[Federal Register Volume 73, Number 99 (Wednesday, May 21, 2008)]
[Proposed Rules]
[Pages 29582-29623]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-11247]
[[Page 29581]]
-----------------------------------------------------------------------
Part II
Federal Communications Commission
-----------------------------------------------------------------------
47 CFR Parts 0, 1, 2, et al.
Service Rules for the 698-746, 747-762 and 777-792 MHz Bands,
Implementing a Nationwide, Broadband, Interoperable Public Safety
Network in the 700 MHz Band; Proposed Rule
Federal Register / Vol. 73, No. 99 / Wednesday, May 21, 2008 /
Proposed Rules
[[Page 29582]]
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 0, 1, 2, 27, 90
[WT Docket No. 06-150; PS Docket No. 06-229; FCC 08-128]
Service Rules for the 698-746, 747-762 and 777-792 MHz Bands,
Implementing a Nationwide, Broadband, Interoperable Public Safety
Network in the 700 MHz Band
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: In the Second Further Notice of Proposed Rulemaking (Second
FNPRM), the Commission seeks comment on clarifications or revisions to
the rules governing the Public Safety Broadband Licensee and the Upper
700 MHz D Block licensee. The Commission seeks comment on whether to
continue to require these licensees to enter into a 700 MHz Public/
Private Partnership for the purpose of enabling the construction of a
nationwide, interoperable broadband network, and if so, what
clarifications or revisions to adopt to the rules governing the
licensees and the 700 MHz Public/Private Partnership. Further, the
Commission seeks comment on what rules to adopt if it determines that
the public/private partnership obligation should not be retained. This
Second Further Notice is another step in the Commission's ongoing
efforts to develop a regulatory framework in which to meet current and
future public safety communications needs.
DATES: Written comments are due on or before June 20, 2008, and reply
comments are due on or before July 7, 2008.
ADDRESSES: You may submit comments, identified by WT Docket No. 06-150
and PS Docket No. 06-229, by any of the identified methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Federal Communications Commission's Web Site: http://www.fcc.gov/cgb/ecfs/. Follow the instructions for submitting comments.
Mail: Follow the instructions for paper filers below.
People with Disabilities: Contact the Commission to
request reasonable accommodations (accessible format documents, sign
language interpreters, CART, etc.) by e-mail: [email protected] or phone:
202-418-0530 or TTY: 202-418-0432.
For detailed instructions for submitting comments and additional
information on the rulemaking process, see the SUPPLEMENTARY
INFORMATION section of this document.
FOR FURTHER INFORMATION CONTACT: Peter Trachtenberg at (202) 418-7369,
at [email protected], Spectrum and Competition Policy
Division, Wireless Telecommunications Bureau; Jeffrey S. Cohen at (202)
418-0799, [email protected], Public Safety and Homeland Security
Bureau.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Second
Further Notice of Proposed Rulemaking, WT Docket No. 06-150, PS Docket
No. 06-229, adopted on May 14, 2008 and released May 14, 2008. The full
text of the Second Further Notice of Proposed Rulemaking 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].
Synopsis
In the Second Report and Order, 72 FR 48814, August 24, 2007, the
Commission adopted rules for the establishment of a mandatory public/
private partnership (the 700 MHz Public/Private Partnership) in the
upper portions of the 698-806 MHz band (700 MHz Band) as the means for
promoting the rapid construction and deployment of a nationwide,
interoperable broadband public safety network that would serve public
safety and homeland security needs. Specifically, the Commission
required that the winning bidder of the commercial license in the Upper
700 MHz D Block (758-763/788-793 MHz) (D Block) enter into the 700 MHz
Public/Private Partnership with the nationwide licensee of the public
safety broadband spectrum (763-768/793-798 MHz) (Public Safety
Broadband Licensee) to enable construction of this interoperable
broadband network, which would span both the commercial D Block and
public safety spectrum. In the recently concluded auction of commercial
700 MHz licenses, bidding for the D Block license did not meet the
applicable reserve price of $1.33 billion and, pursuant to the
Commission's rules, there was no winning bid for that license.
Accordingly, in this Second FNPRM, the Commission revisits its
decisions concerning the 700 MHz Public/Private Partnership--
considering revisions to this partnership as well as alternative rules
the Commission should adopt in the event the D Block licensee is no
longer required to enter into a mandatory public/private partnership.
First, the Commission considers whether to adopt clarifications and
revisions to the public safety component of the 700 MHz Public/Private
Partnership to better promote its public interest goals. In particular,
the Commission seeks comment regarding what entities are eligible under
Section 337 of the Communications Act as amended and the Commission's
rules to use the public safety spectrum in the shared wireless
broadband network as public safety users rather than as commercial
users, and whether such users should be required to use or subscribe to
the shared network. The Commission also seeks comment on possible
clarifications of or changes to the rules governing the structure and
criteria of the Public Safety Broadband Licensee, whether to clarify
further the requirement that the Public Safety Broadband Licensee must
be a non-profit organization, what measures to adopt to provide
adequate Commission oversight, whether providing a nationwide,
interoperable broadband network might be more effectively and
efficiently accomplished by allowing State governments to assume
responsibility for coordinating the participation of the public safety
providers in their jurisdictions, and whether the Commission should
rescind the current Public Safety Broadband License and seek new
applicants.
In addition, the Commission seeks comment on whether it remains in
the public interest to require a public/private partnership between the
nationwide D Block licensee and the Public Safety Broadband Licensee
for the purpose of creating a nationwide, interoperable broadband
network for both commercial and public safety network services. To
ensure a thorough consideration of the Commission's options in the
event that it does continue to require a public/private partnership
between these licensees, the Commission seeks comment broadly on
possible revisions to the 700 MHz Public/Private Partnership, including
revisions regarding the respective obligations of the D Block licensee
and the Public Safety Broadband Licensee. In particular, it seeks
comment on the following issues: (1) The technical requirements of the
shared wireless broadband network to be constructed by the D Block
licensee, (2) the rules governing public safety priority access
[[Page 29583]]
to the D Block spectrum during emergencies, and whether the Commission
should continue to require the D Block licensee to provide such access;
(3) the D Block performance requirements and license term; (4) the
respective roles and responsibilities of the D Block licensee and
Public Safety Broadband Licensee in connection with the 700 MHz Public/
Private Partnership and the shared wireless broadband network; (5) the
various fees associated with the shared network; (6) the process for
negotiating and establishing the Network Sharing Agreement, including
the consequences of a failure to reach agreement; (7) certain auction-
related issues, including whether to restrict who may participate in
the new auction of the D Block license, whether and how to set any
reserve price for such an auction, whether to adopt an exception to the
impermissible material relationship rule for the determination of
designated entity eligibility with respect to arrangements for the
lease or resale (including wholesale) of the spectrum capacity of the D
Block license, and whether the Commission should modify the auction
default payment rules with respect to the D Block winning bidder; and
(8) rules governing the relocation of the public safety narrowband
operations. In this Second FNPRM, the Commission includes an appendix
that serves as a possible framework for establishing the technical
requirements for the 700 MHz Public/Private Partnership shared wireless
broadband network. This appendix is intended to solicit detailed
comment and result in a final set of technical requirements that will
provide greater certainty for bidders for the D Block license while
ensuring that the network meets public safety's needs; the appendix is
not intended to prejudge any of the issues identified for comment in
the Second FNPRM. Finally, the Commission seeks comment on any other
revisions or clarifications that may be appropriate with regard to the
700 MHz Public/Private Partnership, including whether to license the D
Block and public safety broadband spectrum on a nationwide or adopt a
regional geographic service area basis such as Regional Economic Area
Grouping (REAG).
In addition to considering possible revisions to the 700 MHz
Public/Private Partnership, the Commission considers its options if the
D Block is licensed without this 700 MHz Public/Private Partnership
condition. For any circumstances where the Commission determines that
the 700 MHz Public/Private Partnership condition on the D Block should
not be retained, it seeks comment on revisions to the rules that would
be appropriate with respect to the D Block license as well as revisions
with regard to the Public Safety Broadband License that would ensure
the development and deployment of a nationwide interoperable broadband
network for public safety users. With respect to the D Block, the
Commission seeks comment in particular on the service rules that should
apply in this event, including the appropriate geographic license area,
performance requirements, technical limits, and whether to adopt
alternate conditions, such as an open access or wholesale requirement.
The Commission seeks comments on the appropriate revisions to the rules
that would still enable the Commission to achieve the goal of a
nationwide, interoperable public safety broadband network. For example,
the Commission seeks comment on: (1) Whether the Commission should
adopt, possibly with modifications, the approach proposed in the Public
Safety Ninth Notice of Proposed Rulemaking, 72 FR 1201, January 10,
2007, which, among other aspects, would allow commercial providers to
enter into voluntary arrangements with the Public Safety Broadband
Licensee to provide public safety services through access to their
commercial network infrastructure and/or through new network build-out
in exchange for preemptible access to public safety spectrum; (2)
whether to require the adoption of a common broadband standard, and
permit regional, state and local entities to build public safety
broadband networks built to that standard, either through a spectrum
lease with the Public Safety Broadband Licensee or by reassigning the
public safety broadband spectrum for regional, state, or local
licensing; (3) whether the Commission, in the absence of the public/
private partnership, should continue to obligate the D Block winner to
fund the relocation of those public safety narrowband systems operating
in the lower portion of the public safety spectrum; and (4) whether, in
the absence of a public safety/private partnership, there are viable
options for funding network construction.
The Commission initiates this Second FNPRM with the following
principles and goals: (1) To identify concerns in the existing
structure of the 700 MHz Public/Private Partnership to inform the
Commission's decision making going forward; (2) to promote wireless
innovation and broadband network penetration while meeting the
communications needs of the first responder community in a commercially
viable manner; (3) to facilitate public safety access to a nationwide,
interoperable broadband network in a timely manner; (4) to identify
funding opportunities for the public safety community to realize the
promise of a broadband communications infrastructure with a nationwide
level of interoperability; and (5) to maximize the commercial and
public safety benefits of this unique piece of 700 MHz spectrum. The
Commission invites comment broadly on these principles and goals, as
well as the other subjects discussed. While this Second FNPRM raises a
number of specific questions, it should not be seen as providing any
limitation on the issues that the Commission seeks comment upon. The
Commission is interested in any and all perspectives from interested
parties on how it can develop rules and procedures that will achieve
the multiple goals enumerated above.
Discussion
I. Introduction
1. In the Second Report and Order, we adopted rules for the
establishment of a mandatory public/private partnership (``the 700 MHz
Public/Private Partnership'') in the upper portions of the 698-806 MHz
band (``700 MHz Band'') as the means for promoting the rapid
construction and deployment of a nationwide, interoperable broadband
public safety network that would serve public safety and homeland
security needs.\1\ Specifically, we required that the winning bidder of
the commercial license in the Upper 700 MHz D Block (758-763/788-793
MHz) (``D Block'') enter into the 700 MHz Public/Private Partnership
with the nationwide licensee of the public safety broadband spectrum
(763-768/793-798 MHz)
[[Page 29584]]
(``Public Safety Broadband Licensee'') to enable construction of this
interoperable broadband network, which would span both the commercial D
Block and public safety spectrum. As essential components of this
partnership, the D Block licensee would be chiefly responsible for the
construction and operation of a state-of-the-art shared wireless
broadband network that would be used by public safety users as well as
commercial users. In exchange for taking on these responsibilities, the
D Block licensee would gain access to the public safety broadband
spectrum for use by its commercial customers on a secondary preemptible
basis. In turn, public safety users, through the Public Safety
Broadband Licensee, would benefit from obtaining access to a state-of-
the-art broadband network on their 700 MHz spectrum that would
incorporate their unique requirements, which would not otherwise be
possible given the limited availability of public funding.\2\ In
Auction 73, the recently concluded auction of commercial 700 MHz
licenses, bidding for the D Block license did not meet the applicable
reserve price of $1.33 billion and, pursuant to the Commission's rules,
there was no winning bid for that license.\3\ In the D Block Post-
Auction Order released shortly after the close of Auction 73, we
determined not to re-offer the D Block license immediately in order to
``provide additional time to consider options with respect to the D
Block spectrum.''\4\ Accordingly, in this Second FNPRM of Proposed
Rulemaking (``Second FNPRM''), we revisit our decisions concerning the
700 MHz Public/Private Partnership--considering revisions to this
partnership as well as alternative rules we should adopt in the event
the D Block licensee is no longer required to enter into a mandatory
public/private partnership.
---------------------------------------------------------------------------
\1\ See Service Rules for the 698-746, 747-762 and 777-792 MHz
Bands, WT Docket No. 06-150, Revision of the Commission's Rules to
Ensure Compatibility with Enhanced 911 Emergency Calling Systems, CC
Docket No. 94-102, Section 68.4(a) of the Commission's Rules
Governing Hearing Aid-Compatible Telephones, WT Docket No. 01-309,
Biennial Regulatory Review--Amendment of Parts 1, 22, 24, 27, and 90
to Streamline and Harmonize Various Rules Affecting Wireless Radio
Services, WT Docket 03-264, Former Nextel Communications, Inc. Upper
700 MHz Guard Band Licenses and Revisions to Part 27 of the
Commission's Rules, WT Docket No. 06-169, Implementing a Nationwide,
Broadband, Interoperable Public Safety Network in the 700 MHz Band,
PS Docket No. 06-229, Development of Operational, Technical and
Spectrum Requirements for Meeting Federal, State and Local Public
Safety Communications Requirements Through the Year 2010, WT Docket
No. 96-86, Declaratory Ruling on Reporting Requirement under
Commission's Part 1 Anti-Collusion Rule, WT Docket No. 07-166,
Second Report and Order, 22 FCC Rcd 15289 (2007) (Second Report and
Order) recon. pending.
\2\ Id. at 15295 para. 13, 15431 para. 396.
\3\ The auction of these 700 MHz licenses, designated Auction
73, began on January 24, 2008, and concluded March 18, 2008. See
http://wireless.fcc.gov/auctions/default.htm?job=auction_summary&id=73.
\4\ Auction of the D Block License in the 758-763 and 788-793
MHz Bands, AU Docket No. 07-157, Order, FCC 08-91, para. 3 (rel.
Mar. 20, 2008) (D Block Post-Auction Order). In the Second Report
and Order, the Commission decided that, if the reserve price for the
D Block was not satisfied in the initial auction results, the
Commission might either re-offer the license on the same terms in an
immediate second auction, or re-evaluate the license conditions. See
Second Report and Order, 22 FCC Rcd at 15404 para. 314.
---------------------------------------------------------------------------
2. First, we consider clarifications and revisions to the public
safety component of the 700 MHz Public/Private Partnership that would
better promote our public interest goals.\5\ More specifically, we seek
comment on whether, under Section 337 of the Communications Act of
1934, as amended (``Act''),\6\ and Section 90.523 of the Commission's
rules,\7\ only entities that are providing public safety services, as
defined in the Act, are eligible to use the public safety spectrum
portion of the shared network established under the 700 MHz Public/
Private Partnership, and whether such entities should be required to
subscribe to the network. We also seek comment on whether to clarify
the requirement that the Public Safety Broadband Licensee be a non-
profit organization and specify that entities associated with the
public safety component of the 700 MHz Public/Private Partnership,
apart from outside advisors or counsel with no debt or equity
relationship to the Public Safety Broadband Licensee, may not be for-
profit entities. We seek comment on these and other clarifications or
changes to the structure of the Public Safety Broadband Licensee and
the criteria adopted in the Second Report and Order.
---------------------------------------------------------------------------
\5\ We use the term ``700 MHz Public/Private Partnership'' to
refer specifically to a mandatory public/private partnership between
the D Block licensee and the Public Safety Broadband Licensee, along
the general lines initially set forth in the Second Report and
Order.
\6\ 47 U.S.C. 337.
\7\ 47 CFR 90.523.
---------------------------------------------------------------------------
3. In addition, we seek comment on possible modifications to the
various rules governing the D Block licensee and the Public Safety
Broadband Licensee within the framework of the 700 MHz Public/Private
Partnership (as revised or clarified). First, we seek comment on
whether it remains in the public interest to require a public/private
partnership between the nationwide D Block licensee and the Public
Safety Broadband Licensee for the purpose of creating a nationwide,
interoperable broadband network for both commercial and public safety
network services. Next, to ensure a thorough consideration of the
Commission's options in the event that we do continue to require a
public/private partnership between these licensees, we seek comment on
a broad set of possible revisions to the 700 MHz Public/Private
Partnership, including revisions regarding the respective obligations
of the D Block licensee and the Public Safety Broadband Licensee. In
particular, we seek comment on the following issues: (1) The technical
requirements of the shared wireless broadband network to be constructed
by the D Block licensee, (2) the rules governing public safety priority
access to the D Block spectrum during emergencies; (3) the D Block
performance requirements and license term; (4) the respective roles and
responsibilities of the D Block licensee and Public Safety Broadband
Licensee in connection with the 700 MHz Public/Private Partnership and
the shared wireless broadband network, including whether the Public
Safety Broadband Licensee may assume responsibilities akin to a
``mobile virtual network operator'' \8\; (5) the various fees
associated with the shared network; (6) the process for negotiating and
establishing the Network Sharing Agreement, including the consequences
of a failure to reach agreement; (7) certain auction-related issues,
including whether to restrict who may participate in the new auction of
the D Block license, how to determine any reserve price for such an
auction, whether to adopt an exception to the impermissible material
relationship rule for the determination of designated entity
eligibility with respect to arrangements for the lease or resale
(including wholesale) of the spectrum capacity of the D Block license,
and whether we should modify the auction default payment rules with
respect to the D Block winning bidder; and (8) relocation of the public
safety narrowband operations. Finally, we seek comment on other
revisions or clarifications that may be appropriate with regard to the
700 MHz Public/Private Partnership, including whether to license the D
Block and public safety broadband spectrum on a nationwide or adopt a
regional geographic service area basis such as Regional Economic Area
Grouping (REAG).\9\
---------------------------------------------------------------------------
\8\ A mobile virtual network operator is a non-facility-based
mobile service provider that resells service to the public for
profit. See Implementation of Section 6002(B) of the Omnibus Budget
Reconciliation Act of 1993, WT Docket No. 05-71, Tenth Report, 20
FCC Rcd 15908, 15920 para. 27 (2005).
\9\ As licensing the D Block on a REAG basis would result in
issuing multiple D Block licenses, references herein to ``the'' D
Block license and licensee should be understood to incorporate
reference to any of multiple D Block licenses or licensees and vice
versa, as appropriate.
---------------------------------------------------------------------------
4. In addition to considering possible revisions to the 700 MHz
Public/Private Partnership, we consider our options if the D Block is
licensed without this 700 MHz Public/Private Partnership condition. We
note that there are several circumstances where such options might be
relevant. First, we might determine that we should not re-auction the D
Block with the 700 MHz Public/Private Partnership condition, and
instead immediately conduct an auction to license the D Block without
such a
[[Page 29585]]
condition. In addition, we might conclude that, even if we should
retain the 700 MHz Public/Private Partnership condition in the next D
Block auction, the condition should be removed if the next D Block
auction fails to produce a winning bidder, or the winning bidder
defaults or fails to negotiate a successful Network Sharing Agreement
with the Public Safety Broadband Licensee. Therefore, for any
circumstances where we determine that the 700 MHz Public/Private
Partnership condition on the D Block should not be retained, we seek
comment on revisions to the rules that would be appropriate with
respect to the D Block license as well as revisions with regard to the
Public Safety Broadband License that would ensure the development and
deployment of a nationwide interoperable broadband network for public
safety users.
5. Finally, we note that, in adopting the Second Report and Order,
we took an innovative approach to addressing a vitally important
problem: Promoting interoperability, on a nationwide basis, for public
safety communications. We intended that the mandatory public/private
partnership model between two nationwide licensees--the commercial D
Block licensee and the non-profit Public Safety Broadband Licensee--
would facilitate access for public safety to a robust, advanced
communications infrastructure and produce economies of scale inherent
in a nationwide footprint. Importantly, we also found that this
approach was the best means available to address the issue of funding
for construction of a public safety communications infrastructure,
which has proven a significant impediment to date. At the same time,
however, we anticipated that the partnership would involve a balance
between the commercial partner's obligation to construct a shared
network infrastructure and the commercial partner's secondary access to
the 700 MHz public safety broadband spectrum. By partnering these two
spectrum assets, we intended to promote spectrum efficiency and
innovation. Thus, we aimed to have the 700 MHz Public/Private
Partnership between the D Block licensee and the Public Safety
Broadband Licensee be complementary, and we designed this framework to
strike the appropriate balance such that the maximum benefits accrued
to both parties.
6. Although the initial sale of the D Block license did not result
in a winning bidder, these goals remain. In reexamining our approach to
the D Block following Auction 73, we continue to proceed with these
objectives in mind. Accordingly, we initiate this Second FNPRM with the
following principles and goals:
To identify concerns in the existing structure of the 700
MHz Public/Private Partnership to inform our decision making going
forward;
To promote wireless innovation and broadband network
penetration while meeting the communications needs of the first
responder community in a commercially viable manner;
To facilitate public safety access to a nationwide,
interoperable broadband network in a timely manner;
To identify funding opportunities for the public safety
community to realize the promise of a broadband communications
infrastructure with a nationwide level of interoperability; and
To maximize the commercial and public safety benefits of
this unique piece of 700 MHz spectrum.
7. We invite comment broadly on these principles and goals, as well
as the specific subjects discussed herein. While today's item raises a
number of specific questions, it should not be seen as providing any
limitation on the public safety issues that we seek comment upon. We
are interested in any and all perspectives from interested parties on
how the Commission can develop rules and procedures that will achieve
the multiple goals enumerated above. Finally, before ultimately
adopting final rules in response to this Second FNPRM, we plan to
present for public comment, in a subsequent FNPRM of Proposed
Rulemaking, a detailed proposal regarding the specific proposed
rules.\10\
---------------------------------------------------------------------------
\10\ In this subsequent Further Notice of Proposed Rulemaking,
we plan to seek comment on an expedited basis, with comments due
fourteen days after publication in the Federal Register, and reply
comments due twenty-one days after such publication.
---------------------------------------------------------------------------
II. Background
8. In the Second Report and Order, released August 10, 2007, we
adopted a band plan and service rules affecting the upper portions of
the 700 MHz Band in order to promote the creation of a nationwide,
interoperable broadband public safety network through the establishment
of the 700 MHz Public/Private Partnership. Specifically, with regard to
the public safety spectrum in the 700 MHz Band, we designated the lower
half of this spectrum (the 763-768 MHz and 793-798 MHz bands) for
public safety broadband communications, and we consolidated existing
narrowband allocations to the upper half of the spectrum (the 769-775
MHz and 799-805 MHz bands).\11\ We also created a single nationwide
license for the public safety broadband spectrum, and we specified the
criteria, selection process, and responsibilities of the licensee
assigned this spectrum, the Public Safety Broadband Licensee.\12\ We
required, for example, that no commercial interest may be held in the
Public Safety Broadband Licensee, that no commercial interest may
participate in the management of the licensee, and that the licensee
must be a non-profit organization.\13\ With regard to the commercial
spectrum in the 700 MHz Band, we designated one block--the D Block (the
758-763 MHz and 788-793 MHz bands) located adjacent to the public
safety broadband spectrum block--for use as part of the 700 MHz Public/
Private Partnership. As set forth in the Second Report and Order, we
required the D Block licensee, working with the Public Safety Broadband
Licensee in a public/private partnership, to construct and operate a
nationwide network shared by both commercial and public safety
users.\14\
---------------------------------------------------------------------------
\11\ See Second Report and Order, 22 FCC Rcd at 15406. We also
created an internal guard band in the 768-769 MHz and 798-799 MHz
bands located between the broadband and narrowband allocations. Id.
\12\ See id.
\13\ See id. at 15421.
\14\ Id. at 15428.
---------------------------------------------------------------------------
9. The 700 MHz Public/Private Partnership. In the Second Report and
Order, we determined that promoting commercial investment in the build-
out of a shared network infrastructure for both commercial and public
safety users through the 700 MHz Public/Private Partnership would
address ``the most significant obstacle to constructing a public safety
network--the limited availability of public funding.'' \15\ We
concluded that providing for a shared infrastructure using the D Block
and the public safety broadband spectrum would help achieve significant
cost efficiencies. We noted that this would allow public safety
agencies ``to take advantage of commercial, off-the-shelf technology
and otherwise benefit from commercial carriers' investments in research
and development of advanced wireless technologies.'' \16\ We also
stated that this approach could benefit the public safety community by
providing it with access to an additional 10 megahertz of broadband
spectrum during emergencies, when it is needed most. Most importantly,
it was our view that this particular public/private partnership
approach would provide all of these benefits on a nationwide basis and
thus provide the most practical means of speeding deployment of a
[[Page 29586]]
nationwide, interoperable, broadband network for public safety service
that is designed to meet their needs in times of crisis. At the same
time, we pointed out that the 700 MHz Public/Private Partnership would
provide the D Block licensee with rights to operate commercial services
in the 10 megahertz of public safety broadband spectrum on a secondary,
preemptible basis, which would both help to defray the costs of build-
out and ensure that the spectrum is used efficiently.\17\
---------------------------------------------------------------------------
\15\ Id. at 15431.
\16\ Id. (citing Sprint Nextel 700 MHz Further Notice Comments
at 7-8).
\17\ Id.
---------------------------------------------------------------------------
10. We established various features of the 700 MHz Public/Private
Partnership. First, we set forth the essential components of this
partnership.\18\ In particular, we specified certain parameters for the
shared wireless broadband network, including features relating to the
technology platform, signal coverage, robustness and reliability,
capacity, security, operational capabilities and control, and certain
equipment specifications.\19\ With regard to the spectrum shared by the
common network, we required that the Public Safety Broadband Licensee
lease the public safety broadband spectrum for commercial use by the D
Block licensee on a secondary, preemptible basis and provided that the
public safety entities would have priority access to the D Block
spectrum during emergencies.\20\ We also established certain minimal
performance requirements relating to construction and build-out of the
shared 700 MHz Public/Private Partnership network.\21\
---------------------------------------------------------------------------
\18\ Id. at 15432.
\19\ Id. at 15432, 15433-44.
\20\ Id. at 15432, 15434-43.
\21\ Id. at 15432, 15443-46.
---------------------------------------------------------------------------
11. Next, we established that the terms of the 700 MHz Public/
Private Partnership would be governed both by Commission rules and by a
Network Sharing Agreement (``NSA'') to be negotiated by the winning
bidder for the D Block license and the Public Safety Broadband
Licensee.\22\ Throughout the Second Report and Order we identified
certain elements that the parties were required to address in the NSA.
These included, for instance, the details of certain mandatory network
specifications established in the order and a detailed build-out
schedule as jointly agreed upon by the Public Safety Broadband Licensee
and the D Block licensee.\23\ We also determined that the NSA should
include, among other things, specification of all service fees that
public safety entities would pay with respect to access and use of the
shared network, both in terms of fees applicable for normal network
service and fees for priority access to the D Block spectrum in an
emergency.\24\
---------------------------------------------------------------------------
\22\ Id. at 15432, 15447-49.
\23\ Id. at 15448-49.
\24\ Id. at 15448-49.
---------------------------------------------------------------------------
12. We established rules governing the establishment of the NSA to
ensure timely completion of the negotiations and to resolve any
disputes that may arise.\25\ Among other rules, we required the winning
bidder of the D Block license and the Public Safety Broadband Licensee
to negotiate in good faith, and we provided that the D Block license
application would not be granted until the parties obtained Commission
approval of the agreement, executed, and then filed the NSA with the
Commission.\26\ We also required the negotiations to begin by a date
certain and conclude within six months. Further, we specified rules to
govern in the event of a negotiation dispute. Specifically, we provided
that if, at the end of the six month negotiation period, or on their
own motion at any time, the Chiefs of the Public Safety and Homeland
Security Bureau (``PSHSB'') and the Wireless Telecommunications Bureau
(``WTB'') found that negotiations had reached an impasse, they could
take a variety of actions to resolve any disputes, including but not
limited to issuing a decision on the disputed issues and requiring the
submission of a draft agreement consistent with their decision.\27\
---------------------------------------------------------------------------
\25\ Id. at 15448.
\26\ Id. at 15448.
\27\ Id. at 15465.
---------------------------------------------------------------------------
13. Narrowband Relocation. In the Second Report and Order, we found
that, in order to maximize the benefits of the 700 MHz Public/Private
Partnership to deploy a nationwide, interoperable broadband
communications network, the current 700 MHz narrowband public safety
operations must be consolidated and cleared no later than the DTV
transition date.\28\ To effectuate the consolidation of the narrowband
channels, we required the D Block licensee to pay the costs of
relocating narrowband radios to the newly consolidated portion of the
band and capped the disbursement amount for such relocation costs at
$10 million.\29\ We also cautioned that any narrowband equipment
deployed in the 764-770 MHz and 794-800 MHz bands (channels 63 and 68),
or in the 775-776 MHz and 805-806 MHz bands (the upper one megahertz of
channels 64 and 69), more than 30 days following the adoption date of
the Second Report and Order would be ineligible for relocation
funding.\30\ In addition, we prohibited authorization of any new
narrowband operations in that spectrum, as of 30 days following the
adoption date of the Second Report and Order.\31\
---------------------------------------------------------------------------
\28\ Id. at 15410.
\29\ Id. at 15412.
\30\ Id. at 15412.
\31\ Id.
---------------------------------------------------------------------------
14. Rules for an Auction to License the D Block. In addition to
adopting service rules for the 700 MHz commercial spectrum, including
the D Block, we also made several determinations regarding the auction
of the 700 MHz commercial licenses. In particular, we concluded that
block-specific aggregate reserve prices should be established for each
commercial license block--the A, B, C, D, and E Blocks--to be auctioned
in Auction 73, and directed WTB to adopt and publicly disclose those
reserve prices prior to the auction, pursuant to its existing delegated
authority and consistent with our directions.\32\ For the D Block, we
concluded that WTB should consider certain factors in setting the D
Block reserve price, including the 700 MHz Public/Private Partnership
conditions, which might suggest a reserve price of $1.33 billion. We
provided that, in the event that bids for the D Block license did not
meet the reserve price, we would leave open the possibility of offering
the license on the same terms or re-evaluating the D Block license
conditions.\33\
---------------------------------------------------------------------------
\32\ See id. at 15400.
\33\ See id. at 15404.
