[Federal Register Volume 71, Number 117 (Monday, June 19, 2006)]
[Rules and Regulations]
[Pages 35178-35194]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-9276]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 25 and 27

[WT Docket Nos. 03-66, 03-67, 02-68, 00-230, MM Docket No. 97-217, IB 
Docket No. 02-364, ET Docket No. 00-258; FCC 06-46]


Facilitating the Provision of Fixed and Mobile Broadband Access, 
Educational and Other Advanced Services in the 2150-2162 and 2500-2690 
MHz Bands; Review of the Spectrum Sharing Plan Among Non-Geostationary 
Satellite Orbit Mobile Satellite Service Systems in the 1.6/2.4 GHz 
Bands

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this document the Commission amends the rules governing the 
Broadband Radio Service (BRS) and Educational Broadband Service (EBS) 
in response to petitions for reconsideration filed in the BRS/EBS 
Report and Order and comments filed in the BRS/EBS Further Notice of 
Proposed Rulemaking. Also, the Commission responds to petitions for 
reconsideration filed the BIG LEO Spectrum Sharing Order by affirming 
its decision to establish a plan for sharing between the fixed and 
mobile (except aeronautical mobile) services and Code Division Multiple 
Access (CDMA) Mobile-Satellite Service (MSS) operators in the 2495-2500 
MHz band. This decision will permit BRS Channel No. 1 licensees to 
relocate to the 2496-2502 MHZ portion of the 2495-2690 MHz band. The 
Commission's actions in this proceeding are designed to encourage the 
transition of the 2495-2690 MHz band and to provide both incumbent 
licensees and potential new entrants in the 2495-2690 MHz band with 
greatly enhanced flexibility to encourage the efficient and effective 
use of spectrum domestically and internationally, and the growth and 
rapid deployment of innovative and efficient communications 
technologies and services.

DATES: Effective on July 19, 2006, except for 47 CFR 27.1231(d), 
27.1231(f), 27.1231(g), and 27.1235-27.1239, 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: Federal Communications Commission, 445 12th Street, SW., 
Washington, DC 20554. 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 Judith B. [email protected].

FOR FURTHER INFORMATION CONTACT: Nancy Zaczek at 202-418-7590.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Order 
on Reconsideration and Fifth Memorandum Opinion and Order and Third 
Memorandum Opinion and Order and Second Report and Order, released on 
April 27, 2006. The complete text of the Order on Reconsideration and 
Fifth Memorandum Opinion and Order and Third Memorandum Opinion and 
Order and Second Report and Order, including attachments and related 
Commission documents is available for public inspection and copying 
from 8 a.m. to 4:30 p.m. Monday through Thursday or from 8 a.m. to 
11:30 a.m. on Friday at the FCC Reference Information Center, Portals 
II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. The 
complete text of the Order on Reconsideration and Fifth Memorandum 
Opinion and Order and Third Memorandum Opinion and Order and Second 
Report and Order and related Commission documents may be purchased from 
the Commission's duplicating contractor, Best Copy and Printing, Inc., 
(BCPI), Portals II, 445 12th Street, SW., CY-B402, Washington, DC 
20554, telephone 202-488-5300, facsimile 202-488-5563, or you may 
contact BCPI at its Web site: http://www.BCPIWEB.com. When ordering 
documents from BCPI please provide the appropriate FCC document number, 
for example, FCC 06-46. The Order on Reconsideration and Fifth 
Memorandum Opinion and Order and Third Memorandum Opinion and Order and 
Second Report and Order is available on the Commission's Web site: 
http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-06-46A1.doc. 
Alternate formats are available to persons with disabilities by e-mail 
at [email protected] or by calling (202) 418-0530 or TTY (202) 418-0432.

Summary

I. Big Leo Order on Reconsideration and AWS Fifth Memorandum Opinion 
and Order

    1. In the Big LEO Spectrum Sharing Order, the Commission 
established a primary fixed and mobile (except aeronautical mobile) 
allocation in the

[[Page 35179]]

upper five megahertz of Big LEO MSS S-band spectrum at 2495-2500 MHz. 
The Commission stated that the resulting services would operate in 
those frequencies with CDMA MSS downlink operations. The Commission 
further stated that the CDMA MSS providers would provide their services 
in that spectrum on an unprotected basis. The Commission determined 
that this allocation was appropriate because the Commission was 
reviewing proposals to restructure the adjacent 2500-2690 MHz band, 
also allocated as a primary fixed and mobile (except aeronautical 
mobile) band. The result would establish the new BRS/EBS band plan at 
2496-2690 MHz. The Commission also stated that those bands combined 
could serve as suitable relocation spectrum for BRS licensees currently 
operating in the 2150-2160/62 MHz band.
    2. The Commission concluded that CDMA MSS operators could use the 
same spectrum as fixed and mobile operators, specifically BRS, without 
harmful interference because BRS operations would be more likely to 
occur in urban, suburban and less developed areas, whereas MSS 
operators would more likely serve customers in rural and underdeveloped 
areas. To address interference concerns for CDMA MSS, the Commission 
stated that the BRS would be a low power service at 2496-2500 MHz. The 
Commission also noted that MSS operators would have access to a newly-
established one megahertz guard band at 2495-2496 MHz, but MSS would 
not receive protection in the 2495-2500 MHz band. To address 
interference concerns for BRS, the Commission stated that the ITU-
established power flux-density (PFD) values for MSS downlinks 
operations in this band should sufficiently protect the BRS from 
harmful interference. The Commission also shifted MSS ancillary 
terrestrial component (ATC) operations down five megahertz, from 
2492.5-2498 MHz to 2487.5-2493 MHz, to ensure adequate separation 
between MSS ATC and BRS operations at and above 2496 MHz.
    3. With respect to incumbent terrestrial radio operators in the 
2483.5-2500 MHz band, the Commission declined to relocate industrial, 
science, and medical (ISM) devices, reasoning that BRS could operate 
with ISM operations present. The Commission stated, however, that it 
would consider a relocation plan for broadcast auxiliary service (BAS) 
and private radio services grandfathered in that band, if necessary, 
after addressing the then-remaining issues concerning the relocation 
associated with the introduction of Advanced Wireless Services (AWS) in 
ET Docket No. 00-258.

A. Relocation Policy and BRS Operators

    4. In the Big LEO Order on Reconsideration and AWS Fifth Memorandum 
Opinion and Order, we take the following actions with respect to 
petitions for reconsideration filed in response to the Big LEO Spectrum 
Sharing Order:
     Affirm the Commission's decision to allocate the 2495-2500 
MHz band for fixed and mobile (except aeronautical mobile) services on 
a primary basis.
     Conclude that BRS/EBS and MSS operators have compatible 
characteristics that enable them to share the 2496-2500 MHz band 
through engineering solutions, without causing harmful interference.
     Adopt specific PFD limits for CDMA MSS downlink operations 
in the band to further ensure that harmful interference does not occur 
to BRS operations.
     Decline to modify part 18 of the Commission's rules to 
restrict the emissions of ISM devices in that band.
     Decline to relocate grandfathered BAS and parts 90 and 101 
fixed service licensees.

II. BRS/EBS Third Memorandum Opinion and Order

    5. On July 29, 2004, the Commission released the BRS/EBS Report and 
Order and Further Notice of Proposed Rulemaking (BRS/EBS R&O & FNPRM). 
In the BRS/EBS R&O, the Commission adopted a band plan that 
restructured 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, in order to reduce the 
likelihood of interference caused by incompatible uses. The Commission 
also designated the 2496-2500 MHz band for use in connection with the 
2500-2690 MHz band. Through the adoption of the new band plan, the 
Commission provided incentives for the development of low-power 
cellularized broadband use and, accordingly, renamed Multipoint 
Distribution Service (MDS) and the Instructional Television Fixed 
Service (ITFS) as the ``Broadband Radio Service'' and ``Educational 
Broadband Service,'' respectively, to more accurately describe the 
kinds of the services anticipated in this band.
    6. The BRS/EBS R&O also adopted service rules that give licensees 
increased flexibility, reduce administrative burdens on both licensees 
and the Commission, and promote regulatory parity. Specifically, the 
Commission implemented geographic area licensing for all licensees in 
the band, consolidated licensing and service rules for EBS and BRS in 
part 27, allowed spectrum leasing for BRS and EBS under our secondary 
markets spectrum leasing policies and procedures, and provided 
licensees with the flexibility to employ the technologies of their 
choice in the band. In addition, the Commission applied the part 1 
Wireless Telecommunications Bureau rules to the BRS/EBS spectrum, 
dismissed pending mutually exclusive applications for new ITFS 
stations, and took other actions to streamline the rules and eliminate 
unnecessary regulatory burdens.
    7. With respect to eligibility to hold licenses in 2496-2690 MHz 
band, the Commission retained restrictions on the use of EBS licenses 
in continued furtherance of the educational objectives that led to the 
establishment of ITFS. Also, the Commission removed all non-statutory 
eligibility restrictions applicable to cable and digital subscriber 
line (DSL) operators for the BRS and thus permitted these operators to 
provide non-video services like broadband internet access.
    8. In addition, the BRS/EBS R&O resolved certain technical issues 
as follows: Set the signal strength limits for the low-power bands at 
the boundaries of the geographic service areas (GSAs) to 47 dB[mu](V/m; 
restricted the transmitter output power of response stations to 2.0 
watts; modified emission limits for stations that would operate on the 
LBS and UBS channels; and refrained from allowing high-power unlicensed 
operations in the 2500-2690 MHz band, but allowed unlicensed operation 
under our existing part 15 rules in the 2655-2690 MHz band.
    9. We received 33 petitions for reconsideration of the BRS/EBS R&O.

A. Transition

    10. The rules governing the transition of the 2500-2690 MHz band 
adopted in the BRS/EBS R&O are designed to reconfigure the 2500-2690 
MHz band to enable the provision of new and innovative wireless 
services. To accomplish this goal, the transition rules create a 
market-oriented process for relocating EBS licensees and BRS licensees 
from their current interleaved channel locations to their new 
contiguous spectrum blocks in the LBS, MBS, or UBS. The transition 
rules also provide for the relocation of EBS and BRS licensees from 
2500-2502 MHz and 2618-2624 MHz to allow for the relocation of BRS 
Channels No. 1 and No. 2/2A licensees from the 2150-2160/

[[Page 35180]]

