 10, 2005.
    (c) When a proponent(s) is a Basic Trading Area (BTA) BRS licensee 
that is located in more than one MEA, the proponent(s) may elect to 
transition only one MEA or may elect to transition two or more MEAs 
that overlap the proponent(s)'s BTA.
    (d) A proponent(s) may be an EBS or BRS licensee or an EBS lessee. 
To initiate a transition, a proponent(s) must submit the following 
information to the Commission at the Office of the Secretary in 
Washington, DC:
    (1) A list of the MEA(s) that the proponent(s) is transitioning;
    (2) A list by call sign of all of the BRS and EBS licensees in the 
MEA(s) that are being transitioned;
    (3) A statement indicating that the engineering analysis to 
transition all of the BRS and EBS licensees in the MEA(s) has been 
completed;
    (4) A statement indicating when the transition will be completed;
    (5) A statement indicating that an agreement has been concluded 
with the proponent(s) of the adjoining or adjacent MEA(s) when the 
engineering analysis indicates that a licensee or licensees in an 
adjacent or adjoining MEA must be transitioned to avoid interference to 
licensees in the MEA being transitioned, or in lieu of an agreement, 
the proponent(s) may provide an alternative means of transitioning the 
licensees in an adjacent or adjoining MEA;
    (6) A statement indicating that an agreement has been concluded 
with another proponent(s) on how a MEA will be transitioned when there 
are two or more proponents seeking to transition the same MEA and a 
statement that identifies the specific portion of the MEA each 
proponent will be responsible for transitioning; and
    (7) A certification that it has the funds available to pay the 
reasonable expected costs of the transition based on the information 
contained in the Pre-Transition Data Request (see paragraph (f) of this 
section).
    (e) A proponent(s) may, at it own discretion, withdraw from 
transitioning a MEA(s) by amending the information submitted to the 
Commission under paragraph (d) of this section and notifying all 
affected BRS and EBS licensees in the MEA(s).
    (f) Pre-transition data request. To assist a potential proponent(s) 
in assessing whether to transition a MEA(s), a proponent(s) must send a 
Pre-transition data request to each EBS and BRS licensee in the MEA the 
proponent(s) seeks to transition. The proponent(s) shall include its 
full name, postal mailing address, contact person, e-mail address, and 
phone and fax numbers. The proponent(s) must request EBS and BRS 
licensees within a MEA to provide the following information to the 
potential proponent(s):
    (1) The location (by street address and by geographic coordinates) 
of every constructed EBS receive site that, as of the date of receipt 
of the Pre-Transition Data Request, is entitled to a replacement 
downconverter (see Sec.  27.1233(a)). The response must:
    (i) Specify whether the downconverting antenna is mounted on a 
structure attached to the building or on a free-standing structure;
    (ii) Specify the approximate height above ground level of the 
downconverting antenna;
    (iii) Specify, if known, the adjacent channel D/U ratio that can be 
tolerated by any receiver(s) at the receive site; and
    (2) The number and identification of EBS video programming or data 
transmission tracks the EBS licensee is entitled to receive in the MBS 
and whether the EBS licensee will accept fewer tracks in the MBS (see 
Sec.  27.1233(b)).
    (g) The Transition notice. The proponent(s) must send a Transition 
Notice to all BRS and EBS licensees in the MEA(s) being transitioned. 
The proponent(s) must include the following information in the 
Transition Notice:
    (1) The proponent(s)'s full name; postal mailing address, contact 
person, e-mail address, and phone and fax numbers;
    (2) The identification of the BRS and EBS licensees that will be 
transitioned;

[[Page 72042]]

    (3) Copies of the most recent response to the Pre-Transition Data 
Request for each participant in the process; and
    (4) A certification that the proponent(s) has the funds available 
to pay the reasonably expected costs of the transition based on the 
information in the Pre-Transition Data Request.


Sec.  27.1232  Planning the transition.