---------------------------------------------------------------------------
15. In an effort to encourage the widest range of potentially
qualified applicants to participate in bidding for the D Block license,
in the Second Report and Order, we enabled eligible applicants for this
license to seek designated entity bidding credits for small businesses
as a means to create incentives for investors to provide innovative
small businesses with the capital necessary to compete for the D Block
license at auction.\34\ We subsequently decided to waive, on our own
motion, the application of our ``impermissible material relationship''
rule \35\ for purposes of determining an applicant's or licensee's
designated entity eligibility solely with respect to arrangements for
lease or resale (including wholesale) of the spectrum capacity of the D
Block license.\36\ Given the unique characteristics of the regulations
governing the D Block
[[Page 29587]]
license, we concluded that a waiver of the impermissible material
relationship rule served the public interest.\37\
---------------------------------------------------------------------------
\34\ 47 CFR 27.502.
\35\ 47 CFR 1.2110(b)(3)(iv)(A).
\36\ See generally Waiver of Section 1.2110(b)(3)(iv)(A) of the
Commission's Rules for the Upper 700 MHz Band D Block License,
Order, 22 FCC Rcd 20354 (2007) (D Block Waiver Order) recon.
pending.
\37\ Id. at 20354.
---------------------------------------------------------------------------
16. Petitions for Reconsideration. Ten parties filed petitions for
reconsideration seeking review of various aspects of the Second Report
and Order.\38\ Three of the petitions sought reconsideration of the
rules governing the 700 MHz Public/Private Partnership
specifically,\39\ and two petitioners sought reconsideration of the
aggregate reserve prices set for the commercial license blocks,
including the D Block.\40\ These petitioners presented related
arguments in the pre-auction process.\41\ After considering the
arguments, WTB established reserve prices consistent with the direction
of the Second Report and Order.\42\ Two other parties filed petitions
seeking reconsideration of some or all of the requirements regarding
public safety narrowband relocation, and also filed requests for waiver
of some of these requirements.\43\ All of the petitions remain pending.
---------------------------------------------------------------------------
\38\ AT&T Inc. Petition for Reconsideration and Clarification,
WT Docket No. 06-150; PS Docket No. 06-229 (filed Sept. 24, 2007);
Blooston Rural Carriers Petition for Partial Reconsideration and/or
Clarification (filed Sept. 24, 2007); Petition for Reconsideration
of the Ad Hoc Public Interest Spectrum Coalition (filed Sept. 24,
2007); Cyren Call Communications Corporation Petition for
Reconsideration and for Clarification (filed Sept. 24, 2007);
Frontline Wireless, LLC Petition for Reconsideration (filed Sept.
24, 2007); Pierce Transit Petition for Reconsideration (filed Sept.
24, 2007); Rural Telecommunications Group, Inc. Petition for
Reconsideration (filed Sept. 24, 2007); Commonwealth of Virginia
Petition for Reconsideration (filed Sept. 24, 2007); NTCH, Inc.
Petition for Partial Reconsideration (filed Sept. 21, 2007);
MetroPCS Communications, Inc. Petition for Clarification and
Reconsideration (filed Sept. 20, 2007).
\39\ See AT&T Petition for Reconsideration; Cyren Call Petition
for Reconsideration; Frontline Petition for Reconsideration. The
Frontline September 20, 2007 Request also seeks changes to the rules
governing the 700 MHz Public/Private Partnership. See Request to
Further Safeguard Public Safety Service by Frontline Wireless, WT
Docket No. 06-150 (filed Sept. 20, 2007) (Frontline September 20,
2007 Request).
\40\ See Frontline Petition for Reconsideration; MetroPCS
Petition for Reconsideration.
\41\ See Auction of 700 MHz Band Licenses Scheduled for January
24, 2008; Notice and Filing Requirements, Minimum Opening Bids, and
other Procedures for Auctions 73 and 76, Public Notice, 22 FCC Rcd
18141, 18194-95 (2007) (Auction 73/76 Procedures Public Notice).
\42\ See id. at 18193-96.
\43\ See Commonwealth of Virginia Petitions for Reconsideration;
Pierce Transit Petition for Reconsideration. Pierce Transit and
Virginia have been granted limited waiver relief. See Implementation
of a Nationwide, Broadband, Interoperable Public Safety Network in
the 700 MHz Band; Development of Operational, Technical and Spectrum
Requirements for Meeting Federal, State and Local Public Safety
Communications Requirements Through the Year 2010, PS Docket No. 06-
229, WT Docket No. 96-86, Order, 22 FCC Rcd 20290 (2007);
Implementing a Nationwide, Broadband, Interoperable Public Safety
Network in the 700 MHz Band; Development of Operational, Technical
and Spectrum Requirements for Meeting Federal, State and Local
Public Safety Communications Requirements Through the Year 2010;
Request for Waiver of Pierce Transit, PS Docket No. 06-229, WT
Docket No. 96-86, Order, 23 FCC Rcd 433 (PSHSB 2008).
---------------------------------------------------------------------------
17. Auction 73. The auction of 700 MHz Band licenses, designated
Auction 73, commenced on January 24, 2008, and closed on March 18,
2008.\44\ While the bids for licenses associated with the other 700 MHz
Band blocks (the A, B, C, and E Blocks) exceeded the applicable reserve
prices, bids for the D Block license did not meet the reserve price and
there was no winning bid for that license.\45\
---------------------------------------------------------------------------
\44\ See http://wireless.fcc.gov/auctions/default.htm?job=auction_summary&id=73.
\45\ See id.; see also ``Auction of 700 MHz Band Licenses
Closes,'' Public Notice, DA 08-595 (rel. Mar. 20, 2008) (700 MHz
Auction Closing Public Notice).
---------------------------------------------------------------------------
18. D Block Post-Auction Order. On March 20, 2008, we determined
that we would not proceed immediately to re-auction the D Block
license.\46\ We made this decision in order to provide additional time
to consider our various options with respect to the D Block
spectrum.\47\
---------------------------------------------------------------------------
\46\ See D Block Post-Auction Order at para. 5.
\47\ See id.
---------------------------------------------------------------------------
19. Inspector General's Report. On April 25, 2008, the Office of
Inspector General (OIG) issued a report on its investigation relating
to allegations relating to whether certain statements made by an
advisor to the Public Safety Broadband Licensee to potential bidders
for the D Block license in Auction 73, particularly those regarding the
spectrum lease payments that the Public Safety Broadband Licensee would
request from the D Block licensee for use of public safety spectrum,
had the effect of deterring various companies from bidding on the D
Block.\48\ The OIG determined that the statements in question were
``not the only factor in the companies' decision not to bid on the D
Block.'' Rather, it concluded that ``the uncertainties and risks
associated with the D Block, including, but not limited to, the
negotiation framework with [the Public Safety Broadband Licensee], the
potential for default payment if negotiations failed, and the costs of
the build-out and the operations of the network, taken together,
deterred each of the companies from bidding on the D Block.'' \49\
---------------------------------------------------------------------------
\48\ See Office of Inspector General Report, from Kent R.
Nilsson, Inspector General, to Chairman Kevin J. Martin (OIG rel.
Apr. 25, 2008) (OIG Report).
\49\ OIG Report at 2.
---------------------------------------------------------------------------
III. Discussion
20. In this Second FNPRM, we revisit our decisions concerning the
public safety broadband spectrum, the 700 MHz Public/Private
Partnership, and the shared wireless broadband network it is intended
to create, as we move toward a new auction to license the D Block
spectrum in the near future.\50\
---------------------------------------------------------------------------
\50\ As noted above, before ultimately adopting final rules in
response to this Second FNPRM, we plan to present for public
comment, in a subsequent FNPRM of Proposed Rulemaking, a detailed
proposal regarding the specific proposed rules.
---------------------------------------------------------------------------
21. First, in reevaluating the 700 MHz Public/Private Partnership
in light of the results of Auction 73, we find it appropriate to
consider clarifications and revisions to the public safety component of
the partnership that would better promote our public interest goals.
More specifically, in section A, we seek comment on our proposed
clarifications regarding the entities that are eligible to use the
public safety spectrum in the shared wireless broadband network as
public safety users rather than as commercial users. We also seek
comment on possible clarifications of or changes to the rules governing
the structure and criteria of the Public Safety Broadband Licensee,\51\
including whether to clarify further the requirement that the Public
Safety Broadband Licensee must be a non-profit organization.
---------------------------------------------------------------------------
\51\ See 47 U.S.C. 316 (permitting the Commission to modify any
license if, in the judgment of the Commission, such action will
promote the public interest, convenience, or necessity).
---------------------------------------------------------------------------
22. In section B, we seek comment on possible changes to the rules
requiring and governing the 700 MHz Public/Private Partnership. As
noted above, we seek comment on whether the 700 MHz Public/Private
Partnership between the D Block licensee and the Public Safety
Broadband Licensee, with appropriate revisions and clarifications,
would best serve the public interest in ensuring the development of a
nationwide, interoperable broadband network for public safety users. We
therefore explore a variety of possible revisions to the 700 MHz
Public/Private Partnership to provide greater assurance to potential
bidders for the D Block license that the shared wireless broadband
network will be commercially viable and to help ensure that this
partnership will be successful in making a nationwide, interoperable,
broadband network available to public safety users. We also seek
comment on issues related to the negotiation of the Network Sharing
Agreement. In addition, we request comment on select issues relating to
auctioning the D Block license, including eligibility to participate in
the
[[Page 29588]]
auction, a reserve price, and potential default payments. Finally, we
seek comment on issues relating to narrowband relocation and on whether
to continue to license the D Block on a nationwide basis or adopt a
regional geographic service area basis such as REAGs.
23. Finally, in section C, we examine our options in the event we
decide not to condition the D Block on the establishment of the 700 MHz
Public/Private Partnership with the Public Safety Broadband Licensee,
either immediately in the next auction or if the next auction fails to
produce a winning bidder. First, we seek comment on various revisions
that might be appropriate with respect to the D Block spectrum. Then we
invite comment on what additional revisions might be appropriate with
regard to the Public Safety Broadband License in order to ensure the
development and deployment of a nationwide interoperable broadband
network for public safety users.
A. The Public Safety Broadband License
1. Eligible Users of the Public Safety Spectrum in the Shared Network
24. Background. To meet anticipated public safety and homeland
security needs, we proposed a comprehensive plan in the Second Report
and Order to promote the rapid deployment of a nationwide,
interoperable, broadband public safety network. This plan was based on
taking ``a centralized and national approach to maximize public safety
access to interoperable, broadband spectrum in the 700 MHz Band.'' \52\
In particular, we required that a single, nationwide public safety
broadband license be assigned to the Public Safety Broadband Licensee.
That licensee would be responsible for negotiating a Network Sharing
Agreement with the winning bidder of the D Block licensee, pursuant to
which the D Block licensee would construct and operate a shared,
nationwide 700 MHz interoperable broadband network that serves the
public safety entities seeking access to the network, and the D Block
licensee would, in turn, gain access to the 700 MHz public safety
broadband spectrum for use by its commercial users on a secondary
preemptible basis.\53\
---------------------------------------------------------------------------
\52\ See Second Report and Order, 22 FCC Rcd at 15419.
\53\ See id. at 15419.
---------------------------------------------------------------------------
25. The eligibility rules for the 700 MHz public safety band,
including both the narrowband and broadband segments, are contained in
Section 90.523 of our rules.\54\ By linking eligibility to the
provision of statutorily-defined ``public safety services,'' Section
90.523 attempts to ensure compliance with the statutory mandate of
Section 337(a)(1) of the Communications Act, which requires the
Commission to allocate 24 megahertz of spectrum between 746 MHz and 806
MHz for ``public safety services.'' \55\ The statutory definition of
``public safety services,'' which is set forth in Section 337(f) of the
Act, provides as follows:
---------------------------------------------------------------------------
\54\ 47 CFR 90.523.
\55\ 47 U.S.C. 337(a)(1).
(f) Definitions
For purposes of this section:
(1) Public safety services
The term ``public safety services'' means services--
(A) The sole or principal purpose of which is to protect the
safety of life, health, or property;
(B) That are provided--
(i) By State or local government entities; or
(ii) By nongovernmental organizations that are authorized by a
governmental entity whose primary mission is the provision of such
services; and
(C) That are not made commercially available to the public by
the provider.\56\
---------------------------------------------------------------------------
\56\ 47 U.S.C. 337(f).
26. The eligibility rules of Section 90.523 that apply to the
narrowband licensees of the 700 MHz public safety band limit operations
to the provision of public safety services, as defined in Section
337(f)(1). Thus, all such licensees are either state or local
governmental entities \57\ or authorized non-governmental organizations
(NGOs),\58\ which provide services that are not made commercially
available to the public and are for the sole or principal purpose of
protecting the safety of life, health, or property.\59\
---------------------------------------------------------------------------
\57\ See 47 CFR 90.523(a).
\58\ See 47 CFR 90.523(b).
\59\ See 47 CFR 90.523(a)-(d).
---------------------------------------------------------------------------
27. With respect to the broadband licensee--i.e., the Public Safety
Broadband Licensee--the Commission crafted eligibility requirements
that were also intended to limit operations to the statutorily defined
public safety services in order to ensure that the band remained
allocated to such services, as required by Section 337(a)(1), and to
focus the Public Safety Broadband Licensee exclusively upon the needs
of public safety entities that stand to benefit from the interoperable
broadband network.\60\ Specifically, we required that the Public Safety
Broadband Licensee satisfy the following eligibility criteria: (1) No
commercial interest may be held in this licensee, and no commercial
interest may participate in the management of the licensee, (2) the
licensee must be a non-profit organization, (3) the licensee must be as
broadly representative of the public safety radio user community as
possible, including the various levels (e.g., state, local, county) and
types (e.g., police, fire, rescue) of public safety entities, and (4)
to ensure that the Public Safety Broadband Licensee is qualified to
provide public safety services, an organization applying for the Public
Safety Broadband License was required to submit written certifications
from a total of at least ten geographically diverse state and local
governmental entities, with at least one certification from a state
government entity and one from a local government entity.\61\ The
written certifications from these state and local governmental entities
were required to verify that: (1) They have authorized the applicant to
use spectrum at 763-768 MHz and 793-798 MHz to provide the authorizing
entity with public safety services; and (2) the authorizing entities'
primary mission is the provision of public safety services.\62\
---------------------------------------------------------------------------
\60\ Second Report and Order, 22 FCC Rcd at 15421.
\61\ See 47 CFR 90.523(e).
\62\ See 47 CFR 90.523(e)(i), (ii).
---------------------------------------------------------------------------
28. Discussion. As a preliminary matter, our review of the
eligibility provisions that apply to the narrowband licensees and those
that apply to the Public Safety Broadband Licensee have led us to
identify two elements of the statutory definition of ``public safety
services'' that the rules do not appear to apply explicitly enough to
the Public Safety Broadband Licensee: (a) The Section 337(f)(1)(A)
element that requires the ``sole or principal purpose [of the services
to be for the] protect[ion of] the safety of life, health, or
property,'' and (2) the Section 337(f)(1)C) element that bars such
services from being ``made commercially available to the public by the
provider.'' \63\ In addition, there is some degree of ambiguity as to
the applicability of the narrowband eligibility provisions in Sections
90.953(a)-(d) to the Public Safety Broadband Licensee. Accordingly, we
seek comment on whether to make minor amendments to Section 90.523 to
(a) clarify that the services provided by the Public Safety Broadband
Licensee must conform to all the elements of the Section 337(f)(1)
definition of ``public safety services,'' and (b) clearly delineate the
differences and overlap in the respective eligibility requirements of
[[Page 29589]]
the narrowband licensees and the Public Safety Broadband Licensee.
---------------------------------------------------------------------------
\63\ 47 U.S.C. 337(f)(1)(A), (C).
---------------------------------------------------------------------------
29. As discussed in more detail below, it would appear that, under
Section 337 of the Act and in furtherance of the policies that have led
to the creation of the Public Safety Broadband Licensee, the eligible
users of the public safety broadband network that are represented by
the Public Safety Broadband Licensee should be restricted to entities
that would be eligible to hold licenses under Section 90.523. Thus,
only entities providing public safety services, as defined in the Act,
would be eligible to use the public safety spectrum of the shared
network of the 700 MHz Public/Private Partnership on a priority basis,
pursuant to the representation of the Public Safety Broadband Licensee.
Accordingly, we also seek comment on whether all other users of the
shared network, including critical infrastructure users, should
consequently be treated as commercial users who would obtain access to
spectrum only through commercial services provided solely by the D
Block licensee.
30. Eligible Users of the Public Safety Broadband Network. As the
licensee of the broadband portion of spectrum within the 700 MHz public
safety band, the Public Safety Broadband Licensee occupies a somewhat
unique position insofar as it will not use its licensed spectrum to
serve its own communications needs. Rather, the Public Safety Broadband
Licensee will ensure the provision of public safety service by
providing spectrum access to others via the nationwide shared public/
private network.\64\ Thus, the question of whether the Public Safety
Broadband Licensee's service qualifies as a ``public safety service''
under Section 337(f)(1) will turn (in part) on the nature of the
spectrum use by the entities that it permits to gain access to the
network. To the extent that these entities are public safety entities
that use this access to provide themselves with communications services
in furtherance of their mission to protect the safety of life, health
or property, the Public Safety Broadband Licensee's services related to
the public safety broadband spectrum would fall well within the Section
337(f)(1) definition of ``public safety services'' and would comport
with the Commission's obligation under Section 337(a)(1) to allocate a
certain amount of spectrum to such services.
---------------------------------------------------------------------------
\64\ See Second Report and Order, 22 FCC Rcd at 15426.
---------------------------------------------------------------------------
31. We note that, pursuant to the statutory definition, a service
can still be considered a ``public safety service'' even if its purpose
is not solely for protecting the safety of life, health or property, so
long as this remains its ``principal'' purpose.\65\ Accordingly, the
service provided by the Public Safety Broadband Licensee--providing
public safety entities access to the spectrum for safety-of-life/
health/property communications operations--could conceivably include
the provision of spectrum access to public safety entities for uses
that do not principally involve the protection of life, health or
property, so long as it can be said that the principal purpose of the
Public Safety Broadband Licensee's services is to protect the safety of
life, health or property.
---------------------------------------------------------------------------
\65\ See 47 U.S.C. 337(f)(1)(A).
---------------------------------------------------------------------------
32. Taken to an extreme, this reasoning could even permit the
Public Safety Broadband Licensee to provide spectrum access to small
numbers of entities with no connection to public safety under the
rationale that the bulk of the Public Safety Broadband Licensee's
services would remain that of providing the public safety entities
access to spectrum for use in safeguarding life, health or property.
Moreover, the Public Safety Broadband Licensee could arguably leave
entire pockets within its nationwide service area served only by such
non-public safety entities, based on this same rationale that the small
amount of non-public safety use--relative to the nature of the overall
use across the country--does not alter the fact that the principal
purpose of the service remains public safety. Such a result appears
patently inconsistent with the spirit of Section 337(f)(1)(A), and we
seek comment on whether, or to what degree, the Public Safety Broadband
Licensee would be statutorily precluded by that subsection from
representing and allowing any entity to use the network for services
that are not principally for public safety purposes. We also seek
comment on whether there are other grounds--specifically, the
authorization requirement of Section 337(f)(1)(B)(ii) and policy
reasons--for prohibiting the Public Safety Broadband Licensee from
providing network access to non-public safety entities or from
permitting public safety entities that it represents to use the network
for services that do not have as their principal purpose the protection
of the safety of life, heath or property. With respect to Section
337(f)(1)(B)(ii), we observe that, in order for the Public Safety
Broadband Licensee's services to meet the public safety services
definition, the Public Safety Broadband Licensee, as a nongovernmental
organization, must receive authorization from ``a governmental entity
whose primary mission is the provision of [public safety] services.''
We believe it unlikely that the intended scope of the authorization
from such governmental entity or entities would include providing
spectrum access, even on an occasional or limited basis, to entities
that provide no public safety services.\66\ On the policy front, the
finite amount of spectrum available to the public safety community--
particularly for interoperability purposes--strongly argues against any
provision of spectrum access by the Public Safety Broadband Licensee to
entities the sole or principal purpose of which is not the protection
of the safety of life, health, or property. For these reasons, we seek
comment on whether the public interest would be served by prohibiting
the Public Safety Broadband Licensee from providing an entity with
access to the network if that entity fails to meet the eligibility
requirements of Section 90.523 of our rules.
---------------------------------------------------------------------------
\66\ 47 U.S.C. 337(f)(1)(B)(ii).
---------------------------------------------------------------------------
33. We seek comment on which types of public safety users can be
expected to use the national public safety broadband network (rather
than legacy or new local networks) and on what timeframes. Which public
safety communication functions (e.g., voice, remote data access, video
upload, video download, photo download) are likely to migrate to the
new broadband network (in the short- and- or long-term) and which will
remain on existing networks? What factors will local jurisdictions
weigh when making such decisions?
34. We seek comment on the extent to which the public safety
broadband network will or should be interoperable with existing voice
and data networks. How can the Commission encourage interoperability
with legacy public safety systems and should interoperability with
existing voice and data networks be a mandatory feature of the new
broadband network? Can the use of multi-mode handsets (that support
legacy networks and the new public safety broadband network) enhance
interoperability? How can the Commission encourage or mandate the
development and use of such handsets? How would any proposed policies
in this regard affect the cost of handsets and network construction/
operation? How does the use of 10 or 20 megahertz of shared spectrum
affect the throughput of the broadband network and the functions it can
support? What throughput can reasonably be expected on a network with
this amount of spectrum? What functionalities can only
[[Page 29590]]
be supported on a network with additional spectrum?
35. We also seek comment on issues arising from the possibility
that in some areas a local jurisdiction may not elect to make use of
the public safety broadband network. How extensive are such areas
likely to be in the short- and long-term? Should the D Block licensee
be permitted to use the entire 20 megahertz of shared spectrum for
commercial service in such areas? Should the local jurisdiction receive
compensation in these instances? Could such compensation discourage
local jurisdictions to ever make use of the public safety broadband
network? Would restriction of such compensation to use in purchasing
public safety equipment such as radios for the public safety broadband
network be an appropriate policy? What incentives can the Commission
give the D Block licensee to encourage and facilitate use of the
broadband network by local jurisdictions?
36. Potential Pool of Users of the Public Safety Broadband Network.
We seek comment on the number of public safety providers in the country
that have no interoperable broadband network. What is the size of the
potential pool of public safety providers that may work with the Public
Safety Broadband Licensee? We also seek comment on the extent to which
some public safety providers already have established interoperable
broadband networks. We especially encourage comment from parties that
may have an inventory or database that collects this information. Where
have such networks been established, and under what types of
arrangements? To what extent are current interoperable public safety
systems able to obtain lower prices and/or superior quality for
commercially available, off-the-shelf technologies? Have public safety
and commercial operations been developed on shared/parallel systems,
and if so, how have they addressed network security issues? We further
seek comment on how previously developed systems have addressed issues
such as network reliability, including hardening of the network,
provisions for back up power, etc. How do such developed networks
envision connecting to an interoperable, nationwide network? Finally,
to the extent some public safety providers already have established
interoperable broadband networks, might these providers have less
incentive to participate with the Public Safety Broadband Licensee? If
this is the case, how might the rules established in this proceeding
help provide a nationwide, interoperable network?
37. Mandatory Usage of the Public Safety Broadband Network. While
we seek comment above regarding what users of the network are eligible
to receive service from the public safety spectrum, we also seek
comment on whether such eligible public safety users should be required
to subscribe to the network for service, at reasonable rates or be
subject to some alternative obligation or condition promoting public
safety network usage in order to provide greater certainty to the D
Block licensee. For example, should we require the purchase of a
minimum number of minutes and, if so, on whom and in what way would
this obligation be imposed? We seek comment on whether any such
obligation should be conditioned on the availability of government
funding for access, for example, through interoperability grant money
from the United States Department of Homeland Security, and whether we
should require public safety users to pay for access with such money.
We ask further questions below regarding whether and how we should
regulate the fees charged to public safety users for network access.
Would it be possible to ensure that small public safety providers pay a
``Most Favored Nation'' rate for broadband services, or for equipment?
How should the Commission ensure that smaller public safety entities
can participate in the network?
38. We note that the State of Arizona used a grant from the
Department of Homeland Security (``DHS'') to build a broadband network
for both public safety and commercial purposes using WiFi
technology.\67\ This network serves a portion of the I-19 corridor
running north of the Mexican border, a sparsely populated area that
previously had little or no coverage for commercial or public safety
communications.\68\ We seek comment on this and similar programs,
especially those instituted by State agencies, and by both large and
small municipalities. What specifications (e.g., reliability of
service, network hardening, etc.) have been required for this and
similar projects to promote broadband communications for public safety
providers \69\ What lessons have been learned from these projects, and
how might these lessons be applied to a variety of public safety
providers, including those in very rural areas and those in urban
areas? For example, do network congestion issues make sharing between
commercial and public safety users more of a challenge in urban areas,
and are such concerns lessened in rural areas?
---------------------------------------------------------------------------
\67\ See http://www.dhs.gov/xnews/releases/press_release_0515.shtm (last visited May 12, 2008).
\68\ See http://gita.state.az.us/tech_news/2006/7_19_06.htm
(last visited May 12, 2008).
\69\ We note, however, that use of Part 15 devices may not be
appropriate for mission-critical public safety communications, in
light of the requirement for Part 15 devices to accept interference
from other Part 15 devices and from licensed operations. See, e.g.,
Continental Airlines Petition for Declaratory Ruling Regarding the
Over-the-Air Reception Devices (OTARD) Rules, ET Docket No. 05-247,
Memorandum Opinion and Order, 21 FCC Rcd 13201, 13214 (2006).
---------------------------------------------------------------------------
2. Provisions Regarding the Public Safety Broadband Licensee
a. Non-Profit Status
39. Background. Among other criteria for eligibility to hold the
Public Safety Broadband License that we established in the Second
Report and Order, we provided that no commercial interest may be held
in the Public Safety Broadband Licensee, that no commercial interest
may participate in the management of the licensee, and that the
licensee must be a non-profit organization.\70\ We indicated, however,
that, as part of its administration of public safety access to the
shared wireless broadband network, the Public Safety Broadband Licensee
might assess ``usage fees to recoup its expenses and related frequency
coordination duties.'' \71\
---------------------------------------------------------------------------
\70\ See Second Report and Order, 22 FCC Rcd at 15421.
\71\ Id. at 15426.
---------------------------------------------------------------------------
40. Discussion. With respect to the requirements that the Public
Safety Broadband Licensee must be a non-profit organization, we seek
comment on whether to clarify this non-profit requirement by specifying
that the Public Safety Broadband Licensee and all of its members (in
whatever form they may hold their legal or beneficial interests in the
Public Safety Broadband Licensee) must be non-profit entities. We
further seek comment on whether to clarify that the Public Safety
Broadband Licensee may not obtain debt or equity financing from any
source, whether debt or equity, unless such source is also a non-profit
entity. We also seek comment more generally on whether the Commission
should restrict the Public Safety Broadband Licensee's business
relationships pre- and post-auction with commercial entities, and if
so, what relationships should and should not be permitted.
41. We do anticipate that the Public Safety Broadband Licensee may
contract with attorneys, engineers, accountants, and other similar
advisors or service providers to fulfill its responsibilities to
represent the interests of the public safety community, as required by
the
[[Page 29591]]
Commission. Under the approach on which we seek comment above, capital
or operational funding mechanisms for the Public Safety Broadband
Licensee involving private equity firms or other commercial or
financial entities would not be permitted, unless they are non-profit
entities and are controlled, if at all, by non-profit entities, in
order to ensure that the financial considerations of the Public Safety
Broadband Licensee remain aligned with serving the public safety
community, and that no ``for-profit'' incentives inadvertently
influence the Public Safety Broadband Licensee's priorities. We seek
comment on these restrictions. In particular, are the restrictions on
financing warranted to ensure that the Public Safety Broadband Licensee
is not unduly influenced by for-profit motives or outside commercial
influences in carrying out its official functions within the 700 MHz
Public/Private Partnership? If so, in what ways might we allow
necessary financing while still ensuring the independence of the Public
Safety Broadband Licensee? Specifically, should we allow working
capital financing from commercial banks and, if so, should we restrict
the assets of the Public Safety Broadband Licensee that can be pledged
as security for such a loan? Are there other types of loans or
alternative funding sources that we should allow the Public Safety
Broadband Licensee to employ? How can the Commission establish
incentive-compatible rules for the Public Safety Broadband Licensee and
parties with which it may have a relationship, such as advisors,
contractors, and investors?
42. More generally, we seek comment on the best way to fund Public
Safety Broadband Licensee operations. For example, should the D Block
licensee or license winner be required to pay the Public Safety
Broadband Licensee's administrative costs? If so, should we limit the D
Block licensee's maximum obligations in this regard, and what would be
a reasonable cap or limitation on expenses? Assuming government-
allocated funding were available, would this be the best solution for
funding the Public Safety Broadband Licensee? In addition, we seek
comment on the extent to which we can adopt incentive-compatible rules
for the Public Safety Broadband Licensee and the public safety
providers it represents. What set of rules would encourage most or all
public safety providers to collaborate with the Public Safety Broadband
Licensee to establish a nationwide, interoperable broadband network?
Under what circumstances might some public safety providers choose not
to participate in a relationship with the Public Safety Broadband
Licensee? \72\
---------------------------------------------------------------------------
\72\ See Second Report and Order, 22 FCC Rcd at 15454.
---------------------------------------------------------------------------
43. We seek comment on whether the Commission has legal authority
to use the Universal Service Fund to support the Public Safety
Broadband Licensee's operational expenses.\73\ If the Commission has
legal authority to do so, should it exercise this authority? What
degree of support would be appropriate? Similarly, can the Commission
facilitate funding of the Public Safety Broadband Licensee's
operational expenses through entities such as the Telecommunications
Development Fund? \74\
---------------------------------------------------------------------------
\73\ See, e.g., 47 U.S.C. 254(c)(1), (h).
\74\ See, e.g., 47 U.S.C. 614.
---------------------------------------------------------------------------
44. We also seek comment on how any excess revenue generated by the
fees or other sources of financing obtained by the Public Safety
Broadband Licensee from non-profit entities should be used. First, we
seek comment on whether any excess revenues should be permitted at all.
If we do allow any excess revenue generation, should we limit this
amount? How should we determine what that amount should be? Should we
allow the Public Safety Broadband Licensee to hold a certain amount of
excess income as a reserve against possible future budget shortfalls or
should we require that excess income be used for the direct benefit of
the public safety users of the network, such as for the purchase of
handheld devices? Should we further specify what would be a ``direct
benefit'' or permissible use of such funds? In this regard, we note
that the quarterly financial accounting we required in the Second
Report and Order will enable the Commission to continually monitor the
finances of the Public Safety Broadband Licensee.\75\
---------------------------------------------------------------------------
\75\ Second Report and Order, 22 FCC Rcd at 15425.