62 MHz band to the 2496-2690 MHz band.
    11. In the BRS/EBS Third Memorandum Opinion and Order, we take the 
following actions with respect to the transition of the 2.5 GHz band to 
the new band plan adopted in the BRS/EBS R&O:
     Transition Size. Require the transition to occur by Basic 
Trading Areas (BTAs), rather than by Major Economic Areas (MEAs).
     Overlapping Transition Areas. Decline to require a 
proponent to transition two or more BTAs when a stations' geographic 
service area overlaps two or more BTAs. However, if the center point of 
a geographic service area is located in a BTA, the proponent must 
transition all facilities associated within the geographic service area 
but in another BTA if the other BTA is not bring transitioned.
     Multichannel Video Programming Distributors. Require 
certain Multichannel Video Programming Distributors (MVPD) to obtain a 
waiver before opting out of the transition process. To assist a 
proponent in transitioning a BTA, a MVPD operator that is intending to 
seek a waiver must so indicate to the proponent when it responds to the 
Pre-Transition Data Request. In any event, the MVPD operator must then 
seek a waiver from the Commission by April 30, 2007. If a proponent 
files an Initiation Plan with the Commission prior to April 30, 2007, 
an MVPD operator must file its waiver request within sixty days after 
the Initiation Plan is filed with the Commission. Furthermore, to 
enable the transition of the 2.5 GHz band to proceed quickly and 
efficiently and to protect the operations of MVPD licensees that have 
developed successful systems under the old band plan, we expect the 
Wireless Telecommunications Bureau to act on unopposed requests for 
waiver within 180 days.
     WATCH TV's Waiver Request. Grants WATCH TV's Waiver 
Request to permanently opt-out of transitioning to the new band plan. 
Based upon our evaluation of WATCH TV's request, we conclude that 
requiring WATCH TV to transition pursuant to the new band plan would be 
inequitable, unduly burdensome, and contrary to the public interest.
     Proponents. Requires that a proponent must be a BRS 
licensee or lessee or an EBS licensee or lessee. Adopt a ``first-in-
time'' rule for determining which entity will be a proponent. Thus, the 
first entity to file an Initiation Plan with the Commission shall 
automatically be designated as the proponent for a given BTA without 
any action required by the Commission.
     Pre-Transition Data Requests. Makes minor changes to our 
rules relating to Pre-Transition Data Requests in order to clarify the 
responsibilities of the parties and the data the proponents can request 
from licensees. Makes changes to improve the administration of the 
transition process and to require BRS and EBS licensees to respond 
within 45 days of receiving the Pre-Transition Data Request. Declines 
to establish automatic sanctions for licensees that fail to respond to 
pre-transition data requests.
     Initiation Plans and Initiation Planning Period. Extends 
the length of the Initiation Planning Period until 30 months after the 
effective date of the amended rules. Removes the requirement to 
complete an engineering analysis at the Initiation Planning stage. 
Requires that the proponent give its best available estimate of when 
the transition will be completed.
     Transition Planning Phase. Adopts two additional ``safe 
harbors'' that will be presumed to be reasonable offers for the 
transition from proponents. One safe harbor addresses situations in 
which more than one licensee shares a channel group in a particular 
location. The other safe harbor applies when an EBS licensee uses one 
or more of its channels for studio-to-transmitter links. Declines to 
adopt a proposed safe harbor involving a situation where a licensee is 
entitled to two or more programming tracks in the Middle Band Segment.
     Eligibility restrictions/channel swapping. Clarifies that 
although the Commission retained the eligibility restrictions in the 
BRS/EBS R&O, those restrictions do not prohibit licensees from swapping 
channels to effectuate the transition. Further clarifies that EBS 
licensees are not restricted to four channels nor are they restricted 
to one MBS channel.
     Financial penalties in dispute resolution process. 
Declines to reconsider the Commission's determination not to adopt 
financial penalties within the dispute resolution context.
     Relocation of BRS Channels No. 1 and 2. Amends our rules 
to designate 2496-2500 MHz as available pre-transition spectrum for BRS 
Channel No. 1 and 2686-2690 MHz as available pre-transition spectrum 
for BRS Channel No. 2.
     Self-transitions. Allows licensees to self-transition 
after 30 months after the effective date of the amended rules in 
markets where a proponent does not come forward. Requires that 
licensees in areas that will not be transitioned by a proponent must 
notify the Commission within 90 days of the date Initiation Plans must 
be filed with the Commission whether they will self-transition or be 
subject to whatever alternative transition process the Commission may 
adopt. Also, requires BRS and EBS licensees that seek to self-
transition to notify other licensees in the BTA where their licensee's 
GSA geographic center point is located, as well as other licensees 
whose GSAs overlap with the self-transitioning licensee that they will 
self-transition. An adjacent licensee that is not self-transitioning 
may not object to the transition. If, however, the adjacent licensee is 
also self-transitioning, the licensees must work out interference 
issues. Licensees that self-transition are not required to file 
engineering analyses with the Commission. Licensees may only self-
transition to the LBS, UBS, or MBS channels assigned to them under the 
new band plan, however. Licensees must file modification applications 
to complete the self-transition and must complete the self-transition 
on or before 21 months after the Initiation Plans must be filed.
     Replacement Downconverters. Declines to require proponents 
to replace downconverters in an EBS licensee's protected service area 
(PSA) but outside its GSA as inconsistent with our decision to adopt 
GSAs, burdensome to proponents, and likely to slow the transition 
process. Further declines to adopt a recommendation to refine the 
criteria for eligible receive sites under Sec.  27.1233(a) of the 
Commission's rules.
     Transition deadline. Retains the transition deadline as 
adopted in the BRS/EBS R&O, i.e., the transition must be completed 18 
months after the transition planning period ends.
     Post-transition Notification. Allows a proponent to 
certify on behalf of all affected licensees that a transition has been 
completed. Requires the proponent to provide all parties to the 
transition with a copy of the post-transition notification. Directs the 
Wireless Telecommunications Bureau to issue a public notice when a 
post-transition notification is filed. Requires objections to post-
transition notifications to be filed within 30 days after public notice 
is issued.
     Transition Costs-Proponent-driven transitions. Requires 
non-proponent BRS licensees and other commercial users of the 2.5 GHz 
band to reimburse the proponent for their pro rata share of the costs 
of transitioning a BTA and that eligible costs be allocated among the 
proponent and commercial licensees and lessees based on a MHz/pops

[[Page 35181]]

formula. Adopts a list of costs eligible for reimbursement. Permits co-
proponents to agree among themselves on how to share cost allocation 
reimbursements. Requires that the costs of transitioning a GSA that 
overlaps two or more BTAs be attributable to each BTA in proportion to 
the amount of the GSA located in the BTA. When the proponent must 
transition licensees in an adjoining BTA to resolve interference 
issues, requires ``Proponent B'' (of the adjoining BTA) to fully 
reimburse ``Proponent A'' (of the transitioning BTA) and then seek 
reimbursement from spectrum holders in its own BTA. Permits the 
proponent to request reimbursements after the Post-Transition 
Notification has been filed and the proponent has accumulated the 
documentation necessary to substantiate the full and accurate cost of 
the transition. When a license is transferred or assigned, the 
reimbursement obligation must be paid immediately, or the assignor/
transferor and assignee/transferee remain jointly and severally liable 
to pay the reimbursement obligation. With regard to licenses that are 
partitioned or disaggregated, the parties to the partition or 
disaggregation must remain jointly and severally liable for repaying 
the proponent.
     Cost of EBS self-transitions. Permits EBS licensees that 
self-transition to recover their costs. Requires self-transitioning EBS 
licensees to send a Self-Transition Data Request to all BRS and EBS 
licensees in the BTA where the EBS licensee's GSA geographic center 
point is located, as well as other licensees whose GSAs overlap with 
the self-transitioning licensee. The Self-Transition Data Request 
contains the same information that is contained in the Pre-Transition 
Data Request, which is used in the proponent-driven transition. EBS 
licensees may request reimbursement from all BRS licensees and lessees, 
entities that lease EBS spectrum for a commercial purpose, and 
commercial EBS licensees that are located in the BTA where the EBS 
licensee's GSA geographic center point is located, as well as other 
licensees whose GSAs overlap with the self-transitioning licensee. BRS 
licensees and lessees, entities that lease EBS spectrum for a 
commercial purpose, and commercial EBS licensees must pay a pro-rata 
share based on MHz/pops. The EBS licensee may seek reimbursement of the 
same costs that must be reimbursed in the proponent-based transition. 
The EBS licensee may request reimbursement after the EBS licensee has 
filed a modification application with the Commission. The cost-sharing 
obligation remains with the license. Thus, if a license with a 
reimbursement obligation is transferred or assigned, the reimbursement 
obligation must be paid immediately by the assignor or transferor, or 
the obligation remains with the license.
     Dispute Resolution. With regard to disputes over the 
Transition Plan, we have urged the parties to the dispute to seek 
dispute resolution through a third party. With regard to other disputes 
that may arise, we decline to mandate the use of a clearinghouse, 
although we encourage the BRS/EBS community to use a clearinghouse if 
they believe that this would be the most expedient means of resolving 
disputes. Furthermore, we note that parties have several options to 
resolve disputes that may arise including mediation, the voluntary use 
of a clearinghouse, or pursuing civil remedies in the court system. We 
will consider mandating a clearinghouse or other appropriate mechanism 
for resolving cost-sharing disputes in the future if we find that there 
are an inordinate number of such disputes.
     Bureau Reports. The Wireless Telecommunications Bureau 
must report to the Commission on the status of the transition of the 
2.5 GHz band at 18 months, three years, and five years after the 
effective date of the amended rules.

B. Technical Issues

    12. In the BRS/EBS Third Memorandum Opinion and Order, we take the 
following actions with respect to the technical rules adopted in the 
BRS/EBS R&O:
     Receive sites. Requires that all downconverters within the 
EBS GSA must be replaced, regardless of the desired or undesired signal 
strength. Allows a proponent to upgrade EBS reception equipment at a 
site.
     Adjacent channel. Allows a -10 dB adjacent channel D/U 
signal ratio for EBS receive sites that are transitioned. However, in 
instances where EBS stations utilize older television receivers that 
are not transitioned, the adjacent channel D/U ratio will remain 0 dB.
     Signal Strength Limits. Declines to repeal the rule that 
permits licensees to exceed the signal level at the border of their 
geographic service area where there is no affected licensee providing 
service.
     Documented Interference Complaint Requirement. Declines to 
eliminate the requirement in Sec.  27.53(l) of the Commission's rules 
that a licensee receive a documented interference complaint before 
being subject to a stricter emission mask for base stations. Affirms 
our prior conclusion that only adjacent channel licensees can file a 
documented interference complaint. Gives the interfering licensee 60 
days after receiving a documented interference complaint to coordinate 
with affected licensee and resolve the situation. If no resolution is 
reached in that time period, both licensees must employ a more rigorous 
emission mask.
     User stations. Declines to amend the requirement in Sec.  
27.53(l)(4) of the Commission's rules that provides that ``[f]or mobile 
digital stations, the attenuation factor shall not be less than 43 + 10 
log (P) dB at the channel edge and 55 + 10 log (P) at 5.5 MHz from the 
channel edges.''
     2495-2496 MHz Guard Band. Retains the requirement in Sec.  
27.53(a)(6) that requires licensees to measure emission limits from 
``as close to the edges, both upper and lower, of the licensee's bands 
of operation as the design permits.'' Therefore, BRS Channel No. 1 
licensees would be required to measure out-of-band emissions from the 
lower edge of their channel and meet the 67 + 10 log (P) standard 3 MHz 
from that edge.
     Geographic Service Areas. Retains the ``splitting the 
football'' methodology adopted in the BRS/EBS R&O. Adopts 
recommendations concerning the GSAs of pending applications on file 
January 10, 2005 as follows. Where there is pending as of January 10, 
2005 an application for a new incumbent station with a PSA that 
overlaps that of a licensed incumbent station, the GSA of the incumbent 
station is created by ``splitting the football'' and, if the pending 
application is ultimately dismissed or denied, the territory covered by 
the GSA of the applied-for station reverts to the BRS BTA holder (if a 
BRS application) or to EBS white space (if an EBS application). Where 
there is pending as of January 10, 2005 an application for a 
modification that would impact the location/size of an incumbent 
station's GSA and the resulting splitting of a football with another 
station, the GSAs should be calculated by ``splitting the football'' 
based on the current authorizations, and if the modification is 
granted, the GSAs will be immediately redrawn upon the grant of the 
modification. Where there is pending as of January 10, 2005 an 
application for review or petition for reconsideration of the dismissal 
or denial of an application for a new or modified station that has a 
PSA overlapping another station's PSA, the facilities proposed in the 
dismissed or denied application should not be considered in 
establishing GSAs. However, the GSA of the incumbent