    (a) The Transition planning period. The Transition Planning Period 
is a 90-day period that commences on the day after the proponent(s) 
file the Initiation Plan with the Commission.
    (b) The Transition plan. The proponent(s) must provide to each BRS 
and EBS licensee within an MEA, a Transition Plan no later than 30 days 
prior to the conclusion of the Transition Planning Period.
    (1) The Transition Plan must:
    (i) Identify the call signs of the stations that are transitioning;
    (ii) Identify the specific channels that each licensee will receive 
following the transition;
    (iii) Identify the receive sites at which replacement 
downconverters will be installed (see Sec.  27.1233(a));
    (iv) Identify the video programming and data transmission tracks 
that will be migrated to the MBS and provide for the MBS channels to be 
authorized to operate with transmission parameters that are 
substantially similar to those of the licensee's operation prior to 
transition (see Sec.  27.1233(b));
    (v) Identify the technical configuration of the MBS facilities;
    (vi) Identify the approximate time line for effectuating the 
transition, which, unless dispute resolution procedures are used, may 
not exceed 18 months from the conclusion of the Transition Planning 
Period;
    (vii) Provide for the establishment of an escrow or other 
appropriate mechanism for ensuring completion of the transition in 
accordance with the Transition Plan.
    (2) The Transition Plan may provide for interruptions of EBS 
transmissions, so long as those interruptions are limited to a period 
of less than seven days at any reception site. The proponent(s) must 
coordinate with each EBS licensee to minimize the extent of any 
disruption.
    (3) The Transition Plan may provide for the shifting of an EBS 
licensee's program to alternative channels. Such shifting may not be 
considered an interruption, if the EBS licensee's receive sites are 
equipped to receive and internally distribute the channel to which the 
programming is shifted.
    (4) The Transition Plan may provide for the installation of an 
appropriate filter on an MBS transmitter if the proponent(s) determines 
that the installation of a filter will mitigate interference from 
transmissions in the MBS to operations outside the MBS.
    (c) Counterproposals. No later than 10 days before the conclusion 
of the Transition Planning Period, affected BRS and EBS licensees may 
submit a counterproposal to the proponent(s) if they believe that the 
Transition Plan is unreasonable. The proponent(s) may:
    (1) Accept the counterproposal, modify the Transition Plan 
accordingly, and send the modified Transition Plan to all EBS and BRS 
licensees in the MEA;
    (2) Invoke dispute resolution procedures for a determination of 
whether the Transition Plan is reasonable and take no action until a 
determination of reasonableness is made; or
    (3) Invoke dispute resolution procedures for a determination of 
whether the Transition Plan is reasonable, but may implement the 
transition immediately.
    (d) Safe harbors. An offer by a proponent(s) shall be reasonable if 
it meets one of the following safe harbors:
    (1) Safe harbor #1. This safe harbor applies when the default high-
power channel assigned to each channel group is authorized to operate 
after the transition with the same transmission parameters 
(coordinates, antenna pattern, height of center radiation, EIRP) as the 
downstream facilities before the transition. If the proponent(s) does 
not propose a change in the geographic coordinates of the facilities 
(other than as necessary to conform the actual location with the 
Commission's Antenna Survey Branch database), the proponent may also 
propose the following to the extent consistent with this subpart:
    (i) An increase in the height of the center of radiation of the 
transmission antenna or a decrease in such height of no more than 8 
meters (provided that such change does not result in an increase in 
antenna support structure lease costs to the EBS licensee and the 
consent of the owner of the antenna support structure is obtained).
    (ii) A change in the EIRP of the transmission system of up to 1.5 
dB in any direction.
    (iii) Digitization, precision frequency offset, or other upgrades 
to the EBS transmission or reception systems that allow the 
proponent(s) to invoke more advantageous interference protection 
requirements applicable to upgraded systems.
    (2) Safe harbor #2. This safe harbor applies when an EBS licensee 
has channel-shifted its single video programming or data transmission 
track to spectrum licensed to another licensee. Under Sec.  27.5(i)(2), 
that track must be on the high-power channel licensed to the EBS 
licensee upon completion of the transition. For example, before the 
transition, an A Group licensee might have shifted its EBS video 
programming to channel C1. If one of the pre-transition A Group 
channels is licensed with technical parameters substantially similar to 
those of pre-transition channel C1, the Transition Plan may provide for 
high-power channel A4 to be licensed with the same technical parameters 
as the pre-transition channel C1. However, if the pre-transition A 
Group channels are licensed to operate with technical parameters 
materially different from those of pre-transition channel C1, the 
proponent(s) may:
    (i) Arrange a channel swap with the licensee of the C Group so that 
the A Group licensee will receive high-power channel C4 (which will 
automatically be licensed with the same transmission parameters as the 
pre-transition channel C1) in exchange for channel A4.
    (ii) Arrange for high-power channel A4 to operate with transmission 
parameters substantially similar to those of the pre-transition channel 
C1 (see paragraph (d)(1) of this section).


Sec.  27.1233  Reimbursement costs of transitioning.