---------------------------------------------------------------------------
45. Finally, we seek comment on whether the Public Safety Broadband
Licensee may legitimately incur certain reasonable and customary
expenses incurred by a business, consistent with the constitution of
the Public Safety Broadband Licensee and the nature of its obligations
as established by the Commission.
b. Other Essential Components
46. Background. In the Second Report and Order, we instituted
certain minimum criteria that the Public Safety Broadband Licensee must
meet in order to ensure that it ``focuses exclusively on the needs of
public safety entities that stand to benefit from the interoperable
broadband network.'' \76\ To that end, we established certain criteria
for the Public Safety Broadband Licensee eligibility, including a
requirement that the Public Safety Broadband Licensee must be broadly
representative of the public safety community.\77\ Further, we required
that the Public Safety Broadband Licensee be governed by a voting board
consisting of eleven members, one each from the nine organizations
representative of public safety, and two at-large members selected by
the Public Safety and Homeland Security Bureau and the Wireless
Telecommunications Bureau, jointly on delegated authority.\78\ On
reconsideration, we revised and expanded the voting board, and
increased the at-large membership to four.\79\
---------------------------------------------------------------------------
\76\ Id. at 15421-22.
\77\ Id. at 15421-25.
\78\ The nine organizations included: the Association of Public
Safety Communications Officials (APCO); the National Emergency
Number Association (NENA); the International Association of Chiefs
of Police (IACP); the International Association of Fire Chiefs
(IAFC); the National Sheriffs' Association; the International City/
County Management Association (ICMA); the National Governor's
Association (NGA); the National Public Safety Telecommunications
Council (NPSTC); and the National Association of State Emergency
Medical Services Officials (NASEMSO). Second Report and Order, 22
FCC Rcd at 15422-23.
\79\ On reconsideration, we removed NPSTC and included the
Forestry Conservation Communications Association (FCCA), the
American Association of State Highway and Transportation Officials
(AASHTO), and the International Municipal Signal Association (IMSA),
and added two additional at-large positions. Service Rules for the
698-746, 747-762 and 777-792 MHz Bands, WT Docket No. 96-86, Order
on Reconsideration, 22 FCC Rcd 19935 (2007). The Chiefs of the
Public Safety and Homeland Security Bureau and Wireless
Telecommunications Bureau jointly appointed to the voting board the
American Hospital Association (AHA), the National Fraternal Order of
Police (NFOP), the National Association of State 9-1-1
Administrators (NASNA), and the National Emergency Management
Association (NEMA). See ``Public Safety and Homeland Security Bureau
and Wireless Telecommunications Bureau Announce the Four At-Large
Members of the Public Safety Broadband Licensee's Board of
Directors,'' Public Notice, 22 FCC Rcd 19475 (2007).
---------------------------------------------------------------------------
47. In the Second Report and Order, we further required that
certain procedural safeguards be incorporated into the articles of
incorporation and bylaws of the Public Safety Broadband Licensee.\80\
For example, in the Second Report and Order we specified that the term
of the Public Safety Broadband Licensee officers would be two years,
and that election would be by a two-thirds majority vote. A two-thirds
majority was also required for certain other Public Safety Broadband
Licensee decisions, including amending the articles of incorporation or
bylaws. In
[[Page 29592]]
addition, we recognized that Commission oversight in the affairs of the
Public Safety Broadband Licensee would be necessary and appropriate in
light of the nature of the public safety broadband spectrum licensed to
the Public Safety Broadband Licensee as a national asset, and in
furtherance of the Commission's role in ensuring the protection and
efficient use of such asset for the benefit of the safety of the
public.\81\ Meaningful oversight in this respect requires a level of
transparency, and to that end we required the Public Safety Broadband
Licensee to submit certain reports to the Commission, including
quarterly financial disclosures.\82\
---------------------------------------------------------------------------
\80\ Second Report and Order, 22 FCC Rcd at 15423-26.
\81\ Id. at 15426.
\82\ Id. at 15426.
---------------------------------------------------------------------------
48. Discussion. In light of the scope of the subjects discussed
elsewhere herein addressing a number of aspects of the 700 MHz Public/
Private Partnership between the D Block licensee and the Public Safety
Broadband Licensee, we believe it appropriate to reexamine the
structure of the Public Safety Broadband Licensee and the criteria
adopted in the Second Report and Order to ensure they are most optimal
for establishing and sustaining a partnership with a commercial entity,
as well as efficiently and equitably conducting the business of the
Public Safety Broadband Licensee. We seek comment on whether we should
reevaluate any of these criteria, whether we should clarify or increase
the Commission's oversight of the Public Safety Broadband Licensee,
and, aside from retaining its nationwide scope, whether we should make
other changes to the license or license eligibility criteria. We
further seek comment on how the Commission can ensure an oversight role
for Congress, both in the operations of the Public Safety Broadband
Licensee and the 700 MHz Public/Private Partnership. Should Congress
designate some of the Public Safety Broadband Licensee's board members?
49. Articles of Incorporation and By-laws. Specifically, with
respect to the articles of incorporation and bylaws, we seek comment on
the adequacy of the provisions specified. Should we require additional
provisions, and if so, what should they be? Should we amend or
eliminate any of the current requirements? Should we require a
unanimous vote in certain instances? For example, should a unanimous
vote be required for a major undertaking of the Public Safety Broadband
Licensee? What would such an undertaking include? In the alternative,
should we require a supermajority vote in such instances instead of a
unanimous vote? In addition, should we provide for Commission review of
decisions requiring a unanimous or supermajority vote, or should the
Commission make certain decisions for the Public Safety Broadband
Licensee if unanimity or supermajority is not achieved?
50. With respect to the voting board, we seek comment on the
composition of the board, and its size. Should we include additional or
fewer entities? If so, what qualifications should we require of such
entities? We also seek comment on whether we should eliminate
altogether the requirement of inclusion of specific voting board
members. If we eliminate this requirement, how should we ensure that
broad representation of the public safety community is adequately
addressed? With respect to the leadership of the board, should we
revise the terms of the officers? Should we require a unanimous vote
for appointment of officers? Should we require a rotating chairmanship
among the voting board members? Should the Commission appoint a
chairperson if unanimous consent cannot be attained?
51. Commission oversight. We also seek comment on how the
Commission can better exercise oversight over the activities of the
Public Safety Broadband Licensee and the commercial partner. Is
quarterly financial reporting adequate, or are additional disclosures
by the Public Safety Broadband Licensee or commercial partner
necessary? What additional measures, if any, should the Commission take
to ensure the appropriate level of oversight? For example, should
Commission approval of certain activities be required before the Public
Safety Broadband Licensee may undertake them? For example, should
Commission approval be required before the Public Safety Broadband
Licensee enters into contracts of a particular duration or cumulative
dollar amount? Should we require or reserve the right to have
Commission staff attend meetings of the voting board?
52. Role of State Governments. We seek comment on whether providing
a nationwide, interoperable broadband network might be more effectively
and efficiently accomplished by allowing State governments (or other
entities that have or plan interoperable networks for the benefit of
public safety) to assume responsibility for coordinating the
participation of the public safety providers in their jurisdictions. To
the extent commenters believe the State governments should assume such
a role, we seek comment on the proper relationship between the State
governments and the Public Safety Broadband Licensee and on our
authority to establish such a role for State governments. Should the
Public Safety Broadband Licensee be authorized to choose a minimum
standard for any public safety broadband operation, with the State
governments given the responsibility to work with public safety
providers to implement operations in their jurisdictions? Would such an
approach allow State governments wanting higher-grade networks to
implement separately these more-advanced systems, while those wanting
networks at the minimum standard avoid what they may consider
unnecessary expenses? Are State governments better situated to address
implementation challenges that cross public safety jurisdictions (e.g.,
coordinating use by sheriffs departments in neighboring counties) as
well as intra-jurisdictional challenges (e.g., coordinating use by the
police versus fire departments)? On the other hand, if different
jurisdictions chose different grades of networks, would there be a lack
of economies of scale and thus higher equipment costs for all public
safety users?
53. Reissuance of the Public Safety Broadband License and selection
process. In light of the changes contemplated above and the
corresponding changes contemplated with respect to the D Block, we seek
comment on whether we should rescind the current 700 MHz Public Safety
Broadband License and seek new applicants. If so, should we use the
same procedures as before, i.e., delegating authority to the Chief,
Public Safety and Homeland Security Bureau to solicit applications,
specifying any changed criteria that may be adopted following this
Second FNPRM, and having the Commission select the licensee? Are there
considerations other than those above or previously considered that
should be taken into account in selecting the licensee? Recognizing the
need to identify the licensee quickly to enable the effective
development of the 700 MHz Public/Private Partnership, what mechanism
should the Commission use to assign the license if there is more than
one qualified applicant?
B. Possible Revisions/Clarifications Relating to the 700 MHz Public/
Private Partnership
54. As a preliminary matter, we seek comment on whether the public
interest would best be served by the development of a nationwide,
interoperable wireless broadband network for both commercial and public
[[Page 29593]]
safety services through the 700 MHz Public/Private Partnership between
the D Block licensee and the Public Safety Broadband Licensee, and
whether we should therefore continue to require that the D Block
licensee and Public Safety Broadband Licensee enter into the 700 MHz
Public/Private Partnership. Below, we consider in detail the
Commission's options in the event that we continue this requirement. We
seek comment on a broad set of possible revisions to the 700 MHz
Public/Private Partnership, including revisions and/or clarifications
with regard to the respective obligations of the D Block licensee and
the Public Safety Broadband Licensee.
55. First, we address the terms of the 700 MHz Public/Private
Partnership, including (1) what the D Block licensee is required to
construct; and (2) the operational roles of the D Block licensee and
Public Safety Broadband Licensee once the network is constructed. With
regard to network construction requirements, we seek comment on (1) the
technical specifications of the network; (2) whether to provide public
safety users with access to D Block spectrum during emergencies and, if
so, under what terms; and (3) the build-out obligations of the D Block
licensee, and whether such obligations should be revised in conjunction
with a modification to the D Block license term. Regarding operational
roles, we seek comment on the respective roles and responsibilities of
the D Block licensee and Public Safety Broadband Licensee with regard
to the operation of the network, including the management of users on
the network, and we seek comment regarding service or spectrum usage
fees.
56. Next, we address the procedures by which the winning bidder of
the D Block license will enter into a Network Sharing Agreement (NSA)
with the Public Safety Broadband Licensee that will further define and
govern the 700 MHz Public/Private Partnership. Specifically, we seek
comment on possible revisions to the rules relating to both the
negotiation of the NSA and the dispute resolution procedures applicable
in the event the parties are unable to reach agreement on NSA terms. In
particular, we seek comment on whether, following a default due to the
failure of a winning bidder for the D Block license to execute an NSA
with the Public Safety Broadband Licensee, we either should offer the
license to the party with the next highest bid, in descending order, or
promptly auction alternative license(s) for the D Block spectrum
without the 700 MHz Public/Private Partnership conditions and subject
to alternative service rules.
57. We then seek comment on a number of issues related to the
auction of the D Block license, including (1) whether to restrict who
may participate in the new auction of the D Block license; (2) how to
determine any reserve price for such an auction; (3) whether to adopt
an exception to the impermissible material relationship rule for the
determination of designated entity eligibility with respect to
arrangements for the lease or resale (including wholesale) of the
spectrum capacity of the D Block license; and (4) whether we should
modify the auction default payment rules with respect to the D Block
winning bidder. We also seek comment on the rules governing the
relocation of public safety narrowband operations and the D Block
license winner's obligations to fund that relocation, and on any other
revisions that may be appropriate with regard to the 700 MHz Public/
Private Partnership. Finally, we seek comment on other revisions or
clarifications that may be appropriate with regard to the 700 MHz
Public/Private Partnership, including whether to license the D Block
and public safety broadband spectrum on a nationwide or REAG basis.
1. The 700 MHz Public/Private Partnership
a. Network/System Requirements
58. Assuming that we determinate that we should continue to require
the 700 MHz Public/Private Partnership, in this section, we seek
comment on whether to adopt changes to the requirements of the network
that the D Block licensee is required to construct, and whether to
modify the required schedule for that construction.\83\ We seek comment
on what changes will best serve the Commission's goal of making a
broadband, interoperable network available on a nationwide basis to
public safety entities, which requires providing sufficient assurances
to bidders for the D Block license that the required shared network
will be commercially viable. We also are seeking comment below on the
costs to build and operate such a broadband, interoperable network,
including the specific costs necessary to meet public safety needs and
the additional costs of covering remote areas.
---------------------------------------------------------------------------
\83\ 47 CFR 27.1305, 27.14(m).
---------------------------------------------------------------------------
(i) Technical Requirements for the Shared Wireless Broadband Network
59. Background. In the Second Report and Order, we found that in
order to ensure a successful public/private partnership between the D
Block licensee and the Public Safety Broadband Licensee, with a shared
nationwide interoperable broadband network infrastructure that meets
the needs of public safety, we must adopt certain technical network
requirements.\84\ Accordingly, among other requirements, we mandated
that the network incorporate the following technical specifications:
---------------------------------------------------------------------------
\84\ Second Report and Order, 22 FCC Rcd at 15433.
---------------------------------------------------------------------------
Specifications for a broadband technology platform that
provides mobile voice, video, and data capability that is seamlessly
interoperable across agencies, jurisdictions, and geographic areas. The
platform should also include current and evolving state-of-the-art
technologies reasonably made available in the commercial marketplace
with features beneficial to the public safety community (e.g.,
increased bandwidth).
Sufficient signal coverage to ensure reliable operation
throughout the service area consistent with typical public safety
communications systems (i.e., 99.7 percent or better reliability).
Sufficient robustness to meet the reliability and
performance requirements of public safety. To meet this standard,
network specifications must include features such as hardening of
transmission facilities and antenna towers to withstand harsh weather
and disaster conditions, and backup power sufficient to maintain
operations for an extended period of time.
Sufficient capacity to meet the needs of public safety,
particularly during emergency and disaster situations, so that public
safety applications are not degraded (i.e., increased blockage rates
and/or transmission times or reduced data speeds) during periods of
heavy usage. In considering this requirement, we expect the network to
employ spectrum efficient techniques, such as frequency reuse and
sectorized or adaptive antennas.
Security and encryption consistent with state-of-the-art
technologies.\85\
---------------------------------------------------------------------------
\85\ Id.
---------------------------------------------------------------------------
60. We required that the parties determine more specifically what
these technical specifications would be and implement them through the
NSA. In addition, we required that the parties determine and implement
other detailed specifications of the network that the D Block licensee
would construct.\86\ We determined that allowing the parties to
determine specific details, including the technologies that would be
used, subject to approval by the Commission, would provide the parties
with flexibility to
[[Page 29594]]
evaluate the cost and performance of all available solutions while
ensuring that the shared wireless broadband network has all the
capabilities and attributes needed for a public safety broadband
network.\87\
---------------------------------------------------------------------------
\86\ Id. at 15434.
\87\ Id. at 15426.
---------------------------------------------------------------------------
61. Discussion. We seek comment on whether we should clarify or
modify any aspect of the technical network requirements adopted in the
Second Report and Order or otherwise establish with more detail the
technical requirements of the network. To guide the discussion that
follows, and to enable more focused comment that better assists the
Commission as we address these technical requirements, we attach as an
appendix a possible technical framework (``Technical Appendix'') that
identifies in greater detail potential technical parameters for the
shared wireless broadband network. We thus seek detailed comment on
this Technical Appendix, as well as on the following discussion points.
62. Would clarifications in this regard provide appropriate
additional certainty, prior to re-auction, regarding the obligations of
the D Block licensee and the costs of the network that this licensee
would be expected to construct? Would such specification enhance the
abilities of the winning bidder of the D Block license and the Public
Safety Broadband Licensee to negotiate the NSA? Would modifications
provide greater assurance that the required network would be
economically viable? Conversely, would greater specificity hinder the
NSA negotiations or otherwise inadvertently impact the success of the
700 MHz Public/Private Partnership?
63. We seek comment on whether, as a general matter, maintaining
parties' flexibility to negotiate most details of the network
specifications would best serve the public interest goals of the
partnership. We seek comment on what technical requirements should be
specified in advance, rather than being left to be negotiated after the
auction, and whether there are any critical aspects of the network,
either in the existing requirements or beyond those already addressed,
that it would be beneficial to specify or clarify in the rules in order
to increase bidder certainty regarding the cost of the D Block
obligations. In addition, are there network specifications that would
be particularly difficult to negotiate in the absence of further
clarification by the Commission?
64. Are any changes to requirements needed to reflect the practical
differences between the architecture of traditional local wireless
public safety systems and the architecture of nationwide commercial
broadband network systems? If so, we seek comment on what requirements,
modifications, or clarifications we should adopt. Conversely, we seek
comment on whether to require national standardization in the
implementation of these network requirements, and the extent to which
national standardization will help the network to achieve efficiency
and economies of scale and scope.
65. We also welcome comments on other specifications we required of
the network. These included:
A mechanism to automatically prioritize public safety
communications over commercial uses on a real-time basis and to assign
the highest priority to communications involving safety of life and
property and homeland security consistent with the requirements adopted
in the Second Report and Order;
Operational capabilities consistent with features and
requirements specified by the Public Safety Broadband Licensee that are
typical of current and evolving state-of-the-art public safety systems
(such as connection to the PSTN, push-to-talk, one-to-one and one-to-
many communications, etc.);
Operational control of the network by the Public Safety
Broadband Licensee to the extent necessary to ensure public safety
requirements are met; and
A requirement to make available at least one handset that
would be suitable for public safety use and include an integrated
satellite solution, rendering the handset capable of operating both on
the 700 MHz public safety spectrum and on satellite frequencies.\88\
---------------------------------------------------------------------------
\88\ Id. at 15433-34. We seek comment on the responsibilities of
the D Block licensee with regard to the operation of the shared
network elsewhere herein.
---------------------------------------------------------------------------
66. Commenters with proposals should provide detailed information
regarding their proposed technical network specifications, and the
extent to which such proposals are typical of current wireless public
safety or commercial systems. For example, with regard to any
particular network requirement, are there any established public safety
standards in the broadband context? To what extent have these standards
been implemented in commercial networks? Commenters should also discuss
how such proposals will ensure that the goals of the 700 MHz Public/
Private Partnership are met, in particular by enabling the creation of
a viable commercial network that addresses the unique needs of the
public safety community.
67. We seek comment on how the technical specifications of existing
or anticipated future public safety networks differ from existing or
anticipated commercial networks. Commenters are encouraged to be as
specific as possible in answering these questions, providing detailed
technical data where possible. How different are the technical
specifications of existing or anticipated public safety networks from
other public safety networks? How do the technical requirements of
different public safety networks differ based upon factors such as
intended user base and local morphology (e.g., urban vs. rural
environments; fire, police, emergency medical service, and other first
responders; in-building vs. outdoor usage; high-speed vehicular vs.
pedestrian public safety users, etc.)? How do these technical
requirements differ based upon factors such as type of use (mission-
critical voice and data versus non-mission-critical communications)?
What purposes, if any, do public safety users make of commercial
wireless networks today for mission-critical and/or non-mission-
critical communications? How distinct in practice is the line between
mission-critical and non-mission-critical communications? How do
network construction and operation costs vary among different types of
public safety networks and between public safety and commercial
networks? To what extent can a commercial provider make use of
publicly-owned or leased property, and how could use of such facilities
affect the cost of constructing and operating a public safety broadband
network?
68. We seek comment on the payment and funding models employed by
public safety users when building and operating dedicated public safety
networks (e.g., construction and operation by municipal employees,
construction and operation by private subcontractors). Similarly, we
seek comment on the payment and funding models employed by public
safety users when they rely upon commercial wireless services. Are fees
assessed based on usage, number of users, or other factors? What
provisions are typically made for unanticipated demand for services and
how are these reconciled with fixed budgets? Again, commenters are
encouraged to be as specific as possible in answering these questions,
providing specific cost data or concrete numerical estimates where
possible.
69. We note that the Public Safety Spectrum Trust (``PSST''), after
it was
[[Page 29595]]
designated Public Safety Broadband Licensee by the Commission, released
what it referred to as a Bidders Information Document (``BID''), which,
it stated, was offered to provide ``high-level information regarding
the PSST's expectations of the D Block partner in building and
operating the shared Public/Private network'' and ``to define and
detail certain expectations that the PSST has for this partnership.''
\89\ We emphasize that the BID has no formal legal role in the
development of the nationwide, broadband public safety network under
the existing rules and we express no view on the positions taken by the
PSST as reflected in the BID. We take this opportunity, however, to
seek comment on the impact of the BID on the previous auction, whether
any particular aspects of the PSST's ``expectations'' were of
particular concern to potential bidders or of particular importance to
public safety entities, whether the release of the BID was helpful in
clarifying costs, what role the BID played in pre-auction discussions
and what formal role, if any, that a document similar to the BID such
as a statement of requirements should play in establishing or
clarifying the technical requirements of the nationwide, broadband
public safety network under revised rules. We note, for example, that
one commercial entity has suggested that the Public Safety Broadband
Licensee should be required to release a statement of requirements
before auction, and that the statement of requirements should constrain
the elements that the Public Safety Broadband Licensee can require in
the shared network.\90\ We seek comment on this suggestion.
---------------------------------------------------------------------------
\89\ See Letter from Harlin R. McEwen, Chairman, Public Safety
Spectrum Trust to Prospective D Block Bidders (Nov. 30, 2007)
(available at http://www.psst.org/documents/BID2_0.pdf) at 3. The
PSST released an initial version of this document on November 15,
2007, and released version 2.0, the final version, on November 30,
2007. See http://www.psst.org/bidsummary.jsp.
\90\ See AT&T Petition for Reconsideration at 4-5.
---------------------------------------------------------------------------
70. With these questions and issues in mind, we seek comment on
whether the Commission should itself establish in a detailed and
comprehensive fashion the technical obligations of the D Block licensee
with regard to the network, and if so, what specifications it should
adopt. For example, we seek comment on whether the attached Technical
Framework could, following comment on its specific components, provide
for establishing an appropriate set of requirements for the shared
wireless broadband network. We also seek comment on a number of
particular technical issues, as set forth below.
71. Specification for broadband technology platform. We seek
comment on whether we should modify or further clarify any aspect of
the broadband technology platform specifications provided in the Second
Report and Order. Would clarifying that the D Block winning bidder has
the right to make the final technical determinations with regard to the
network platform serve the public interest? Should the Commission
specify the precise public safety services and applications that must
be carried or that need not be carried, beyond typical broadband
applications (e.g., Internet access, video, multimedia), such as
cellular telephony, dispatch voice service, push-to-talk, etc., and if
so, what should they be? Should we establish limits on the obligation
to accommodate applications similar to those established in the C
Block? For example, should we provide that there is no obligation to
carry customized applications where accommodating such applications
would require modifying network infrastructure or back-office systems?
\91\ What impact might any of these determinations have on the utility
of the network for public safety purposes?
---------------------------------------------------------------------------
\91\ See Second Report and Order, 22 FCC Rcd at 15371 n.502.
---------------------------------------------------------------------------
72. We ask commenters to provide detailed information regarding any
proposed broadband platform solution. How can we establish a set of
requirements that will meet public safety's needs while providing
prospective bidders with sufficient certainty that it will be possible
to construct a system that is economically viable? How can we best meet
this objective without impeding flexibility regarding network design or
inadvertently deterring potential bidders from participating in the
auction?
73. Reliability. We seek comment on whether we should modify any
aspect of the reliability standard established in the Second Report and
Order. Should we eliminate the specific requirement of 99.7 percent
network reliability and impose only the general requirement of
``reliable operation throughout the service area consistent with
typical public safety communications,'' leaving the specific level of
reliability to negotiations? Should we specify a different level of
reliability, such as 95 percent reliability over 95 percent of a
defined area? \92\ Does the latter standard better reflect a typical
level of reliability in public safety communications systems? Further,
is the typical level of reliability in public safety systems a relevant
factor for cellularized broadband systems? Are there any real-world
examples of reliability based on cellularized broadband systems used by
public safety?
---------------------------------------------------------------------------
\92\ See Cyren Call Petition for Reconsideration at 8; Frontline
Petition for Reconsideration at 23.
---------------------------------------------------------------------------
74. We also seek comment on whether, in the event we continue to
require a specific level of reliability, we should nevertheless
expressly provide that the parties have flexibility to mutually agree
to a different level in particular geographic areas. Are there specific
provisions related to reliability that would create unreasonable
challenges in establishing the network? If so, what limitations should
we establish? Finally, we seek comment on how the reliability standard
impacts the performance requirement, e.g., might it effectively
transform the population-based performance requirements into geographic
benchmarks?
75. Robustness and hardening. We seek comment on whether to further
specify or modify the requirements of the network regarding robustness
and hardening. For example, should we further specify the particular
environmental conditions (temperature range, wind, vibration, etc.)
that the installations must be designed to withstand? Should we specify
the minimal number of hours that base stations and network equipment
must be capable of operating in the event of a power outage? Should we
require an onsite power generator and a specific supply of fuel for
each base station? Should we simply provide that the network must meet
the same requirements regarding backup power applicable to commercial
mobile radio service providers, given that these requirements were
themselves established to meet homeland security and public safety
goals? \93\ Should we address whether and to what extent redundant
infrastructure must be provided, such as provisions for overlapping
cell sites that could provide backup coverage in an emergency, and if
so, how would such provisions impact the viability of the system and
its cost? Should we establish minimum obligations to have access to
backup equipment and systems, such as cellular systems on wheels, or
minimum timeframes for system restoration? Alternatively or
additionally, should we establish ceilings on the extent of robustness
and hardening that may be required of the D Block licensee?
---------------------------------------------------------------------------
\93\ See, e.g., Recommendations of the Independent Panel
Reviewing the Impact of Hurricane Katrina on Communications
Networks, EB Docket No. 06-119, WC Docket No. 06-63, Order on
Reconsideration, 22 FCC Rcd 18013 (2007).
---------------------------------------------------------------------------
[[Page 29596]]
76. We also seek comment on whether these requirements should be
subject to variation. Should we specify circumstances in which the
robustness and hardening obligations may vary, such as to account for
local zoning restrictions, geography, or patterns of weather? Should we
alternatively specify that the extent and circumstances of variation
will be left to the parties to negotiate? Commenters advocating
particular requirements relative to robustness and hardening should
also explain how their proposals compare to the standards for current
public safety wireless systems.
77. Capacity, throughput, and quality of service. As stated in the
Second Report and Order, NPSTC contended that capacity is a key
consideration, arguing that ``the Commission should require a detailed
capacity plan as one of the central elements in the negotiated
agreement * * *'' \94\ Should we further specify the minimum levels of
capacity or throughput (i.e. data transmission rates), or ceilings on
such levels, that the network must provide? If so, how should such
levels be defined? Should they vary by geographic location, or other
conditions? Should we establish other quality of service parameters,
such as resource reservation and session control mechanisms? What means
should be made available by the D Block licensee to enable public
safety to monitor the quality of service in an unobtrusive way and
without the addition of significant cost to the network? Should the
means be nationally standardized and/or be limited to those provided by
the D Block licensee? Is there a need for a formal process to address
future increases in demand?
---------------------------------------------------------------------------
\94\ Second Report and Order, 22 FCC Rcd at 15433 ] 404 (quoting
NPSTC 700 MHz Further Notice Comments at 13).
---------------------------------------------------------------------------
78. As we have emphasized throughout this Second FNPRM, one of the
key elements of the 700 MHz Public/Private Partnership is the D Block
licensee's access to the public safety broadband spectrum on a
secondary basis to defray the cost of building a nationwide network
serving both commercial and public safety users. We thus invite comment
as to whether there are any particular services or applications that
might be too inefficient or far removed from typical public safety
communications needs, or that may overburden or otherwise not be viable
for a broadband network, such that they may frustrate this key element
by excessively limiting or precluding the secondary access to this
spectrum contemplated in the Second Report and Order. For example,
would it be appropriate to prohibit or restrict use of the network for
continuous or routine video surveillance from fixed locations as being
an inefficient or inappropriate use of the capacity of the shared
wireless broadband network? \95\ Would such use create undue
uncertainty concerning network availability for either the D Block
licensee or for public safety users? If there are such concerns, how
else should they be addressed? Are other frequencies available to
public safety users more appropriate for fixed video applications?
Could such networks be made interoperable with the public safety
broadband network using 700 MHz spectrum? What are the relative costs
of using alternative frequencies? What cost savings, if any, would
there be to incorporating video into the 700 MHz network as compared to
allowing individual jurisdictions to develop their own fixed video
wireless networks? Should we set certain parameters to determine or
predict capacity needs of public safety users? We could, for example,
base the capacity needs on the levels of authority within the public
safety community, the existence or absence of an ``emergency'' (further
discussed below), or type, time, or location of communication. Are
there any technical, operational, or cost-based means to monitor or
regulate capacity needs of certain public safety entities? Should we
require the Public Safety Broadband Licensee to forecast public safety
use on a regular basis (monthly, quarterly), or otherwise provide the
assistance needed for the D Block licensee to make such predictions?
Commenters proposing any limits to address such capacity concerns
should provide detailed information on how such limitations could be
implemented without compromising public safety. Would payment
obligations of public safety users for network use be sufficient
incentive for users to voluntarily limit use? Would a rate-of-return or
cost-plus pricing mechanism provide the appropriate incentives?
Alternatively, should we vary the obligations of the D Block licensee,
its right to recover costs from public safety, or other terms of the
NSA, based on the extent to which the public safety broadband spectrum
is available for commercial operations? Or is it sufficient to clarify
that the parties may negotiate such variations?
---------------------------------------------------------------------------
\95\ See, e.g., ``DC OCTO Wireless Broadband Network Wins Police
Chiefs' Technology Award,'' http://newsroom.dc.gov/show.aspx/agency/octo/section/2/release/6342 (stating that the DC wireless broadband
network is designed to provide, among other applications, ``remote
video surveillance''); see also http://govtsecurity.com/state_local_security/close_watch/ (stating, with regard to Baltimore,
Maryland, video surveillance system, that ``[m]any of the city's
surveillance cameras and all of its housing cameras are wireless''
and that ``[w]ireless camera signals from groups of cameras are
brought back to a fiber node * * *.'').
---------------------------------------------------------------------------
79. Security and encryption. Should we provide greater specificity
regarding what the D Block licensee must provide with regard to
security and encryption, or establish an alternate requirement? Should
we identify further what constitutes ``state-of-the-art'' security and
encryption technology? Should we limit the requirement to technical
network solutions or standards for security and encryption implemented
on a nationwide basis? We seek comment on the costs and practical
challenges of implementing such measures in the public/private network
to be constructed by the D Block licensee, particularly in the event
that we permit local variation in the security solutions and standards.