[[Page 35182]]

licensee will be subject to carving back consistent with the 
``splitting the football'' rules if the dismissed/denied application is 
reinstated. Where there is pending as of January 10, 2005 an 
application for review or petition for reconsideration of the 
forfeiture or cancellation of a license that has a PSA overlapping 
another station's PSA, that license should not be considered in 
establishing GSAs. However, the GSAs of licensees with overlapping GSAs 
will be subject to carving back consistent with the ``splitting the 
football'' rules if the forfeited or cancelled license is reinstated. 
Where an incumbent station license was in existence as of January 10, 
2005 and caused a splitting of the football, and that incumbent station 
license is later forfeited, the reclaimed territory reverts to the BRS 
BTA holder (if BRS spectrum) or to EBS white space (if EBS spectrum) 
regardless of whether the action/inaction that caused the forfeiture 
occurred prior to January 10, 2005.
     Modifications to Geographic Licensing. Declines to revise 
the provision in Sec.  27.1206(a) of the Commission's rules that 
permits BRS and EBS licensees to place transmitters anywhere within 
their GSA without prior authorization as long as their operations 
comply with applicable service rules. Notes that we will take prompt 
and decisive action when interference is caused to EBS operations and a 
two-way operator is unable or unwilling to resolve the problem 
promptly.
     Unlicensed Operations. Continues to permit low-power 
unlicensed operations in the 2655-2690 MHz portion of the band in 
accordance with part 15 of our rules, as described in and to the extent 
indicated in the BRS/EBS R&O.
     Minimum Performance Requirements for EBS receive sites. 
Declines to adopt a rule that EBS receive sites must meet minimum 
standards in order to receive interference protection.
     Miscellaneous Corrections to Sections 27.5 and 27.1221. 
Amends the footnote to Sec.  27.5 (i)(2) to read: ``No 125 kHz channels 
are provided for operation in this service. The 125 kHz channels 
previously associated with these channels have been reallocated to 
channel G3 in the UBS.'' Corrects Sec.  27.1221(a) to refer to 
interference protection for both BRS and EBS on a station-by-station 
basis.

C. Minimum Usage Requirements

    13. Declines to make any changes to the minimum educational usage 
requirements for EBS licensees. The Commission stated that it will 
continue to rely on the good faith efforts of EBS licensees to meet 
these requirements. Revises Sec.  27.1214(b)(1), which states a 
licensee must reserve 5% of the capacity of its channels for 
``instructional purposes'' to state that the reservation must be for 
``educational uses consistent with Sec.  27.1203(b) and (c) of the 
rules.''

D. Cable/ILEC Cross Ownership

    14. Finds that there is no basis to reconsider our decision to 
allow cable operators and ILECs to acquire or lease BRS or EBS 
spectrum, subject to the statutory prohibition on cable operators 
holding licenses or leasing spectrum to supply MVPD service.

E. Mutually Exclusive Applications

    15. With one exception, we affirm the dismissal of the applications 
that were dismissed in the BRS/EBS R&O. We affirm the dismissal of 
South Florida applications that were the subject of a May 24, 1995 
settlement agreement because that agreement did not resolve all of the 
pending mutual exclusivity.
    16. Petitioner Shekinah Network presented evidence that it had 
filed, and the Commission approved, a settlement agreement before the 
April 2, 2003 deadline. We will therefore grant Shekinah's petition and 
reinstate its application.

F. Leasing Issues

     License Purchase Rights. Declines to prohibit purchase 
option provisions in EBS leases.
     Filing of Excess Capacity Leases. Rejects proposal to 
require licensees to file unredacted copies of EBS leases.
     Limitation on Length of EBS Leases. The comments we have 
received on this issue demonstrate the need to clarify the Commission's 
intentions as they relate to the length of EBS leases and the validity 
of automatic renewal provisions in such leases.
    17. First, as the Catholic Television Network (CTN) and the 
National ITFS Association (NIA) correctly point out, in paragraph 180 
of the BRS/EBS R&O, the Commission concluded that leases entered into 
prior to the effective date of the new EBS rules would be grandfathered 
under the then-existing EBS leasing framework, thus, such leases would 
be subject to the existing 15-year lease limitation.
    18. With the exceptions noted below, spectrum leasing arrangements 
entered into after the effective date of the new EBS rules, however, 
are subject to the Commission's Secondary Markets rules. With respect 
to the Secondary Markets rules, we must distinguish between 
restrictions on the terms in any lease agreement between the parties, 
and the length of any spectrum leasing arrangement that the licensee 
and spectrum lessee have filed with Commission under our part 1 rules. 
Under our Secondary Markets rules and policies, ``no spectrum manager 
lease notification or de facto transfer lease application can propose a 
lease term that extends beyond the term of the license authorization 
itself.''
    19. We conclude that EBS licensees may enter into a lease with a 
maximum term of thirty years, subject to conditions designed to ensure 
that EBS licensees have a fair opportunity to re-evaluate their 
educational needs. We are persuaded by the analyses presented by 
commenters indicating the difficulty that commercial lessees may have 
in obtaining financing if leases are limited to a shorter duration. We 
agree with the Wireless Communications Association International, Inc. 
(WCA) and CTN, however, that EBS licensees must have a mechanism to 
ensure that their educational, technological, and spectrum needs are 
being met. Therefore, we adopt a requirement for all EBS leases with a 
term of fifteen years or longer to include a right to review the 
educational use requirements of their leases every five years starting 
at year fifteen of the lease agreement. We agree with WCA and CTN that 
a spectrum leasing arrangement may include any mutually agreeable terms 
designed to accommodate changes in the EBS licensee's educational use 
requirements and the commercial lessee's wireless broadband operations.
    20. With regard to EBS leases entered into between the effective 
date of the existing BRS/EBS rules (January 10, 2005) and the effective 
date of the amended rules adopted today, however, we clarify those 
leases were governed by the Secondary Markets rules and policies that 
did not restrict the parties' ability to have lease agreements with 
terms longer than the license term. Thus, the length of EBS leases 
entered into between January 10, 2005 and the effective date of the 
amended rules adopted today was not limited under the Commission's 
rules.
    21. Although we will not permit automatic renewal of an EBS lease 
beyond 30 years, we will maintain the Commission's existing policy of 
allowing EBS licensees to afford lessees a right of first refusal, as 
well as allowing agreements to grant the EBS licensee (but not a 
lessee) the unilateral right to extend a lease. That is, at the end of 
any particular EBS lease term, the EBS licensee must retain the ability 
to re-evaluate the use of their licensed spectrum to identify new 
educational uses, and to renegotiate such leases as

[[Page 35183]]

they relate to the licensee's current needs. We continue to permit 
renewal options or rights of first refusal for lessees, while 
prohibiting automatic renewal provisions that do not afford licensees 
the opportunity to renegotiate their leases at the end of the lease 
term.
     Other Leasing Issues. Amends Sec.  27.1214(c) to reflect 
that EBS licensees retain the right to purchase or lease dedicated or 
common equipment regardless of whether the relationship terminates as a 
result of action by the lessee. Agrees that two of the EBS substantive 
use requirements, (iv) and (v), which the Commission indicated in the 
BRS/EBS R&O apply to EBS leases, are not appropriate under the de facto 
transfer model. Thus, in de facto leasing, EBS licensees are not 
required to retain responsibility for compliance with rules regarding 
station construction and operation or to have all station modification 
applications submitted through the EBS licensee. To reflect that EBS 
stations in the two-way data environment may not always be used for in-
classroom instruction, amends the first sentence of Sec.  27.1214(b)(1) 
to indicate that EBS licensees must reserve a minimum of 5 percent of 
the capacity of its channels for educational uses consistent with Sec.  
27.1203(b) and (c) of our rules.

III. BRS/EBS Second Report and Order

A. Performance Requirements

i. Use of Substantial Service
    22. We conclude that BRS and EBS licensees will be required to 
demonstrate substantial service in order to retain their licenses. 
``'Substantial service'' is defined in part 27 of our rules as service 
which is sound, favorable, and substantially above a level of mediocre 
service which just might minimally warrant renewal.''
ii. Safe Harbors
    23. We agree with WCA, Bell South, and the other commenters that it 
is appropriate to use the type of safe harbors applied to other fixed 
and mobile services to BRS and EBS. Our new rules give licensees the 
flexibility to use these services to provide a wide variety of 
services. Consequently, we believe it is vital to establish safe 
harbors that encompass licensees' potentially disparate business and 
service deployment plans. We also believe, however, that it is 
appropriate to establish safe harbors that are predicated upon an 
appropriate showing by the licensee that it has made notable progress 
in deploying service. We agree with Clearwire that the traditional safe 
harbors associated with other part 27 services are too lenient given 
the particular circumstances of BRS and EBS. The safe harbors we adopt 
today give licensees offering a variety of services ample opportunity 
to meet at least one safe harbor while ensuring that these frequencies 
are used to provide an appropriate level of service.
    24. We believe that distinctive characteristics of this band 
support setting safe harbors for these services that are more stringent 
than those proposed by WCA, BellSouth, and others. First, as noted 
below, licensees have approximately five years from the release of this 
item to demonstrate substantial service. Most of the existing licenses 
in the band were issued at least ten years ago, and proposals to 
reshape the band have been under discussion within the industry since 
at least 2002, when WCA, CTN, and NIA (the Coalition) developed their 
proposal (the White Paper) to change the band plan and technical rules 
of the 2500-2690 MHz band. Accordingly, we believe that licensees and/
or their predecessors have had a more than adequate opportunity to 
develop plans for rapidly instituting service pursuant to our new 
rules. We, therefore believe, that licensees should only be permitted 
to rely on a safe harbor to meet the substantial service requirement if 
they can show significant service deployment. We, therefore, adopt safe 
harbors that require licensees to make a stronger showing of service 
deployment than that proposed by WCA, BellSouth, and others.
    25. In determining the precise level of service to be required in 
order to meet a safe harbor, we must also ensure that we do not place 
an undue burden on licensees. These standards will apply to EBS 
licenses and small rural operators as well as large carriers. 
Furthermore, the past difficulties licensees have faced in this band do 
place some limit on the amount of service we can expect licensees to 
provide. We, therefore, agree with commenters that urge us to establish 
safe harbors that encompass both fixed and mobile service deployments 
and recognize efforts to serve specialized or niche markets. After full 
consideration of all the relevant factors, we adopt the following safe 
harbors:
     Constructing six permanent links per one million people 
for licensees providing fixed point-to-point services;
     Providing coverage of at least 30 percent of the 
population of the licensed area for licensees providing mobile services 
or fixed point-to-multipoint services;
     Providing specialized or technologically sophisticated 
service that does not require a high level of coverage to benefit 
consumers; or
     Providing service to niche markets or areas outside the 
areas served by other licensees.
    26. Additionally, in an effort to provide maximum flexibility for 
licensees in satisfying the safe harbors, we agree with Sprint and 
BloostonLaw that a licensee will be deemed to satisfy a safe harbor 
through lease agreements when such arrangements satisfy the conditions 
set forth in the Secondary Markets 2nd R&O, and the lessee is actually 
providing the level of service required by a licensee that would be 
deemed to satisfy one of the safe harbors that we adopt today for BRS/
EBS licensees.
    27. Finally, in response to WCA's and Clearwire's concern that the 
Commission does not plan to make substantial service determinations on 
a case by case basis, we explain how we expect the substantial service 
review process will work. If a licensee meets a safe harbor established 
by the Commission, we will deem the licensee to have offered 
substantial service with that license. If the licensee does not meet a 
safe harbor, we will review the showing on a case-by-case basis. We 
emphasize that a licensee will not be required to meet a safe harbor if 
it can otherwise demonstrate substantial service to the public. As 
recognized in the Commission's own precedent, the primary advantage of 
the substantial service standard is that it is tied to the individual 
circumstances of each licensee. In general, there is broad support for 
the adoption of a substantial service performance standard that 
provides for case-by-case showings of substantial service coupled with 
safe harbors.
iii. Additional Safe Harbors for EBS Licensees
    28. We agree with the commenters and believe that EBS licensees 
should be given additional flexibility to satisfy the substantial 
service standard. With respect to the first safe harbor proposed by CTN 
and NIA, we believe that this safe harbor properly takes into account 
the special circumstances EBS licensees and provides EBS licensees with 
flexibility while ensuring that they are providing educational 
services. With respect to the second safe harbor proposed by CTN and 
NIA, we have established above that both EBS and BRS licensees have the 
flexibility to meet the substantial service standard through leasing. 
In light of this, we agree that EBS licensees can meet the substantial 
service standard through leasing but we decline to adopt CTN's