    (a) Replacement downconverters. The proponent(s) must install at 
every eligible EBS receive site a downconverter designed to minimize 
the reception of signals from outside the MBS.
    (1) An EBS receive site is eligible to be replaced if:
    (i) A reception system was installed at that site on or before the 
date the EBS licensee receives its Pre-Transition Data Request (see 
Sec.  27.1231(f));
    (ii) The reception system was installed by or at the direction of 
the EBS licensee;
    (iii) The reception system receives EBS programming under Sec.  
27.1203(b) and (c) or is located at a cable television system headend 
and the cable system relays educational or instructional programming 
for an EBS licensee; and
    (iv) It is within the licensee's 35-mile radius GSA.
    (2) Replacement downconverters must meet the following minimum 
technical requirements:
    (i) The downconverter's input frequency range (the ``in-band 
frequencies'') must be 2572 MHz to 2614 MHz and output frequency range 
must be 294 MHz to 336 MHz;

[[Page 72043]]

    (ii) The downconversion process must not invert frequencies;
    (iii) The nominal gain of the downconverter must be 32 dB, or 
greater;
    (iv) The downconverter must include filtering prior to the first 
amplifier that attenuates frequencies below 2500 MHz and above 2705 MHz 
by at least 25 dB;
    (v) The downconverter must have an out-of-band input 3rd order 
intercept point (input IP3) of at least +9 dBm, where out-of-band is 
defined as all frequencies below 2566 MHz and all frequencies above 
2620 MHz;
    (vi) The downconverter must have a typical noise figure of no 
greater than 3.5 dB and a worst case noise figure of no greater than 
4.5 dB across all in-band frequencies and across its entire intended 
operating temperature range;
    (vii) The downconverter must not introduce a delta group delay of 
more than 20 nanoseconds for digital operations or 100 nanoseconds for 
analog operations over any individual six megahertz MBS channel.
    (b) Migration of Video Programming and Data Transmission Track. (1) 
The proponent(s) must provide, at its cost, to each EBS licensee that 
intends to continue downstream high-power, high-site educational video 
programming or data transmission services, with one programming track 
on the MBS channels for each EBS video or data transmission track the 
licensee is transmitting on a simultaneous basis before the transition.
    (i) To be eligible for migration, a program track must contain EBS 
programming that complies with Sec.  27.1203 (b) and (c).
    (ii) The proponent(s) must pay only the costs of migrating 
programming tracks being transmitted on December 31, 2002 or within six 
months prior thereto.
    (2) The proponent(s) must migrate each eligible programming track 
to spectrum in the MBS that will be licensed to the affected licensee 
at the conclusion of the transition.
    (3) After the transition, the desired-to-undesired signal level 
ratio at each of the receive sites securing a replacement downconverter 
must satisfy the following criteria:
    (i) Cochannel D/U Ratio. (A) When the post-transition desired 
signal is transmitted using analog modulation, the actual cochannel D/U 
ratio measured at the output of the reception antenna must be at least 
the lesser of 45 dB or the actual pre-transmission D/U ratio less 1.5 
dB.
    (B) When the post-transition desired signal will be transmitted 
using digital modulation, the actual cochannel D/U ratio measured at 
the output of the reception antenna must be at least the lesser of 32 
dB or the pre-transition D/U ratio less 1.5 dB.
    (C) Where in implementing the Transition Plan, the proponent(s) 
deploys precise frequency offset in an analog system, the minimum 
cochannel D/U ratio is reduced to 38 dB, provided that the transmitters 
have or are upgraded pursuant to the Transition Plan to have the 
appropriate ``plus,'' ``zero,'' or ``minus'' 10,010 Hertz precision 
frequency offset with a 3 Hertz (or better) stability.
    (ii) Adjacent Channel D/U Ratio. The actual adjacent channel D/U 
must equal or exceed the lesser of 0 dB or the actual pre-transmission 
D/U ratio. However, in the event that the receive site uses receivers 
or is upgraded by the proponent(s) as part of the Transition Plan to 
use receivers that can tolerate negative adjacent channel D/U ratios, 
the actual adjacent channel D/U ratio at such receive site must equal 
or exceed such negative adjacent channel D/U ratio.
    (c) BRS costs. BRS licensees must pay their own transition costs. 
BRS licensees in the LBS or UBS must reimburse the proponent(s) a pro 
rata share of the cost of transitioning the facilities they use to 
provide commercial service, either directly or through a lease 
agreement with an EBS licensee.


Sec.  27.1234  Terminating existing operations in transitioned markets.

    Licensees may discontinue operations during the transition.


Sec.  27.1235  Post-transition notification.