80. Combined use of spectrum. We seek comment on whether, in order
to provide the D Block licensee with appropriate flexibility to achieve
an efficient and effective implementation of the 700 MHz Public/Private
Partnership obligations, we should amend our rules to clarify that the
D Block licensee may construct and operate the shared wireless
broadband network using the entire 20 megahertz of D Block spectrum and
public safety broadband spectrum as a combined, blended resource. In
particular, we seek comment on whether, in designing and operating the
shared network, the 10 megahertz of D Block spectrum and the 10
megahertz of public safety broadband spectrum may be combined, in
effect, into a single and integrated 20 megahertz pool of fungible
spectrum that may be assigned to users without regard to whether a
public safety user is being assigned frequencies in the D Block or a
commercial user is being assigned frequencies in the public safety
broadband spectrum, so long as the network provides commercial and
public safety users with service that is consistent with the respective
capacity and priority rights of the D Block license and Public Safety
Broadband License and with our rules. For example, such a network would
have to guarantee that public safety users have priority access to at
least 10 megahertz of spectrum capacity consistent with the 10
megahertz associated with the Public Safety Broadband License, but, at
any particular time, the network might be using frequencies associated
with either the D Block license or the Public Safety
[[Page 29597]]
Broadband License to provide that capacity.\96\
---------------------------------------------------------------------------
\96\ We note that, under current rules for the 700 MHz Public/
Private Partnership, public safety users would be entitled in
emergencies to the full combined 20 megahertz of capacity on a
priority basis. Elsewhere in this Second Further Notice, we seek
comment on whether to eliminate or clarify this requirement.
---------------------------------------------------------------------------
81. We seek comment on whether permitting the combined use of
spectrum in this fashion would provide for a more efficient and
effective use of spectrum, whether it provides further flexibility to
evaluate and use all available wireless broadband technologies to build
and operate the network and thus promote our ultimate goal of making
available a nationwide interoperable broadband network for public
safety users. We also seek comment on whether such combined use would
be consistent with the different rights and obligations associated with
the D Block license and the Public Safety Broadband License,
respectively, and whether, in light of these and other considerations,
it would be in the public interest to allow such use. Commenters should
also discuss whether permitting such combined use of the spectrum
associated with these two licenses would be consistent with the
requirements of Sections 337(a) and (f) and the Commission rules
allotting specific frequencies for use by the Public Safety Broadband
Licensee and the D Block licensee.
82. Power flux density, and related notification, and coordination
requirements. In the text of the Second Report and Order, we indicated
that we would not adopt any power flux density (PFD) limit requirement
in the public safety broadband segment, based on the limited record
received on this issue.\97\ We also noted that, should additional facts
be presented, we might revisit this issue.\98\ The applicable rules
adopted by the Second Report and Order, however, require the Public
Safety Broadband Licensee to meet a PFD limit when operating base
stations at power levels above 1 kW ERP.\99\ In light of this
discrepancy between the text of the order and the rules, we seek
comment on whether we should retain this PFD requirement for the public
safety broadband spectrum.\100\ Further, we note that Verizon Wireless
(``Verizon'') filed a petition for reconsideration of the First Report
and Order \101\ with regard to certain of the notification and
coordination obligations placed on commercial 700 MHz licensees.\102\
First, Verizon requests that we eliminate the PFD/notification
requirement for Upper 700 MHz C and D Block licensees when operating
base stations at power levels above 1 kW ERP in non-rural areas. And
second, with respect to Upper 700 MHz C and D Block licensees operating
in rural areas, Verizon requests that such licensees: (1) Should only
have to coordinate with adjacent block licensees (i.e., not all other
700 MHz licensees) when seeking to operate at power levels greater than
1 kW ERP; (2) should be permitted to use a power level of ``1 kW ERP
and 1 kW/MHz ERP'' as the trigger for coordination instead of 1 kW ERP;
\103\ and finally, (3) should be subject to a PFD/notification
requirement, rather than a coordination requirement, when operating
base stations at power levels greater than 1 kW ERP and 1 kW/MHz
ERP.\104\ In light of this petition, we seek comment on whether to
apply any or all of Verizon's proposed rule changes to the public
safety broadband spectrum.
---------------------------------------------------------------------------
\97\ See id., 22 FCC Rcd at 15417 para. 358.
\98\ Id.
\99\ See 47 CFR. 90.542(a)(5), (b).
\100\ This requirement had initially been imposed on Upper 700
MHz C and D Block licensees to protect public safety narrowband
licensees from interference.
\101\ See Service Rules for the 698-746, 747-762 and 777-792 MHz
Bands, WT Docket No. 06-150, Revision of the Commission's Rules to
Ensure Compatibility with Enhanced 911 Emergency Calling Systems, CC
Docket No. 94-102, Section 68.4(a) of the Commission's Rules
Governing Hearing Aid-Compatible Telephones, WT Docket No. 01-309,
Biennial Regulatory Review--Amendment of Parts 1, 22, 24, 27, and 90
to Streamline and Harmonize Various Rules Affecting Wireless Radio
Services, WT Docket 03-264, Former Nextel Communications, Inc. Upper
700 MHz Guard Band Licenses and Revisions to Part 27 of the
Commission's Rules, WT Docket No. 06-169, Implementing a Nationwide,
Broadband, Interoperable Public Safety Network in the 700 MHz Band,
PS Docket No. 06-229, Development of Operational, Technical and
Spectrum Requirements for Meeting Federal, State and Local Public
Safety Communications Requirements Through the Year 2010, WT Docket
No. 96-86, Report and Order and Further Notice of Proposed
Rulemaking, 22 FCC Rcd 8064 (2007) (First Report and Order).
\102\ Petition for Reconsideration of Verizon Wireless, WT
Docket No. 06-150 (filed June 14, 2007) (Verizon Petition).
\103\ Upper 700 MHz C and D Block licensees may operate base
stations at power levels up to 2 kW/MHz ERP in rural areas.
\104\ Verizon Petition at 8-12.
---------------------------------------------------------------------------
83. Other technical requirements. As noted above, we also seek
comment on whether to establish, modify, or clarify the requirements
with regard to any other critical aspect of the network that may
significantly affect its commercial viability or its ability to meet
the needs of public safety. For example, should we further specify the
technical requirements and standards with regard to interoperability or
network availability?
(ii) Priority Public Safety Access to Commercial Spectrum During
Emergencies
84. Background. In addition to requiring that the network meet
certain technical specifications, we also required that the D Block
licensee provide the Public Safety Broadband Licensee with priority
access, during emergencies, to the spectrum associated with the D Block
license (in addition to the 700 MHz public safety broadband spectrum).
At the same time, we noted that the potential disruption of commercial
service in the D Block, while appropriate in an emergency situation,
must be limited to the most serious occasions in order to avoid
jeopardizing the commercial viability of the 700 MHz Public/Private
Partnership. To balance these competing concerns, we thus required the
parties to define ``emergency'' for purposes of priority access to D
Block license spectrum as part of the NSA.\105\ We also provided that
in the event that the parties are unable to agree that an emergency
situation requires priority access to the D Block license spectrum,
especially in circumstances that do not clearly fall within the
definition of ``emergency'' negotiated by the parties in the NSA, the
Public Safety Broadband Licensee may request that the Commission
declare, on an expedited basis, that particular circumstances warrant
emergency priority access.\106\
---------------------------------------------------------------------------
\105\ Second Report and Order, 22 FCC Rcd at 15441-42 ] 426.
\106\ Id. at 15442. We delegated authority to the Defense
Commissioner to decide these requests. See 47 CFR 0.181.
---------------------------------------------------------------------------
85. Discussion. We seek comment on whether we should continue to
require that the D Block licensee provide the Public Safety Broadband
Licensee with priority access, during emergencies, to the spectrum
associated with the D Block license. We seek comment on whether this
obligation is essential to ensure that the network capacity will meet
public safety wireless broadband needs, or whether removing the
obligation could significantly improve the chances that this proceeding
will succeed in achieving our goal of making available to public safety
users a nationwide, interoperable, broadband network that incorporates
the greater levels of reliability, robustness, security, and other
features required for public safety services.
86. If we continue to require that the D Block licensee provide the
Public Safety Broadband Licensee with priority access, during
emergencies, to the spectrum associated with the D Block license, we
seek comment on whether
[[Page 29598]]
we should provide more clarity on the circumstances that would
constitute an ``emergency'' for this purpose. If so, we ask whether any
or all of the following events should define an ``emergency:''
The declaration of a state of emergency by the President
or a state governor.
The issuance of an evacuation order by the President or a
state governor impacting areas of significant scope.
The issuance by the National Weather Service of a
hurricane or flood warning likely to impact a significant area.
The occurrence of other major natural disasters, such as
tornado strikes, tsunamis, earthquakes, or pandemics.
The occurrence of manmade disasters or acts of terrorism
of a substantial nature.
The occurrence of power outages of significant duration
and scope.
The elevation of the national threat level, as determined
by the Department of Homeland Security, to either orange or red for any
portion of the United States, or the elevation of the threat level in
the airline sector or any portion thereof, as determined by the
Department of Homeland Security, to red.
87. Are there any other events, or modifications to the above, that
would assist in removing uncertainty in reaching a definition of
``emergency?'' Would this proposed definition of ``emergency'' be too
burdensome on the D Block licensee? If we adopted some or all of the
above event-defining emergencies, should we permit the parties to the
NSA to propose different or additional scenarios that should be
considered emergencies? Further, should we make explicit that priority
access in emergency situations be limited to the geographic and/or
jurisdictional area directly affected by the emergency? Should we
establish time limits on the duration of priority access? If so, how
should such time limits be based? Alternatively, should we establish
limits on the priority access given to the D Block spectrum capacity,
for example by limiting public safety's priority access to D Block
spectrum capacity in emergencies to 50 percent?
(iii) Performance Requirements Relating to Construction of the Network
88. Background. In the Second Report and Order, we decided that the
D Block license would be issued for a period of 10 years and imposed
unique performance requirements for the D Block license in connection
with the construction of the shared wireless broadband network.
Specifically, we required the D Block licensee to provide signal
coverage and offer service to at least 75 percent of the population of
the nationwide D Block license area by the end of the fourth year, 95
percent by the end of the seventh year, and 99.3 percent by the end of
the tenth year.\107\ We further specified that ``the network and signal
levels employed to meet these benchmarks be adequate for public safety
use * * * and that the services made available be appropriate for
public safety entities in those areas.'' \108\
---------------------------------------------------------------------------
\107\ Second Report and Order, 22 FCC Rcd at 15445.
\108\ Id. at 15446.
---------------------------------------------------------------------------
89. Certain other requirements were imposed to further ensure
coverage of highways and certain other areas such as incorporated
communities with a population in excess of 3000.\109\ We concluded that
these build-out requirements ``will ensure that public safety needs are
met.'' \110\ We also required, however, that, ``to the extent that the
D Block licensee chooses to provide commercial services to population
levels in excess of the relevant benchmarks, the D Block licensee will
be required to make the same level of service available to public
safety entities.'' \111\
---------------------------------------------------------------------------
\109\ See id. at 15445, 15446.
\110\ Id. at 15445.
\111\ Id. at 15446.
---------------------------------------------------------------------------
90. Discussion. We seek comment on whether we should revise the
performance requirements that we imposed on the D Block licensee with
regard to building out the nationwide, interoperable broadband network
and, if so, how those requirements should be revised. We also invite
comment on whether to extend the license term for that license, and
possibly the Public Safety Broadband License, if we determine to
provide for construction benchmarks that extend past the initial
license term that we established for the D Block license.
91. We seek comment on whether we should retain the existing end-
of-term population benchmark of 99.3 percent or whether instead we
should adopt a lower population benchmark that is equal to or more
aggressive than the 75 percent benchmark that is applicable to the C
Block. We note that each of the top four nationwide carriers is
currently providing coverage to approximately 90 percent or more of the
U.S. population.\112\ Given that existing commercial wireless
infrastructure already covers approximately 90 percent of the
population, we seek comment on whether it is reasonable to expect that
the D Block licensee would be able to meet at least a 90 percent of the
population coverage requirement or more, or whether some other coverage
requirement is appropriate.
---------------------------------------------------------------------------
\112\ UBS Warburg Investment Research, U.S. Wireless 411, at 17
(Mar. 18, 2008).
---------------------------------------------------------------------------
92. Based on extrapolations from one estimate in the record, it
appears that reducing the population coverage level from 99.3 to 98
percent would result in a potential cost savings for the D Block
licensee of approximately $3.1 billion in capital expenditures and
reducing the coverage level to 95 percent would result in a potential
cost savings of approximately $6.1 billion in capital
expenditures.\113\ Even assuming that a more reasonable estimate of
potential cost savings may amount to around half these figures,
reducing the coverage level to 98 percent would result in a potential
cost savings of approximately $1.6 billion and reducing the coverage
level to 95 percent would result in a potential cost savings of around
$3.1 billion.\114\ We seek comment on these specific estimates, as well
as any other estimates that commenters can provide relating to the
incremental additional costs associated with covering each percentage
(in whole or part) of the
[[Page 29599]]
population above 95 percent. We also note that reducing the population
coverage level for the end-of-term benchmark from 99.3 percent to 98
percent or 95 percent would also reduce the geographic area covered by
the network. We estimate, for example, that under the current 99.3
percent end-of-term build-out benchmark, approximately 61 percent of
the geographic area of the country would be covered by the network. By
contrast, with a 95 percent end-of-term build-out benchmark, we
estimate that approximately 40 percent of the geographic area of the
country would be covered.\115\ We seek comment on these estimates, or
on any related estimates.
---------------------------------------------------------------------------
\113\ See Frontline Petition for Reconsideration at 22 (stating
that increasing the 10-year coverage requirement from 99 percent of
the population to 99.3 percent added $1 billion in costs to the
network). Commission staff extrapolated from Frontline's analysis to
estimate potential cost savings associated with various coverage
levels. First, Commission staff estimated Frontline's implied
network cost per square mile by taking the difference in square
miles between CONUS population coverage at 99.3 percent and 99
percent (149,048 square miles), and then dividing Frontline's $1
billion cost savings by this difference in square miles. Using this
methodology, Commission staff estimated Frontline's implied network
cost per square mile to be approximately $6,700. In estimating the
difference in square miles between population coverage at 99 percent
and 99.3, Commission staff used U.S. Census-based population data by
county, starting with the county that has the highest population
density, and working down in counties to arrive at 99 and 99.3
percent of the U.S. population. Using the implied network cost per
square mile derived from the Frontline data, Commission staff
estimated that reducing the CONUS population coverage level from
99.3 to 98 percent would result in a reduction of 913,612 square
miles covered by the network. This reduction in square miles is
multiplied by the implied cost of $6,700 to arrive at potential
network cost savings for the D Block licensee of approximately $3.1
billion. Similarly, Commission staff estimated that reducing the
CONUS population coverage level from 99.3 to 95 percent would result
in a reduction of 462,591 square miles covered by the network. This
reduction in square miles is multiplied by the implied cost of
$6,700 to arrive at potential network cost savings for the D Block
licensee of approximately $6.1 billion.
\114\ By reducing this estimated implied network cost per square
mile by 50 percent (from $6,700 to $3,355), Commission staff
estimated a potential cost savings of approximately $1.6 billion if
the coverage level were reduced to 98 percent, and a potential cost
savings of $3.1 billion if the coverage level were reduced to 95
percent.
\115\ See Implementation of Section 6002(b) of the Omnibus
Budget Reconciliation Act of 1993; Annual Report and Analysis of
Competitive Market Conditions with Respect to Commercial Mobile
Services, Twelfth Report, 23 FCC Rcd 2241, at 5 (2008) (Twelfth CMRS
Competition Report).
---------------------------------------------------------------------------
93. More generally, we seek comment on how much a dedicated,
nationwide, interoperable broadband network for public safety, built to
the requirements outlined in the Second Report and Order, costs to
build and operate. We seek as much detail on these costs as commenters
can provide. How should the Commission balance the potential savings
associated with adopting less stringent performance requirements with
our goal of establishing a nationwide interoperable public safety
network?
94. As we consider appropriate construction benchmarks for the D
Block license, we note that for the 22 megahertz C Block we required
licensees to provide signal coverage and offer service to at least 40
percent of the population in each EA of the license area within four
years and to at least 75 percent of the population in each EA of the
license area by the end of the ten-year license term.\116\ Given that
the licenses in the C Block were successfully auctioned in Auction 73,
and that at least one bidder has put together a nearly nationwide
geographic footprint with these licenses, we assume that the D Block
licensee should, at the very minimum, be able to meet these benchmarks
with respect to its nationwide license. We seek comment on this
assumption.
---------------------------------------------------------------------------
\116\ Second Report and Order, 22 FCC Rcd at 15351.
---------------------------------------------------------------------------
95. Depending on which performance benchmarks we may ultimately
adopt, should we include benchmarks that extend beyond the end of the
initial 10 year license term? If so, should we also extend the term of
the D Block license accordingly? Would doing so make it easier for the
D Block licensee to meet the performance requirements the Commission
adopted? If, for example, we were to adopt a 15 year license term,
would such a modification increase the commercial viability of the
required network while still meeting public safety needs? If we were to
adopt a 15 year license term, how should the interim build-out
benchmarks be modified? We could, for example, require the D Block
licensee to provide signal coverage and offer service to at least 50
percent of the population of the nationwide license area by the end of
the fifth year, 80 percent of the population of the nationwide license
area by the end of the tenth year, and 95 percent of the population of
the nationwide license area by the end of the fifteenth year. Would
modifying the license term and performance requirements in this way, or
similar way, serve the public interest? Alternatively, if we extend the
overall license term, should we add additional interim benchmarks to
reflect the longer deployment period? What potential impact would these
revised terms and benchmarks have on the near-term and long-term needs
of public safety? Would roaming be a possible solution to increased
coverage needs?
96. We also seek comment on how making changes to the license term
and performance requirements as described above would affect other
aspects of the rules that we adopted, such as the requirement that the
D Block licensee and Public Safety Broadband Licensee negotiate
inclusion into the build-out schedule coverage of major highways and
interstates, as well as incorporated communities with a population in
excess of 3,000 people? \117\ In addition, we seek comment on whether
any aspect of the renewal requirements for the D Block licensee should
be revised. In the Second Report and Order, we determined that, at the
end of the 10 year license term, the D Block licensee will be allowed
to apply for license renewal that will be subject to its success in
meeting the material requirements set forth in the NSA as well as all
other license conditions, including meeting the performance benchmark
requirements.\118\ Because the initial NSA term will expire at the same
time, we also required the D Block licensee to file a renewed or
modified NSA for Commission approval at the time of its license renewal
application.\119\ Should we make any changes to these requirements?
---------------------------------------------------------------------------
\117\ We do not revisit our decision to prohibit geographic
partitioning and spectrum disaggregation for the D Block licensee in
the context of the 700 MHz Public Private Partnership. We continue
to find that such restriction is necessary to ensure the integrity
of the public/private partnership and nationwide broadband network.
\118\ Second Report and Order, 22 FCC Rcd at 15450.
\119\ Id.
---------------------------------------------------------------------------
97. How will the possibility of NSA re-negotiation at some point in
the future affect the incentives of public safety users to develop
reliance on the public safety broadband network? What steps could
provide public safety users with confidence that using the broadband
network will remain attractive after potential changes to the NSA at
renewal time? \120\ What are the downsides to such an approach?
---------------------------------------------------------------------------
\120\ See A New Proposal for a Commercially Run Nationwide
Broadband System Serving Public Safety by Jon M. Peha, Associate
Director, Center for Wireless and Broadband Networking, Professor of
Electrical Engineering and Public, PS Docket No. 06-229, WT Docket
No. 96-86 (filed Feb. 27, 2007), at 9.
---------------------------------------------------------------------------
98. As discussed above, we are seeking comment on whether the
license term of the D Block should be revised. In adopting the ten-year
license term for the Public Safety Broadband Licensee, we sought to
harmonize the license terms to facilitate the contemplated leasing
arrangement and build out requirements. Accordingly, should we
determine to extend the term of the D Block license, we seek comment on
whether we also should extend the Public Safety Broadband Licensee term
in a corresponding manner. Further, we determined in the Second Report
and Order that the NSA was to have a term not to exceed 10 years from
February 17, 2009, to coincide with the term of the D Block license.
Thus, we also ask whether we should extend the term of the NSA to be
co-extensive with any extended term we may adopt for the D Block.
99. We also seek comment on whether we should revise our rules to
permit the D Block licensee to use Mobile Satellite Service to help it
meet its build-out benchmarks. In the Second Report and Order, we found
that satellite services can enable public safety users to communicate
in rural and remote areas that terrestrial services do not reach. We
also stated that satellite technology can provide the only means of
communicating where terrestrial communications networks have been
damaged or destroyed by wide-scale natural or man-made disasters.\121\
As a result, we required that the D Block licensee make available to
public safety users at least one handset that includes a seamlessly
integrated satellite solution.\122\ In addition, we strongly
[[Page 29600]]
encouraged the D Block licensee and the Public Safety Broadband
Licensee to negotiate large-scale satellite service agreements that
could be used to either expand or expedite build-out in rural areas and
to replace terrestrial services where terrestrial facilities are
damaged or destroyed.\123\
---------------------------------------------------------------------------
\121\ Second Report and Order at 15452.
\122\ Id. at 15452.
\123\ Id. at 15453.
---------------------------------------------------------------------------
100. In light of the potential for Mobile Satellite Services to
supplement the D Block licensee's coverage, we seek comment in this
Second FNPRM on whether it would serve the public interest to permit
the D Block licensee to utilize Mobile Satellite Service as a way to
meet, in part, its build-out requirements. We seek comment on whether
this proposal could better enable the D Block licensee to meet its
performance requirements by providing the licensee with additional
means for ensuring that broadband public safety services are available
in remote and rural areas. If the D Block licensee is able to make use
of Mobile Satellite Service coverage, we seek comment on whether
satellite coverage would make it easier to cover gaps in rural areas in
the terrestrial 700 MHz public safety network. We seek comment on
whether this additional flexibility in infrastructure deployment would
serve to bolster the availability, robustness, and survivability of the
public safety communications network. If we permit the D Block licensee
to use Mobile Satellite Services to help it meet the build-out
benchmarks, we seek comment on whether we should limit the extent to
which it can rely upon such services and, if so, how its reliance on
Mobile Satellite Services should be limited.
101. We also seek comment on whether the D Block licensee's
obligation to meet its build-out requirements should be delayed or
relaxed if the licensee ensures that handsets with terrestrial and
mobile satellite components are available in areas that have not been
built out with a terrestrial network, but are covered by a Mobile
Satellite Service footprint. Alternatively, we seek comment on whether
we should retain the terrestrial build-out requirement, but provide the
D Block licensee with more flexibility if it makes terrestrial/mobile
satellite handsets available for public safety use. We seek comment,
for example, on whether the D Block licensee should be provided scaled
flexibility based on the substitutability of the satellite offering for
terrestrial services to be used by public safety users. Factors that we
could consider in assessing such an offering might include: (1) The
capabilities of the satellite component (e.g., voice, data, video,
interoperability, priority/preemption); (2) the availability of
terrestrial/mobile satellite data devices, in addition to handheld
voice devices; and (3) geographic coverage. To the extent we determine
to lower the population coverage level for the end-of-term benchmark
from 99.3 percent to 98 percent or 95 percent, is there some other way
than Mobile Satellite Service to provide service to 99.3 percent of the
population?
102. What would be the marginal cost to public safety entities of
using Mobile Satellite Service-based communications services? To what
extent would these marginal costs be comparable to the marginal cost of
using the terrestrial component of the public safety broadband network?
Is it reasonable to require the D Block licensee to ensure some degree
of comparability of costs for public safety end users if the D Block
licensee relies upon Mobile Satellite Service to fulfill a network
build-out requirement? How could such comparability be defined and
enforced?
103. We also seek comment on whether there are other terrestrial or
non-terrestrial technologies or services that the D Block licensee may
utilize to satisfy its performance requirements.\124\ We reiterate the
questions asked of Mobile Satellite Services above with regard to other
such non-terrestrial technologies, and we seek comment on the costs and
benefits of such technologies, particularly in comparison to Mobile
Satellite Service, and whether permitting the use of such technologies
to satisfy in part the D Block licensee's performance requirements
would raise any other issues that should be addressed by the
Commission.
---------------------------------------------------------------------------
\124\ See, e.g., Letter from Gerald Knoblach, CEO, Space Data
Corporation, to Marlene H. Dortch, Secretary, FCC, AU Docket No. 07-
157, ET Docket No. 04-186, Ex Parte (filed April 29, 2008) (arguing
that wide area technologies such as Space Data's SkySite Platforms,
which ``create a wireless network consisting of transceivers on
weather balloons that operate in near space from 60,000 to 100,000
feet,'' can ``address issues associated with build-out and landmass
coverage for the 700 MHz D Block. * * *''); Interoperable
Communications: Hearing Before the H. Subcomm. on Telecommunications
and the Internet, 110th Congress (2008) (statement of Robert F.
Duncan, Rear Admiral, United States Coast Guard (ret.), Senior Vice
President, Rivada Networks). See also Letter from Cheryl A. Tritt,
Counsel to Space Data Corp., to Marlene H. Dortch, Secretary, FCC,
WT Docket Nos. 96-86, 05-211, and 06-150, PS Docket No. 06-229, AU
Docket No. 07-157, Ex Parte Notice (filed Oct. 24, 2007).
---------------------------------------------------------------------------
104. We further seek comment on whether, to reduce the cost of
meeting our build-out requirements, we should adopt rules to promote or
facilitate access by the D Block licensee to public safety towers and/
or rights of way, and if so, what measures would be appropriate? We
might, for example, obligate the licensees in the 700 MHz Public/
Private Partnership to make ``reasonable, good-faith efforts to obtain
access'' to both public safety towers and public safety rights of way,
as earlier proposed by one party in this proceeding.\125\ We seek
comment on this option, and on whether measures should be adopted to
provide public safety entities with some degree of obligation or
incentive to provide such access. Commenters proposing such a measure
should also discuss the Commission's authority to adopt it.
Alternatively, should we clarify that the D Block licensee has
flexibility to provide this type of incentive, such as by agreeing to
reduced rates for services to public safety entities that provide
access to their towers, and otherwise leave the issue to be negotiated
between the two licensees and the relevant public safety entities? Are
there impediments that might limit the ability of public safety
entities to enter into such arrangements? If so, what steps can the
Commission take to address such impediments that are within its
authority and consistent with the public interest?
---------------------------------------------------------------------------
\125\ See Notice by Frontline Wireless, LLC, WT Docket No. 06-
150 and 06-169, PS Docket No. 06-229 (filed Mar. 27, 2007), Draft
Rules at 5.
---------------------------------------------------------------------------
105. Finally, as an alternative approach for establishing
construction requirements, we seek comment on whether we should employ
a ``two tiered'' build out obligation, such that the D Block licensee
would be allowed to incrementally enhance its network. Under this
approach, the D Block licensee could satisfy its ``first tier'' build
out requirement by meeting a subset, or some lower-cost aspects, of the
technical requirements we adopt for the public-private partnership, and
later enhance the network to meet public safety needs. The D Block
licensee would then be required to satisfy a ``second tier''
requirement and fully upgrade portions of the network to meet all
technical requirements adopted for the shared wireless broadband
network based on certain temporal and/or public safety take-rate-based
triggering mechanisms. Would adopting this two tiered performance
requirement serve our goals to ensure a commercially viable opportunity
for the D Block licensee to construct a shared wireless broadband
network suitable for public safety use? If so, what ``first tier''
requirements or capabilities should the D Block be required to meet?
When should the D Block licensee be required to fully upgrade to the
entire set of
[[Page 29601]]
technical requirements? Should we specify a certain amount of time
following each construction benchmark, or after a certain take-rate is
achieved by public safety entities?
b. Respective Roles and Responsibilities of the D Block Licensee and
Public Safety Broadband Licensee With Regard to Construction,
Management, Operations, and Use of the Network
106. In adopting the 700 MHz Public/Private Partnership in the
Second Report and Order, we sought to delineate the respective roles
and responsibilities of the D Block licensee and the Public Safety
Broadband Licensee in a manner that would ensure that the construction
and operation of a shared, interoperable broadband network
infrastructure that operated on the 20 megahertz of spectrum associated
with the D Block license and the Public Safety Broadband License and
that served both the needs of commercial and public safety users.\126\
Under this plan, the D Block licensee and its related entities would
finance, construct, and operate the shared network,\127\ while the
Public Safety Broadband Licensee would represent the interests of
public safety community and ensure that the shared network meets their
needs.\128\
---------------------------------------------------------------------------
\126\ See, e.g., 22 FCC Rcd at 15426 ] 383, 15431 ] 396.
\127\ See, e.g., id. at 15428 ] 386, 15431 ]] 395-96, 15432 ]
399, 15437 ] 415, 15441 ] 425, 15445-46 ]] 437-43, 15450 ] 457,
15449 ] 452, 15467 ] 517.
\128\ See, e.g., id. at 15421-25 ]] 373-75, 15426-27 ] 383,
15433-34 ] 405, 15437-38 ] 416.
---------------------------------------------------------------------------
107. In establishing the 700 MHz Public/Private Partnership, we
determined that promoting commercial investment in the build-out of a
shared network addressed the most significant obstacle to constructing
a public safety network--the limited availability of public
funding.\129\ We concluded that providing for a shared infrastructure
would help achieve significant cost efficiencies, provide the public
safety community with priority access to commercial spectrum during
emergencies, and speed deployment of a nationwide interoperable
broadband network for public safety. At the same time, by providing the
D Block licensee with rights to operate commercial services in the 10
megahertz of public safety broadband spectrum on a secondary,
preemptible basis, this partnership would help defray the costs of
build-out and ensure that the spectrum is used efficiently.\130\
---------------------------------------------------------------------------
\129\ Id. at 15431 ] 396.
\130\ Id.
---------------------------------------------------------------------------
108. We stated that the D Block licensee would have the ``exclusive
right and obligation to build out the shared network,'' using both the
spectrum associated with the D Block license as well as the public
safety broadband spectrum leased from the Public Safety Broadband
Licensee.\131\ We determined that providing for ``commercial
operations'' on the public safety broadband spectrum, on a secondary
and preemptible basis, was ``an integral part of a viable framework for
enabling the 700 MHz Public/Private Partnership to finance construction
of a nationwide, interoperable public safety broadband network.'' \132\
We also afforded the D Block licensee ``operational flexibility'' in
using the leased spectrum to provide ``an appropriate balance between
the commercial and public safety operations in the public safety
broadband spectrum.'' \133\ We stated that the spectrum leasing
component of the partnership ``permits the D Block licensee to
construct a network to serve its business needs, yet preserves the
network infrastructure required for primary public safety use in the
Public Safety Broadband Licensee's band.'' \134\ We considered the D
Block licensee's commercial operations throughout the 20 megahertz band
of spectrum, including operations on a secondary basis with regard to
public safety spectrum, as a necessary condition in order to ``harness
private sector resources to facilitate construction of a nationwide
interoperable public safety broadband network.'' \135\
---------------------------------------------------------------------------
\131\ Id. at 15432 ] 399. See also, e.g., id. at 15450 ] 457; 47
CFR 27.1303.