[[Page 35184]]

and NIA's second safe harbor proposal that a lease agreement can be 
used to meet a safe harbor standard on a system-wide basis regardless 
of the number of channels leased or in use. As discussed in greater 
detail below, we apply the safe harbors to both BRS and EBS licensees 
on a license-by-license basis.
iv. Service to Rural Areas
    29. We adopt the definition of ``rural area'' used in the Rural 
Order for BRS/EBS, i.e., those counties (or equivalent) with a 
population density of 100 persons per square mile or less, based upon 
the most recently available Census data. We also adopt modified 
versions of the safe harbors adopted by the Commission in the Rural 
Order. Specifically, we adopt the following safe harbors:
     Providing service to ``rural areas'' (a county (or 
equivalent) with a population density of 100 persons per square mile or 
less, based upon the most recently available Census data) and areas 
with limited access to telecommunications services:
     For mobile service, where coverage is provided to at least 
75% of the geographic area of at least 30% of the rural areas within 
its service area; or
     For fixed service, where the BRS or EBS licensee has 
constructed at least one end of a permanent link in at least 30% of the 
rural areas within its licensed area.
v. Other Decisions Regarding Substantial Service
     Require that substantial service be demonstrated on a per-
license basis.
     Establish May 1, 2011 as the deadline for demonstrating 
substantial service.
     Agree with the majority of the commenters that prior 
service, even if discontinued, should be a factor that we take into 
account when making a determination as to whether substantial service 
has been met. We, however, decline to adopt a rule stating that a 
licensee will have deemed to have provided substantial service if it 
met a safe harbor at any point during the license term. The most 
significant consideration in a substantial service evaluation is the 
licensee's current service. If the current operations are sufficient to 
support a finding of substantial service, no further evaluation is 
needed. If the current service does not support a finding of 
substantial service, we will look at the licensee's overall record 
during the prior license term.
     Hold that in order for a BRS/EBS licensee or lessee to 
provide substantial service, it must be providing service to customers 
or students. We therefore conclude that the transmission of test 
signals and/or color bars by a BRS/EBS licensee or lessee that has no 
customers or students does not constitute substantial service.

B. Licensing Unassigned and Untransitioned Spectrum in the Band

    30. We make the following conclusions regarding unassigned and 
untransitioned spectrum:
     Conclude that we should not make any decisions regarding 
how to assign unassigned spectrum at this time.
     Conclude that any future auction of unassigned spectrum 
will be open to all eligible bidders.
     Conclude that it is premature to make available unassigned 
spectrum until the transition period is completed.
     Conclude that the resolution of issues related to 
additional new licenses is premature prior to the completion of 
voluntary incumbent transitions.

C. Grandfathered E and F Channel EBS Stations

    31. We first conclude that where there is no overlap between the 
EBS and BRS licensees, we will free up the grandfathered E and F 
channel EBS licensees, grant these licensees a GSA, and allow them to 
modify or assign their license. Next we conclude, in the case where the 
GSAs of a grandfathered EBS and BRS licensees overlap, but that overlap 
is 50% or less, we will divide the GSAs by ``splitting the football,'' 
as we do with other overlapping GSAs. Both the BRS and EBS licensees 
will be free to add, modify, and remove facilities within their GSAs, 
consistent with our new technical rules. In addition, the grandfathered 
EBS facility will be free to assign its license. In the case of an 
overlap that is greater than 50% in service areas, we conclude that 
different treatment is warranted. Where there is a major overlap of 
service areas, splitting the football may no longer be the best 
solution for accommodating the needs of both licensees. To encourage a 
voluntary settlement of this issue between the affected parties, we 
will establish a ninety-day mandatory negotiation period where both the 
BRS and EBS licenses have an explicit duty to work to accommodate each 
other's communications requirements. If, at the end of ninety days the 
parties cannot reach a mutual agreement, the Commission then will split 
the football on its own accord.

D. Four Channel Rule

    32. In light of the record on this issue, we agree that retaining 
the rule pre-transition is not in the public interest.

E. Wireless Cable Exception

    33. Concludes to eliminate the wireless cable exception, pre-
transition. Grandfathers existing licenses granted pursuant to the 
rules, and permits such licenses to continue to be renewed and 
assigned. Permits transfers of control of such licenses and 
modifications to these licenses.

F. Regulatory Fees

    34. With regard to EBS licensees, we agree with commenters that we 
should not impose regulatory fees on EBS licensees. We note that 
governmental entities are statutorily exempt from fees under Section 8 
of the Communications Act, and both governmental entities and nonprofit 
entities are statutorily exempt from Section 9 fees. EBS licensees by 
definition fit within these statutory exemptions, with the exception of 
entities licensed pursuant to the wireless cable exception.
    35. With regard to BRS licensees, we conclude that the regulatory 
fee structure for BRS should be changed as proposed in the FNPRM to 
reflect the scope of a licensee's authorized spectrum use and the 
benefits it receives under its spectrum authorization. We shall adopt, 
therefore, a MHz-based formula with tiered fees by markets, similar to 
our annual scale for broadcast television stations, but on a somewhat 
more simplified scale. Annual fees will be charged on a per-megahertz 
basis based upon the size of the BRS licensee's BTA. For a BRS licensee 
licensed by GSA, its BTA is the BTA where the geographic center point 
of its GSA is located. We shall assess a per-megahertz fee in three 
categories, BTA ranked by population size those ranked 1-60 paying the 
highest fee, those ranked 61-200 paying a lesser fee, and those ranked 
201-493 paying the lowest fee.

G. Gulf of Mexico Proceeding

    36. The record does not demonstrate a demand for BRS or EBS 
operations in the Gulf of Mexico at this time.

IV. Procedural Matters

A. Paperwork Reduction Analysis

    37. This document contains new information collection requirements 
subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-
13. It will be submitted to the Office of Management and Budget (OMB) 
for review under Section 3507(d) of the PRA. OMB, the general public, 
and other Federal agencies are invited to comment on the new 
information collection requirements contained in this proceeding. In 
addition, we note

[[Page 35185]]

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.''
    38. In this present document, we have assessed the effects of 
changes in the pre-transition data request, self-transition 
notification, Initiation Plans, Post-Transition Notifications, and 
transition costs, and find that in most instances the effect on 
entities with fewer than 25 employees will be minor. We anticipate that 
entities with fewer than 25 employees will be most affected by the 
changes to the pre-transition data request and the post-transition 
notification. The changes to the pre-transition data request are 
relatively minor, were requested by petitioners, and are designed to 
ease the transition. The changes to the post-transition notification 
eases the paperwork burden on all affected BRS and EBS licensees.

V. Final Regulatory Flexibility Act Certification of Big LEO Order on 
Reconsideration

    39. For the reasons described below, we now certify that the 
policies and rules adopted in the Big LEO Order on Reconsideration will 
not have a significant economic impact on a substantial number of small 
entities. 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: (1) Is independently owned and operated; (2) is 
not dominant in its field of operation; and (3) satisfies any 
additional criteria established by the U.S. Small Business 
Administration (SBA).
    40. In this Big LEO Order on Reconsideration, the Commission adopts 
specific PFD limits for MSS downlink operations in the 2496-2500 MHz 
band. If the MSS providers intend to operate at power levels that 
exceed those PFD limits, or if actual operations routinely exceed those 
PFD limits, the MSS operators must obtain approval from BRS systems 
operating in the same region that are affected by these PFD limits. 
These rules will help to ensure that MSS-BRS sharing in that band will 
not result in harmful interference to the BRS.
    41. We find that our actions will not affect a substantial number 
of small entities because only MSS operators in the 2496-2500 MHz band 
will be affected. In particular, only one Big LEO MSS licensee 
currently is authorized to provide MSS in the 2496-2500 MHz band in 
United States. We find that this licensee is not a small business. 
Small businesses often do not have the financial ability to become MSS 
system operators due to high implementation costs associated with 
launching and operating satellite systems and services. Therefore, we 
certify that the requirements of the Big LEO Order on Reconsideration 
will not have a significant economic impact on a substantial number of 
small entities. The Commission will send a copy of this Order, 
including a copy of this Final Regulatory Flexibility Certification, in 
a report to Congress and the Government Accountability Office pursuant 
to the Small Business Regulatory Enforcement Fairness Act of 1996, see 
5 U.S.C. 801(a)(1)(A).

VI. Final Regulatory Flexibility Analysis of BRS/EBS Third Memorandum 
Opinion and Order and Second Report and Order

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

    42. On July 29, 2004, the Commission released the BRS/EBS R&O & 
FNPRM. In the BRS/EBS R&O, the Commission adopted a band plan that 
restructured 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, in order to reduce the 
likelihood of interference caused by incompatible uses. The Commission 
also designated the 2495-2500 MHz band for use in connection with the 
2500-2690 MHz band. Through the adoption of the new band plan, the 
Commission provided incentives for the development of low-power 
cellularized broadband use and, accordingly, renamed MDS and ITFS as 
the ``Broadband Radio Service'' and ``Educational Broadband Service,'' 
respectively, to more accurately describe the kinds of the services 
anticipated in this band. In order to facilitate the transition to the 
new band plan, the BRS/EBS R&O adopted a market-oriented, transition 
mechanism that enables incumbent licensees to develop regional plans 
for moving to new spectrum assignments in the restructured band plan. 
The BRS/EBS R&O also adopted service rules that give licensees 
increased flexibility, reduce administrative burdens on both licensees 
and the Commission, and promotes regulatory parity.
    43. In this Third Memorandum Opinion and Order and Second Report 
and Order (3rd MO&O and 2nd R&O) we adopt a number of changes 
concerning the rules governing the 2500-2690 MHz band, for the 
Broadband Radio Service (BRS) and the Educational Broadband Service 
(EBS). The rules we adopt today include: requiring licensees to 
transition based on Basic Trading Areas (BTAs), rather than Major 
Economic Areas (MEAs) as specified in the BRS/EBS R&O permitting 
licensees to self-transition if a proponent does not file an Initiation 
Plan by a date certain or withdraws an Initiation Plan and another 
proponent does not come forward by a date certain; requiring all 
commercial licensees, in a proponent-driven transition, to reimburse 
the proponent a pro rata share of the cost of transitioning a BTA to 
the new band plan; requiring commercial licensees to pay their own 
costs if they self-transition, but permitting non-commercial EBS 
licensees to seek reimbursement from commercial licensees; establishing 
a geographic service area for grandfathered E and F channel EBS 
licensees, and allowing such licensees to modify or assign their 
licenses; eliminating the overlap between a grandfathered EBS licensee 
and a BRS site-based incumbent by ``splitting the football; eliminating 
the rule that limits EBS licensees to four channels in a given 
geographic area; eliminating the wireless cable exception to the EBS 
eligibility rules; altering, where possible, the regulatory fee 
structure for the BRS services to establish a tiered regulatory fee 
structure based on market size MHz; adopting a substantial service 
standard for BRS and EBS licensees, and establishing safe harbors 
similar to those used in other services; and requiring all licensees to 
establish substantial service by May 1, 2011.''
    44. 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.

