[Federal Register Volume 72, Number 193 (Friday, October 5, 2007)]
[Rules and Regulations]
[Pages 56923-56926]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-19641]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 90

[WT Docket No. 02-55; FCC 07-167]


Improving Public Safety Communications in the 800 MHz Band; 
Petitions for Waiver of Bethlehem, Pennsylvania and Reading, PA; 
Petitions for Waiver of Rockdale County, Newton County, City of 
Covington, Walton County, and Spalding County, GA

AGENCY: Federal Communications Commission.

ACTION: Final rule; clarification.

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SUMMARY: In the Third Memorandum Opinion and Order, the Federal 
Communications Commission finds that Sprint Corporation (Sprint) has 
not met the December 26, 2006, eighteen-month benchmark for clearing 
Channel 1-120 incumbents as required by the 800 MHz rebanding process. 
In that connection, the Commission denies the portion of Sprint's 
Petition for Reconsideration that sought ``clarification'' of the 
eighteen-month benchmark. The Commission also establishes additional 
benchmarks to ensure timely clearing of the Channel 1-120 band by all 
incumbent licensees, including Sprint itself. The Commission also 
requires Sprint to provide monthly reports on its channel-clearing 
efforts. In addition, the Commission clarifies the 30-month rebanding 
benchmark, which requires all 800 MHz licensees that must reband to 
have ``commenced'' reconfiguration of their systems by December 26, 
2007. Finally, the Commission grants several petitions by NPSPAC 
licensees to extend their rebanding deadline until after incumbent 
analog broadcasters operating in their area on TV Channel 69 have 
vacated the spectrum as part of the DTV transition.

DATES: Effective September 12, 2007.

FOR FURTHER INFORMATION CONTACT: Roberto Mussenden, Policy Division, 
Public Safety and Homeland Security Bureau, at (202) 418-1428 or 
[email protected]; John Evanoff, Policy Division, Public Safety 
and Homeland Security Bureau, at (202) 418-0848 or John 
[email protected].

SUPPLEMENTARY INFORMATION: This summary of the Commission's Third 
Memorandum Opinion and Order in WT Docket No. 02-55, adopted on 
September 11, 2007, and released on September 12, 2007. The full text 
of this document is available for public inspection on the Commission's 
Internet site at http://www.fcc.gov. It is also available for 
inspection and copying during regular business hours in the FCC 
Reference Center (Room CY-A257), 445 12th Street, SW., Washington, DC 
20554. The full text of this document also may be purchased from the 
Commission's duplication contractor, Best Copy and Printing Inc., 
Portals II, 445 12th St., SW., Room CY-B402, Washington, DC 20554; 
telephone (202) 488-5300; fax (202) 488-5563; e-mail [email protected].

Background

    1. In the 800 MHz Report and Order, 69 FR 67823 (November 22, 
2004), the Commission ordered the rebanding of the 800 MHz band to 
resolve interference between commercial and public safety systems in 
the band. In that Order, the Commission required Sprint to complete 
retuning of Channel 1-120 licensees (i.e., licensees operating in the 
806-809/851-854 MHz band) in twenty NPSPAC regions within eighteen 
months of the start of the 36-month rebanding period. In the 800 MHz

[[Page 56924]]

Supplemental Order, 70 FR 6758, February 8, 2005, the Commission 
modified this benchmark to require Sprint to relocate all Channel 1-120 
incumbents other than Sprint and SouthernLINC in ``the first twenty 
NPSPAC Regions the Transition Administrator has scheduled for band 
reconfiguration.'' The Commission also required Sprint to have 
initiated retuning negotiations with all NPSPAC licensees in the same 
twenty regions by the eighteen-month benchmark date.