\132\ Id. at 15437 ] 416.
\133\ Id. at 15438 ] 417.
\134\ Id.
\135\ Id. at 15438 ] 419.
---------------------------------------------------------------------------
109. Meanwhile, in the Second Report and Order we provided that the
Public Safety Broadband Licensee's responsibilities would center around
directly representing the public safety interests with respect to the
700 MHz Public/Private Partnership, negotiating on their behalf with
the winning bidder of D Block license and ensuring that their interests
are met in the NSA.\136\ Among other things, as discussed above, we
provided that no commercial interest may be held in the Public Safety
Broadband Licensee, that no commercial interest may participate in the
management of the licensee, and that the licensee must be a non-profit
organization.\137\ We assigned various general responsibilities that we
considered in keeping with the Public Safety Broadband Licensee's
responsibilities, as discussed more fully below. We afforded the Public
Safety Broadband Licensee ``significant flexibility and control in
connection with the construction and use of the nationwide broadband
public safety network,'' while at the same time we sought ``to balance
that discretion with the concurrent and separate responsibilities'' of
the D Block licensee.\138\
---------------------------------------------------------------------------
\136\ Id. at 15437 ] 416 (role of the Public Safety Broadband
Licensee ``in ensuring that the public/private network established
pursuant to the 700 MHz Public/Private Partnership serves the
interests of public safety''), 15438 ] 417 (Public Safety Broadband
Licensee, through its spectrum leasing arrangement with the D Block
licensee, ``has the regulatory means (and obligation) to preserve
the fundamental public safety function of the band'').
\137\ Id. at 15421-22 ]] 373-374.
\138\ Id. at 15426 ] 383.
---------------------------------------------------------------------------
110. Finally, we provided some guidance on the service fees that
the D Block licensee could charge public safety users for their access
to the shared network, both for ``normal network service'' using the
public safety broadband spectrum and for priority access to the D Block
spectrum.\139\ We required that these fees, to be negotiated by the
winning bidder of the D Block license and the Public Safety Broadband
Licensee, be specified in the Network Sharing Agreement.\140\ In
addition, we indicated that the Public Safety Broadband Licensee, as
part of its administration of public safety access to the shared
wireless broadband network, might assess ``usage fees to recoup its
expenses and related frequency coordination duties.'' \141\
---------------------------------------------------------------------------
\139\ Id. at 15448-49 ]] 450-52.
\140\ Id. at 15448 ] 450.
\141\ Id. at 15426 ] 383.
---------------------------------------------------------------------------
111. Below, we seek comment on whether we should clarify or revise
the roles and responsibilities relating to the D Block licensee and the
Public Safety Broadband Licensee. We also seek comment on whether we
should clarify or revise the guidance or requirements relating to fees,
including both service fees and spectrum usage fees. Finally, we seek
comment generally on whether additional revisions or clarifications
regarding the construction, operation, management, or use of the shared
network would help ensure that the goals of the 700 MHz Public/Private
Partnership are achieved.
(i) Role and Responsibilities of the D Block Licensee
112. Background. As discussed above, the D Block licensee is
generally responsible for financing, construction, and operation of the
shared network, which will serve both commercial users and public
safety users. Also as noted above, we considered the D Block
[[Page 29602]]
licensee's ``commercial operations'' throughout the 20 megahertz band
of spectrum as a necessary condition in order to ``harness private
sector resources to facilitate construction'' of the network.\142\
---------------------------------------------------------------------------
\142\ Id. at 15439 ] 419.
---------------------------------------------------------------------------
113. Discussion. We invite comment on whether additional clarity
with regard to the role and responsibilities of the D Block licensee
would be helpful to ensure that the 700 MHz Public/Private Partnership
achieves its goal in creating a shared, interoperable broadband
network. We further seek comment on the appropriate extent of the
relationship between the D Block licensee and individual public safety
entities with regard to either the establishment of service with those
entities or ongoing customer care and billing, bearing in mind the role
and responsibilities of the Public Safety Broadband Licensee, which we
discuss below.
114. As we have indicated, the ability of the D Block licensee to
finance construction of the shared network is critical. Have we
established sufficient and appropriate incentives in the 700 MHz
Public/Private Partnership that ultimately will enable the D Block
licensee to finance and construct the shared network as contemplated?
Are there additional steps we can take, or further clarifications, that
would improve the likelihood of the success for this partnership?
115. With respect to management and operations of the network, we
expect that the D Block licensee will establish a network operations
system to support the network infrastructure that it deploys and uses
to serve its commercial customers. Such network operations functions
typically include a network operations/monitoring center, billing
functions, customer care, and similar functions. Should these network
operations functions be viewed, much like the build-out of a common
network infrastructure, as responsibilities to be assumed solely by the
D Block licensee for the benefit of both its commercial customers and
the public safety users represented by the Public Safety Broadband
Licensee? If the D Block licensee were to assume all traditional
network service provider operations, would this better enable the
Public Safety Broadband Licensee to administer access to the national
public safety broadband network by individual public safety entities,
coordinate frequency usage, assess usage fees, and exercise its sole
authority to approve equipment and applications for use by public
safety entities?
116. We also seek comment on the factors that will affect and
determine the D Block licensee's commercial operations and anticipated
profitability. Commenters are encouraged to be as specific as possible
and to provide detailed projections and figures where possible. What
types of commercial customers can the licensee be expected to serve
(e.g., critical infrastructure industries, commercial wireless carriers
seeking additional spectrum or roaming capacity, commercial wireless
customers, automotive companies and service providers, large enterprise
customers)? How might current trends and recent developments in the
commercial wireless market and the general financial markets affect the
D Block licensee's financial model?
(ii) Role and Responsibilities of the Public Safety Broadband Licensee
117. Background. As discussed above, the Public Safety Broadband
Licensee generally is charged with representing the interests of the
public safety community to ensure that the shared interoperable
broadband network meets their needs. In the Second Report and Order, we
assigned the following responsibilities to the Public Safety Broadband
Licensee concerning its partnership with the D Block licensee:
General administration of access to the national public
safety broadband network by individual public safety entities,
including assessment of usage fees to recoup its expenses and related
frequency coordination duties.
Regular interaction with and promotion of the needs of the
public safety entities that would utilize the national public safety
broadband network, within the technical and operational confines of the
NSA.
Use of its national level of representation of the public
safety community to interface with equipment vendors on its own or in
partnership with the D Block licensee, as appropriate, to achieve and
pass on the benefits of economies of scale concerning network and
subscriber equipment and applications.
Sole authority, which cannot be waived in the NSA, to
approve, in consultation with the D Block licensee, equipment and
applications for use by public safety entities on the public safety
broadband network.
Responsibility to facilitate negotiations between the
winning bidder of the D Block license and local and state entities to
build out local and state-owned lands.\143\
---------------------------------------------------------------------------
\143\ Id. at 15427 ] 383.
---------------------------------------------------------------------------
118. We also identified several other of the Public Safety
Broadband Licensee's responsibilities, which included:
Coordination of stations operating on public safety
broadband spectrum with public safety narrowband stations, including
management of the internal public safety guard band.
Oversight and implementation of the relocation of
narrowband public safety operations in channels 63 and 68, and the
upper 1 megahertz of channels 64 and 69.
Exercise of sole discretion, pursuant to Section 2.103 of
the Commission's rules, whether to permit Federal public safety agency
use of the public safety broadband spectrum, with any such use subject
to the terms and conditions of the NSA.
Responsibility for reviewing requests for wideband waivers
and including necessary conditions or limitations consistent with the
deployment and construction of the national public safety broadband
network.\144\
---------------------------------------------------------------------------
\144\ Id.
---------------------------------------------------------------------------
119. As noted above, we also provided that no commercial interest
may be held in the Public Safety Broadband Licensee, that no commercial
interest may participate in the management of the licensee, and that
the licensee must be a non-profit organization.\145\ We indicated,
however, that, as part of its administration of public safety access to
the shared wireless broadband network, the Public Safety Broadband
Licensee might assess usage fees to recoup its expenses and related
frequency coordination duties.\146\
---------------------------------------------------------------------------
\145\ Id. at 15421-22 ]] 373-374.
\146\ Id. at 15426 ] 383.
---------------------------------------------------------------------------
120. We afforded the Public Safety Broadband Licensee flexibility
in overseeing the construction and use of the nationwide broadband
public safety network, while seeking ``to balance that discretion with
the concurrent and separate responsibilities'' of the D Block
licensee.\147\ In order to fulfill these obligations, we indicated that
the Public Safety Broadband Licensee should have ``operational control
of the network to the extent necessary to ensure public safety
requirements are met.'' \148\
---------------------------------------------------------------------------
\147\ Id. at 15426 ] 383.
\148\ Id. at 15434 ] 405.
---------------------------------------------------------------------------
121. Discussion. As an initial matter, we seek comment on whether
we should clarify that the Public Safety Broadband Licensee may not
assume any additional responsibilities other than those specified by
the Commission in this proceeding. We also seek
[[Page 29603]]
comment generally on whether we should clarify, revise, or eliminate
any of the specific responsibilities listed above that the Public
Safety Broadband Licensee must assume. We seek comment in particular on
whether to clarify or revise the division of responsibility between the
Public Safety Broadband Licensee and the D Block licensee regarding
direct interaction with individual public safety entities in the
establishment of service to such entities, the provision of service,
customer care, service billing, or other matters. What division will
best serve the interests of public safety and the goals of this
proceeding?
122. In addressing these questions, we ask commenters to consider
the unique role served by the Public Safety Broadband Licensee by
virtue of holding the single nationwide public safety license, while
not being an actual user of the network. As evidenced by many of the
responsibilities given to the Public Safety Broadband Licensee, at a
fundamental level, the Public Safety Broadband Licensee would in many
respects function much like the way regional planning committees
presently do in the 700 MHz and 800 MHz bands, yet with a nationwide
scope. For example, like regional planning committees, the Public
Safety Broadband Licensee would administer access to the spectrum,
coordinate spectrum use, interact with and promote the needs of
individual public safety agencies, and ensure conformance with
applicable technical and operational rules. One important difference,
however, is that unlike regional planning committees, the Public Safety
Broadband Licensee is the licensee of the spectrum that it administers.
Further, the Public Safety Broadband Licensee has distinct abilities,
in that it may assess usage fees to recoup its costs, can use its
national level of representation to pass on the benefits of economies
of scale for subscriber equipment and applications, and holds sole
authority to approve, in consultation with the D Block licensee,
equipment and applications for public safety users, and to permit
Federal public safety agency use.
123. In light of these similarities and differences, we ask whether
it would add clarity to the Public Safety Broadband Licensee's role to
specify how it is to carry out these responsibilities. For example, are
there certain elements of the existing regional planning committee
functions that we should adopt for the Public Safety Broadband
Licensee? For those functions distinct from regional planning
committees, should we adopt specific rules to govern how the Public
Safety Broadband Licensee is to carry out such functions? Other
responsibilities listed above are more specific to the Public Safety
Broadband Licensee's status as a partner with the D Block licensee.
These include its role to facilitate negotiations between the D Block
licensee and state and local agencies for local build-outs, oversight
and implementation of narrowband relocation, and review of wideband
waiver requests. Thus, while a number of the Public Safety Broadband
Licensee responsibilities are in a frequency planning and coordination
role, the Public Safety Broadband Licensee is at the same time an equal
partner with the D Block licensee with respect to the overall
partnership we envision. Accordingly, we seek comment on how the Public
Safety Broadband Licensee's role as one half of the 700 MHz Public/
Private Partnership should impact how we modify or clarify the
respective responsibilities of the D Block licensee and the Public
Safety Broadband Licensee.
124. While the Public Safety Broadband Licensee may need some
discretion to carry out its partner-related responsibilities, there may
need to be more specific limits on the nature of this role. For
example, related to the Public Safety Broadband Licensee
responsibilities discussed herein, we previously noted that among the
shared wireless broadband network requirements we adopted in the Second
Report and Order was that the network infrastructure incorporate
operational control of the network by the Public Safety Broadband
Licensee ``to the extent necessary'' to ensure public safety
requirements are met.\149\ As we have reiterated throughout this item,
the underlying premise of the 700 MHz Public/Private Partnership is the
responsibility of the D Block licensee for construction of a broadband
network for shared commercial and public safety use. Thus, primary
operational control of the network is inherently the responsibility of
the D Block licensee (and its related entities), which would in turn
generally provide the operations and services that enable the Public
Safety Broadband Licensee to ensure public safety requirements are met.
Conversely, allowing duplication of some or all of these operational
functions may result in a structure more akin to a reseller of
services, which could inject an inappropriate ``business'' or
``profit'' motive into the Public Safety Broadband Licensee structure,
detracting from the intended primary focus of the Public Safety
Broadband Licensee. Accordingly, we seek comment on whether to clarify
that none of the responsibilities and obligations of the Public Safety
Broadband Licensee, either as previously adopted or as possibly revised
pursuant to this Second FNPRM, would permit the Public Safety Broadband
Licensee to assume or duplicate any of the network monitoring,
operations, customer care, or related functions that are inherent in
the D Block licensee's responsibilities to construct and operate the
shared network infrastructure.
---------------------------------------------------------------------------
\149\ Id.
---------------------------------------------------------------------------
125. We further seek comment on whether to expressly provide that
neither the Public Safety Broadband Licensee nor any of its advisors,
agents, or service providers may assume responsibilities akin to a
``mobile virtual network operator,'' \150\ because such a role would be
contrary to the respective roles and responsibilities of the D Block
licensee and Public Safety Broadband Licensee regarding construction,
management, operations, and use of the shared wireless broadband
network, may unnecessarily add to the costs of the 700 MHz Public/
Private Partnership, and may otherwise permit ``for profit'' incentives
to influence the operations of the Public Safety Broadband Licensee.
---------------------------------------------------------------------------
\150\ A mobile virtual network operator is a non-facility-based
mobile service provider that resells service to the public for
profit. See Implementation of Section 6002(B) of the Omnibus Budget
Reconciliation Act of 1993, WT Docket No. 05-71, Tenth Report, 20
FCC Rcd 15908, 15920 ] 27 (2005).
---------------------------------------------------------------------------
126. In addition, we seek comment on whether we should modify
Section 2.103 of the Commission's rules to limit Federal public safety
agency use of the public safety broadband spectrum to situations where
such use is necessary for coordination of Federal and non-Federal
activities. If so, should Commission approval be required? That would
ensure that Federal public safety agencies will be able to interoperate
with state and local public agencies in the use of 700 MHz public
safety broadband services during incidents of mutual interest. In other
situations, Federal public safety agencies would, of course, be able to
purchase 700 MHz wireless broadband services from commercial service
providers using the D Block, just as they purchase satellite service
from commercial service providers. How does the proposed public safety
broadband network for state and local users compare (on a technical
level or in terms of functionality) with the planned Integrated
Wireless Network (``IWN'')
[[Page 29604]]
for Federal users? \151\ What lessons can the Commission learn from the
IWN program? To what extent should development of the public safety
broadband network be coordinated with the agencies responsible for
construction and planning of the IWN program?
---------------------------------------------------------------------------
\151\ The IWN is a collaborative effort by the U.S. Departments
of Justice, Homeland Security, and the Treasury to provide a
consolidated nationwide Federal wireless communications service that
replaces stovepipe stand-alone component systems, and supports law
enforcement, first responder, and homeland security requirements
with integrated communications services (voice, data, and
multimedia) in a wireless environment. The IWN will implement
solutions to provide Federal agency interoperability with
appropriate links to state, local, and tribal public safety, and
homeland security entities. See http://www.usdoj.gov/jmd/iwn. On
April 17, 2007, the Department of Justice announced that it has
selected General Dynamics C4 Systems to implement wireless
communications services to department field agents as part of the
IWN program. See http://www.usdoj.gov/opa/pr/2007/April/07_jmd_256.html.
---------------------------------------------------------------------------
(iii) Fees
127. Background. In the Second Report and Order, we provided
guidance concerning the service fees that the D Block licensee could
charge public safety users for their access to and use of the public
safety broadband network and, in times of emergency, to the D Block
spectrum.\152\ We also discussed the importance of the D Block
licensee's ability to offer commercial services using the public safety
broadband spectrum leased from the Public Safety Broadband
Licensee.\153\
---------------------------------------------------------------------------
\152\ Second Report and Order, 22 FCC Rcd at 15448-49 ]] 450-52.
\153\ Id. at 15437-39 ]] 414-19, 15441 ] 425.
---------------------------------------------------------------------------
128. We required that all service fees--including service fees that
the D Block licensee would charge public safety users for normal
network service using the public safety broadband spectrum and for
their priority access to the D Block spectrum--be specified in the
Network Sharing Agreement.\154\ We stated our expectation, however,
that the winning bidder of the D Block license and the Public Safety
Broadband Licensee will negotiate a fee structure for priority access
to the D Block in an emergency that will protect public safety users
from incurring unforeseen (and unbudgeted) payment obligations in the
event that a serious emergency necessitates preemption for a sustained
period.\155\ We also encouraged the parties to negotiate a fee
agreement that incorporates financial incentives for the D Block
licensee based on the number of public safety entities and localities
that subscribe to the service.\156\ We noted that, for the negotiation
of reasonable rates, typical commercial rates for analogous services
may be useful as a guide, but that the negotiated rates may in fact be
lower than typical commercial rates for analogous services.\157\
---------------------------------------------------------------------------
\154\ Id. at 15448 ] 450.
\155\ Id. Elsewhere, we stated that this ``[p]riority service,
although provided to public safety, will still be commercial, and
will not appreciably impair the D Block licensee's ability to
provide commercial services to other parties.'' Id. at 15437 ] 413.
\156\ Id. at 15448 ] 450.
\157\ Id. at 15449 ] 451.
---------------------------------------------------------------------------
129. In addition, we considered the D Block licensee's opportunity
to provide commercial services using the public safety broadband
spectrum (on a secondary, preemptible basis) to be ``an integral part
of a viable framework for enabling the 700 MHz Public/Private
Partnership to finance construction of a nationwide, interoperable
public safety broadband network.'' \158\ We also noted that permitting
such access to this spectrum ``will harness private sector resources to
facilitate the construction'' of the network.\159\
---------------------------------------------------------------------------
\158\ Id. at 15437 ] 416.
\159\ Id. at 15439 ] 419. See also id. at 15438 ] 417 (stating
that the requirement that the Public Safety Broadband Licensee lease
the public safety broadband spectrum to the D Block licensee
spectrum ``permits the D Block licensee to construct a network to
serve its business needs. * * *'').
---------------------------------------------------------------------------
130. We did not discuss the commercial fees that the D Block
licensee might charge subscribers to the commercial services that it
offers using the shared network. We left that to the marketplace. As
discussed above, however, we seek comment in this Second FNPRM on
whether all non-public safety users of the shared spectrum--including
critical infrastructure users--should be treated as commercial users
that gain access to the shared network through the commercial services
provided by the D Block licensee.\160\
---------------------------------------------------------------------------
\160\ See supra discussion in section III.A.1.
---------------------------------------------------------------------------
131. Discussion. We seek comment on whether we should further
clarify, revise, or specify the service fees that the D Block licensee
may charge public safety users for access to the shared network. We
also seek comment on whether we should provide any guidance on whether
the Public Safety Broadband Licensee may assess spectrum usage fees for
the leasing of the public safety broadband spectrum to the D Block
licensee or the amount of any fee permitted. Is there any additional
guidance that we could provide with regard to fees that the D Block
licensee or Public Safety Broadband Licensee might assess that would be
helpful in ensuring that the goals of the 700 MHz Public/Private
Partnership are achieved?
132. Network service fees. We invite comment on whether we should
reconsider any aspect of the rules regarding service fees to be paid by
public safety users, including any applicable fees for normal network
service and fees for priority access to the D Block in an emergency.
Specifically, we seek comment on whether we should clarify any aspect
of these service fees that was left to negotiations. Did we provide
adequate guidance in the Second Report and Order to enable the parties
to negotiate reasonable rates for all fees? Or should the Commission
adopt a more detailed fee structure or formula to facilitate
negotiations on this issue? \161\ For example, should we specify that
the D Block licensee is entitled to charge rate-of-return or cost-plus
rates, taking the incremental costs of public safety network
specifications and other costs attributable uniquely to public safety
users into account? Alternatively, would requiring public safety users
to pay the same rates as commercial users be sufficient? Should we
mandate that public safety users be entitled to receive the lowest rate
that the D Block licensee offers to its commercial users for analogous
service? Commenters suggesting that the Commission adopt a detailed fee
structure should provide detailed information on their proposals and
discuss how adopting such proposals would result in just and reasonable
rates and strike the best balance among competing interests in
determining fees. Would more clearly defining the circumstances that
would constitute an ``emergency,'' as addressed elsewhere, impact how
fees should be structured for priority access?
---------------------------------------------------------------------------
\161\ See, e.g., Frontline September 20, 2007, Request at 3
(proposing a formula that would limit the amount public safety users
could be charged to that necessary to recover (1) the amortized,
incremental fixed costs of building the network to public safety
standards, plus (2) ongoing operating expenses for maintaining the
network to public safety standards, minus (3) the amortized value of
secondary use of the Public Safety Broadband Licensee spectrum by
commercial customers).
---------------------------------------------------------------------------
133. We also seek comment on whether particular uses of the public
safety broadband network by public safety users should be free and
others fee-based. On what bases can this distinction be made? Is it
practical to use service- and context-based distinctions such as
between voice and advanced data services, mission-critical and non-
mission-critical communications, emergency and non-emergency events,
priority and non-priority access, or similar metrics? Would it instead
be preferable to rely on technical distinctions, such as a
[[Page 29605]]
specified number of minutes or bits, a percentage of network capacity,
or similar metrics? Would either approach give sufficient certainty to
public safety users and/or the commercial D Block licensee?
134. Spectrum leasing fees associated with the public safety
broadband spectrum leasing arrangement. In the Second Report and Order,
we did not specifically address whether the Public Safety Broadband
Licensee, when leasing access to the public safety broadband spectrum
to the D Block licensee, may impose any spectrum usage fees for use of
this spectrum. We seek comment on whether any aspect of the spectrum
leasing arrangement should be clarified by the Commission, or whether
spectrum usage fees might be considered reasonable or unreasonable
given the role of the spectrum leasing arrangement in the 700 MHz
Public/Private Partnership. When we provided guidance in the Second
Report and Order on determining reasonable network service fees, we
assumed that the network service and priority access fees may in fact
be lower than typical commercial rates in part to reflect the value of
the D Block licensee's access to the public safety spectrum through
leasing. We seek comment on whether and how any spectrum usage fees
might affect the reasonableness of service and emergency access fees
discussed above. Should we prohibit any spectrum usage fees associated
with the spectrum leasing arrangement? Is the D Block's responsibility
for building the public safety broadband network sufficient in-kind
contribution for use of the public safety spectrum? If we allow
spectrum usage fees, should we require public safety users to pay
commercial rates for their access to the shared network?
2. Negotiation of the Network Sharing Agreement
135. Background. To ensure the timely establishment and execution
of an NSA that adequately safeguards the public interest, we provided
rules to govern the process by which the winning bidder of the D Block
license and the Public Safety Broadband Licensee would negotiate and
establish the agreement.\162\ Under these rules, the parties were
required to begin negotiations on the date that the D Block winning
bidder filed its long form application and to conclude negotiations
within six months.\163\ Both the D Block winning bidder and the Public
Safety Broadband Licensee were required to negotiate in good faith, and
were obligated to submit status reports during the negotiations
period.\164\ To ensure that the D Block winning bidder would not stall
negotiations to avoid its obligations to public safety, we provided
that the D Block license would not be issued until the parties filed an
NSA that had been approved by the Commission and was subsequently
executed by the parties.\165\
---------------------------------------------------------------------------
\162\ See Second Report and Order, 22 FCC Rcd at 15463 ] 501,
15466 ] 512.
\163\ See id. at 15464 ] 504.
\164\ See id. at 15464-65 ]] 505-506.
\165\ See id. at 15463 ] 502.
---------------------------------------------------------------------------
136. If the parties successfully negotiated an agreement on all
terms within the six month period, they were required to submit the NSA
to the Commission for review and approval. In the event the parties did
not reach agreement on all terms at the end of the six month
negotiation period, or if they were found to have reached an impasse at
any time, we delegated authority jointly to the Chiefs of PSHSB and WTB
(the Bureaus) to take a variety of actions to resolve the disputes,
including but not limited to: (1) Granting additional time for
negotiation; (2) issuing a decision on the disputed issues and
requiring the submission of a draft agreement consistent with their
decision; (3) directing the parties to further brief the remaining
issues in full for immediate Commission decision; and/or (4) immediate
denial of the long-form application filed by the winning bidder for the
D Block license, to be followed by either re-auction of the license or
some other means of re-assignment.\166\
---------------------------------------------------------------------------
\166\ See id. at 15465 ] 508.
---------------------------------------------------------------------------
137. After the release of the Second Report and Order, the Chiefs
of PSHSB and WTB issued a public notice that, among other things,
clarified how the Bureaus would exercise their authority to resolve
disputes that arise in the NSA negotiations.\167\ They stated: ``We
will not exercise our authority for immediate denial of the long-form
application filed by the winning bidder for the D Block license, as a
result of any dispute over the negotiation of the terms of the NSA,
until we take one of two steps: (1) Issuing a decision on the disputed
issues and requiring the submission of a draft agreement consistent
with our decision; or (2) referring the issues to the Commission for an
immediate decision and the Commission issues such a decision.'' \168\
The Bureaus also noted that ``failure to comply with a decision by the
Commission or the Bureaus on the disputed issues * * * will be deemed a
default.'' \169\
---------------------------------------------------------------------------
\167\ See ``Revised Procedure for Auctions 73 and 76: Additional
Default Payment for D Block Set at Ten Percent of Winning Bid
Amount; Disputed Issues in the Negotiation of Network Sharing
Agreement,'' Public Notice, 22 FCC Rcd 19320 (2007) (D Block Default
Payments PN).
\168\ Id. at 19322 ] 7.
\169\ See id. at 19322 n.11.
---------------------------------------------------------------------------
138. Discussion. We seek comment on whether and how to modify the
rules governing the negotiation of the NSA, including dispute
resolution, to provide bidders with greater certainty regarding their
obligations while still protecting the interests and needs of public
safety, and to ensure that both the D Block license winner and the
Public Safety Broadband Licensee have incentives to engage in good
faith negotiation and to reach terms that will reasonably protect the
interests of both sides. In particular, we seek to provide a process
that will give bidders confidence that the network the D Block licensee
will be required to construct will be commercially viable, and provide
assurance to state and local public safety entities that the resulting
network will meet their needs for broadband wireless service.
139. To achieve these goals, we seek a process that provides
incentives to both sides to make a maximum good faith effort to reach
an agreement consistent with the important commercial and public safety
interests at stake. As discussed elsewhere in this Second FNPRM, one
way for the Commission to provide greater certainty regarding the terms
of the NSA would be to further specify the requirements of the 700 MHz
Public/Private Partnership in our rules. In this section, we seek
comment on whether we should modify the NSA negotiation process itself.
140. Any party's incentives to make a maximum good faith effort in
any negotiation process are framed by the consequences of failing to
reach agreement. Below, we seek comment on whether we should maximize
the incentives for a bidder winning the D Block license to reach
agreement on an NSA with the Public Safety Broadband Licensee by
providing that, if the parties do not reach agreement, we promptly will
offer the license to the next highest bidder, in descending order.
Alternatively, we seek comment on whether we should maximize the
incentives for both parties to reach agreement on an NSA by providing
that, if the parties do not reach agreement, we promptly will offer in
a subsequent auction the license(s) for the D Block spectrum without
the 700 MHz Public/Private Partnership conditions and subject to
service rules more typical of commercial wireless services licenses.
Would either of these alternatives offer an appropriate balance of
incentives for
[[Page 29606]]
the negotiating parties to reach an agreement?
141. We also seek comment in this section on other related issues.
First, we seek comment on whether, if the NSA process fails to produce
an agreement between the parties, there are any circumstances in which
we should relieve a defaulting D Block license winning bidder of its
obligation to make default payments. We discuss later the distinct
question of what amounts a defaulting D Block license winning bidder
should be required to pay, if any, under these or other circumstances.
Second, in the following subsections, we seek further comment on
whether to modify the mechanisms for resolving any disputes that may
arise during the negotiations or otherwise modify the negotiation
process.
142. Action subsequent to failure to negotiate an NSA. Pursuant to
the Commission's competitive bidding rules, in the event of a default
by a winning bidder, the Commission, at its discretion, may either
offer the licenses to the next highest bidders (in descending order) at
their final bids or auction new licenses for the spectrum.\170\ If the
winning bidder does not execute an NSA with the Public Safety Broadband
Licensee, that winning bidder will be in default and its license
application will be dismissed. We seek comment on whether, following
such a default, we should offer the license to the party with the next
highest bid, in descending order. The next highest bidder would then
have the option of paying the amount of its final bid, filing a long-
form application, and entering into a negotiation process with the
Public Safety Broadband Licensee. If that next highest bidder declined
to exercise that option, the Commission could offer the license to the
party with the next highest bid, in descending order, and so on. Under
such circumstances, should the Commission provide for a shorter time
period for a second attempt to negotiate an NSA, in light of the first
effort? Or should each D Block bidder be entitled to the same amount of
time to attempt to negotiate the terms of the NSA?
---------------------------------------------------------------------------
\170\ See 47 CFR 1.2109(b), (c); see Second Report and Order, 22
FCC Rcd at 15465 ] 508 (noting that, after failure of the parties to
negotiate an NSA, the Commission may reassign the license to the
next highest bidder, citing 47 CFR 1.2109).
---------------------------------------------------------------------------
143. In the event of a failure to negotiate the NSA, we also seek
comment on whether, in lieu of offering the license to the next highest
bidder, we promptly should auction alternative license(s) for the D
Block spectrum without the 700 MHz Public/Private Partnership
conditions and subject to different service rules. This option limits
not only the winning bidder for the D Block license to one opportunity
to negotiate an NSA but also limits the Public Safety Broadband
Licensee to one opportunity. Does this limit create a better or worse
set of incentives for the negotiators, given the public interest in
producing a broadband network to serve the public safety users?