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

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

[[Page 35186]]

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

    46. The RFA directs agencies to provide a description of and, where 
feasible, an estimate of the number of small entities that may be 
affected by the proposed rules. 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: (1) Is independently owned 
and operated; (2) is not dominant in its field of operation; and (3) 
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.'' 
Nationwide, as of 2002, there were approximately 1.6 million small 
organizations. The term ``small governmental jurisdiction'' is defined 
as ``governments of cities, towns, townships, villages, school 
districts, or special districts, with a population of less than fifty 
thousand.'' The term ``small governmental jurisdiction'' is defined 
generally as ``governments of cities, towns, townships, villages, 
school districts, or special districts, with a population of less than 
fifty thousand.'' Census Bureau data for 2002 indicate that there were 
87,525 local governmental jurisdictions in the United States. We 
estimate that, of this total, 84,377 entities were ``small governmental 
jurisdictions.'' Thus, we estimate that most governmental jurisdictions 
are small. Below, we discuss the total estimated numbers of small 
businesses that might be affected by our actions.
    47. Broadband Radio Service systems, previously referred to as 
Multipoint Distribution Service (MDS) and Multichannel Multipoint 
Distribution Service (MMDS) systems, and ``wireless cable,'' transmit 
video programming to subscribers and provide two way high speed data 
operations using the microwave frequencies of the Broadband Radio 
Service (BRS) and Educational Broadband Service (EBS) (previously 
referred to as the Instructional Television Fixed Service (ITFS)). In 
connection with the 1996 BRS auction, the Commission established a 
small business size standard as an entity that had annual average gross 
revenues of no more than $40 million in the previous three calendar 
years. The BRS 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. BRS also 
includes licensees of stations authorized prior to the auction. At this 
time, we estimate that of the 61 small business BRS auction winners, 48 
remain small business licensees. In addition to the 48 small businesses 
that hold BTA authorizations, there are approximately 392 incumbent BRS 
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 BRS 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 3rd MO&O 
and 2nd R&O.
    48. In addition, the SBA has developed a small business size 
standard for Cable and Other Program Distribution, which includes all 
such companies generating $13.5 million or less in annual receipts. 
According to Census Bureau data for 2002, there were a total of 1,191 
firms in this category that operated for the entire year. Of this 
total, 1,087 firms had annual receipts of under $10 million, and 43 
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 
applicable to EBS. There are presently 2,032 EBS 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.
    49. There are presently 2,032 EBS licensees. All but 100 of these 
licenses are held by educational institutions. Educational institutions 
may be included in the definition of a small entity. EBS is a non-
profit non-broadcast service. We do not collect, nor are we aware of 
other collections of, annual revenue data for EBS licensees. We find 
that up to 1,932 of these educational institutions are small entities 
that may take advantage of our amended rules to provide additional 
flexibility to EBS.

D. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements

    50. While these requirements are new with respect to potential 
licensees in the EBS and BRS 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 BRS and EBS.
    51. To enable transition proponents to arrange for the installation 
of required equipment, BRS and EBS licensees will be required to 
provide the following information to potential proponents: the 
transitioning licensee's full name, postal mailing address, contact 
person, e-mail address, and phone and fax number. Licensees will also 
be required to provide the location (street address and geographic 
coordinates) of the main station or booster serving each EBS receive 
site entitled to protection and other pertinent technical information 
on the antenna for that main station or booster. These requirements are 
being adopted in response to a request from commenters that such 
information be provided. This information is critical to ensuring a 
smooth transition, because the Commission's ULS database does not 
contain information concerning the desired signal level at each EBS 
receive site entitled to protection during the transition. Furthermore, 
this information should be readily available to the licensee and is not 
particularly burdensome to collect and provide.
    52. Licensees that self-transition must provide the following 
information to all BRS and EBS licensees in the BTA where the self-
transitioning licensee is located: the self-transitioning licensee's 
full name, postal mailing address, contact person, e-mail address, and 
phone and fax number. Self-transitioning licensees will also be 
required to provide the location (street address and geographic 
coordinates) of the main station or booster serving each EBS receive 
site entitled to protection and other pertinent technical information 
on the antenna for that main station or booster.

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

    53. 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 (among others): ``(1) 
The establishment of differing compliance or reporting requirements or 
timetables that take into account the resources available to small 
entities; (2) the clarification, consolidation, or simplification of 
compliance or reporting requirements under the rule for such small 
entities; (3) the use of performance, rather than design standards; and 
(4) an exemption

[[Page 35187]]

from coverage of the rule, or any part thereof, for small entities.''
    54. Regarding our decision to require licensees to transition by 
BTA instead of by MEA, we do not anticipate any significant economic 
impact on small entities. The overwhelming majority of commenters 
preferred BTAs over the alternative of MEAs because they believe BTAs 
are both significantly easier to transition and less expensive to 
transition then MEAs. The record reflects that licensees almost 
unanimously agreed that the Commission should alter the transition area 
from MEAs to BTAs because these areas are more likely to conform to the 
size and location of geographic markets where systems have developed, 
and licensees, in many cases, have already developed interference and 
other interoperating relationships along BTA lines. Commenters also 
requested that the transition area be changed to BTAs because 
transitioning such areas will be less expensive, making it easier for 
licensees to transition, especially small and rural operators. Thus, we 
believe this decision will actually result in cost-savings to entities 
that are responsible for transition costs.
    55. Regarding our decision to grant individual waivers of the rules 
rather than adopt a blanket ``opt-out'' for Multichannel Video 
Programming Distributors (MVPD), we believe that a large number of 
small entities will not be unduly burdened. While individual waivers 
require more work on the part of licensees, we anticipate that only a 
very few licensees, fewer than twenty, will be affected by the waiver 
process. Given that so few entities will be affected, we believe that 
an individual waiver is the more appropriate regulatory response than 
crafting a rule that covers so few entities.
    56. Regarding our decision to allow licensees the option to self-
transition in markets where a proponent does not come forward by a date 
certain or has withdrawn and no other proponent has come forward by a 
date certain, we do not believe this rule will impose any significant 
burdens on licensees because self-transitioning EBS licensees will be 
able to seek reimbursement for the costs of self-transitioning from 
commercial licensees and lessees in the BTA. BRS licensees that self-
transition will be required to pay for their own costs. Licensees that 
do not transition will be faced with the prospect of losing their 
licenses. Thus, this rule provides an additional transition option for 
licensees who wish to comply with transition rules but cannot afford to 
be a proponent to retain their spectrum. Pursuant to this rule, EBS 
licensees can avoid losing their licenses for reasons that may be 
beyond their control (such as the financial inability to transition all 
licensees within its transition area, or the absence of a commercial 
proponent that can do so, or the failure of a commercial proponent to 
complete the process). We considered the alternative of requiring self-
transitioning EBS licensees to pay their costs and rejected it as too 
costly for educational entities. There was overwhelming support in the 
record to permit licensees to self-transition and no opposition.
    57. Regarding our decision to require that all commercial 
licensees, in a proponent-driven transition, reimburse the proponent a 
pro rata share of the cost of transitioning a BTA to the new band plan, 
this decision is beneficial to licensees in that it avoids the ``free 
rider'' problem by requiring those who provide commercial service, 
whether through their own BRS or EBS channels or through leased EBS 
channels, to share the costs of transitioning the 2.5 GHz band. This 
relieves any particular commercial provider from having to pay for 
expenses of other commercial providers and institutes a cost-sharing 
regime that provides greater incentive for a proponent to come forward. 
We recognize that developing a list of reimbursable costs in the BRS/
EBS context may be difficult given the varied types of operations in 
the band, but interested parties, such as Sprint, have already 
developed proposed lists. We also recognize that it may be difficult 
for the FCC to determine the population of a GSA, which is based on a 
35-mile protected service area and not on a particular jurisdiction. 
Nonetheless, we believe that this scheme provides a fair and equitable 
solution, which outweighs the calculation difficulties that may arise.
    58. Regarding our decision to adopt substantial service standards 
for BRS and EBS licensees and establish safe harbors similar to those 
used in other services, this decision does not impose any burdens on 
licensees above what is traditionally required for one to be a license 
holder. It is reasonable to expect that a licensee will deploy service 
on spectrum on which they have been licensed to operate, and the 
Commission routinely obligates licensees to do so lest the spectrum lie 
fallow and valuable spectrum resources go unutilized. Commenters 
expressed much support for the part 27 standard we have adopted which 
accomplishes the goal of regulatory parity between like services as 
this standard is used for other part 27 wireless services. Furthermore, 
substantial service standards are preferable to the alternative of 
construction benchmarks that focus solely on population served or 
geography covered and do not take into account qualitative factors 
important to end-users and the market, such as reliability of service, 
and the availability of technologically sophisticated premium services. 
Moreover, these standards reduce the likelihood of scenarios where 
licensees construct solely to meet regulatory requirements as opposed 
to satisfying market conditions.
    59. Regarding our decision to establish a geographic service area 
for grandfathered E & F channel EBS licensees, allow such licensees to 
modify or assign their licenses, and employ a ``splitting the 
football'' mechanism where there is overlap, we do not believe this 
rule will impose any burdens upon licensees. To the contrary, this 
procedure will eliminate deadlocks in areas where licensees have 
overlapping service areas and have been unable to deploy service as a 
result thereof. Furthermore, this rule will permit grandfathered E & F 
EBS licenses, which have been providing service for 20 years, to 
modernize their systems to better serve the public. Granting this type 
of flexibility is consistent with the BRS/EBS R&O's geographic area 
licensing and greater flexibility approaches. Moreover, there is 
substantial support from the commenters regarding this decision.
    60. Regarding our decision to eliminate the rule that limits EBS 
licensees to four channels in a given geographic area, we do not 
believe that this action will impose additional obligations upon a 
licensee. To the contrary, given the wider range of services that EBS 
channels can now be used for and the changes to the Commission's 
leasing rules, retention of the four-channel rule may actually unduly 
limit the ability of educational institutions and organizations to take 
full advantage of the potential of EBS. We recognize that this rule was 
designed to promote diversity of programming and ownership, and that, 
in many cases, four channels should provide sufficient capacity for EBS 
operations. However, this concern is mitigated by the fact that the 
four-channel rule could result in spectrum laying fallow when an 
educator wishes to use the spectrum. Furthermore, choosing the 
alternative option of retaining the restriction could undermine 
transition planning, which may in some instances require licensees to 
swap MBS for UBS/LBS channels or vice versa. Moreover, commenters 
overwhelmingly support elimination of the rule, which will obviate the 
need for

[[Page 35188]]

the Commission to review numerous waiver requests by EBS licensees.
    61. Regarding our decision to eliminate the wireless cable 
exception to the EBS eligibility rules, we recognize that BTA licensees 
who acquired their rights at auction may contend that they had an 
expectation that the exception would apply. However, this concern is 
mitigated by the fact that changes made by the BRS/EBS R&O to the BRS-
EBS band and the continued availability of EBS spectrum on a leased 
basis will provide commercial operators with sufficient access to 
spectrum even if the exception is eliminated. Furthermore, due to 
changes in technology and the video marketplace, there is unlikely to 
be a growing need for spectrum for wireless cable systems.
    62. Regarding our decision to, where possible, change the 
regulatory fee structure for the BRS services to establish a tiered 
regulatory fee structure based on market size/MHz, we do not believe 
this new structure would be burdensome to licensees. On the contrary, 
the current methodology for assessing regulatory fees can be onerous 
for rural operators because, on a per population basis, the fees can 
amount to multiple times that of fees paid by urban licensees who serve 
more customers. In contrast, a sliding fee--based upon population 
density--would more equitably distribute fees. We recognize that 
assessing fees based on the benefits of spectrum requires 
quantification and measurement of those benefits to the greatest extent 
possible, and that to the extent that variables used for fee 
calculation can change or become unknown, the fee could be difficult to 
ascertain. However, we believe that the public interest is better 
served by assessing BRS regulatory fees based on the scope of a 
licensee's authorized spectrum use and the benefits they receive under 
their spectrum authorization. Furthermore, this concern is mitigated by 
the fact that calculations will actually be simpler for licensees than 
employing a MHz/pops formula. Moreover, establishing a tiered formula 
by market size eliminates the difficulties involved in ascertaining 
population within a GSA.
    63. The regulatory burdens contained in the 3rd MO&O and 2nd R&O 
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. As described above, we have reduced burdens 
wherever possible by eliminating a number of unnecessary regulations.