    The proponent(s) and all affected licensees must jointly notify the 
Commission at the Office of the Secretary, Washington DC, that the 
Transition Plan has been fully implemented.
    (a) The notification must provide the identification of the 
licensees that have transitioned to the band plan in Sec.  27.5(i)(2) 
and the specific frequencies on which each licensee is operating.
    (b) For each station in the MBS, the notification must provide the 
following information:
    (1) The station coordinates,
    (2) The make and model of each antenna,
    (3) The horizontal and vertical pattern of the antenna;
    (4) EIRP of the main lobe;
    (5) Orientation;
    (6) Height of antenna center of radiation;
    (7) Transmitter output power;
    (8) All line and combiner losses.
    (c) The proponent(s) must provide copies of the post-transition 
notice to all parties of the transition.

PART 73--RADIO BROADCAST SERVICES

0
33. The authority citation for part 73 continues to read as follows:

    Authority: 47 U.S.C. 154, 303, 334 and 336.


Sec.  73.1010  [Amended]

0
34. Section 73.1010 is amended by removing paragraph (e)(7) and 
redesignating paragraph (e)(8) as paragraph (e)(7).


Sec.  73.3500  [Amended]

0
35. In the table in Sec.  73.3500 (a) remove the entries for Form 
numbers 330, 330-L, and 330-R.


Sec.  73.3533  [Amended]

0
36. Section 73.3533 is amended by removing paragraph (a)(4) and 
redesignating paragraphs (a)(5) through (a)(8) as paragraphs (a)(4) 
through (a)(7).


Sec.  73.3534  [Removed and reserved]

0
37. Section 73.3534 is removed and reserved.


Sec.  73.3536  [Amended]

0
38. Section 73.3536 is amended by removing paragraph (b)(4) and 
redesignating paragraphs (b)(5) through (b)(7) as paragraphs (b)(4) 
through (b)(6).

0
39. Section 73.5000 is amended by revising paragraph (a) to read as 
follows:


Sec.  73.5000  Services subject to competitive bidding.

    (a) Mutually exclusive applications for new facilities and for 
major changes to existing facilities in the following broadcast 
services are subject to competitive bidding: AM; FM; FM translator; 
analog television; low-power television; television translator; and 
Class A television. Mutually exclusive applications for minor 
modifications of Class A television and television broadcast are also 
subject to competitive bidding. The general competitive bidding 
procedures set forth in part 1, subpart Q of this chapter will apply 
unless otherwise provided in part 73 or part 74 of this chapter.
* * * * *

0
40. Section 73.5002 is revised to read as follows:


Sec.  73.5002  Application and certification procedures; return of 
mutually exclusive applications not subject to competitive bidding 
procedures; prohibition of collusion.

    (a) Prior to any broadcast service auction, the Commission will 
issue a

[[Page 72044]]