144. Under each of the foregoing alternatives, how should the
Commission define a ``failure'' of the negotiation process? For
instance, should we require adjudication of any dispute before deeming
the negotiations a failure and the D Block winning bidder in default?
Should such adjudication be binding? Or should we deem the negotiations
a failure and the D Block winning bidder in default simply if
negotiations are at an impasse after six months, or even sooner if the
parties certify that an impasse exists? If the consequence of a failure
of negotiations is the auction of the alternative D Block license(s),
should we make additional provisions for resolving any impasse between
the parties?
145. We further seek comment on whether there are any circumstances
in connection with the failure to negotiate an NSA under which a
winning bidder for the D Block license should be relieved from making
default payments based on its winning bid. Commenters also should
address the possibility that relieving the winning bidder from default
obligations while offering the D Block license to the next highest
bidder might create an incentive for the winning bidder to bargain with
the next highest bidder and offer to default. Generally, if we do not
adjudicate any impasse that arises in negotiation, should we
automatically subject the D Block winning bidder to default payments
when its license application is dismissed? Or should some finding of
fault on the part of the winning bidder be a prerequisite of imposing a
default payment? If so, how should such fault be determined? Should any
other consequences, separate and apart from a default payment, be
imposed on the defaulting D Block winning bidder under any of these
circumstances?
146. Alternatively, if we provide for binding adjudication with
respect to any negotiation impasse, should we subject the D Block
license winning bidder to default payments if either party rejects the
binding decision or only if it the D Block license winning bidder fails
to comply? Should any other consequences, separate and apart from a
default payment, be imposed on the defaulting D Block winning bidder
under any of these circumstances?
147. Elsewhere in this Second FNPRM, we seek comment on the rules
we should adopt for the D Block, as well as the Public Safety Broadband
License, if we offer the license(s) for the D Block without the 700 MHz
Public/Private Partnership conditions. If we decide that such licenses
should be offered after a failure to negotiate an NSA, should that
affect the rules we otherwise might adopt for such license(s)? We
likewise seek comment on whether any of our Part 1 competitive bidding
rules or other auction procedures would be inappropriate or should be
modified for an auction of D Block license(s) without the 700 MHz
Public/Private Partnership conditions that is held subsequent to
negotiations between a winning bidder and the Public Safety Broadband
Licensee that do not produce an NSA.
148. If we provide that a failure of negotiations to produce an NSA
will result in a subsequent auction of D Block license(s) without the
700 MHz Public/Private Partnership conditions, a winning bidder might
have an incentive for those negotiations to fail so that it can bid on
license(s) without the 700 MHz Public/Private Partnership conditions in
the subsequent auction. We seek comment on whether this theoretical
incentive is a practical concern and, if so, whether we should adopt
either of two potential auction eligibility rules to mitigate any such
concern.
149. First, we could prohibit a D Block license winning bidder and
related parties from participating in any subsequent auction in which
any licenses for the D Block are offered without the 700 MHz Public/
Private Partnership conditions. We seek comment on this alternative,
and on whether any such eligibility restriction should depend on
whether the D Block license winning bidder is at fault for the failure
of the 700 MHz Public/Private Partnership, e.g., if the D Block license
winning bidder refused to comply with a Commission adjudication of a
negotiation dispute. Further, should any such eligibility restriction
extend to the winning bidder's controlling interests or other related
parties? If so, how should such parties be defined?
150. Alternatively, we might lift any auction eligibility
restrictions that made other parties ineligible for the prior auction
of the D Block license with the 700 MHz Public/Private Partnership
conditions. We seek comment in a later section of this Second FNPRM
regarding whether to restrict parties already possessing significant
access to 700 MHz spectrum from participating in
[[Page 29607]]
auctions of license(s) for the D Block. If such a restriction applied
to an auction of the D Block license with the 700 MHz Public/Private
Partnership conditions, we could lift the restriction in a subsequent
auction of licenses without those conditions. Would doing so
significantly alter the likelihood that the winning bidder in an
initial auction could win the license again, and would this offset any
potential incentive such a winning bidder might have for NSA
negotiations to fail following the first auction?
151. Potential modifications to dispute resolution mechanisms. We
also seek comment on whether we should eliminate the option of binding
adjudication of disputed issues and provide that, in the event of an
intractable dispute, so long as a D Block bidder has negotiated in good
faith, the Commission will relieve the D Block winning bidder of its
financial obligations in connection with the license. Although this
option has been advanced by parties on reconsideration,\171\ we are
concerned that it would be difficult for the Commission to determine
when a disagreement was the product of ``bad faith'' negotiations and
that this option may not provide sufficient incentive to the D Block
winning bidder to meet the needs of public safety. We therefore invite
commenters that advocate this option to discuss these concerns and how
they might be addressed. For example, should we establish a specific
standard for what will constitute an act of bad faith, similar to the
standard incorporated at Section 76.65(b) of our rules? \172\
---------------------------------------------------------------------------
\171\ See, e.g., AT&T Petition for Reconsideration at 8; Cyren
Call Petition for Reconsideration at 6, 7; Frontline Petition for
Reconsideration at 23.
\172\ See 47 CFR 76.65(b). Implementing the requirements of 47
U.S.C. 325(b)(3)(C), this section provides that television broadcast
stations and multi-channel video programming distributors must
negotiate the terms and conditions of retransmission consent
agreements in good faith. It establishes the following standard for
determining whether a party has violated its duty to negotiate in
good faith:
(1) Standards. The following actions or practices violate a
broadcast television station's or multichannel video programming
distributor's (the ``Negotiating Entity'') duty to negotiate
retransmission consent agreements in good faith:
(i) Refusal by a Negotiating Entity to negotiate retransmission
consent;
(ii) Refusal by a Negotiating Entity to designate a
representative with authority to make binding representations on
retransmission consent;
(iii) Refusal by a Negotiating Entity to meet and negotiate
retransmission consent at reasonable times and locations, or acting
in a manner that unreasonably delays retransmission consent
negotiations;
(iv) Refusal by a Negotiating Entity to put forth more than a
single, unilateral proposal;
(v) Failure of a Negotiating Entity to respond to a
retransmission consent proposal of the other party, including the
reasons for the rejection of any such proposal;
(vi) Execution by a Negotiating Entity of an agreement with any
party, a term or condition of which, requires that such Negotiating
Entity not enter into a retransmission consent agreement with any
other television broadcast station or multichannel video programming
distributor; and
(vii) Refusal by a Negotiating Entity to execute a written
retransmission consent agreement that sets forth the full
understanding of the television broadcast station and the
multichannel video programming distributor.
(2) Totality of the circumstances. In addition to the standards
set forth in section 76.65(b)(1), a Negotiating Entity may
demonstrate, based on the totality of the circumstances of a
particular retransmission consent negotiation, that a television
broadcast station or multichannel video programming distributor
breached its duty to negotiate in good faith as set forth in section
76.65(a).
---------------------------------------------------------------------------
152. We further seek comment on whether, instead of eliminating
binding adjudication, we should modify its application or scope. For
example, should we limit the issues of adjudication to the requirements
specified in our rules? If so, what rules should apply to disputes
regarding other terms? Alternatively, should we adopt a specific
measure, such as a presumption that a D Block bidder proposal that
otherwise satisfies the Commission's stated requirements should be
upheld in adjudication? If so, what demonstration should we require of
the Public Safety Broadband Licensee to rebut the presumption? Should
we provide that we will require the parties to the adjudication to each
submit their best offer and that we will then choose one submission or
the other? Would this encourage the parties to make proposals that
address each other's needs?
153. Other modifications to the process for establishing the NSA.
We also seek comment on whether to adopt other measures relating to the
process for establishing the NSA. We seek comment on whether there are
any concerns inherent in the adjudication of NSA disputes by the
Commission. If so, we seek comment on how such concerns could be
addressed, and whether there are alternatives to Commission
adjudication that will still achieve a final agreement in the event of
a dispute.
154. This Second FNPRM generally seeks comment on whether we should
further clarify or revise requirements relating to the network as well
as the D Block licensee's and Public Safety Broadband Licensee's
respective responsibilities with regard to the 700 MHz Public/Private
Partnership. One likely effect of such additional clarity would be to
reduce the scope of and uncertainty relating to issues that need to be
negotiated between the parties to the NSA. Accordingly, we seek comment
on whether, if we adopt such clarifications, it would be appropriate to
also reduce the length of the NSA negotiation process, and if so, what
length would be reasonable. We also invite commenters to suggest other
measures that we might adopt that would help to give potential bidders
additional certainty regarding the outcome of the process, or otherwise
reduce the risks of the process for the D Block winning bidder, or that
would otherwise improve the process. In considering this issue,
commenters should take into account the availability of the spectrum as
of the DTV transition date, and the needs of both parties to access and
utilize this spectrum in a timely manner.
3. Auction-Related Issues
a. Eligibility To Participate in the D Block Auction
155. Background. In the Second Report and Order, after considering
whether open eligibility would pose a significant likelihood of
substantial competitive harm in a specific market, we declined to
restrict eligibility for 700 MHz Band licenses.\173\ We determined that
the appropriate market to assess when considering restrictions on
eligibility to hold 700 MHz licenses is the broadband services
market.\174\ Recognizing the numerous actual and potential broadband
service providers that exist, we concluded that the record did not
demonstrate that open eligibility to hold 700 MHz band licenses was
likely to result in substantial competitive harm in the provision of
broadband services.\175\ Since our prior determination, Auction 73 has
only increased the number of potential providers of broadband service.
---------------------------------------------------------------------------
\173\ Second Report and Order, 22 FCC Rcd at 15383-84 ] 256.
\174\ Id.
\175\ Id.
---------------------------------------------------------------------------
156. Discussion. Although there is no significant likelihood of
substantial competitive harm in the broadband services market that we
need to address by restricting otherwise eligible parties from holding
the D Block license, the D Block is intended for uses that extend
beyond commercial broadband services. Indeed, the requirements of the D
Block create a unique opportunity for a new type of nationwide network.
Such an opportunity is unlikely to present itself again in the
foreseeable future. It therefore may serve the public interest to limit
eligibility for participation in the D Block auction in order to
maximize the possibility that a party
[[Page 29608]]
otherwise without significant access to spectrum potentially suitable
for the provision of mobile wireless broadband services will have an
opportunity to create a nationwide 700 MHz network using the D
Block.\176\
---------------------------------------------------------------------------
\176\ As we determined in the Second Report and Order, we are
not proposing to change our decision to prohibit geographic
partitioning and spectrum disaggregation for the D Block licensee.
The D Block licensee would continue to be permitted to assign or
transfer its license subject to Commission review and prior
approval. See Second Report and Order, 22 FCC Rcd at 15475 ] 542.
---------------------------------------------------------------------------
157. The Commission has adopted auction eligibility restrictions in
other circumstances, where limited opportunities in existing or
emerging services presented potential competitive concerns but did not
warrant restricting license ownership or spectrum access beyond the
initial auction of the license.\177\ Accordingly, we now seek comment
on whether the public interest would be served by adopting an auction
eligibility restriction with respect to the license(s) made available
for the D Block.\178\ More specifically, now that various parties have
already obtained spectrum access as a result of Auction 73, we seek
comment on whether the public interest would be served by limiting
eligibility to bid on the license(s) for the D Block to parties that do
not already have significant access to 700 MHz Band spectrum or other
spectrum potentially suitable for the provision of mobile wireless
broadband services. A restriction limited to eligibility to bid on the
license(s) in a Commission auction would not restrict any parties'
ability to acquire the license(s) or to access D Block spectrum in the
secondary market--through leasing or wholesaling arrangements, which
are otherwise permissible within our rules.\179\ We also seek comment
on whether any restriction that limits the ability of otherwise
qualified parties to bid on the license(s) for D Block spectrum should
apply only to the next auction of any license(s) for D Block spectrum,
or to all future auctions of such license(s). Should whether the
restriction applies depend in whole or in part on whether the
license(s) are subject to the 700 MHz Public/Private Partnership
conditions?
---------------------------------------------------------------------------
\177\ See Service Rules for the 746-764 and 776-794 MHz Bands
and Revisions to Part 27 of the Commission's Rules, WT Docket No.
99-168, Second Report and Order, 15 FCC Rcd 5299, 5326 ] 62 (2000)
(700 MHz Guard Bands Second Report and Order) (adopting auction
eligibility restriction in new service by precluding one party from
winning both licenses in a given area); Revision of Rules and
Policies for the Direct Broadcast Satellite Service, IB Docket No.
95-168, Report and Order, 11 FCC Rcd 9712, 9736-37, ]] 61-66 (1995)
(imposing an auction eligibility restriction in Direct Broadcast
Satellite (``DBS'') service by prohibiting any party with an
attributable interest in DBS channels at a full-CONUS orbital
location from acquiring at auction an attributable interest in the
full-CONUS channels offered at the 110[deg] orbital location without
divesting its prior interest in full-CONUS channels).
\178\ As discussed elsewhere, we seek comment on whether the D
Block should be comprised of regional licenses instead of one
nationwide license.
\179\ We would not, however, propose that such access would be
permitted through partitioning or disaggregation of the D Block
spectrum in light of the unique relationship contemplated and the D
Block licensee's responsibilities under the 700 MHz Public/Private
Partnership.
---------------------------------------------------------------------------
158. Generally, restrictions on the ability of parties to bid for
new licenses based on their existing access to spectrum may favor new
entrants. Should the auction rules favor new entrants? If so, how? We
seek comment on how to structure an auction eligibility restriction to
assure that a party not already able to offer nationwide or near-
nationwide service using 700 MHz Band spectrum or other spectrum
potentially suitable for the provision of mobile wireless broadband
services will have the opportunity to win a D Block license. Should we
preclude from applying for D Block license(s) parties in which any
party holding a present or future interest already has sufficient
spectrum access, however that access is defined? Should we preclude
from applying for D Block license(s) any party with an agreement to
provide future access to D Block spectrum, e.g., a spectrum lease
agreement, to any party that already has sufficient spectrum access,
however that access is defined? Given that the restriction is intended
solely to apply to auction eligibility, and not subsequent eligibility
to hold the license, parties already having sufficient spectrum access
might obtain an interest in winning bidders or access to their
spectrum, but only after licensing.
159. With respect to the spectrum access parties already have,
should the potential restriction be concerned with only particular
spectrum blocks or bands, or should we consider any spectrum
potentially suitable for the provision of mobile wireless broadband
services? One party previously proposed a restriction that would have
precluded the same party from winning in initial Commission auctions
both licenses in the C Block and the D Block license.\180\ Should we be
concerned only with parties' access to the adjacent C Block or to all
700 MHz spectrum, including spectrum held in the C and D Blocks of the
Lower 700 MHz Band? What extent of spectrum access should trigger any
restriction? Should we restrict the auction eligibility only of those
parties that have nationwide or near-nationwide 700 MHz spectrum access
or include parties that have nationwide or near-nationwide access in
other bands? Should the extent of access be measured by geographic or
population coverage, or some combination of the two? Should bandwidth
be a factor? What is the appropriate threshold at which to apply the
restriction?
---------------------------------------------------------------------------
\180\ See PISC Petition for Reconsideration at 3.
---------------------------------------------------------------------------
160. We also seek comment on the appropriate method of measuring a
party's spectrum access for this purpose. Should it be measured solely
by the party's control of current 700 MHz license holders and winning
bidders? Or by the party's equity interest in current 700 MHz Band
license holders and winning bidders? By existing leased access to 700
MHz Band spectrum capacity, i.e., leases with respect to already
granted licenses? By existing leased rights to 700 MHz Band spectrum
capacity, i.e., leases with parties that are winning bidders but not
yet licensees? Should we include other bands potentially suitable to
the provision of mobile wireless broadband services? If so, what method
should we use to measure a party's access to such bands?
161. While we seek comment on the appropriate scope of an auction
eligibility restriction, at the same time, we recognize that
restricting eligibility may adversely impact the ability of public
safety to gain access to an advanced broadband network as quickly as
possible. In this respect, it may be desirable to have the broadest
pool of bidders possible in order to maximize the likelihood of a
successful partnership that will benefit both public safety and
consumers. We seek comment on how this consideration should impact our
decision on auction eligibility rules. We also seek comment on whether
the Commission should apply its spectrum aggregation screen used for
wireless transactions to the D Block.
b. Reserve Price
162. Background. In the Second Report and Order, we directed WTB to
adopt and publicly disclose block-specific aggregate reserve prices,
pursuant to its delegated authority and its regular pre-auction
process, consistent with our conclusions in the Second Report and
Order.\181\ Those conclusions in part directed WTB to establish the
particular amounts of the block-specific aggregate reserves by taking
into account a conservative estimate of market value based on auction
results for AWS-1 spectrum licenses.\182\ With respect to the specific
[[Page 29609]]
circumstances of the D Block, we directed WTB to give substantial
weight to the detailed rules regarding the D Block license, the D Block
licensee's required construction of a network to be shared by public
safety service users, and the resulting limitations on the flexibility
of the D Block licensee, which together, we noted, might make it
appropriate to expect a D Block licensee to pay only 75 to 80 percent
of an amount based on AWS-1 auction results, or roughly $1.33
billion.\183\ Pursuant to our direction, WTB issued the 700 MHz Auction
Comment Public Notice, in which, among other things, WTB proposed and
sought comment on reserve prices for all blocks of 700 MHz licenses
offered in Auction 73, including a $1.33 billion reserve price for the
D Block.\184\ After reviewing the record of comments submitted in
response, WTB issued the 700 MHz Auction Procedures Public Notice,
which adopted and set forth procedures for Auction 73, including a
$1.33 billion D Block reserve price.\185\ In Auction 73 bidding,
applicants placed bids for licenses in the A, B, C, and E Blocks that
met, and in some cases significantly exceeded, the applicable reserve
price adopted pursuant to the Commission's direction.\186\ The single
bid for the D Block did not meet its reserve price.\187\
---------------------------------------------------------------------------
\181\ Second Report and Order, 22 FCC Rcd at 15400-01 ] 304.
\182\ Id.
\183\ Id. at 15401 ] 305.
\184\ Auction 73/76 Procedures Public Notice, 22 FCC Rcd at
18195 ] 199.
\185\ Id.
\186\ See ``Auction of 700 MHz Band Licenses Closes,'' Public
Notice, DA 08-595 (rel. Mar. 20, 2008) (700 MHz Auction Closing
Public Notice).
\187\ Id.
---------------------------------------------------------------------------
163. Discussion. We now seek comment on whether we should direct
WTB to adopt a different approach to establishing a reserve price in a
new auction for the D Block license, pursuant to its delegated
authority and its regular pre-auction process. This Second FNPRM
generally considers revisions to the rules governing the D Block
license in order to further the public interest by facilitating the
creation of an interoperable broadband network that can meet public
safety needs. In light of that public interest, as well as Auction 73's
success in raising the revenue anticipated by Congress, we now seek
comment on an appropriate reserve price, or whether we need a reserve
price, other than a minimum opening bid, at all, for a new auction for
the D Block license. We seek comment on the purpose that a reserve
price should serve in the current context, and what level of reserve
price would best serve that purpose. We seek comment later in this
Second FNPRM regarding whether to offer regional licenses for the D
Block in place of a single nationwide license. In an auction offering
multiple licenses, the Commission could set either aggregate reserve
price(s), as it did for licenses in the A, B, C, and E Blocks in the
700 MHz auction, or a license-specific reserve price. Commenters should
address whether aggregate or license-specific reserve prices would best
serve the purpose of any proposed reserve price. In the event that
there is some uncertainty regarding the relative value of multiple
licenses, an aggregate reserve price applicable to a set of licenses
may allow some flexibility in relative license prices. With respect to
aggregate reserve prices, commenters should address whether all the
licenses offered should be subject to a single aggregate reserve price
or whether subsets of the licenses offered should be subject to various
aggregate reserve prices. We ask that commenters provide detailed
support for any suggested reserve prices provided. Furthermore, would
any of the rule revisions presently contemplated be likely to increase
or decrease the appropriate reserve price?
164. In addition, we seek comment on whether we should direct WTB
to set minimum opening bid(s) at the amount of any separate license
specific reserve price(s), whether for a single nationwide license or
for regional licenses. For Auction 73, WTB established a minimum
opening bid for the D Block license below the D Block license reserve
price to facilitate substitution among licenses in different blocks. If
we conduct an auction with multiple licenses and aggregate reserve
price(s), should we set the minimum opening bids of individual licenses
such that the aggregate total of the minimum opening bids is less than
the aggregate reserve price, to reduce the risk that a mistaken minimum
opening bid will keep bidders from bidding on a particular license?
However, in the event we set license-specific reserve prices, whether
for a single nationwide license or regional licenses, there would be no
apparent benefit from accepting bids below the license-specific
reserve.\188\ For the next auction of license(s) for the D Block
spectrum, WTB will establish the minimum opening bid and any reserve
price for the D Block pursuant to its delegated authority and its
regular pre-auction process. We ask commenters addressing the reserve
price issues raised herein to address whether there is any reason to
permit bids below any reserve price and, if so, the extent to which
their comments on reserve price issues presume a particular
relationship between a minimum opening bid and any reserve price.
---------------------------------------------------------------------------
\188\ Auction 73/76 Procedures Public Notice, 22 FCC Rcd at
18199-200 ] 212.
---------------------------------------------------------------------------
c. Designated Entity Eligibility for the D Block Licensee
165. Background. Under our designated entity eligibility rules, as
modified in 2006 in the Designated Entity Second Report and Order, a
business model that involves a designated entity licensee entering into
arrangements with other entities for the lease or resale (including
wholesaling arrangements) that involve more than 50 percent of the
spectrum capacity of a license constitutes an impermissible material
relationship and renders the licensee ineligible for otherwise
available size-based bidding credits.\189\ On November 15, 2007,
however, we waived, on our own motion, the application of our
impermissible material relationship rule \190\ for purposes of
determining an applicant's or licensee's designated entity eligibility
solely with respect to arrangements for lease or resale (including
wholesale) of the spectrum capacity of the D Block license.\191\ In so
doing, we determined that the unique regulations then governing the D
Block license, which required the establishment of the 700 MHz Band
Public/Private Partnership subject to a Commission-approved Network
Sharing Agreement \192\--together with the application of the
Commission's other designated entity eligibility requirements \193\--
eliminated for the D Block license the risks that led the Commission to
adopt the impermissible material relationship rule. We found that the D
Block rules subjected the licensee to significant obligations and
substantial Commission oversight, which when combined with the
continued application of other designated entity rules led us to
conclude that waiver of the
[[Page 29610]]
impermissible material relationship rule served the public interest.
---------------------------------------------------------------------------
\189\ See generally Implementation of the Commercial Spectrum
Enhancement Act and Modernization of the Commission's Competitive
Bidding Rules and Procedures, WT Docket No. 05-211, Second Report
and Order and Second Further Notice of Proposed Rule Making, 21 FCC
Rcd 4753 (2006) (Designated Entity Second Report and Order) recon.
pending; Implementation of the Commercial Spectrum Enhancement Act
and Modernization of the Commission's Competitive Bidding Rules and
Procedures, WT Docket No. 05-211, Order on Reconsideration of the
Second Report and Order, 21 FCC Rcd 6703 (2006) (Order on
Reconsideration of Designated Entity Second Report and Order); 47
CFR 1.2110(b)(3)(iv)(A).
\190\ 47 CFR 1.2110(b)(3)(iv)(A).
\191\ See generally D Block Waiver Order.
\192\ See Second Report and Order, 22 FCC Rcd at 15428-79 ]]
386-553.
\193\ See Designated Entity Second Report and Order; Order on
Reconsideration of the Designated Entity Second Report and Order; 47
CFR 1.2110, 1.2111, 1.2112, 1.2114.
---------------------------------------------------------------------------
166. Discussion. Now that we are revisiting the service and auction
rules for the D Block license, we seek comment regarding whether we
should adopt a service specific exception to our impermissible material
relationship rule for purposes of determining designated entity
eligibility solely with respect to arrangements for lease or resale
(including wholesale) of the spectrum capacity of the D Block license.
Could revised service and auction rules that we might adopt for the D
Block license continue to present unique circumstances and regulatory
obligations that warrant an exception to our impermissible material
relationship rule?
167. If we establish such a service specific exception to our
general designated entity impermissible material relationship rule,
will our other designated entity rules sufficiently ensure that only
bona fide small businesses, exercising control over the D Block license
in accordance with our rules, will benefit from bidding credits
applicable to that license? \194\ For instance, consistent with the
scope of the D Block Waiver Order, will the continued application of
the controlling interest rule, attributable material relationship rule,
and the unjust enrichment rule, as well as all other designated entity
eligibility rules together with the unique requirements that will apply
to the D Block license prevent the abuses the impermissible material
relationship rule was designed to address? Do the terms and conditions
pertaining to the D Block license, both previously set forth and as
discussed in this Second FNPRM, provide sufficient assurance that the D
Block commercial licensee's provision of service for the benefit of the
public will not be significantly influenced by any party leasing (or
accessing through wholesale arrangements) fifty percent or more of the
spectrum capacity of the D Block license? Does the unique relationship
between the D Block licensee and the Public Safety Broadband Licensee,
and their regulatory obligations to ensure the ongoing integrity and
consistency of service to the public safety users of the network,
mitigate any potential for such influence? If, however, the Commission
chooses to license the D Block without the 700 MHz Public/Private
Partnership, are there any circumstances in which we should consider an
exception to the impermissible material relationship rule?
---------------------------------------------------------------------------
\194\ This attribution requirement based on D Block arrangements
will affect the designated entity's ongoing eligibility for
designated entity benefits. See, e.g., Designated Entity Second
Report and Order, 21 FCC Rcd at 4759-60 ] 15, 4763-65 ]] 25-30,
4765-68 ]] 31-41; Order on Reconsideration of Designated Entity
Second Report and Order, 21 FCC Rcd at 6712-13 ]] 24-26; 47 CFR
1.2110(b)(3)(iv)(B), 1.2111(d). See also 47 CFR 1.2110(b)(1)(i),
(m), (n).
---------------------------------------------------------------------------
d. Default Payment
168. Background. The Commission's competitive bidding rules provide
that if a winning bidder defaults for any reason, the bidder is liable
for a default payment.\195\ In the Second Report and Order, the
Commission provided that the D Block winning bidder would be deemed to
have defaulted under Section 1.2109(c) of the Commission's rules and
would be liable for the default payments set forth in Section 1.2104(g)
if it failed to comply with the procedures established for negotiation
or dispute resolution in the NSA, including a failure to comply with a
Commission or Bureau decision in binding adjudication, as well as under
other circumstances, e.g., if it failed to pay its winning bid.\196\
Pursuant to Section 1.2104(g) of those rules, a default payment is
comprised of (1) a ``deficiency payment,'' based on the amount, if any,
by which a subsequent winning bid is lower than the defaulted bid; and
(2) an ``additional payment,'' based on a percentage of the lesser of
the defaulted bid or the subsequent winning bid.\197\
---------------------------------------------------------------------------
\195\ 47 CFR 1.2109(b), (c).
\196\ See Second Report and Order, 22 FCC Rcd at 15466 ] 511.
\197\ See 47 CFR 1.2104(g)(2).
---------------------------------------------------------------------------
169. The Commission's implementation of its competitive bidding
authority enables the assignment of licenses to parties that value them
more highly than others and are more likely to put the licenses to
efficient and effective use. The failure to pay a winning bid
undermines this entire process. At a minimum, defaults delay the
assignment of licenses and the deployment of service. In addition, a
default may impair the ability of the auction process to assign
licenses to those parties best able to serve the public. Accordingly,
the Commission requires defaulting bidders (or withdrawing bidders, in
auctions in which withdrawals are permitted) to pay the deficiency
portion of the default payment so that bidders are more likely to
submit bids accurately reflecting their ability to pay, enhancing the
efficiency of the competitive bidding process in assigning
licenses.\198\
---------------------------------------------------------------------------
\198\ See Implementation of Section 309(J) of the Communications
Act-Competitive Bidding, Second Report and Order, 9 FCC Rcd 2348,
2373 ] 147 (1994) (Competitive Bidding Second Report and Order).
---------------------------------------------------------------------------
170. The Commission further requires an additional payment when a
winning bidder defaults to both discourage unsupportable bidding and
provide an incentive to bidders wishing to withdraw previously placed
bids to do so prior to the close of an auction (when permitted),
because, among other things, a default or disqualification after an
auction prevents other bidders from winning the license in the initial
auction, thereby delaying the use of the spectrum to provide service to
the public.\199\ Originally, the additional default payment was set at
three percent.\200\ In 2006, we concluded that having the discretion to
set the additional payment percentage between three and 20 percent
would help the Commission ``persuade bidders to be more realistic in
their advance assessment of how much they can afford to pay for
licenses.'' \201\ For Auction 73, the additional default payment
percentage for any default on a bid for the D Block license was set at
ten percent. In auctions where the Commission accepts single bids on
combinations, or packages, of licenses, the Commission has fixed the
additional default payment percentage at twenty-five percent.\202\ The
Commission adopted the higher additional default percentage in response
to the greater potential significance of such a default. In auctions
with combinatorial bidding, a bidder's winning bid may affect not only
the licenses subject to that winning bid, but the set of bids that wins
other licenses as well.
---------------------------------------------------------------------------
\199\ Id. at 2374 ] 154, 2382-83 ] 197.
\200\ Id. at 2374 ] 154, 2382-83 ] 197.
\201\ Implementation of the Commercial Spectrum Enhancement Act
and Modernization of the Commission's Competitive Bidding Rules and
Procedures, WT Docket No. 05-211, Report and Order, 21 FCC Rcd 891,
903-04 ] 31 (2006) (CSEA/Part 1 Report and Order).
\202\ 47 CFR 1.2104(g)(2)(ii).
---------------------------------------------------------------------------
171. Over the history of the Commission's 69 auctions before
Auction 73, the net winning bids placed by bidders totaled nearly $59
billion, yet the Commission's collection of those bids has totaled far
less. The shortfall in the applicants' promised payments has stemmed,
in large part, from bidders' failure to bid consistently with a careful
and realistic assessment of their ability to pay. This failure has been
evidenced by bidders subsequently filing for bankruptcy or seeking debt
compromise in lieu of fulfilling their auction obligations.
Historically, the Commission has found that a bidder's inability to
render full and timely payment for its winning bid impairs the
Commission's assignment of licenses by competitive bidding by impeding
the
[[Page 29611]]
deployment of service to the public and interfering with the efficiency
of the assignment. To counter the negative effect of bidders' failure
to honor their payment obligations, such as in the case of a post-
auction default, we have sought to assure that the additional payment
portion of the default payment calculation is sufficient to discourage
defaults resulting from insincere bidding and to help ensure that
licenses are assigned to financially and otherwise qualified parties
that are able to use them effectively and efficiently to provide
service.\203\
---------------------------------------------------------------------------
\203\ See BDPCS, Inc., Memorandum Opinion and Order, 15 FCC Rcd
17590, 17598-99 ] 15 (2000) (citing Second Report and Order, 9 FCC
Rcd at 2381 ] 190); see also Competitive Bidding Second Report and
Order, 9 FCC Rcd 2348.