VII. Report to Congress

    64. The Commission will send a copy of this 3rd MO&O and 2nd R&O, 
including this FRFA, in a report to be sent to Congress and the 
Government Accountability Office pursuant to the Congressional Review 
Act. In addition, the Commission will send a copy of this 3rd MO&O and 
2nd R&O, including this FRFA, to the Chief Counsel for Advocacy of the 
Small Business Administration.

VIII. Ordering Clauses

    65. 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 Order on Reconsideration and Fifth Memorandum Opinion and 
Order, Third Memorandum Opinion and Order and Second Report and Order 
is hereby adopted.
    66. The Petitions for Reconsideration filed in these proceedings 
are granted to the extent indicated and are otherwise denied.
    67. Pursuant to section 4(i) of the Communications Act of 1934, 47 
U.S.C. 154(i), and Sec.  1.925 of the Commission's rules, 47 CFR 1.925, 
that the ``Request for Waiver'' filed by W.A.T.C.H. TV Company on April 
29, 2005 is granted.
    68. The proceeding entitled Amendment of parts 21 and 74 of the 
Commission's Rules With Regard to Licensing in the Multipoint 
Distribution Service and in the Instructional Television Fixed Service 
for the Gulf of Mexico, WT Docket No. 02-68 is terminated.
    69. The Final Regulatory Flexibility Analysis and the Final 
Regulatory Flexibility Certification are adopted.
    70. The Commission's Consumer and Governmental Affairs Bureau, 
Reference Information Center, shall send a copy of this Order on 
Reconsideration and Fifth Memorandum Opinion and Order, Third 
Memorandum Opinion and Order and Second Report and Order, including the 
Final Regulatory Flexibility Analysis and Final Regulatory Flexibility 
Certification, to the Chief Counsel for Advocacy of the Small Business 
Administration.

List of Subjects in 47 CFR Parts 25 and 27

    Communications common carriers, Communications equipment, Equal 
employment opportunity, Radio, Reporting and recordkeeping 
requirements, Satellites, Securities, Telecommunications.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.

Final Rules

0
For the reasons discussed in the preamble, the Federal Communications 
Commission amends 47 CFR parts 25 and 27 as follows:

PART 25--SATELLITE COMMUNICATIONS

0
1. The authority citation for part 25 continues to read as follows:

    Authority: 47 U.S.C. 701-744. Interprets or applies Sections 4, 
301, 302, 303, 307, 309, and 332 of the Communications Act, as 
amended. 47 U.S.C. Sections 154, 301, 302, 303, 307, 309, and 332, 
unless otherwise noted.


0
2. Amend Sec.  25.208 by adding a new paragraph (v) to read as follows:


Sec.  25.208  Power flux-density limits

* * * * *
    (v) In the band 2496-2500 MHz, the power flux-density at the 
Earth's surface produced by emissions from non-geostationary space 
stations for all conditions and all methods of modulation shall not 
exceed the following values (these values are obtained under assumed 
free-space propagation conditions):
    (1) -144 dB (W/m[supcaret]2) in 4 kHz for all angles of arrival 
between 0 and 5 degrees above the horizontal plane; -144 dB (W/
m[supcaret]2) + 0.65([delta] -5) in 4 kHz for all angles of arrival 
between 5 and 25 degrees above the horizontal plane; and
    -131 dB (W/m[supcaret]2) in 4 kHz and for all angles of arrival 
between 25 and 90 degrees above the horizontal plane.
    (2) -126 dB (W/m[supcaret]2) in 1 MHz for all angles of starrival 
between 0 and 5 degrees above the horizontal plane; -126 dB (W/
m[supcaret]2) + 0.65([delta] -5) in 1 MHz for all angles of arrival 
between 5 and 25 degrees above the horizontal plane; and
    -113 dB (W/m[supcaret]2) in 1 MHz and for all angles of arrival 
between 25 and 90 degrees above the horizontal plane.

0
3. Amend Sec.  25.213 by adding the text to paragraph (b) to read as 
follows:


Sec.  25.213  Inter-Service coordination requirements for the 1.6/2.4 
GHz mobile-satellite service.

* * * * *
    (b) If a Mobile-Satellite Service space station operator in the 
2496-2500 MHz band intends to operate at powers levels that exceed the 
PFD limits in Sec.  25.208(v), or if actual operations routinely exceed 
these PFD limits, we require the Mobile-Satellite Service operator to 
receive approval from each operational BRS system in the affected 
geographical region.

[[Page 35189]]

PART 27--MISCELLANEOUS WIRELESS COMMUNICATIONS SERVICES

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

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


0
5. Section 27.4 is amended by adding the following definition to read 
as follows:


Sec.  27.4  Terms and definitions.

* * * * *
    Commercial EBS licensee. A licensee authorized to operate on EBS 
channels pursuant to the provisions of Sec.  27.1201(c) contained in 
the edition of 47 CFR parts 20 to 39, revised as of October 1, 2005, or 
Sec. Sec.  74.990 through 74.992 contained in the edition of 47 CFR 
parts 70 to 79, revised as of October 1, 2004, of this chapter, and 
that does not meet the eligibility requirements of Sec.  27.1201(a).
* * * * *

0
6. Amend Sec.  27.5 by revising paragraphs (i)(1), (i)(2)(ii), 
(i)(2)(iii), the note to paragraph (i)(2), and paragraph (i)(3) to read 
as follows:


Sec.  27.5  Frequencies.

* * * * *
    (i) * * *
    (1) Pre-transition frequency assignments.

RS Channel 1: 2150-2156 MHz or 2496-2500 MHz
BRS Channel 2: 2156-2162 MHz or 2686-2690 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 G2: 2656-2662 MHz
BRS Channel H2: 2662-2668 MHz
EBS Channel G3: 2668-2674 MHz
BRS Channel H3: 2674-2680 MHz
EBS Channel G4: 2680-2686 MHz
I Channels: 2686-2690 MHz

    (2) * * *
    (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/EBS Channel F4: 2602-2608 MHz
BRS/EBS 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: 2616.33333-2616.66666MHz
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/EBS Channel E1: 2624-2629.5 MHz
BRS/EBS Channel E2: 2629.5-2635 MHz
BRS/EBS Channel E3: 2635-2640.5 MHz
BRS/EBS Channel F1: 2640.5-2646 MHz
BRS/EBS Channel F2: 2646-2651.5 MHz
BRS/EBS Channel F3: 2651.5-2657 MHz
BRS Channel H1: 2657-2662.5 MHz
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 G3 in the upper band segment.


    (3) During the transition (see Sec. Sec.  27.1230-27.1239) EBS and 
BRS licensees may exchange channels to effectuate the transition of the 
2.5 GHz band in a given BTA.
* * * * *
0
7. Amend Sec.  27.14 by adding a new paragraph (e) to read as follows:


Sec.  27.14  Construction requirements; Criteria for comparative 
renewal proceedings.

* * * * *
    (e) BRS and EBS licensees must make a showing of ``substantial 
service'' no later than May 1, 2011. Incumbent BRS licensees must file 
their ``substantial service'' showing with their renewal application. 
``Substantial service'' is defined as service which is sound, 
favorable, and substantially above a level of mediocre service which 
just might minimally warrant renewal. Substantial service for BRS and 
EBS licensees is satisfied if a licensee meets the requirements of 
paragraph (e)(1) or (e)(2) of this section. If a licensee has not met 
the requirements of paragraph (e)(1) or (e)(2) of this section, then 
demonstration of ``substantial service'' shall proceed on a case-by-
case basis. All substantial service determinations will be made on a 
license-by-license basis. Except for BTA licenses, BRS licensees must 
file their ``substantial service'' showing with their renewal 
applications. Failure by any licensee to meet this requirement will 
result in forfeiture of the license and the licensee will be ineligible 
to regain it.
    (1) A BRS or EBS licensee has provided ``substantial service'' by:
    (i) Constructing six permanent links per one million people for 
licensees providing fixed point-to-point services;
    (ii) Providing coverage of at least 30 percent of the population of 
the licensed area for licensees providing mobile services or fixed 
point-to-multipoint services;
    (iii) Providing service to ``rural areas'' (a county (or 
equivalent) with a population density of 100 persons per square mile or 
less, based upon the most recently available Census data) and areas 
with limited access to telecommunications services:
    (A) For mobile service, where coverage is provided to at least 75% 
of the geographic area of at least 30% of the rural areas within its 
service area; or
    (B) For fixed service, where the BRS or EBS licensee has 
constructed at least one end of a permanent link in at least 30% of the 
rural areas within its licensed area.
    (iv) Providing specialized or technologically sophisticated service 
that does not require a high level of coverage to benefit consumers; or
    (v) Providing service to niche markets or areas outside the areas 
served by other licensees.
    (2) An EBS licensee has provided ``substantial service'' when:

[[Page 35190]]

    (i) The EBS licensee is using its spectrum (or spectrum to which 
the EBS licensee's educational services are shifted) to provide 
educational services within the EBS licensee's GSA;
    (ii) The EBS licensee's license is actually being used to serve the 
educational mission of one or more accredited public or private 
schools, colleges or universities providing formal educational and 
cultural development to enrolled students; or
    (iii) The level of service provided by the EBS licensee meets or 
exceeds the minimum usage requirements specified in Sec.  27.1214.
    (3) An EBS or BRS licensee may be deemed to provide substantial 
service through a leasing arrangement if the lessee is providing 
substantial service under paragraph (e)(1) of this section. The EBS 
licensee must also be otherwise in compliance with this chapter 
(including the programming requirements in Sec.  27.1203).

0
8. Amend Sec.  27.53 by revising the introductory text of 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. BRS and EBS stations that 
are not in compliance with the standards below, after receiving a 
documented interference complaint from an adjacent channel licensee, 
have 60 days to coordinate with the affected licensee and meet a mutual 
resolution before both parties employ a more rigorous emission mask.
* * * * *
0
9. Amend Sec.  27.1201 by revising paragraph (a) introductory text, 
removing and reserving paragraph (c), and adding a new paragraph (d) to 
read as follows:


Sec.  27.1201  EBS Eligibility.

    (a) 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.
* * * * *
    (d) This paragraph applies to EBS licensees and applications 
licensed or filed pursuant to the provisions of Sec.  27.1201(c) 
contained in the edition of 47 CFR parts 20 to 39, revised as of 
October 1, 2005, or Sec. Sec.  74.990 through 74.992 contained in the 
edition of 47 CFR parts 70 to 79, revised as of October 1, 2004, of 
this chapter, and that do not meet the eligibility requirements of 
paragraph (a) of this section. Such licensees may continue to operate 
pursuant to the terms of their existing licenses, and their licenses 
may be renewed, assigned, or transferred, so long as the licensee is 
otherwise in compliance with this chapter. Applications filed pursuant 
to the provisions of former Sec.  27.1201(c) or Sec.  Sec.  74.990 
through 74.992 of this chapter may be processed and granted, so long as 
such applications were filed prior to July 19, 2006.

0
10. Amend Sec.  27.1202 by revising paragraph (c) to read as follows:


Sec.  27.1202  Cable/BRS cross-ownership.