public notice announcing the upcoming auction and specifying the period 
during which all applicants seeking to participate in an auction, and 
all applicants for noncommercial educational broadcast stations, as 
described in 47 U.S.C. 397(6), on non-reserved channels, must file 
their applications for new broadcast facilities or for major changes to 
existing facilities. Broadcast service applications for new facilities 
or for major modifications will be accepted only during these specified 
periods. This initial and other public notices will contain information 
about the completion and submission of applications to participate in 
the broadcast auction, and applications for noncommercial educational 
broadcast stations, as described in 47 U.S.C. 397(6), on non-reserved 
channels, as well as any materials that must accompany the 
applications, and any filing fee that must accompany the applications 
or any upfront payments that will need to be submitted. Such public 
notices will also, in the event mutually exclusive applications are 
filed for broadcast construction permits that must be resolved through 
competitive bidding, contain information about the method of 
competitive bidding to be used and more detailed instructions on 
submitting bids and otherwise participating in the auction. In the 
event applications are submitted that are not mutually exclusive with 
any other application in the same service, or in the event that any 
applications that are submitted that had been mutually exclusive with 
other applications in the same service are resolved as a result of the 
dismissal or modification of any applications, the non-mutually 
exclusive applications will be identified by public notice and will not 
be subject to auction.
    (b) To participate in broadcast service auctions, or to apply for a 
noncommercial educational station, as described in 47 U.S.C. 397(6), on 
a non-reserved channel, all applicants must timely submit short-form 
applications (FCC Form 175), along with all required certifications, 
information and exhibits, pursuant to the provisions of Sec.  1.2105(a) 
of this chapter and any Commission public notices. So determinations of 
mutual exclusivity for auction purposes can be made, applicants for 
non-table broadcast services must also submit the engineering data 
contained in the appropriate FCC form (FCC Form 301, FCC Form 346, or 
FCC Form 349). Beginning January 1, 1999, all short-form applications 
must be filed electronically. If any application for a noncommercial 
educational broadcast station, as described in 47 U.S.C. 397(6), is 
mutually exclusive with applications for commercial broadcast stations, 
and the applicants that have the opportunity to resolve the mutually 
exclusivity pursuant to paragraphs (c) and (d) of this section fail to 
do so, the application for noncommercial educational broadcast station, 
as described in 47 U.S.C. 397(6), will be returned as unacceptable for 
filing, and the remaining applications for commercial broadcast 
stations will be processed in accordance with competitive bidding 
procedures.
    (c) Applicants in all broadcast service auctions, and applicants 
for noncommercial educational stations, as described in 47 U.S.C. 
397(6), on non-reserved channels will be subject to the provisions of 
Sec.  1.2105(b) of this chapter regarding the modification and 
dismissal of their short-form applications. Notwithstanding the general 
applicability of Sec.  1.2105(b) of this chapter to broadcast auctions, 
and applicants for noncommercial educational stations, as described in 
47 U.S.C. 397(6), on non-reserved channels, the following applicants 
will be permitted to resolve their mutual exclusivities by making 
amendments to their engineering submissions following the filing of 
their short-form applications:
    (1) Applicants for all broadcast services who file major 
modification applications that are mutually exclusive with each other;
    (2) Applicants for all broadcast services who file major 
modification and new station applications that are mutually exclusive 
with each other; or
    (3) Applicants for the secondary broadcast services who file 
applications for new stations that are mutually exclusive with each 
other.
    (d) The prohibition of collusion set forth in Sec.  1.2105(c) of 
this chapter, which becomes effective upon the filing of short-form 
applications, shall apply to all broadcast service auctions. 
Notwithstanding the general applicability of Sec.  1.2105(c) of this 
chapter to broadcast auctions, the following applicants will be 
permitted to resolve their mutual exclusivities by means of engineering 
solutions or settlements during a limited period after the filing of 
short-form applications, as further specified by Commission public 
notices:
    (1) Applicants for all broadcast services who file major 
modification applications that are mutually exclusive with each other;
    (2) Applicants for all broadcast services who file major 
modification and new station applications that are mutually exclusive 
with each other; or
    (3) Applicants for the secondary broadcast services who file 
applications for new stations that are mutually exclusive with each 
other.

0
41. Section 73.5003 is revised to read as follows:


Sec.  73.5003  Submission of full payments.

    If a winning bidder fails to pay the balance of its winning bid in 
a lump sum by the applicable deadline as specified by the Commission, 
it will be allowed to make payment within ten (10) business days after 
the payment deadline, provided that it also pays a late fee equal to 
five (5) percent of the amount due. Broadcast construction permits 
licenses will be granted by the Commission following the receipt of 
full payment.

0
42. Section 73.5005 is amended by revising paragraph (a) to read as 
follows:


Sec.  73.5005  Filing of long-form applications.

    (a) Within thirty (30) days following the close of bidding and 
notification to the winning bidders, each winning bidder must submit an 
appropriate long-form application (FCC Form 301, FCC Form 346, or FCC 
Form 349) for each construction permit or license for which it was the 
high bidder. Long-form applications filed by winning bidders shall 
include the exhibits required by Sec.  1.2107(d) of this chapter 
(concerning any bidding consortia or joint bidding arrangements); Sec.  
1.2110(j) of this chapter (concerning designated entity status, if 
applicable); and Sec.  1.2112 of this chapter (concerning disclosure of 
ownership and real party in interest information, and, if applicable, 
disclosure of gross revenue information for small business applicants).
* * * * *

0
43. Section 73.5006 is revised to read as follows:


Sec.  73.5006  Filing of petitions to deny against long-form 
applications.

    (a) As set forth in 47 CFR 1.2108, petitions to deny may be filed 
against the long-form applications filed by winning bidders in 
broadcast service auctions and against the long-form applications filed 
by applicants whose short-form applications were not mutually exclusive 
with any other applicant, or whose short-form applications were 
mutually exclusive only with one or more short-form applications for a 
noncommercial educational broadcast station, as described in 47 U.S.C. 
397(6).