---------------------------------------------------------------------------
172. Discussion. In the present context, the need to deter default
is substantially increased. The Commission seeks to license the D Block
spectrum to promote the creation of a ubiquitous nationwide wireless
network providing interoperable broadband service to the nation's
public safety service providers. Delay in assignment of the license
could result in substantial harm to the public. Much of this Second
FNPRM seeks to reduce the risk of default, and consequent delay, by
seeking comment on where greater specificity in the requirements of the
700 MHz Public/Private Partnership might increase the likelihood of
success in creating the hoped-for public safety network. At the same
time, we seek comment on whether we should modify the default payment
rules with respect to a D Block winning bidder. We recognize that a D
Block winning bidder faces risks of default that are different in
nature, and potentially greater, than those facing the typical winning
bidder in a Commission auction. We seek comment on whether a D Block
winning bidder's consequent exposure to a potential default payment is
excessive and, if so, on ways to reduce it to an acceptable level by
modifying either the rules regarding the imposition of a default
payment or the default payment amount. In particular, we seek comment
regarding the obligation of a D Block winning bidder to make default
payments in the event that the Bureaus or the Commission adjudicate a
dispute with respect to the NSA and a D Block winning bidder will not
comply with the decision on the disputed issues. In this context, the
default payments provide a strong inducement to a D Block winning
bidder to accept the adjudicated terms. It is possible, however, that
public safety representatives aware of a D Block winning bidder's
incentives may have greater incentives to make additional demands in
pre-adjudication negotiations than if the D Block winning bidder were
not facing the threat of default payments.
173. More specifically, we seek comment on whether we should modify
the applicable default payment based on the particular circumstances
that lead to the default, such as after negotiations fail to produce an
NSA. Under such circumstances, should we cap the deficiency portion of
the default payment, or direct WTB to apply a different percentage when
calculating the additional payment portion of the default payment than
it would after a winning bidder defaults on a post-auction payment, or
eliminate one of these components of the default payment, while
retaining the other? We note that in the event that we conduct a
subsequent auction after negotiations fail to produce an NSA and offer
license(s) for the D Block that are not subject to any 700 MHz Public/
Private Partnership conditions, the deficiency portion of any default
payment may well be zero, given that, if all other factors are equal,
the winning bid(s) in such a subsequent auction should be higher. How
should we take this possibility into account?
174. We seek comment on what specific amount or percentage limits,
if any, would provide the best balance between maintaining the
incentives for a D Block winning bidder to commit to its bid amount and
the required negotiating process while limiting the risk that it may
face a choice between default and accepting NSA terms that jeopardize
the success of its business plan. Commenters should consider the
possibility that the Commission might offer multiple regional D Block
licenses subject to combinatorial bidding. Under such circumstances,
should the Commission continue to retain the higher additional default
payment percentage for combinatorial auctions, given the potentially
greater effects of a default by one of multiple winners? We note
generally with respect to the percentage for the additional payment
portion of the default payment, applying the ten percent additional
payment previously adopted to a bid equal to the previous $1.33 billion
reserve price would have resulted in additional payment portion of the
default payment of $133 million. The Commission has assessed a total
default payment pursuant to Section 1.2109 that exceeded $200 million
on one prior occasion. The license in that case was for Basic Trading
Area 347, covering Phoenix, Arizona and approximately one-one hundredth
the population covered by the D Block nationwide license. However, the
largest additional payment previously assessed as part of a default
payment was less than $6 million.
175. We also seek comment on whether, in the event that the Public
Safety Broadband Licensee is required to negotiate multiple times after
separate auctions of the D Block license, to require a defaulting D
Block winning bidder, either as a substitute for or in conjunction with
any default payments, to pay the Public Safety Broadband Licensee's
negotiation costs for unsuccessful negotiations. If we establish such
an obligation, how should we define the covered negotiation costs? Such
a payment might provide some additional incentive to reach successful
negotiations, and would also ensure that, in the event the parties did
not reach an agreement, the Public Safety Broadband Licensee would not
be left financially unable to proceed with alternatives or to negotiate
with a future licensee.
4. Narrowband Relocation
176. Background. Among other things, in designating the lower half
of the 700 MHz Public Safety Band (763-768/793-798 MHz) for broadband
communications, the Second Report and Order consolidated existing
narrowband allocations to the upper half of the 700 MHz Public Safety
block (769-775/799-805 MHz).\204\ To effectuate the consolidation of
the narrowband channels, we required the D Block licensee to pay the
costs of relocating narrowband radios from channels 63 and 68, and the
upper one megahertz of channels 64 and 69, and capped the disbursement
amount for relocation costs at $10 million.\205\ We also cautioned that
any narrowband equipment deployed in channels 63 and 68, or in the
upper one megahertz of channels 64 and 69, more than 30 days following
the adoption date of the Second Report and Order would be ineligible
for relocation funding.\206\ In addition, we prohibited authorization
of any new narrowband operations in that spectrum, as of 30 days
following the adoption date of the Second Report and Order.\207\
---------------------------------------------------------------------------
\204\ Second Report and Order, 22 FCC Rcd at 15406 ] 322.
\205\ Id. at 15412 ] 341.
\206\ Id. at 15412 ] 339.
\207\ Id.
---------------------------------------------------------------------------
177. We found that, in order to maximize the benefits of the 700
MHz Public/Private Partnership to deploy a
[[Page 29612]]
nationwide, interoperable broadband communications network, the current
700 MHz narrowband public safety operations must be consolidated and
cleared no later than the DTV transition date.\208\ We required every
public safety licensee impacted by the consolidation to file a
certification with the Commission no later than 30 days from the
effective date of the Second Report and Order, including certain
information to account for ``pre-programmed narrowband radios that
public safety agencies may have already taken delivery as of the
adoption date of the Second Report and Order and intend to immediately
place into operation.'' \209\ We emphasized that such information was
``integral to the success of the relocation process,'' and cautioned
public safety entities that failing to file this information in a
timely manner would result in forfeiture of reimbursement.\210\ As ``an
additional measure to define and contain the costs that would be
entitled to reimbursement,'' we prohibited any new authorizations
outside of the consolidated narrowband segment, stating that such a
prohibition would ``ensure that the relocation proceeds in an orderly
manner and without complications stemming from additional operations
being deployed in spectrum being reallocated.'' \211\ Moreover, as ``an
additional means to ensure the integrity of the relocation process,''
we imposed a $10 million cap based on the best evidence available in
the record at the time of the Second Report and Order.\212\
---------------------------------------------------------------------------
\208\ Id. at 15406 ] 322.
\209\ Id. at 15411 ] 336.
\210\ Id. at 15411 ] 337.
\211\ Id. at 15412 ] 339.
\212\ Id. at 15412 ] 341.
---------------------------------------------------------------------------
178. Two parties filed petitions seeking reconsideration of some or
all of the foregoing requirements in the Second Report and Order.\213\
Among other things, these parties challenged the adequacy of the $10
million cap on relocation expenses.\214\ A number of other parties also
supported revising or eliminating the relocation cap.\215\
---------------------------------------------------------------------------
\213\ See Virginia Petition for Reconsideration; Pierce Transit
Petition for Reconsideration.
\214\ See Virginia Petition for Reconsideration; Pierce Transit
Petition for Reconsideration.
\215\ See National Association of Telecommunications Officers
and Advisors (NATOA) Comments at 9-11; State of Nebraska (Nebraska)
Opposition at 2; Motorola Comments at 1-7.
---------------------------------------------------------------------------
179. One petitioner also asked that the Commission make clear that
parties who purchased and began to deploy systems before the August 30
cut-off date can continue to deploy those systems after August 30, and
allow full reimbursement for the relocation of all such systems.\216\
Another party asks the Commission to modify the Second Report and Order
to permit continued authorization and deployment of statewide radio
public safety systems in Channels 63 and 68 and the upper one megahertz
of Channels 64 and 69 through January 31, 2009, allow the owner of a
statewide radio public safety system to obtain reimbursement for all
its costs incurred in the installation of such a system which was in
the process of construction and implementation as of the date of the
Second Report and Order, and reconsider the $10 million cap on
rebanding costs.\217\
---------------------------------------------------------------------------
\216\ See generally Pierce Transit Petition for Reconsideration.
\217\ See generally Virginia Petition for Reconsideration.
---------------------------------------------------------------------------
180. Discussion. Being mindful of the desire to provide certainty
to potential bidders as to the relocation obligation that would attach
to the winner of this spectrum, we seek comment on whether we should
revise or eliminate the $10 million cap on relocation expenses. In
commenting, we ask parties to provide specific data and cost estimates
regarding relocation expenses, particularly taking into account the
certifications filed in the docket pursuant to the Second Report and
Order.
181. Given the proposed re-auction of the D Block and associated
timing, we also seek comment on the date by which such relocation must
be completed. Should we continue to require relocation be completed by
the DTV transition date? If not, should we set an alternative date, and
if so, what would that date be? Should we allow relocation to occur on
a rolling basis, such that the D Block licensee would be required to
relocate narrowband operations only as the broadband network is built
out in a particular market? If so, how much notice should the D Block
licensee be required to give to a narrowband licensee in advance of
relocation? We also seek comment on any other viable mechanism for
facilitating relocation, and the appropriate timing of such an
approach. Should we retain the requirement that capped costs be
deposited in a trust account to be administered by the Public Safety
Broadband Licensee? If we eliminate the cap, how would the trust
mechanism function? Should we continue to require that the Public
Safety Broadband Licensee manage the reimbursement process for these
licensees? If so, should we require that public safety entities seeking
reimbursement provide detailed cost information to the Public Safety
Broadband Licensee? What should such cost information entail? Should
the Public Safety Broadband Licensee be afforded discretion in
assessing the soundness of the cost estimates? Can the Public Safety
Broadband Licensee leverage its status as the nationwide public safety
broadband license holder to negotiate terms with equipment and
technology vendors to relocate multiple narrowband operations, and thus
achieve economies of scale? Should the Public Safety Broadband Licensee
have recourse to the Commission if it determines that cost estimates
provided by individual public safety entities, including those passed
through by technology or equipment vendors, unreasonable?
182. With respect to the August 30, 2007, cut off date for
narrowband deployments outside of the consolidated narrowband spectrum,
we sought to balance the needs of individual public safety entities
with the necessity of carrying out a swift and thorough narrowband
relocation process in order to quickly and efficiently establish the
nationwide, interoperable public safety broadband network. While we
understand the concerns expressed by certain parties, we continue to
believe that the cut off date was appropriate and struck the right
balance. Rather, addressing each such situation on a case-by-case basis
through the waiver process is a more appropriate mechanism.
Accordingly, we seek comment on whether extension of the August 30,
2007, deadline established in the Second Report and Order would be
inappropriate, and any other issue related to the reconsideration
petitions filed by Virginia and Pierce Transit.
5. Size of Geographic Areas and Other Rules and Conditions
183. Size of geographic areas. In the Second Report and Order, the
Commission determined that the D Block license would be auctioned as a
single, nationwide license to provide for commercial service in the D
Block to build and operate a joint broadband public safety and
commercial network for public safety use.\218\ We seek comment on the
appropriate geographic service area for the D Block. Our goal has been
to make a nationwide, interoperable broadband network available to
state and local public safety users. We found that creating a
partnership between a single, national public safety entity and a
single D Block licensee with a nationwide license was
[[Page 29613]]
the most practical means of speeding deployment of the shared network.
We seek comments about whether there is any reason to change the
approach taken in the Second Report and Order. Would it best serve the
public interest to continue to license the D Block on a nationwide
basis, or should we choose regional geographic service areas such as
REAGs?
---------------------------------------------------------------------------
\218\ 700 MHz Second Report and Order, 22 FCC Rcd at 15315-16 ]
62.
---------------------------------------------------------------------------
184. If the D Block were split into regional licenses, to what
extent, if any, should we modify any of the policies or rules
previously adopted or proposed herein with respect to a D Block 700 MHz
Public/Private Partnership? How would the Commission ensure that the
primary goal of a national, interoperable, communications network for
public safety agencies is not jeopardized? In particular, how would we
ensure interoperability of communications between public safety users
of different regional networks? How would we ensure that interoperable
communications capabilities are extended to first responders in every
region in an equitable fashion? What obligations should we adopt to
facilitate coordination between D Block licensees or to otherwise
promote the ability of the regional networks to function as a seamless,
nationwide network for public safety users? For example, should we
mandate that each D Block licensee provide roaming to the public safety
users of all other D Block regional networks? What rules should apply
in the event that some regional licenses are successfully auctioned
while other regional licenses are not successfully auctioned?
185. We also seek comment on whether the D Block should be split
into one license (or several licenses) covering high-population density
areas and a second license (or set of licenses) covering low-population
density areas. Would such an arrangement allow a commercial licensee
that specializes in rural coverage (or has some comparative economic
advantage in covering such areas) to better serve public safety users
in rural areas? Do public safety users in rural areas have different or
unique technical requirements as compared to public safety users in
more densely-populated areas? If so, to what extent are commercial
entities that specialize in rural coverage suited to serving public
safety users in such areas? \219\
---------------------------------------------------------------------------
\219\ See Letter from Andrew D. Beard, counsel for Vanu, Inc.,
to Marlene H. Dortch, Secretary, FCC, WT Docket Nos. 06-150; 06-169,
96-86; PS Docket No. 06-229; AU Docket No. 07-157, filed May 8,
2008.
---------------------------------------------------------------------------
186. We also seek comment on whether any of our other standard
rules, such as our Part 1 competitive bidding rules, should be modified
to take into account the possibility of offering multiple licenses to
use D Block spectrum subject to the 700 MHz Public/Private Partnership
conditions. What rules should we adopt regarding the establishment of
an NSA? Are the needs of public safety served if the Public Safety
Broadband Licensee must negotiate separate NSAs with several commercial
entities, rather than a single, nationwide commercial partner? Under a
regional approach, how would we ensure that interoperable
communications capabilities are extended to first responders in every
region in an equitable fashion? Should we mandate a ``master'' NSA that
would include minimum network specifications, which could then be
modified on a regional basis with more detailed schedules? If we were
to adopt regional license areas for the D Block, should we also adopt
corresponding regional public safety broadband licenses for the public
safety broadband spectrum to facilitate the establishment of regional
700 MHz Public/Private Partnerships?
187. Other rules and conditions. Lastly, we seek comment on whether
there are any other aspects of the rules or conditions for the 700 MHz
Public/Private Partnership that we should modify. For example, should
we require the D Block licensee to operate on an exclusively wholesale
and/or open access basis? \220\ Would it serve the goals of this
partnership to impose such requirements? Or, would maintaining a more
flexible approach improve the viability of the 700 MHz Public/Private
Partnership? How would an open access environment affect public safety?
If we adopt a wholesale only approach, do we need to revise or clarify
any aspect of the operational responsibilities of the D Block and the
Public Safety Broadband Licensee? Should we permit the D Block licensee
in certain circumstances to obtain access to public safety narrowband
spectrum on a secondary, non-interference basis? If so, under what
circumstances should this be permitted, and what safeguards should be
adopted? Are there any other changes that the Commission should
consider making to the rules or conditions for the 700 MHz Public/
Private Partnership to ensure its success?
---------------------------------------------------------------------------
\220\ In the Second Report and Order, the Commission declined to
impose wholesale or open access obligations on the D Block licensee.
Second Report and Order, 22 FCC Rcd at 15476-77 ] 545.
---------------------------------------------------------------------------
188. We seek comment on other means by which the Commission could
effectively match the needs of public safety users with the
capabilities of potential service providers while still meeting our
obligation under the Act to assign the D Block by competitive
bidding.\221\ In particular, we observe that Federal, State and local
government agencies regularly use requests for proposals (``RFPs'') to
contract for services provided by private parties. Such RFPs can be
weighted to reflect the priorities and needs of the contracting
governments. We seek comment on the feasibility of such an approach in
this instance.
---------------------------------------------------------------------------
\221\ See 47 U.S.C. 337(a)(2) (Commission must assign 36
megahertz of 700 MHz spectrum for commercial use ``by competitive
bidding pursuant to section 309(j).'').
---------------------------------------------------------------------------
189. We note that RFPs could be combined with an auction in at
least two ways. Under one approach, the Commission or Public Safety
Broadband Licensee could request proposals from potential providers of
the broadband network for public safety, then select its preferred
specification from the proposals offered, making these specifications
part of the rules for the D Block license to be auctioned. Under
another approach, the Commission or Public Safety Broadband Licensee
could auction the D Block with a minimum set of requirements, then
allow the three or four highest bidders to submit proposals that meet
or exceed the minimum requirements, with the Commission ultimately
selecting the winning bidder. We seek comment on these approaches. In
particular, regarding the first approach, we ask commenters to address
how we can incorporate the generally applicable information that RFP
responses would provide while avoiding adopting entity-specific
requirements that would limit the flexibility of other entities to meet
our outcome objectives in a way that is best suited to their particular
business plans, technologies, and resources. With respect to the second
idea, we ask what specific criteria the Commission should use in
selecting among proposals.
190. Similarly, we seek comment on whether the Commission could
approximate the benefits of an RFP through a more expeditious process.
In particular, as noted above, the Commission seeks comment in this
Second FNPRM on the possibility of establishing a public/private
partnership and, if such a partnership is established, what
requirements should apply. As discussed in the Technical Appendix,
these requirements would include specifications for the system
architecture, reliability, and capacity. In requesting comment on these
issues, we especially seek input from both the
[[Page 29614]]
public safety users of such a network and the potential providers of
such a service, including existing wireless service providers and/or
potential new entrants that may be interested in participating in a
public/private partnership. Following the issues raised in the
Technical Appendix, what specifications are needed by public safety
users? What specifications are economically feasible for potential
providers, and at what cost?
C. Other Options for the D Block License and the Public Safety
Broadband License
191. In this section, we consider the Commission's options in the
event that we determine not to proceed with the 700 MHz Public/Private
Partnership approach requiring a mandatory partnership between the D
Block licensee and the Public Safety Broadband Licensee with regard to
a shared network using both the D Block and public safety broadband
spectrum. For example, as discussed previously, we might decide that we
should not retain the 700 MHz Public/Private Partnership obligations
if, in the next auction of the D Block license, we offer the D Block
license with the 700 MHz Public/Private Partnership obligations and the
license again fails to attract a winning bidder, or the winning bidder
defaults or fails to negotiate a successful NSA with the Public Safety
Broadband Licensee. Alternatively, we may decide not to retain the 700
MHz Public/Private Partnership condition, and instead immediately
conduct an auction to license the D Block without a 700 MHz Public/
Private Partnership obligation. There may also be other circumstances
whereby the 700 MHz Public/Private Partnership obligation on the D
Block would not serve its purpose and our objective to facilitate the
creation of a nationwide, interoperable, broadband network for public
safety users. We therefore seek comment generally on rules the
Commission should adopt, both for the D Block licensee and the Public
Safety Broadband Licensee, in those circumstances where the D Block
license would be auctioned without a 700 MHz Public/Private Partnership
condition. If the D Block was auctioned for unrestricted commercial
services, how much money would the auction raise? Assuming that the
auction would yield less than the cost of building a dedicated,
nationwide, interoperable broadband network for public safety, how
should the shortfall be addressed? If estimated network construction
costs exceed the estimated receipts from the auction of license(s) for
the D Block with no commercial service restrictions, to what extent
might this shortfall be addressed from the auction receipts of spectrum
bands that will be, or might be, auctioned in the near future? \222\
For example, what are reasonable estimates of the value of the AWS-3
spectrum with no commercial service restrictions? Similarly, what are
reasonable estimates of the value of the ``white spaces'' spectrum (for
unused portions of television channels 2-51) licensed with no
commercial restrictions? In addition, if the D Block was auctioned for
unrestricted commercial services, to what extent would the remaining
spectrum available to public safety providers be insufficient to meet
their communications needs, including the need for an interoperable
broadband network? \223\
---------------------------------------------------------------------------
\222\ We note that using auction revenues for such construction
would require additional Congressional action.
\223\ The Commission has allocated more than 97 MHz of spectrum
for use in support of public safety services, including
approximately 13.7 MHz in frequencies below 470 MHz, varying amounts
in the 470-512 MHz band, 24 MHz in the 700 MHz band, an average of
4.5 MHz in the 800 MHz band, and 50 MHz in the 4.9 GHz band.
---------------------------------------------------------------------------
1. D Block License Service Rules Without the 700 MHz Public/Private
Partnership
192. We seek comment below on the particular service rules that we
should adopt for the D Block in the event that we determine that the D
Block should be licensed without any 700 MHz Public/Private Partnership
obligation.
a. Size of the Geographic Areas
193. Background. In the First Report and Order, the Commission
determined that a balanced mix of geographic service area licenses--
CMAs, EAs, and REAGs--would be appropriate for the commercial 700 MHz
Band licenses.\224\ In the Second Report and Order, we reaffirmed the
determination to use CMAs, EAs, and REAGs for all of the 700 MHz
commercial spectrum blocks except for the D Block. We concluded that
the D Block should be licensed on a nationwide basis for use as part of
the 700 MHz Public/Private Partnership with the Public Safety Broadband
Licensee.\225\ We adopted CMA, EA, and REAG areas for the other
commercial licenses ``to promote dissemination of licenses among a wide
variety of applications, accommodate the competing need for both large
and small licensing areas, [and] meet the needs expressed by potential
entrants seeking access to spectrum and incumbents seeking additional
spectrum.'' \226\
---------------------------------------------------------------------------
\224\ See Service Rules for the 698-746, 747-762 and 777-792 MHz
Bands, WT Docket No. 06-150, Revision of the Commission's Rules to
Ensure Compatibility with Enhanced 911 Emergency Calling Systems, CC
Docket No. 94-102, Section 68.4(a) of the Commission's Rules
Governing Hearing Aid-Compatible Telephones, WT Docket No. 01-309,
Biennial Regulatory Review--Amendment of Parts 1, 22, 24, 27, and 90
to Streamline and Harmonize Various Rules Affecting Wireless Radio
Services, WT Docket 03-264, Former Nextel Communications, Inc. Upper
700 MHz Guard Band Licenses and Revisions to Part 27 of the
Commission's Rules, WT Docket No. 06-169, Implementing a Nationwide,
Broadband, Interoperable Public Safety Network in the 700 MHz Band,
PS Docket No. 06-229, Development of Operational, Technical and
Spectrum Requirements for Meeting Federal, State and Local Public
Safety Communications Requirements Through the Year 2010, WT Docket
No. 96-86, Report and Order and Further Notice of Proposed
Rulemaking, 22 FCC Rcd 8064, 8082-86 ]] 42-45 (2007) (First Report
and Order).
\225\ See Second Report and Order, 22 FCC Rcd at 15431 ] 395.
\226\ Id. at 15316 ] 64.
---------------------------------------------------------------------------
194. Discussion. We now seek comment on the appropriate geographic
service area for the D Block in the event that the D Block license is
re-auctioned without a 700 MHz Public/Private Partnership obligation.
Would it best serve the public interest to continue to license the D
Block on a nationwide basis, or should we choose a smaller geographic
service area, such as the CMA, EA, and REAG sizes used to license the
other 700 MHz blocks? We note that, in evaluating the appropriate
balance of license areas, we will continue to consider the 700 MHz Band
as a whole, including the commercial spectrum that has been previously
auctioned. As we stated in the Second Report and Order, recent
statutory and regulatory changes have served to harmonize this spectrum
band and warrant our consideration of the 700 MHz Band spectrum as a
whole.\227\ We request that commenters provide information that would
corroborate the benefits of their proposed geographic area and the
costs and benefits of adopting an alternative license area. Commenters
should also discuss how a particular license area for the D Block would
best serve the public interest, considering the commercial 700 MHz Band
spectrum as a whole. Finally, commenters should address whether the
availability of package bidding, which may mitigate the exposure risk
for bidders seeking certain aggregations of licenses, should influence
our choice of geographic license service area for the D Block.
---------------------------------------------------------------------------
\227\ Id. at 15316 ] 63.
---------------------------------------------------------------------------
b. Performance Requirements
195. Background. In the Second Report and Order, we adopted
different performance requirements for the commercial 700 MHz Band
licenses depending on the geographic size of
[[Page 29615]]
their license areas. CMA and EA licensees in the 700 MHz Band are
required to provide service sufficient to cover 35 percent of the
geographic area of their licenses within four years, and 70 percent of
this area within ten years (the license term), and REAG licensees must
provide service sufficient to cover 40 percent of the population of
their license areas within four years and 75 percent of the population
within ten years.\228\ Licensees with CMA, EA, or REAG areas that fail
to meet the applicable interim benchmark, the license term is reduced
by two years, and the end-of-term benchmark must be met within eight
years.\229\ At the end of the license term, licensees with CMA, EA, or
REAG areas that fail to meet the end-of-term benchmark will be subject
to a ``keep what you use'' rule, which will make unused spectrum
available to other potential users.\230\ We adopted these stringent
performance requirements to ``better promote access to spectrum and the
provision of service, especially in rural areas.'' \231\
---------------------------------------------------------------------------
\228\ See id. at 15439 ] 157, 15351 ] 162.
\229\ Id. at 15439 ] 157, 15351 ] 163.
\230\ Id. at 15349 ] 157, 15351 ] 163.
\231\ Id. at 15348 ]] 153, 154.
---------------------------------------------------------------------------
196. Discussion. We seek comment on the appropriate performance
requirements for the D Block license or licenses if the D Block license
is re-auctioned without a 700 MHz Public/Private Partnership
obligation. We further seek comment on whether, if we decide to license
the D Block on a CMA, EA, or REAG basis, we should impose the same
performance requirements applicable to other 700 MHz commercial
licenses with the same geographic service area. We seek comment on
whether these performance requirements are appropriate for the D Block.
In the event that we continue to license the D Block on a nationwide
basis, we seek comment on whether performance benchmarks similar to
those required of REAG licensees would be appropriate.\232\ To the
extent commenters believe the performance benchmarks should be higher
or lower than the proposals above, we request that they provide
information that would corroborate the benefits of their proposed
benchmarks and the costs and benefits of alternative approaches.
Comments should address whether these specific geographic benchmarks
would promote access to spectrum and the provision of service.
---------------------------------------------------------------------------
\232\ We note that only the C Block, located adjacent to the D
Block, is licensed on a REAG basis. Id. at 15293 ] 4.
---------------------------------------------------------------------------
c. License Block Size and Term
197. Background. In the Second Report and Order, we determined that
the D Block should be auctioned as a 10-megahertz spectrum block made
up of paired 5-megahertz blocks.\233\ We also determined that it be
given an initial license term of 10 years, consistent with the term
given to other commercial licensees.\234\ We found that a 10-year term
would ``provide regulatory parity by establishing the same license term
for [ ] all 700 MHz licensees.'' \235\
---------------------------------------------------------------------------
\233\ See id. at 15315-16 ] 62.
\234\ See id. at 15450 ] 457.
\235\ Id.
---------------------------------------------------------------------------
198. Discussion. We intend not to revisit these determinations if
the D Block license is re-auctioned without a 700 MHz Public/Private
Partnership obligation. Indeed, in the Second Report and Order, we
determined the band plan for all commercial bands as a whole.\236\ Any
changes to the block sizes that would affect other bands would not
serve the public interest given the fact that the adjacent commercial
spectrum licenses have already been auctioned. Dividing the current D
Block into smaller block sizes may also not be in the public interest
considering that a 10-megahertz spectrum block made up of paired 5-
megahertz blocks can facilitate more innovative and efficient broadband
deployment than any smaller block sizes in this band. With regard to
the license term, we note that all other commercial licenses in the
band have a 10-year term similar to the D Block license, and we see no
reason to treat the D Block differently if it does not include the 700
MHz Public/Private Partnership. We seek comment on our intention not to
revisit these determinations.
---------------------------------------------------------------------------
\236\ See id. at 15316 ] 63.
---------------------------------------------------------------------------
d. Power Limits and Out-of-Band Emission Limits
199. Background. In the Second Report and Order, we adopted rules
to protect 700 MHz Band commercial and public safety licensees from
interference from the out-of-band emissions (OOBE).\237\ In accordance
with those rules, the D Block licensee was required to satisfy an OOBE
limit of 43 + 10log P dB in protecting commercial 700 MHz Band
licensees \238\ and 76/65 + 10log P dB OOBE limits in protecting the
700 MHz public safety narrowband channels.\239\
---------------------------------------------------------------------------
\237\ See 47 CFR 27.53(d).
\238\ See 47 CFR 27.53(d)(3), (5).
\239\ D Block base stations must meet a 76 + 10log P dB limit in
a 6.25 kHz band segment and D Block mobile and portable stations
must meet a 65 + 10log P dB limit in a 6.25 kHz band segment. See 47
CFR 27.53(d)(1), (2), (4).
---------------------------------------------------------------------------
200. Discussion. Because of the anticipated relationship between
the D Block licensee and the Public Safety Broadband Licensee, it was
not necessary to impose any OOBE limits on the D Block licensee in
order to protect the Public Safety Broadband Licensee. However, if that
relationship is no longer in effect, we seek comment on what measures
we should adopt to adequately protect public safety broadband
communications from interference from D Block operations, and whether
measures to protect against such interference reduce the amount of
usable, broadband spectrum available to the Public Safety Broadband
Licensee and the D Block licensee. We would propose to require that D
Block licensees provide appropriate OOBE protection to the public
safety broadband spectrum. As to the appropriate level of protection,
we see no reason to protect the public safety broadband block to any
lesser degree than we currently protect the public safety narrowband
channels. We therefore propose that D Block licensees be required to
protect the public safety broadband block by satisfying the same 76/65
+ 10log P dB OOBE limits currently applicable to the D Block licensee
in protecting the public safety narrowband channels. We seek comment on
this proposal.
201. In the Second Report and Order, we did not adopt any changes
to the then-existing power limits for base, fixed, mobile, and portable
D Block stations,\240\ nor did we modify the notification and
coordination requirements we had imposed on D Block licensees choosing
to operate base stations at high power levels.\241\ The change in the
anticipated relationship between the D Block and the public safety
broadband block should not necessitate any modifications to these
requirements, and we therefore seek comment on whether the power,
notification, and coordination requirements currently applicable to D
Block licensees should remain unchanged.\242\
---------------------------------------------------------------------------
\240\ See 47 CFR 27.50(b)(2), (3), (4), (5), (9), (10).