* * * * *
    (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 GSA 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.
* * * * *

0
11. Amend Sec.  27.1203 by revising paragraph (b) to read as follows:


Sec.  27.1203  EBS programming requirements.

* * * * *
    (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.
* * * * *

0
12. Amend Sec.  27.1213 by revising paragraph (c)(2) to read as 
follows:


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

* * * * *
    (c) * * *
    (2) Conditions and obligations. See Sec.  1.2110(g)(4) of this 
chapter.
* * * * *

0
13. Amend Sec.  27.1214 by revising paragraphs (b)(1) and (c) and 
adding new paragraph (e) to read as follows:


Sec.  27.1214  EBS spectrum leasing arrangements and grandfathered 
leases.

* * * * *
    (b) * * *
    (1) The licensee must reserve a minimum of 5% of the capacity of 
its channels for educational uses consistent with Sec.  27.1203 
paragraphs (b) and (c), 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.
* * * * *
    (c) All spectrum leasing arrangements involving EBS spectrum must 
afford the EBS licensee an opportunity to purchase or to lease 
dedicated or common EBS equipment used for educational purposes in the 
event that the spectrum leasing arrangement is terminated.
* * * * *
    (e) The maximum permissible term of an EBS spectrum leasing 
arrangement entered into on or after July 19, 2006 (including the 
initial term and all renewal terms that commence automatically or at 
the sole option of the lessee) shall be 30 years. In furtherance of the 
educational purposes for which EBS spectrum is primarily allocated, any 
spectrum leasing arrangement in excess of 15 years that is entered into 
on or after July 19, 2006 must include terms which provide the EBS 
licensee on the 15th year and every 5 years

[[Page 35191]]

thereafter, with an opportunity to review its educational use 
requirements in light of changes in educational needs, technology, and 
other relevant factors and to obtain access to such additional 
services, capacity, support, and/or equipment as the parties shall 
agree upon in the spectrum leasing arrangement to advance the EBS 
licensee's educational mission.

0
14. Add Sec.  27.1216 to read as follows:


Sec.  27.1216  Grandfathered E and F group EBS licenses.

    (a) Except as noted in paragraph (b) of this section, grandfathered 
EBS licensees authorized to operate E and F group co-channel licenses 
are granted a geographic service area (GSA) on July 19, 2006. The GSA 
is the area bounded by a circle having a 35 mile radius and centered at 
the station's reference coordinates, and is bounded by the chord(s) 
drawn between intersection points of that circle and those of 
respective adjacent market, co-channel licensees.
    (b) If there is more than 50 percent overlap between the calculated 
GSA of a grandfathered EBS license and the protected service area of a 
co-channel BRS license, the licensees shall not be immediately granted 
a geographic service area. Instead, the grandfathered EBS license and 
the co-channel BRS licensee must negotiate in good faith to reach a 
solution that accommodates the communication needs of both licensees. 
If the co-channel licensees reach a mutually agreeable solution on or 
before October 17, 2006, then the GSA of each co-channel license shall 
be as determined pursuant to the agreement of the parties. If a 
mutually agreeable solution between co-channel licensees is not reached 
on or before October 17, 2006, then each co-channel licensee shall 
receive a GSA determined pursuant to paragraph (a) of this section and 
Sec.  27.1206(a).

0
15. Amend Sec.  27.1221 by revising paragraph (a) to read as follows:


Sec.  27.1221  Interference protection.

    (a) Interference protection will be afforded to BRS and EBS 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.
* * * * *

0
16. Revise Sec.  27.1230 to read as follows:


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

    BRS and EBS licensees in the 2500-2690 MHz band on the pre-
transition 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 
Sec. Sec.  27.1233 and 27.1237-1239), 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). Licensees may also self-transition (see Sec.  27.1236).

0
17. Revise Sec.  27.1231 to read as follows:


Sec.  27.1231  Initiating the transition.

    (a) Transition areas. Unless paragraph (b) of this section applies, 
the transition will occur by Basic Trading Area (BTA). BTAs are based 
on the Rand McNally 1992 Commercial Atlas & Marketing Guide, 123rd 
Edition, at pages 38-39, that identifies 487 BTAs based on the 50 
States; it also includes the following additional BTA-like areas: 
American Samoa; Guam; Northern Mariana Islands; Mayaguez/Aguadilla-
Ponce, Puerto Rico; San Juan, Puerto Rico; and the United States Virgin 
Islands, for a total of 493 BTAs. The Mayaguez/Aguadilla-Ponce BTA-like 
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 BTA-like area consists of all other municipios in 
Puerto Rico. The BTA associated with the Gulf of Mexico will not be 
transitioned.
    (b) Overlapping GSAs. When a Geographic Service Area (GSA) overlaps 
two or more BTAs:
    (1) The proponents of the adjacent BTAs may agree on how to 
transition a GSA that overlaps their respective BTAs.
    (2) If an agreement has not been reached between or among the 
proponents of the adjacent BTAs:
    (i) Each proponent must transition all of the facilities associated 
with the GSA that are inside the GSA and inside the proponent's BTA if 
all of the adjacent BTAs are transitioning; or
    (ii) The proponent of the BTA that is transitioning must transition 
all of the facilities associated with the GSA that are within the GSA 
but outside the BTA, if the adjacent BTA is not transitioning.
    (c)(1) Proponent(s). The proponent or co-proponent must:
    (i) Be a BRS or EBS licensee or BRS or EBS lessee;
    (ii) Send a Pre-Transition Data Request (see paragraph (d) of this 
section) and a Transition Notice (see paragraph (e) of this section) to 
every BRS and EBS licensee in the BTA, using the contact information in 
the Commission's Universal Licensing System; and
    (iii) Be first to file an Initiation Plan (see paragraph (f) of 
this section) with the Secretary of the Commission.
    (2) Before filing an Initiation Plan, BRS or EBS licensees or BRS 
or EBS lessees may agree to be co-proponents. After the Initiation Plan 
is filed the proponent may accept a co-proponent at its sole 
discretion.
    (d) Pre-Transition Data Request. The Pre-Transition Data Request 
must include the potential proponent's full name, postal mailing 
address, contact person, e-mail address, and phone and fax numbers.
    (1) BRS and EBS licensees that receive a Pre-Transition Data 
Request must provide the following information to the potential 
proponent within 45 days of receiving the Pre-Transition Data Request:
    (i) The BRS or EBS licensee's full name, postal mailing address, 
contact person, e-mail address, and phone and fax number.
    (ii) 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:
    (A) Specify whether the downconverting antenna is mounted on a 
structure attached to the building or on a free-standing structure;
    (B) Specify the approximate height above ground level of the 
downconverting antenna; and
    (C) Specify, if known, the adjacent channel D/U ratio that can be 
tolerated by any receiver(s) at the receive site.
    (iii) The location (street address and geographic coordinates) of 
the main station or booster serving each EBS receive site entitled to 
protection, including:
    (A) The make and model of the antenna for that main station or 
booster, along with the radiation pattern if it is not included within 
the Commission's database;
    (B) The ground elevation, above mean sea level (AMSL), of the 
building or antenna supporting structure on which

[[Page 35192]]

the main station or booster transmission antenna is installed;
    (C) The height above ground level (AGL) of the center of radiation 
of the transmission antenna;
    (D) The orientation of the main lobe of the transmission antenna;
    (E) Any mechanical beamtilt or electrical beamtilt not reflected in 
the radiation pattern provided or included within the Commission's 
database;
    (F) The bandwidth of each channel or subchannel, the emission type 
for each channel or subchannel, and the EIRP measured in the main lobe 
for each channel or subchannel; and
    (G) The make and model of the receive antenna installed at that 
site, along with the radiation pattern if it is not included within the 
Commission's database.
    (iv) 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)).
    (v) Whether it will seek or has sought a waiver from the Commission 
as a Multichannel Video Programming Distributor (MVPD).
    (2) BRS and EBS licensees that do not respond to the Pre-Transition 
Data Request within 45 days of its receipt may not object to the 
Transition Plan.
    (e) The Transition Notice. The potential proponent(s) must send a 
Transition Notice to all BRS and EBS licensees in the BTA(s) being 
transitioned. The potential proponent(s) must include the following 
information in the Transition Notice:
    (1) The potential 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;
    (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 potential 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.
    (f) Initiation Plan. To initiate a transition, a potential 
proponent(s) must submit an Initiation Plan to the Commission at the 
Office of the Secretary in Washington, DC within 30 months of July 19, 
2006.
    (1) An Initiation Plan must contain the following information:
    (i) A list of the BTA(s) that the proponent(s) is transitioning;
    (ii) A list by call sign of all of the BRS and EBS licensees in the 
BTA(s) that are being transitioned;
    (iii) A ``best estimate'' of when the transition will be completed;
    (iv) A statement indicating that an agreement has been concluded 
with the proponent(s) of the adjoining or adjacent BTA(s) when a 
licensee or licensees in an adjacent or adjoining BTA must be 
transitioned to avoid interference to licensees in the BTA 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 BTA;
    (v) A statement indicating that an agreement has been concluded 
with another proponent(s) on how a BTA will be transitioned when there 
are two or more proponents seeking to transition the same BTA and they 
agree to be co-proponents before the Initiation Plan is filed, and a 
statement that identifies the specific portion of the BTA each 
proponent will be responsible for transitioning; and
    (vi) A certification that the proponent or joint proponents have 
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 (d) of this section).
    (2) A proponent, at its own discretion, may withdraw from 
transitioning a BTA by notifying the Commission and all affected BRS 
and EBS licensees in the BTA that it is withdrawing the Initiation 
Plan.
    (3) A proponent may amend an Initiation Plan after it has been 
filed with the Commission to correct minor or inadvertent errors.
    (g) MVPD waiver requests. MVPD licensees that seek to opt-out of 
the transition must seek a waiver within 60 days after the proponent 
files the Initiation Plan or on or before April 30, 2007, whichever 
occurs first.

0
18. Amend Sec.  27.1232 by revising paragraph (a), the introductory 
text of paragraph (b), and (c)(1), the first sentence of paragraph 
(d)(1), and the first two sentences of paragraph (d)(2), and adding new 
paragraphs (d)(3) and (d)(4) to read as follows:


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) 
files the Initiation Plan with the Commission.
    (b) The Transition plan. The proponent(s) must provide to each BRS 
and EBS licensee within a BTA, a Transition Plan no later than 30 days 
prior to the conclusion of the Transition Planning Period.
* * * * *
    (c) * * *
    (1) Accept the counterproposal, modify the Transition Plan 
accordingly, and send the modified Transition Plan to all EBS and BRS 
licensees in the BTA;
* * * * *
    (d) * * *
    (1) Safe harbor No. 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. * * *
* * * * *
    (2) Safe harbor No. 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. * * *
* * * * *
    (3) Safe harbor No. 3. This safe harbor applies when a four-channel 
group is shared among multiple licensees in a given geographic area. 
Absent an agreement otherwise, a proponent may:
    (i) Secure a 6 MHz MBS channel for each licensee in exchange for 
the non-MBS channels assigned to the group. Following the channel 
swap(s) necessary to secure those additional MBS channels, the 
Transition Plan can provide for the licensing of the remaining channels 
in the LBS, UBS, and Guard Bands on a pro rata basis (with channel(s) 
in each segment being disaggregated when and if necessary to provide 
each with its pro rata share of the spectrum in each segment);
    (ii) Provide for pro rata segmentation of the default MBS channel 
for the group, provided that the proponent commits to provide each of 
the licensees with the technology necessary for its EBS video 
programming or data transmissions to be digitized, transmitted and 
received utilizing the provided bandwidth. The non-MBS channels would 
be divided among the sharing licensees on a pro rata basis (with 
channel(s) in each segment being disaggregated when and if necessary to 
provide each with its pro rata share of the spectrum in each segment); 
or
    (iii) Assign the default MBS channel assigned to the channel group 
to one of the licensees, if that licensee is the only one that elects 
to migrate video programming or data transmission tracks to the MBS. 
The remaining spectrum assigned to the group may be