Discussion

A. Eighteen Month Benchmark

1. Petition for Reconsideration
    2. Petition for Reconsideration. The Commission denied the portion 
of Sprint's Petition for Reconsideration that sought ``clarification'' 
of the eighteen-month benchmark. In a Petition for Reconsideration 
filed in January 2006, Sprint requested that the Commission ``clarify'' 
the nature of the eighteen-month rebanding benchmark. Because the 
Commission found that Sprint's request was more appropriately 
characterized as a Petition for Reconsideration, the Commission 
concluded that Sprint's request was time-barred. Even if the Commission 
considered Sprint's request on the merits, the Commission continued to 
believe that the eighteen-month benchmark as defined in the 800 MHz 
Supplemental Order should be retained.
2. Sprint's Compliance With the Eighteen Month Benchmark
    3. Eighteen Month Benchmark Compliance. The Commission found that 
Sprint has not met the December 26, 2006, eighteen-month benchmark for 
clearing Channel 1-120 incumbents as required by the 800 MHz rebanding 
process. On January 26, 2007, Sprint filed a report with the Public 
Safety and Homeland Security Bureau on the status of 800 MHz band 
reconfiguration and the steps Sprint had taken to meet the eighteen-
month benchmark. In its report, Sprint stated that as of the December 
26, 2006, benchmark date, it had completed clearing and relocation of 
all Channel 1-120 incumbents, other than Sprint and SouthernLINC, in 26 
of 55 NPSPAC regions, including seven Wave 1 regions, sixteen Wave 2 
regions, two Wave 3 regions, and one Wave 4 region. On March 6, 2007, 
the Bureau requested that the TA certify that Sprint had completed the 
rebanding activities described in the Sprint Report. On March 20, 2007, 
the TA filed its certification of Sprint's performance. The Commission 
concluded that Sprint has not met the first element of the eighteen-
month benchmark because as of the benchmark date, Sprint had not fully 
cleared Channel 1-120 incumbents in all fifteen Wave 1 regions. With 
regard to the second element of the eighteen-month benchmark, the 
Commission concluded that Sprint has met this element of the eighteen-
month benchmark.
    4. In the 800 MHz Report and Order, the Commission stated that if 
Sprint failed to meet the eighteen-month benchmark ``for reasons that 
[Sprint], with the exercise of due diligence could reasonably have 
avoided, the Commission may consider and exercise any appropriate 
enforcement action within its authority, including assessment of 
monetary forfeitures or, if warranted, license revocation.'' While the 
Commission deferred consideration of monetary forfeitures and license 
revocation at this time, the Commission concluded that it is in the 
public interest to adopt additional benchmarks to ensure that Sprint 
supports continued progress in rebanding and a smooth transition for 
critical public safety communications systems. Establishing such 
benchmarks will also provide important guidance to all stakeholders and 
will enhance the Commission's ability to monitor and enforce progress 
as rebanding moves into its later stages.