[[Page 72045]]

    (b) Within ten (10) days following the issuance of a public notice 
announcing that a long-form application for an AM, FM or television 
construction permit has been accepted for filing, petitions to deny 
that application may be filed. Within fifteen (15) days following the 
issuance of a public notice announcing that a long-form application for 
a low-power television, television translator or FM translator 
construction permit has been accepted for filing, petitions to deny 
that application may be filed. Any such petitions must contain 
allegations of fact supported by affidavit of a person or persons with 
personal knowledge thereof.
    (c) An applicant may file an opposition to any petition to deny, 
and the petitioner a reply to such opposition. Allegations of fact or 
denials thereof must be supported by affidavit of a person or persons 
with personal knowledge thereof. In the AM, FM and television broadcast 
services, the time for filing such oppositions shall be five (5) days 
from the filing date for petitions to deny, and the time for filing 
replies shall be five (5) days from the filing date for oppositions. In 
the low-power television, television translator and FM translator 
broadcast services, the time for filing such oppositions shall be 
fifteen (15) days from the filing date for petitions to deny, and the 
time for filing replies shall be ten (10) days from the filing date for 
oppositions.
    (d) If the Commission denies or dismisses all petitions to deny, if 
any are filed, and is otherwise satisfied that an applicant is 
qualified, a public notice will be issued announcing that the broadcast 
construction permit(s) is ready to be granted, upon full payment of the 
balance of the winning bid(s). See 47 CFR 73.5003. Construction of 
broadcast stations shall not commence until the grant of such permit or 
license to the winning bidder.

0
44. Section 73.5007 is amended by removing paragraph (b)(2)(vi) and 
revising paragraphs (b)(2)(iv) and (b)(2)(v) to read as follows:


Sec.  73.5007  Designated entity provisions.

* * * * *
    (b) * * *
    (2) * * *
    (iv) Cable television system--the franchised community of a cable 
system; and
    (v) Daily newspaper--community of publication.
* * * * *

0
45. Section 73.5008 is amended by revising paragraph (b) to read as 
follows:


Sec.  73.5008  Definitions applicable for designated entity provisions.

* * * * *
    (b) A medium of mass communications means a daily newspaper; a 
cable television system; or a license or construction permit for a 
television broadcast station, an AM or FM broadcast station, or a 
direct broadcast satellite transponder.
* * * * *

PART 74--EXPERIMENTAL RADIO, AUXILIARY, SPECIAL BROADCASTING AND 
OTHER PROGRAM DISTRIBUTIONAL SERVICES

0
46. The authority citation for part 74 continues to read as follows:

    Authority: 47 U.S.C. 154, 303, 307, 336(f), 336(h) and 554.

0
47. Section 74.1 is amended by revising paragraph (b) to read as 
follows:


Sec.  74.1  Scope.

* * * * *
    (b) Rules in part 74 which apply exclusively to a particular 
service are contained in that service subpart, as follows: Experimental 
Broadcast Stations, Subpart A; Remote Pickup Broadcast Stations, 
Subpart D; Aural Broadcast STL and Intercity Relay Stations, Subpart E; 
TV Auxiliary Broadcast Stations, Subpart F; Low-power TV, TV Translator 
and TV Booster Stations, Subpart G; Low-power Auxiliary Stations, 
Subpart H; FM Broadcast Translator Stations and FM Broadcast Booster 
Stations, subpart L.
* * * * *


Sec.  74.15  [Amended]

0
48. Section 74.15 is amended by removing paragraph (e) and 
redesignating paragraphs (f) and (g) as (e) and (f).

0
49. Section 74.703 is amended by revising paragraph (d) to read as 
follows:


Sec.  74.703  Interference.

* * * * *
    (d) When a low-power TV or TV translator station causes 
interference to a CATV system by radiations within its assigned channel 
at the cable headend or on the output channel of any system converter 
located at a receiver, the earlier user, whether cable system or low-
power TV or TV translator station, will be given priority on the 
channel, and the later user will be responsible for correction of the 
interference. When a low-power TV or TV translator station causes 
interference to a BRS or EBS system by radiations within its assigned 
channel on the output channel of any system converter located at a 
receiver, the earlier user, whether BRS system or low-power TV or TV 
translator station, will be given priority on the channel, and the 
later user will be responsible for correction of the interference.
* * * * *

0
50. Section 74.832 is amended by revising paragraph (a)(6) to read as 
follows:


Sec.  74.832  Licensing requirements and procedures.

    (a) * * *
    (6) Licensees and conditional licensees of stations in the Service 
and Multichannel Multipoint Distribution Service as defined in Sec.  
21.2 of this chapter, or entities that hold an executed lease agreement 
with an MDS or MMDS licensee or conditional licensee or with an 
Instructional Television Fixed Service licensee or permittee.
* * * * *

Subpart I [Removed and Reserved]

0
51. Subpart I is removed and reserved.

PART 76--MULTICHANNEL VIDEO AND CABLE TELEVISION SERVICE

0
52. The authority for part 76 continues to read as follows:

    Authority: 47 U.S.C. 151, 152, 153, 154, 301, 302a, 303, 303a, 
307, 308, 309, 312, 317, 325, 338, 339, 503, 521, 522, 531, 532, 
533, 534, 535, 536, 537, 543, 544, 544a, 545, 548, 549, 552, 554, 
556, 558, 560, 561, 571, 572, and 573.