[[Page 35193]]

allocated among the licensees on a pro rata basis, with the 6 MHz in 
the MBS counting against that licensee's portion. To the extent 
necessary, the non-MBS spectrum can be disaggregated when and if 
necessary to provide each with its pro rata share of the spectrum in 
each segment. If the proponent chooses to effectuate a channel swap to 
provide more than one channel in the MBS, the remaining channels 
assigned to the group (after considering that one or more LBS/UBS 
channels and associated Transition Band channels will have been swapped 
away to provide the additional MBS channel) can be allocated among the 
licensees on a pro rata basis (with channel(s) in each segment being 
disaggregated when and if necessary to provide each with its pro rata 
share of the spectrum in each segment).
    (4) Safe harbor No. 4. This safe harbor applies when an EBS 
licensee uses one or more of its channels for studio-to-transmitter 
links. The proponent may provide for one of the following options:
    (i) The use of the LBS and/or UBS band for the point-to-point 
transmission of the EBS video or data (through superchannelization of 
the licensee's contiguous LBS or UBS channels), provided the proponent 
commits to retune the existing point-to-point equipment to operate on 
those channels or to replace the existing equipment with new equipment 
tuned to operate on those channels and the proposal complies with the 
LBS/UBS technical and interference protection rules;
    (ii) The migration of the EBS programming to the MBS by retuning 
the existing point-to-point equipment to operate in the MBS or 
replacing it with equipment tuned to operate in the MBS; or
    (iii) The replacement of the point-to-point link with point-to-
point equipment licensed to the EBS licensee in alternative spectrum, 
so long as the replacement facilities meet the definition of 
``comparable facilities'' set out in Sec.  101.75(b) of this chapter.

0
19. Amend Sec.  27.1233 by revising paragraphs (a)(1)(i) and (b)(3)(ii) 
and removing paragraph (c) and to read as follows:


Sec.  27.1233  Reimbursement costs of transitioning.

    (a) * * *
    (1) * * *
    (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(d));
* * * * *
    (b) * * *
    (3) * * *
    (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 -10 dB. Provided that the receive site receiver is not 
upgraded and cannot tolerate -10 dB, the adjacent channel D/U ratio 
would be 0dB.

0
20. Amend Sec.  27.1235 by revising the introductory text and paragraph 
(a) and adding a new paragraph (d) to read as follows:


Sec.  27.1235  Post-transition notification.

    The proponent(s) must certify to 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.
* * * * *
    (d) A BRS or EBS licensee must file any objection to the post-
transition notification within 30 days from the date the post-
transition notification is placed on Public Notice.

0
21. Add Sec. Sec.  27.1236 through 27.1239 to subpart M to read as 
follows:


Sec.  27.1236  Self-transitions.

    (a) If an Initiation Plan is not filed within 30 months of July 19, 
2006 for a BTA, BRS and EBS licensees in that BTA may self-transition 
by relocating to their default channel locations specified in Sec.  
27.5(i)(2) and complying with Sec. Sec.  27.50(h), 27.53, 27.55 and 
27.1221.
    (b) To self-transition, a BRS or EBS licensee must:
    (1) Notify the Secretary of the Commission on or before 90 days 
after the Initiation Plan must be filed with the Commission that it 
will self-transition (see paragraph (a) of this section);
    (2) Send a Self-Transition Notification (see paragraph (c) of this 
section) to other BRS and EBS licensees in the BTA where the self-
transitioning licensee's GSA geographic center point is located that it 
is self-transitioning;
    (3) Notify other licensees whose GSAs overlap with the self-
transitioning licensee that it is self-transitioning.
    (4) Address interference concerns with other BRS and EBS licensees 
in the BTA that are also self-transitioning;
    (5) File a modification application with the Commission, and
    (6) Complete the self-transition within 57 months of July 19, 2006.
    (c) Self-Transition Notification. The Self-Transition Notification 
must include the EBS licensee's full name, postal mailing address, 
contact person, e-mail address, and phone and fax numbers. A self-
transitioning EBS licensee must provide the following information to 
all BRS and EBS licensees located in the BTA where the self-
transitioning licensees GSA geographic center point is located:
    (1) The location (by street address and by geographic coordinates) 
of every constructed EBS receive site that, as of the date the Self-
Transition Notification is sent, 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; and
    (iii) Specify, if known, the adjacent channel D/U ratio that can be 
tolerated by any receiver(s) at the receive site.
    (2) The location (street address and geographic coordinates) of the 
main station or booster serving each EBS receive site entitled to 
protection, including:
    (i) The make and model of the antenna for that main station or 
booster, along with the radiation pattern if it is not included within 
the Commission's database;
    (ii) The ground elevation, above mean sea level (AMSL), of the 
building or antenna supporting structure on which the main station or 
booster transmission antenna is installed;
    (iii) The height above ground level (AGL) of the center of 
radiation of the transmission antenna;
    (iv) The orientation of the main lobe of the transmission antenna;
    (v) Any mechanical beamtilt or electrical beamtilt not reflected in 
the radiation pattern provided or included within the Commission's 
database;
    (vi) The bandwidth of each channel or subchannel, the emission type 
for each channel or subchannel, and the EIRP measured in the main lobe 
for each channel or subchannel; and
    (vii) The make and model of the receive antenna installed at that 
site, along with the radiation pattern if it is not included within the 
Commission's database.
    (3) The number and identification of EBS video programming or data 
transmission tracks the EBS licensee is

[[Page 35194]]

entitled to receive in the MBS (see Sec.  27.1233(b)).


Sec.  27.1237  Pro rata allocation of transition costs.

    (a) Self-transitions. EBS licensees that self-transition may seek 
reimbursement for their costs to replace eligible downconverters (see 
Sec.  27.1233(a)) and to migrate video programming and data 
transmission tracks (see Sec.  27.1233(b)) from BRS licensees and 
lessees, EBS lessees, and commercial EBS licensees in the BTA where the 
center point of the EBS licensee's GSA is located. In addition, BRS 
licensees and lessees, EBS lessees, and commercial EBS licensees in the 
LBS or UBS must reimburse the self-transitioning EBS licensee a pro 
rata share of the eligible costs of transitioning EBS licensees, based 
on the formula in paragraph (c) of this section. Eligible costs are 
listed in Sec.  27.1238.
    (b) Proponent-driven transitions. BRS licensees and lessees, 
entities that lease EBS spectrum for a commercial purpose, and 
commercial EBS licensees must pay their own transition costs. In 
addition, except for MVPD operators that opt-out of the transition, BRS 
licensees and lessees, EBS lessees, and commercial EBS licensees in the 
LBS or UBS must reimburse the proponent a pro rata share of the 
eligible costs of transitioning EBS licensees, based on the formula in 
paragraph (c) of this section. Eligible costs are listed in Sec.  
27.1238.
    (c) Formula. The pro rata share shall be based on the following 
formula:
[GRAPHIC] [TIFF OMITTED] TR19JN06.000

    (1) R equals the pro rata share;
    (2) L equals the amount of spectrum used by a BRS licensee or 
lessee or commercial EBS licensee or lessee to provide a commercial 
service, either directly or through a lease agreement with an EBS or 
BRS licensee;
    (3) T equals the total amount of spectrum licensed or leased for 
commercial purposes in the BTA;
    (4) LP equals the population of the geographic service area or BTA 
served by the BRS licensee or lessee or commercial EBS licensee or 
lessee based on the data in the 2000 United States Census; and
    (5) TP equals the population of the BTA based on the data in the 
2000 United States Census.


Sec.  27.1238  Eligible costs.

    (a) The costs listed in paragraphs (b) through (f) of this section 
are eligible costs.
    (b) Pre-transition costs:
    (1) Engineering/Consulting
    (i) Evaluation of equipment;
    (ii) RX site identification;
    (iii) EBS Programming plan covering the BTA;
    (iv) Market Analysis (MHz per POP Study);
    (v) RF study (interference analysis); and
    (vi) Transition Plan creation and support;
    (2) Project management (may be sourced external);
    (3) Filing fees;
    (4) Legal fees;
    (5) Site acquisition fees-contractor; and
    (6) Arbitrator fee;
    (c) Transmission facility--analog conversion costs:
    (1) Transmitter upgrading or retuning;
    (2) Combiner re-tuning or new;
    (3) Power divider/circulator adjacent channel combiner hardware;
    (4) STL/fiber relocation;
    (5) Miscellaneous material costs (including cabling and 
connectors);
    (6) Contract labor:
    (i) Tower;
    (ii) Building modifications;
    (iii) Electrical/HVAC; and
    (iv) Mechanical
    (7) Engineering:
    (i) Structural; and
    (ii) Pathway Interference Analysis.
    (8) Equipment disposal/shipping
    (9) Program Management (third party or internal costs to manage the 
BTA conversion); and
    (10) Travel and Per Diem Cost.
    (d) Transmission facility-digital conversion costs:
    (1) New transmitter or retuning;
    (2) Digital compression equipment-TX site (including encoders, 
controller, and software);
    (3) Combiners-new or retune;
    (4) Power divider/circulator adjacent channel combiner hardware;
    (5) Cabinets, cabling, feedline and connectors;
    (6) STL--fiber digital upgrade;
    (7) Installation cost due to adding additional broadcast antenna (4 
or more digital channels required);
    (8) Contract labor:
    (i) Tower;
    (ii) Building modifications;
    (iii) Electrical/HVAC; and
    (iv) Mechanical.
    (9) Proof of performance testing (may be contracted);
    (10) Engineering:
    (i) Structural; and
    (ii) Path engineering analysis.
    (11) Equipment disposal/shipping;
    (12) Training;
    (13) Program management (third party or internal costs to manage 
BTA conversion);
    (14) Travel and per diem costs.
    (e) Qualified receive-sites only-modifications (analog and 
digital):
    (1) Digital set top boxes;
    (2) Downconverters (with filtering)/antennas (replacement 
downconverters);
    (3) Contract labor:
    (i) Antenna change/DC install (antenna change may be necessary); 
and
    (ii) Electrical; and mechanical
    (4) Project management (third party or internal costs to manage the 
BTA conversion);
    (5) Proof of performance testing (may be contracted);
    (6) Mini headend (cost effective distribution method):
    (i) Modulators, combiners;
    (ii) Equipment racks; and
    (iii) Amplifiers
    (7) Cable, connectors; and
    (8) Training.
    (f) Miscellaneous transition fees. (1) Filing fees;
    (2) Arbitrator fee; and
    (3) Legal fees.


Sec.  27.1239  Reimbursement obligation.

    (a) A proponent may request reimbursement from BRS licensees and 
lessees, EBS lessees, and commercial EBS licensees in a BTA after the 
Transition Notification has been filed with the Secretary of the 
Commission and the proponent has accumulated the documentation to 
substantiate the full and accurate cost of the transition. A self-
transitioning licensee may request reimbursement from BRS licensees and 
lessees, EBS lessees, and commercial EBS licensees in a BTA where its 
GSA geographic center point is located after it has completed the self-
transition and has filed a modification application with the Commission 
and has accumulated the documentation to substantiate the full and 
accurate cost of the transition.
    (b) If a license is assigned, transferred, partitioned, or 
disaggregated, all parties to the assignment, transfer, disaggregation, 
or partition are jointly and severally liable for paying the 
reimbursement obligation until that obligation is paid.

 [FR Doc. E6-9276 Filed 6-16-06; 8:45 am]
BILLING CODE 6712-01-P