B. Additional Benchmarks

    5. The Commission established additional benchmarks to ensure 
timely clearing of the Channel 1-120 band by all incumbent licensees, 
including Sprint itself. First, with limited exceptions noted below, we 
require Sprint to complete relocation of all non-Sprint, non-
SouthernLINC Channel 1-120 incumbents in all regions in Waves 1 through 
3, and in the non-border regions of Wave 4, by December 26, 2007. The 
Commission excluded from this benchmark those Stage 1 licensees that 
also have NPSPAC facilities and that have elected to relocate both 
their Channel 1-120 and NPSPAC facilities in Stage 2. The Commission 
will also not require Sprint to complete Stage 1 clearing in Puerto 
Rico by the benchmark date, because the Puerto Rico band plan is 
currently being revised. Finally, as discussed below, beginning on 
October 1, 2007, the Commission will require Sprint to provide a 
monthly update on its progress toward completing Channel 1-120 
clearing.
    6. Second, the Commission also imposed benchmarks with respect to 
the clearing of Channel 1-120 spectrum used by Sprint and SouthernLINC. 
These benchmarks are essential to clear the Channel 1-120 spectrum for 
timely relocation by NPSPAC, and to eliminate any incentive for Sprint 
to delay rebanding in order to continue using 800 MHz spectrum 
designated for public safety as part of its own network. First, FRAs 
between Sprint and relocating NPSPAC licensees must provide for timely 
clearing of the necessary spectrum by Sprint to facilitate NPSPAC 
relocation. The 800 MHz Report and Order requires Sprint to cease using 
Channel 1-120 channels to accommodate NPSPAC relocation. To ensure that 
this clearing process occurs in a timely manner, in any case in which a 
NPSPAC licensee requests access to spectrum in the new NPSPAC band 
because it requires the spectrum for testing purposes or to commence 
operations, Sprint must clear the necessary channels within 90 days of 
the request. For any request made on or after January 1, 2008, Sprint 
must clear the necessary spectrum within 60 days of the request.
    7. The Commission recognized that imposing this requirement will 
require Sprint to implement channel swaps and other adjustments to its 
own network, which could have an impact both on Sprint's network 
capacity and on other NPSPAC licensees in the area. The Commission 
emphasized that the spectrum requirements of NPSPAC licensees take 
precedence over Sprint network capacity issues, and that Sprint is 
responsible for ensuring that other NPSPAC licensees do not experience 
harmful interference as a result of Sprint's own network modifications. 
The Commission noted that Sprint has had ample opportunity to plan for 
these contingencies and that the Commission has also established 
mechanisms that enable Sprint to prepare for and mitigate spectrum 
shortfalls it may experience in accommodating rebanding by other 
licensees, e.g., by providing access to 900 MHz spectrum and crediting 
Sprint for the cost of constructing additional cell sites to increase 
capacity.
    8. The Commission also affirmed that the Commission's orders 
require Sprint to vacate the entire Channel 1-120 band, other than in 
Wave 4 border areas, by the end of the 36-month transition period on 
June 26, 2008. The 800 MHz Report and Order stated that ``we require 
Nextel to vacate all of its spectrum holdings below 817 MHz/862 MHz'' 
as part of the transition process. This also requires Sprint to clear 
all of SouthernLINC's Channel 1-120 holdings by June 26, 2008, and 
provide for SouthernLINC's relocation to comparable spectrum. The 
Commission emphasized that Sprint must clear its Channel 1-120 holdings 
by the June 2008 deadline regardless of whether all

[[Page 56925]]