0
53. Section 76.64 is amended by revising paragraph (d) to read as 
follows:


Sec.  76.64  Retransmission consent.

* * * * *
    (d) A multichannel video program distributor is an entity such as, 
but not limited to, a cable operator, a BRS/EBS provider, a direct 
broadcast satellite service, a television receive-only satellite 
program distributor, or a satellite master antenna television system 
operator, that makes available for purchase, by subscribers or 
customers, multiple channels of video programming.
* * * * *

0
54. Section 76.71 is amended by revising paragraph (a) to read as 
follows:


Sec.  76.71  Scope of application.

    (a) The provisions of this subpart shall apply to any corporation, 
partnership, association, joint-stock company, or trust engaged 
primarily in the management or operation of any cable system. Cable 
entities subject to these provisions include those systems

[[Page 72046]]

defined in Sec.  76.5(a), all satellite master antenna television 
systems serving 50 or more subscribers, and any multichannel video 
programming distributor. For purposes of the provisions of this 
subpart, a multichannel video programming distributor is an entity such 
as, but not limited to, a cable operator, a BRS/EBS provider, a direct 
broadcast satellite service, a television receive-only satellite 
program distributor, or a video dialtone program service provider, who 
makes available for purchase, by subscribers or customers, multiple 
channels of video programming, whether or not a licensee. Multichannel 
video programming distributors do not include any entity which lacks 
control over the video programming distributed. For purposes of this 
subpart, an entity has control over the video programming it 
distributes, if it selects video programming channels or programs and 
determines how they are presented for sale to consumers. 
Nothwithstanding the foregoing, the regulations in this subpart are not 
applicable to the owners or originators (of programs or channels of 
programming) that distribute six or fewer channels of commonly-owned 
video programming over a leased transport facility. For purposes of 
this subpart, programming services are ``commonly-owned'' if the same 
entity holds a majority of the stock (or is a general partner) of each 
program service.
* * * * *

0
55. Section 76.503 is amended by revising paragraph (e) to read as 
follows:


Sec.  76.503  National Subscriber Limits.

* * * * *
    (e) ``Multichannel video-programming subscribers'' means 
subscribers who receive multichannel video-programming from cable 
systems, direct broadcast satellite services, direct-to-home satellite 
services, BRS/EBS, local multipoint distribution services, satellite 
master antenna television services (as defined in Sec.  76.5(a)(2)), 
and open video systems.
* * * * *
0
56. Section 76.905 is amended by revising paragraph (d) to read as 
follows:


Sec.  76.905  Standards for identification of cable systems subject to 
effective competition.

* * * * *
    (d) A multichannel video program distributor, for purposes of this 
section, is an entity such as, but not limited to, a cable operator, a 
BRS/EBS provider, a direct broadcast satellite service, a television 
receive-only satellite program distributor, a video dialtone service 
provider, or a satellite master antenna television service provider 
that makes available for purchase, by subscribers or customers, 
multiple channels of video programming.
* * * * *

0
57. Section 76.1000 is amended by revising paragraph (e) and the 
existing note to paragraph (e) shall remain unchanged to read as 
follows:


Sec.  76.1000  Definitions.

* * * * *
    (e) Multichannel video programming distributor. The term 
``multichannel video programming distributor'' means an entity engaged 
in the business of making available for purchase, by subscribers or 
customers, multiple channels of video programming. Such entities 
include, but are not limited to, a cable operator, a BRS/EBS provider, 
a direct broadcast satellite service, a television receive-only 
satellite program distributor, and a satellite master antenna 
television system operator, as well as buying groups or agents of all 
such entities.
* * * * *
0
58. Section 76.1200 is amended by revising paragraphs (a) and (b) to 
read as follows:


Sec.  76.1200  Definitions.

    (a) Multichannel video programming system. A distribution system 
that makes available for purchase, by customers or subscribers, 
multiple channels of video programming other than an open video system 
as defined by Sec.  76.1500(a). Such systems include, but are not 
limited to, cable television systems, BRS/EBS systems, direct broadcast 
satellite systems, other systems for providing direct-to-home 
multichannel video programming via satellite, and satellite master 
antenna systems.
    (b) Multichannel video programming distributor. A person such as, 
but not limited to, a cable operator, a BRS/EBS provider, a direct 
broadcast satellite service, or a television receive-only satellite 
program distributor, who owns or operates a multichannel video 
programming system.
* * * * *

0
59. Section 76.1300 is amended by revising paragraph (d) to read as 
follows:


Sec.  76.1300  Definitions.