NPSPAC licensees in a given region are prepared to relocate within that 
time frame. In that connection, the Commission disagreed with Sprint's 
contention that requiring it to vacate spectrum by June 2008 ``would 
seriously harm public safety'' and ``squander scarce spectrum 
resources.''
    9. Nevertheless, in the event that the Commission were to grant any 
NPSPAC licensee a waiver allowing it to relocate to the new NPSPAC band 
after June 26, 2008, the Commission stated that it will allow Sprint to 
petition to remain temporarily on the Channel 1-120 channels that it 
would otherwise have to vacate to accommodate the NPSPAC system. In any 
such petition, Sprint must demonstrate that public safety will not be 
adversely affected by the extension, that it has no reasonable 
alternative, and that the extension is otherwise in the public 
interest. Any extension granted to Sprint under this procedure will 
require Sprint to relinquish the channels on 60 days notice by the 
NPSPAC licensee as described in paragraph 23 above. The Commission also 
emphasized that Sprint may not under any circumstances remain on any 
Channel 1-120 channel once the corresponding channel in the 821-824/
866-869 MHz band becomes available to it. For example, if a channel in 
the 821-824/866-869 MHz band is currently unoccupied by a NPSPAC 
licensee, and the channel becomes available to Sprint after June 26, 
2008, Sprint may not continue to use the corresponding Channel 1-120 
channel, even though the channel is not needed to accommodate a 
relocating NPSPAC licensee.
    10. The Commission also affirmed that Sprint must vacate all of its 
remaining spectrum in the interleaved portion of the 800 MHz band, as 
well as the Expansion Band and Guard Band, by June 26, 2008, except in 
Wave 4 border areas, regardless of any other rebanding contingency. 
Sprint has already vacated some spectrum in these portions of the band 
to accommodate relocation of Stage 1 licensees from Channels 1-120. 
Prior to June 26, 2008, Sprint may continue to use its spectrum in the 
interleaved, Guard, and Expansion Bands to the extent it is not needed 
for relocation of other licensees. However, Sprint must clear this 
remaining spectrum by the end of the transition on June 26, 2008 
because the channels that Sprint vacates will revert to the Commission 
for re-licensing, and public safety will have exclusive access to the 
vacated interleaved channels for a three-year period after rebanding is 
completed in each region.
    11. To assist in monitoring and enforcing each of the band-clearing 
conditions imposed on Sprint, as set forth above, the Commission 
required that beginning on October 1, 2007, Sprint file monthly reports 
with the TA and PSHSB on its clearing of the Channel 1-120 spectrum. 
These reports are intended to provide specific, verifiable information 
to allow us to monitor Sprint's progress and determine whether it is in 
compliance with each of the benchmarks and conditions of this order, as 
well as with other applicable provisions of the 800 MHz rebanding 
rules. Specifically, Sprint must include the following information in 
each monthly report with respect to clearing of Channels 1-120. This 
information must be provided separately for each NPSPAC region:
    (1) The number of non-Sprint, non-SouthernLINC licensees that have 
been cleared from Channels 1-120, and the number that remain to be 
cleared;
    (2) For each region in which SouthernLINC operates, the number of 
SouthernLINC channels in the Channel 1-120 band that have been cleared, 
and the number that remain to be cleared;
    (3) The number of Channel 1-120 channels that are being used by 
Sprint in its own network, and the number of Channel 1-120 channels 
that Sprint has vacated; and
    (4) The identity of each NPSPAC licensee that has requested that 
Sprint vacate Channel 1-120 channels, the date of the licensee's 
request, the number of channels that Sprint has been asked to vacate, 
and the date proposed by the licensee for Sprint to vacate the 
specified channels.
    12. These monthly reports by Sprint will assist the Commission in 
monitoring Sprint's compliance with its Stage 1 implementation 
obligations, but will also provide important information relevant to 
the progress of Stage 2 rebanding of NPSPAC licensees. This reporting 
requirement is imposed as a separate condition on Sprint's licenses as 
modified in the Commission's orders in this proceeding. To the extent 
that Sprint fails to satisfy this reporting requirement, the Commission 
may consider any appropriate enforcement action within its authority, 
including but not limited to revocation of Sprint's modified licenses. 
Sprint also remains subject to all prior requirements and license 
conditions adopted in this proceeding.

C. 30-Month Benchmark

    13. The Commission clarified the 30-month rebanding benchmark, 
which requires all 800 MHz licensees that must reband to have 
``commenced'' reconfiguration of their systems by December 26, 2007. 
The 800 MHz Report and Order established a 30-month benchmark for the 
800 MHz rebanding process. Specifically, the Commission required that 
all 800 MHz systems ``must have commenced reconfiguration within 30 
months of the Commission Public Notice announcing the start date of 
reconfiguration in first NPSPAC region.'' Under the rebanding schedule, 
this 30-month date falls on December 26, 2007. To ensure that all 
parties take the necessary steps to meet this benchmark, the Commission 
provided the following guidance.
    14. First, in a companion Public Notice released on September 12, 
2007, the Commission adopted new timelines for non-border area NPSPAC 
licensees to complete planning and FRA negotiations and to begin 
rebanding implementation. Licensees who are in compliance with these 
timelines as of December 26, 2007 will be deemed to be in compliance 
with the 30-month benchmark. The Commission will apply the benchmark to 
all Wave 1-3 licensees and to all Wave 4 licensees that have received 
frequency assignments from the TA as of September 12, 2007, the release 
date of this order. However, the Commission will not apply this 
benchmark to Wave 4 licensees that have not received frequency 
assignments because their systems are in border regions affected by 
ongoing negotiations with Canada and Mexico. The Commission, however, 
will establish an appropriate implementation benchmark for Wave 4 
licensees at a later date. Finally, the Commission directed the TA to 
submit a report to the Public Safety and Homeland Security Bureau by 
January 15, 2008 regarding whether the 30-month benchmark as defined 
above has been met. The TA report should certify whether all covered 
licensees have complied with the timelines set forth in the Public 
Notice, and identify all cases in which the timelines have not been 
met.