* * * * *
    (d) Multichannel video programming distributor. The term 
``multichannel video programming distributor'' means an entity engaged 
in the business of making available for purchase, by subscribers or 
customers, multiple channels of video programming. Such entities 
include, but are not limited to, a cable operator, a BRS/EBS provider, 
a direct broadcast satellite service, a television receive-only 
satellite program distributor, and a satellite master antenna 
television system operator, as well as buying groups or agents of all 
such entities.
* * * * *

PART 78--CABLE TELEVISION RELAY SERVICE

0
60. The authority for part 78 continues to read as follows:

    Authority: Sections 2, 3, 4, 301, 303, 307, 308, 309, 48 Stat., 
as amended, 1064, 1065, 1066, 1081, 1082, 1083, 1084, 1085; 47 
U.S.C. 152, 153, 154, 301, 303, 307, 308, 309.

0
61. Section 78.1 is revised to read as follows:


Sec.  78.1  Purpose.

    The rules and regulations set forth in this part provide for the 
licensing and operation of fixed or mobile cable television relay 
service stations (CARS) used for the transmission of television and 
related audio signals, signals of standard and FM broadcast stations, 
signals of BRS/EBS fixed stations, and cablecasting from the point of 
reception to a terminal point from which the signals are distributed to 
the public by cable. In addition CARS stations may be used to transmit 
television and related audio signals to TV translator and low-power TV 
stations.

0
62. Section 78.5 is amended by revising paragraph (j) to read as 
follows:


Sec.  78.5  Definitions.

* * * * *
    (j) Other eligible system. A system comprised of microwave radio 
channels in the BRS/EBS spectrum (as defined in subpart M of part 27 of 
this chapter) that delivers multichannel television service over the 
air to subscribers.

0
63. Section 78.11 is amended by revising paragraph (a) to read as 
follows:


Sec.  78.11  Permissible service.

    (a) CARS stations are authorized to relay TV broadcast and low-
power TV and related audio signals, the signals of AM and FM broadcast 
stations, signals of BRS/EBS fixed stations, and cablecasting intended 
for use by one or more cable television systems or other eligible 
systems. LDS stations are authorized to relay television broadcast and 
related audio signals, the signals of AM and FM broadcast stations, 
signals of BRS/EBS fixed stations, cablecasting, and such other 
communications as may be authorized by the Commission. Relaying 
includes retransmission of signals by intermediate relay stations in

[[Page 72047]]

the system. CARS licensees may interconnect their facilities with those 
of other CARS, common carrier, or television auxiliary licensees, and 
may also retransmit the signals of such CARS, common carrier, or 
television auxiliary stations, provided that the program material 
retransmitted meets the requirements of this paragraph.
* * * * *

0
64. Section 78.13 is amended by removing paragraph (e), redesignating 
paragraph (f) as paragraph (e) and revising paragraph (d) to read as 
follows:


Sec.  78.13  Eligibility for license.

* * * * *
    (d) Licensees and conditional licensees of channels in the BRS/EBS 
band as defined in Sec.  27.5(i) of this chapter, or entities that hold 
an executed lease agreement with a BRS/EBS licensee or conditional 
licensee.
* * * * *

PART 79--CLOSED CAPTIONING AND VIDEO DESCRIPTION OF VIDEO 
PROGRAMMING

0
65. The authority for part 79 continues to read as follows:

    Authority: 47 U.S.C. 151, 152(a), 154(i), 303, 307, 309, 310, 
613.

0
66. Section 79.1 is amended by revising paragraph (d)(7) to read as 
follows:


Sec.  79.1  Closed captioning of video programming.

* * * * *
    (d) * * *
    (7) EBS programming. Video programming transmitted by an 
Educational Broadband Service licensee pursuant to part 27 of this 
chapter.
* * * * *

PART 101--FIXED MICROWAVE SERVICES

0
67. The authority citation for part 101 continues to read as follows:

    Authority: 47 U.S.C. 154, 303.


Sec.  101.101  [Amended]

0
68. Section 101.101 is amended by removing the entry of ``2150-2160 
MHz'' frequency band.


Sec.  101.147  [Amended]

0
69. Section 101.147 is amended by removing the entry of ``2150-2160 
MHz'' frequency band in paragraph (a), and by removing and reserving 
paragraphs (e) and (g).

[FR Doc. 04-26830 Filed 12-9-04; 8:45 am]
BILLING CODE 6712-01-P