D. Rebanding in Markets With Channel 69 Incumbents

    15. The Commission granted several petitions by NPSPAC licensees to 
extend their rebanding deadline until after incumbent analog 
broadcasters operating in their area on TV Channel 69 have vacated the 
spectrum as part of the DTV transition. Two NPSPAC licensees in eastern 
Pennsylvania and four NPSPAC licensees in the Atlanta, Georgia area 
have filed requests for extension of the June 26, 2008 rebanding 
deadline based on their proximity to incumbent full power analog TV 
broadcasters WFMZ-TV and

[[Page 56926]]

WUPA, operating on Channel 69 (800-806 MHz) in Allentown, Pennsylvania 
and Atlanta, respectively. These NPSPAC licensees (collectively, 
Petitioners) expressed concern that if they retune to the new NPSPAC 
band (806-809 MHz) before the February 17, 2009 DTV transition date, 
they will receive out-of-band emission (OOBE) interference on their new 
NPSPAC channels from the Allentown and Atlanta Channel 69 incumbents. 
The Commission granted Petitioners' requests in part and will allow 
them to delay the commencement of their infrastructure retune until 
March 1, 2009. However, the Commission directed Petitioners to proceed 
with (and Sprint to pay for) planning and other preparatory rebanding 
activity (e.g., replacement and reprogramming of mobiles) that can 
occur prior to the DTV transition date.
    16. Finally, the Commission delegated authority to the Public 
Safety and Homeland Security Bureau to consider future requests by 800 
MHz licensees to extend the 36-month deadline as it applies to the 
rebanding of their particular systems. The Commission directed the 
Bureau to subject such extension requests to a high level of scrutiny. 
Licensees submitting requests to the Bureau will be expected to 
demonstrate that they have worked diligently and in good faith to 
complete rebanding expeditiously, and that the amount of additional 
time requested is no more than is reasonably necessary to complete the 
rebanding process.

Ordering Clauses

    17. Accordingly, it is ordered that, pursuant to sections 4(i), 
303(f), 309, 316, 332, 337 and 405 of the Communications Act of 1934, 
as amended, 47 U.S.C. 154(i), 303(f), 309, 316, 332, 337 and 405, this 
Third Memorandum Opinion and Order is hereby adopted.
    18. It is further ordered that the Petition for Reconsideration 
filed by Sprint Nextel Corporation, on January 27, 2006 is dismissed to 
the extent described herein.
    19. It is further ordered that, as a condition of its 800 MHz and 
1.9 GHz modified licenses, Sprint Corporation shall comply with the 
benchmarks and reporting requirements set forth herein.
    20. It is further ordered that the 800 MHz Transition 
Administrator, on January 15, 2008, shall submit a report on the 
progress of band reconfiguration to the extent described herein.
    21. It is further ordered pursuant to the authority of section 4(i) 
of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), and 
sections 1.925 of the Commission's Rules, 47 CFR 1.925 that the 
Requests for Waiver submitted by the Cities of Bethlehem and Reading, 
Pennsylvania, and Covington, Georgia, and the Counties of Rockdale, 
Newton, Walton, and Spalding, Georgia, in the above-captioned 
proceeding are granted to the extent described herein.
    22. This document does not contain new or modified information 
collection requirements subject to the Paperwork Reduction Act of 1995 
(PRA), Public Law 104-13. In addition, therefore, it does not contain 
any new or modified ``information collection burden for small business 
concerns with fewer than 25 employees,'' pursuant to the Small Business 
Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 
3506(c)(4).

Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. E7-19641 Filed 10-4-07; 8:45 am]
BILLING CODE 6712-01-P