\241\ See 47 CFR 27.50(b)(7), (8), which impose coordination and
notification requirements on D Block licensees operating base
stations at power levels greater than 1000 watts ERP.
\242\ We note, however, that Verizon has sought reconsideration
of certain rules adopted in the First Report and Order regarding
power limits for the 700 MHz Band commercial licensees and related
notification and coordination obligations, and this petition remains
pending. See Petition for Reconsideration of Verizon Wireless, WT
Docket No. 06-150 (filed June 14, 2007).
---------------------------------------------------------------------------
[[Page 29616]]
e. License Partitioning, Disaggregation, Assignment, and Transfer
202. Background. In the Second Report and Order, the Commission
prohibited geographic partitioning and spectrum disaggregation for the
D Block licensee. The Commission found that adopting such a restriction
would serve the public interest by assuring a reliable partnership
between the D Block licensee and Public Safety Broadband Licensee.\243\
---------------------------------------------------------------------------
\243\ Second Report and Order, 22 FCC Rcd at 15475 ] 542.
---------------------------------------------------------------------------
203. Discussion. If we auction the D Block without the 700 MHz
Public/Private Partnership, we seek comment on whether we should allow
geographic partitioning and spectrum disaggregation similar to other
700 MHz commercial bands.
f. Other Service and Auction Rules and Conditions
204. Background. Aside from the subjects addressed above, the
Second Report and Order addressed a number of other service and auction
related issues regarding the commercial use of the D Block and the
rules regarding other 700 MHz band commercial licenses, such as open
platform, wholesale, license eligibility, and small business bidding
credits.\244\
---------------------------------------------------------------------------
\244\ See id. at 15289.
---------------------------------------------------------------------------
205. Discussion. We seek comment on whether we should revisit and
adopt any other rules or conditions for the D Block in the event that
we auction it without a mandatory public/private partnership condition.
For example, would it serve the public interest to impose any
eligibility restrictions, or open platform conditions similar to those
imposed on the adjacent C Block? Should the Commission consider
imposing a mandatory wholesale obligation? We also seek comment on
whether the Commission should apply its spectrum aggregation screen
used for wireless transactions to the D Block. We also seek comment on
whether any of our Part 1 competitive bidding, designated entity
eligibility, and/or other auction rules or procedures would be
inappropriate or should be modified for licensing the D Block without
the 700 MHz Public/Private Partnership.
2. Alternate Public Safety Broadband Opportunities
206. In the event that we determine not to proceed with the 700 MHz
Public/Private Partnership approach requiring a partnership between the
D Block licensee and the Public Safety Broadband Licensee, we seek
comment broadly on how we may still achieve the public interest goal of
ensuring a nationwide, interoperable broadband network is available for
the use of public safety, and whether there are further revisions or
obligations we should impose on the Public Safety Broadband License to
achieve these goals.
207. Background. In the 700 MHz Public Safety Ninth NPRM,\245\ we
previously considered one option in the absence of a public/private
partnership with the D Block auction winner, that would permit the
nationwide Public Safety Broadband Licensee to provide unconditionally
preemptible access to the public safety broadband spectrum to
commercial service providers, on a secondary basis, through spectrum
leases or in the form of public/private partnerships established by
contract with the Public Safety Broadband Licensee. In this respect,
the Public Safety Broadband Licensee would enter into arrangements with
one or more commercial service providers for accessing or sharing their
communications systems infrastructure in order to create the
nationwide, interoperable, broadband public safety communications
network. This could be accomplished, for example, through the use of a
request for proposal (RFP) process by which commercial partners would
be solicited to provide access to their network infrastructure. The
Public Safety Broadband Licensee would then select one or more entities
to provide access to or build out all or a portion of the network, and/
or provide certain services to the public safety community on the
public safety broadband spectrum, in exchange for secondary,
preemptible access to the Public Safety Broadband Licensee spectrum.
---------------------------------------------------------------------------
\245\ See Implementing a Nationwide, Broadband, Interoperable
Public Safety Network in the 700 MHz Band, Development of
Operational, Technical and Spectrum Requirements for Meeting
Federal, State and Local Public Safety Communications Requirements
Through the Year 2010, PS Docket No. 06-229, WT Docket No. 96-86,
Ninth Notice of Proposed Rulemaking, 21 FCC Rcd 14837 (2006) (700
MHz Public Safety Ninth NPRM).
---------------------------------------------------------------------------
208. Discussion. We seek comment on this option as an alternative
to the particular public/private partnership model that we earlier
endorsed as our preferred approach in the Second Report and Order. This
option would preserve the concepts of a unified broadband standard and
nationwide level of interoperability, as managed by the Public Safety
Broadband Licensee on behalf of the public safety community. We
recognize, however, that such a proposal might not be ideal given that
there would be no guarantee of securing a commercial partner(s) that
could provide the network infrastructure, including features beneficial
to the public safety community. Further, the Public Safety Broadband
Licensee may be limited in the service providers with which it could
partner in order to ensure deployment of a unified broadband technology
with a nationwide level of interoperability, and take advantage of
economies of scale in terms of handsets and network equipment.
Accordingly, we seek comment on whether we should adopt this approach
should the D Block fail to attract a successful bidder. What
alternatives or variations on this approach may be more appropriate?
Are there other sources or mechanisms of funding that could be used to
build out or support a nationwide, interoperable broadband network for
public safety? Will the 10 megahertz of public safety spectrum
allocated for broadband be sufficient to support a nationwide,
interoperable broadband network for public safety?
209. If we do adopt an approach whereby the Public Safety Broadband
Licensee could enter into multiple contracts with commercial providers,
would it be necessary for the Commission to establish certain baseline
performance requirements, including those for broadband system
architecture, interoperability, build-out of national coverage,
unconditional preemption of commercial use, and disaster restoration
capability? If the Commission establishes such requirements, what
should they be? Alternatively, should we require or allow any or all of
these issues to be addressed by the Public Safety Broadband Licensee
rather than the Commission? What limits, if any, should be placed on
the Public Safety Broadband Licensee's ability to enter into leasing
arrangements with commercial entities? What Commission oversight should
be retained with respect to the Public Safety Broadband Licensee's
activities under these circumstances? Is there additional review that
the Commission should undertake with respect to approval of the leasing
arrangements, or other reporting with respect to the Public Safety
Broadband Licensee's activities that should be required?
210. We note that many of these considerations were initially
raised in the 700 MHz Public Safety Ninth NPRM, and we thus incorporate
by reference the questions posed in that document, and seek further
comment here in light of the revisions to the 700 MHz band and the
possible additional changes contemplated in this Second FNPRM. Are
there other issues raised by the 700
[[Page 29617]]
MHz Public Safety Ninth NPRM or associated comments that we should
consider here?
211. Another alternative may be to permit build-out on a regional,
state, or local basis of the broadband spectrum. This could be done
either through a spectrum lease with the nationwide Public Safety
Broadband Licensee, or by rescinding the nationwide license and
allowing regional, state, or local licensing of this spectrum. We seek
comment on both approaches. In either instance, we continue to believe
parameters must still be established that would ensure that systems
operating on this spectrum would be interoperable with one another on a
nationwide basis. Accordingly, we seek comment on the role of the
Public Safety Broadband Licensee in establishing such standards, and if
we adopt a local licensing scheme, whether we should retain a national
body such as the Public Safety Broadband Licensee to manage the use of
this spectrum by establishing baseline performance requirements,
determining a common broadband standard, and/or serving in a frequency
coordinator or planning role.
212. Finally, we seek comment on whether, in the absence of a
public/private partnership, we should continue to obligate the D Block
auction winner to fund the relocation of those public safety narrowband
systems operating in the lower portion of the public safety spectrum.
As noted in the Second Report and Order, it would be to the benefit of
the D Block auction winner to ensure that narrowband operations
adjacent to the D Block under the former band plan be relocated to the
upper portion of the public safety 700 MHz band and thus minimize
interference concerns. As another option, should we grandfather
existing operations until such time as relocation funding is secure,
and require the Public Safety Broadband Licensee to include relocation
funding in its RFP process? What alternative sources of funding may be
available to facilitate this transition?
IV. Procedural Matters
A. Initial Regulatory Flexibility Analysis
213. Section 213 of the Consolidated Appropriations Act 2000
provides that the Regulatory Flexibility Act (RFA), 5 U.S.C. Sec. 603,
shall not apply to the rules and competitive bidding procedures for
frequencies in the 746-806 MHz Band,\246\ which includes the
frequencies of both the D Block license and the 700 MHz public safety
broadband and narrowband spectrum. Accordingly, we have not prepared an
Initial Regulatory Flexibility Analysis in connection with the Second
FNPRM.
---------------------------------------------------------------------------
\246\ In particular, this exemption extends to the requirements
imposed by Chapter 6 of Title 5, United States Code, Section 3 of
the Small Business Act (15 U.S.C. 632) and Sections 3507 and 3512 of
Title 44, United States Code. Consolidated Appropriations Act 2000,
Pub. L. No. 106-113, 113 Stat. 2502, Appendix E, Sec. 213(a)(4)(A)-
(B); see 145 Cong. Rec. H12493-94 (Nov. 17, 1999); 47 U.S.C.A. 337
note at Sec. 213(a)(4)(A)-(B).
---------------------------------------------------------------------------
B. Initial Paperwork Reduction Act Analysis of 1995 Analysis
214. This document contains proposed new or modified information
collection requirements. We note, however, that Section 213 of the
Consolidated Appropriations Act 2000 provides that rules governing
frequencies in the 746-806 MHz Band, which encompass the spectrum
associated with both the D Block license and the 700 MHz public safety
broadband and narrowband spectrum, become effective immediately upon
publication in the Federal Register without regard to certain sections
of the Paperwork Reduction Act.\247\ We are therefore not inviting
comment pursuant to the Paperwork Reduction Act on any information
collections proposed in this document.
---------------------------------------------------------------------------
\247\ Id.
---------------------------------------------------------------------------
C. Other Procedural Matters
1. Ex Parte Presentations
215. The rulemaking shall be treated as a ``permit-but-disclose''
proceeding in accordance with the Commission's ex parte rules.\248\
Persons making oral ex parte presentations are reminded that memoranda
summarizing the presentations must contain summaries of the substance
of the presentations and not merely a listing of the subjects
discussed. More than a one or two sentence description of the views and
arguments presented generally is required.\249\ Other requirements
pertaining to oral and written presentations are set forth in Section
1.1206(b) of the Commission's rules.\250\
---------------------------------------------------------------------------
\248\ 47 CFR 1.200 et. seq.
\249\ See 47 CFR 1.1206(b)(2).
\250\ 47 CFR 1.1206(b).
---------------------------------------------------------------------------
2. Comment Filing Procedures
216. Pursuant to Sections 1.415 and 1.419 of the Commission's
rules,\251\ interested parties may file comments on or before June 20,
2008 and reply to comments July 7, 2008. All filings related to this
Second FNPRM should refer to WT Docket No. 06-150, PS Docket No. 06-
229, and WT Docket No. 96-86. Comments may be filed using: (1) The
Commission's Electronic Comment Filing System (ECFS), (2) the Federal
Government's eRulemaking Portal, or (3) by filing paper copies.\252\
---------------------------------------------------------------------------
\251\ 47 CFR 1.415, 1.419.
\252\ See Electronic Filing of Documents in Rulemaking
Proceedings, 63 FR 24121 (1998).
---------------------------------------------------------------------------
Electronic Filers: Comments may be filed electronically
using the Internet by accessing the ECFS: http://www.fcc.gov/cgb/ecfs/
or the Federal eRulemaking Portal: http://www.regulations.gov. Filers
should follow the instructions provided on the Web site for submitting
comments.
ECFS filers must transmit one electronic copy of the
comments for WT Docket No. 06-150, PS Docket No. 06-229, and WT Docket
No. 96-86. In completing the transmittal screen, filers should include
their full name, U.S. Postal Service mailing address, and WT Docket No.
06-150, WT Docket No. 06-169, and WT Docket No. 96-86. Parties may also
submit an electronic comment by Internet e-mail. To get filing
instructions, filers should send an e-mail to [email protected] and include
the following words in the body of the message, ``get form.'' A sample
form and directions will be sent in response.
Paper Filers: Parties who choose to file by paper must
file an original and four copies of each filing. Filings can be sent by
hand or messenger delivery, by commercial overnight courier, or by
first-class or overnight U.S. Postal Service mail (although we continue
to experience delays in receiving U.S. Postal Service mail). All
filings must be addressed to the Commission's Secretary, Marlene H.
Dortch, Office of the Secretary, Federal Communications Commission, 445
12th Street, SW., Washington, DC 20554.
The Commission's contractor will receive hand-delivered or
messenger-delivered paper filings for the Commission's Secretary at 236
Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing
hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be
held together with rubber bands or fasteners. Any envelopes must be
disposed of before entering the building.
Commercial overnight mail (other than U.S. Postal Service
Express Mail and Priority Mail) must be sent to 9300 East Hampton
Drive, Capitol Heights, MD 20743.
U.S. Postal Service first-class, Express, and Priority
mail should be addressed to 445 12th Street, SW., Washington, DC 20554.
217. Parties should send a copy of their filings to: Ne[scedil]e
Guendelsberger, Wireless Telecommunications Bureau, 445 12th Street,
SW., Washington, D.C. 20554, or by e-mail to
[email protected]; and Jeff
[[Page 29618]]
Cohen, Public Safety and Homeland Security Bureau, 445 12th Street,
SW., Washington, DC 20554, or by e-mail to [email protected]. Parties
shall also serve one copy with the Commission's copy contractor, Best
Copy and Printing, Inc. (BCPI), Portals II, Room CY-B402, 445 12th
Street, SW., Washington, DC 20554, (202) 488-5300, or via e-mail to
[email protected].
218. Documents in WT Docket No. 06-150, PS Docket No. 06-229, and
WT Docket No. 96-86 will be available for public inspection and copying
during business hours at the FCC Reference Information Center, Portals
II, Room CY-A257, 445 12th Street, SW., Washington, DC 20554. The
documents may also be purchased from BCPI, telephone (202) 488-5300,
facsimile (202) 488-5563, TTY (202) 488-5562, e-mail [email protected].
3. Accessible Formats
219. To request materials in accessible formats for people with
disabilities (Braille, large print, electronic files, audio format),
send an e-mail to [email protected] or call the Consumer & Governmental
Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (TTY). Contact the
FCC to request reasonable accommodations for filing comments
(accessible format documents, sign language interpreters, CARTS, etc.)
by e-mail: [email protected]; phone: 202-418-0530 (voice), 202-418-0432
(TTY).
V. Ordering Clauses
220. Accordingly, it is ordered pursuant to sections 1, 2, 4(i),
5(c), 7, 10, 201, 202, 208, 214, 301, 302, 303, 307, 308, 309, 310,
311, 314, 316, 319, 324, 332, 333, 336, 337, 614, 615, and 710 of the
Communications Act of 1934, as amended, 47 U.S.C. Sec. Sec. 151, 152,
154(i), 155(c), 157, 160, 201, 202, 208, 214, 301, 302, 303, 307, 308,
309, 310, 311, 314, 316, 319, 324, 332, 333, 336, and 337, that this
second FNPRM of proposed rulemaking in WT Docket No. 06-150, WT Docket
No. 96-86 and PS Docket No. 06-229 is adopted. The second FNPRM of
proposed rulemaking shall become effective upon publication in the
Federal Register.
221. It is further ordered that pursuant to applicable procedures
set forth in Sections 1.415 and 1.419 of the Commission's Rules, 47 CFR
1.415, 1.419, interested parties may file comments on the second FNPRM
of proposed rulemaking on or before June 20, 2008 and reply to comments
on or before July 7, 2008.
222. It is further ordered that the Commission shall send a copy of
this second FNPRM of proposed rulemaking in a report to be sent to
Congress and the General Accounting Office pursuant to the
Congressional Review Act, 5 U.S.C. 801(a)(1)(A).
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
Appendix--Possible Technical Framework for a 700 MHz Public/Private
Partnership Shared Wireless Broadband Network
I. Overview
This appendix serves as a possible framework for establishing
the technical requirements for the 700 MHz public/private
partnership shared wireless broadband network (SWBN). It is intended
to solicit detailed comment and result in a final set of technical
requirements that will provide greater certainty for bidders for the
D Block license while ensuring that the network meets public
safety's needs. This appendix is not intended to prejudge any of the
issues identified for comment in the accompanying Second Further
Notice. Further, we recognize that certain aspects of the public/
private partnership, if adopted, may be impacted by determinations
made through the questions posed in the Second Further Notice, and
that to some extent the technical considerations here are dependent
on one another.
Each of the technical requirements discussed in the Second
Further Notice is covered below. In many cases we have included more
specific technical specifications or obligations in order to solicit
more meaningful comment. We ask commenters to recommend any
specifications they believe should be modified, deleted, added or
retained. The final requirements will take into account the comments
filed in response to the Second Further Notice, as well as this
appendix.
II. Specifications for Public/Private System Architecture
Sections 27.1305(a) and 90.1405(a) state that the network must
be ``[designed] for operation over a broadband technology platform
that provides mobile voice, video, and data capability that is
seamlessly interoperable across public safety local and state
agencies, jurisdictions, and geographic areas, and which includes
current and evolving state-of-the-art technologies reasonably made
available in the commercial marketplace with features beneficial to
the public safety community.''
The architecture of the SWBN likely would consist of two general
elements: (a) a Radio Access Network (RAN) and (b) a Core Broadband
Network (CBN). Both the RAN and CBN would be expected to be packet
switched networks using Internet Protocol (IP).
An overall view of a generic functional architecture for the
SWBN is shown in Figure 1. The SWBN depicted has the following
characteristics:
1. The broadband IP network would be based on advanced next
generation mobile network standards and commercial technologies,
with performance characteristics supporting voice, data, and
multimedia applications.\253\
---------------------------------------------------------------------------
\253\ Examples of such standards and technologies are the
802.16e IEEE standard, coupled with the WiMAX Mobile profile
developed by the WiMAX Forum, and the Long Term Evolution (LTE)
proposal advanced by the 3GPP.
---------------------------------------------------------------------------
2. The SWBN would support end to end multiple quality of service
classes associated with public safety.
3. During normal operating conditions, the RAN would support
assured access for public safety users over commercial users to a
limit of 50% of engineered capacity.\254\
---------------------------------------------------------------------------
\254\ In other words, public safety would ensured to have
primary access to the 10 megahertz allocated for public safety
broadband operations. Further, commenters should consider the
potential that advanced next generation technology may be employed
to combine the public safety broadband spectrum with the D Block
spectrum and then randomly allocate the spectrum to users in
incremental amounts. Accordingly, with such technology this
requirement could be characterized as ensuring that public safety
has assured access to 50 percent of the engineered RAN capacity.
---------------------------------------------------------------------------
4. The RAN would support emergency priority access for public
safety users over commercial users.
5. Commercial service capabilities deployed by the D Block
licensee (e.g. voice calling, Internet access, etc.) would be
available to public safety users at a quality of service (QoS) level
as identified by the Public Safety Broadband Licensee (``PSBL'') as
part of its responsibilities to administer access to the SWBN and
interact with individual public safety entities.
6. The CBN would support interconnection with public safety
regional and local networks. This interconnection would facilitate
interoperability with existing public safety networks operating in
other frequency bands. It can be accomplished through a standard or
proprietary interface at an appropriate point or points in an
existing public safety communications system. Consideration should
be given to implement this interconnection in a way that will not
have a detrimental impact on the wireless broadband network. It is
noted that IP broadband networks are already being used in some
areas to facilitate such interoperability.
7. The D Block licensee would provide the PSBL with sufficient
real-time information and network transparency to:
a. Ensure that the service obligations of the D Block licensee
to the PSBL are fully met.
[[Page 29619]]
b. Provide reports on public safety network usage, user
patterns, etc.
c. Forecast future service needs.
d. Administer access by end users.
e. Assemble data for assessing usage fees.
f. Activate a service alert declaring an emergency condition
exists for purposes of enabling priority access in excess of the 10
megahertz of public safety broadband spectrum.
[GRAPHIC] [TIFF OMITTED] TP21MY08.011
BILLING CODE 6712-01-C
III. Reliability, Robustness and Hardening
Sections 27.1305(c) and 90.1405(c) require that the network must
incorporate ``[s]ufficient robustness to meet the reliability and
performance expectations of public safety.''
This requirement could be met in two ways. First, the Commission
could develop reasonable technical specifications based on comments
received in this proceeding and incorporate these specifications
into the service rules for the D Block. One advantage of this
approach would be to provide certainty to public safety users as
well as commercial bidders in advance of an auction. Second, the D
Block licensee could prepare a draft network reliability plan and
submit it to the PSBL. The PSBL would then provide comments to the D
Block licensee on the plan within 30 days of receipt. The D Block
licensee would incorporate any reasonable requests or suggestions.
In developing the network reliability plan, the D Block licensee
may employ a variety of techniques to ensure that service is
maintained and that service is promptly restored in the event of an
outage. These techniques may include the pre-deployment of backup
equipment and systems, provisions for rapid deployment of systems
such as cells on wheels, flexible system design that provides for
rapid reallocation of resources such as boosting power at certain
cell sites, etc.
Public safety users would remain responsible for the reliability
of the equipment that they purchase and use with the network, such
as mobile and hand-held radios, video surveillance systems,
broadband access devices, etc. Further, such equipment should meet
the same standards as those specified by the D Block licensee for
commercial equipment that may be connected to the broadband network.
The network reliability plan also should include the following
features and capabilities:
1. The network should be designed based on industry best
practices, specifically, the recommendations of the Network
Reliability and Interoperability Council.\255\
---------------------------------------------------------------------------
\255\ See Network Reliability and Interoperability Council
Wireless Network Reliability Final Report, September 2005 at http://www.nric.org/meetings/docs/meeting_20051019/NRICVII_FG3A_FinalReport_September_2005.pdf.
---------------------------------------------------------------------------
[[Page 29620]]
2. Network outages must be reported to the FCC, consistent with
the requirements for commercial wireless systems.\256\ Plans should
be put in place and implemented to resolve any pattern of repeated
outages.
---------------------------------------------------------------------------
\256\ See 47 CFR 4.1-4.2, 4.3(f), 4.5, 4.7, 4.9(e), 4.11, 4.13.
See also New Part 4 of the Commission's Rules Concerning Disruptions
to Communications, Report and Order and Further Notice of Proposed
Rulemaking, ET Docket No. 04-35, 19 FCC Rcd 16830, 16882-16890 ]]
97-114 (2004).
---------------------------------------------------------------------------
3. Critical network elements,\257\ such as CBN facilities, base
stations and antenna towers, should be built to withstand harsh
weather and natural disasters that are reasonably foreseeable in any
geographic area, such as hurricanes, floods, earthquakes, etc. Where
appropriate, local building codes may be used as a guide, with an
additional margin, as appropriate to ensure a reliable public safety
system, taking into account cost and other factors. Switches,
gateways, routers, radio and backhaul systems are typically self-
redundant.\258\
---------------------------------------------------------------------------
\257\ By ``critical network elements,'' we mean to refer to
those network elements that would require geographic redundancy and
mesh connectivity in case of catastrophic events impacting large or
heavily populated areas.
\258\ Self-redundancy implies having a duplicate active element
that will take over the function of the main element in case of the
latter's malfunction or failure.
---------------------------------------------------------------------------
4. Critical sites should have generators available with fuel
supplies sufficient to operate for as many as 5 to 7 days. By
``critical sites,'' we mean those sites that are necessary for
maintaining basic system availability and access to the core
network.
5. Backup power should be available at least at critical sites
sufficient to last as many as 8 hours.
6. Back-haul diversity should be provided at critical sites.
7. Public safety users are encouraged to obtain any additional
backup equipment they may need for their own use, such as a reserve
supply of mobile units and chargers for use in emergencies.
IV. Capacity, Throughput and Quality of Service
Capacity
Sections 27.1305(d) and 90.1405(d) require that the SWBN
incorporate ``[s]ufficient capacity to meet the needs of public
safety.'' One method for complying with these rules is for the D
Block licensee to anticipate public safety user needs during
emergency and disaster situations, so that public safety
applications are not degraded (i.e., increase in blocked calls and/
or transmission times or reduced data speeds) during periods of
heavy usage.
The network capacity, in terms of the amount of traffic that can
be carried throughout the system generally, or for each user at any
given location, is determined by many variables, including the
characteristics of the radio transmission technology, number of cell
sites, spectrum reuse, use of efficient technologies such as smart
antennas, various factors affecting propagation, core network
resources, backhaul availability, etc. Similarly, the users' traffic
demand that determines the capacity requirements depends on a great
many variables, such as the number of users, the applications that
will run on the network and the resources they consume, peak usage
times, acceptable blocking rates, etc. In the case of a SWBN, the
network capacity available for public safety users will also be
affected by the priority that is given to public safety
communications and the ease and degree to which public safety users
can access the commercial spectrum. We recognize that capacity
requirements are not static and we expect them to continue to grow
for both commercial and public safety applications.
This requirement could be met in two ways. First, the Commission
could develop reasonable technical specifications based on comments
received in this proceeding and incorporate these specifications
into the service rules for the D Block. One advantage of this
approach would be to provide certainty to public safety users as
well as commercial bidders in advance of an auction. Second, the D
Block licensee could prepare a draft plan to meet the capacity
requirements of public safety users, based on consultation with the
PSBL and based on their experience with commercial broadband network
performance. The plan should take into account both national and
local public safety requirements. The PSBL would then provide
comments to the D Block licensee on the plan within 30 days of
receipt. The D Block licensee would incorporate any reasonable
requests or suggestions.
The D Block licensee should consult on an ongoing basis with the
PSBL to address any shortcomings related to network capacity and to
plan continued evolution of the network to meet growing needs. To
assist with this endeavor, the PSBL should provide a rolling 12-
month usage forecast on a quarterly basis. The network should
incorporate a mechanism for adequate resource management so as to
allow for continued improvements over time and best mitigate any
detrimental impact on public safety operations.
Throughput
With regard to throughput, the SWBN should meet the following
minimal specifications:
1. Data rates should be consistent with state-of-the-art
commercial wireless systems, such as WiMAX Mobile, LTE, or other
equivalent or advanced technologies.
2. Public safety applications should be provided sufficient
resources to perform at least as well as similar applications on the
commercial network (i.e., voice, video, Internet access).
3. Blocking rates should be no greater than 2% or other mutually
agreeable criteria.\259\
---------------------------------------------------------------------------
\259\ The term blocking is meant to include instances in which a
public safety user's request for service cannot be fulfilled with
the defined QoS associated with that specific service.
---------------------------------------------------------------------------
Quality of Service
With regard to quality of service, Sections 27.1305(f) and
90.1405(f) require the SWBN to incorporate a ``mechanism to
automatically prioritize public safety communications over
commercial uses on a real-time basis consistent with the
requirements of [Sections 27.1307 and 90.1407(c)].'' There are
certain priorities at the air interface that relate to the ability
of a user to access and connect to the network. Such priority,
``access priority,'' is to be distinguished from traffic priority
that arises after the connection admission. The notion of QoS is
applied after the connection is established.
Concerning access priority, public safety users will have
priority access to the 10 megahertz of public safety broadband
spectrum (or, put another way, as discussed above, half of the
engineered capacity of the total spectrum (2 x 10 MHz)) at all the
times, and to a portion of the engineered capacity on the D Block in
the event of emergency priority access. An example of such a scheme
is the current Wireless Priority Service (WPS).\260\
---------------------------------------------------------------------------
\260\ See http://www.fcc.gov/pshs/emergency/wps.html.
---------------------------------------------------------------------------
As it relates to traffic priority and QoS, the following can be
considered as specific requirements of the SWBN:
1. The networks should provide sufficient capacity, and augment
capacity as needed, in order to meet the QoS requirements for public
safety applications.
2. The SWBN is anticipated to provide a number of QoS classes
and performance objectives such as those defined in ITU-T Y.1541 or
those defined in the advanced next generation technology standards
(e.g., LTE and WiMAX Mobile). The network should support QoS classes
for real time applications as well as low delay data transfer
applications for public safety users, comparable to those in ITU-
Y.1541.
3. Using QoS mechanisms as defined by the relevant standards
(i.e. linked to the selected technology), public safety traffic
should have higher priority of transmission and delivery over the
commercial traffic consistent with the access priority circumstances
discussed above. While the QoS classes and performance objectives
are standard, the implementation of the priority schemes in
achieving the QoS classes is vendor-specific. We anticipate
different methods of traffic management by vendors (such as
connection admission control, queuing management, congestion
control, etc.) to achieve the desired QoS and priority requirements
for public safety usage. It is possible that at times of network
congestion, commercial traffic will be denied access to network
resources, or be dropped in favor of public safety traffic, again
consistent with the access priority circumstances discussed above.
4. Using QoS mechanisms as defined by standards, various public
safety applications should have different levels of QoS, depending
on the type of application. For instance, command-level applications
may require QoS settings with relatively higher priority.
V. Security and Encryption
Sections 27.1305(e) and 90.1405(e) require the SWBN to
incorporate ``[s]ecurity and
[[Page 29621]]
encryption consistent with state-of-the-art technologies.''
Accordingly, the system should include the following capabilities:
1. The SWBN should implement controls to ensure that public
safety priority and secure network access is limited to authorized
public safety users and devices, using an open standard protocol for
authentication.
2. The SWBN should allow for public safety network
authentication, authorization, automatic logoff, transmission
secrecy and integrity, and audit control capabilities as well as
other unique attributes that may be mutually agreeable.
3. The SWBN technical and operational parameters should
accommodate public safety administrative safeguards and controls for
security management, oversight, incident management, and privacy
that may be defined in the final negotiations.
VI. Coverage
Sections 27.1305(b) and 90.1405(b) require the SWBN to
incorporate ``[s]ufficient signal coverage to ensure reliable
operation throughout the service area consistent with typical public
safety communications systems.''
The Second Further Notice invites comment on the coverage
requirements for the SWBN. Coverage may be defined in terms of the
signal levels that will be available at all locations based on
accepted predictive methods (i.e., 90% availability, 90% of the
time) and taking into account appropriate factors to meet in-
building coverage needs.
VII. Operational Capabilities--Network Services and Applications
Sections 27.1305(g) and 90.1405(g) require the SWBN to
incorporate ``[o]perational capabilities consistent with features
and requirements that are typical of current and evolving state-of-
the-art public safety systems.'' At a minimum, these capabilities
should include seamless interoperability for fixed as well as mobile
voice, video, and data communications on the SWBN across local,
state, tribal, and Federal public safety users. To be more specific,
the SWBN should support the reliable exchange of text, voice, secure
voice, data, video, photographs, and detailed graphical information
such as maps, drawings, engineering plans, fingerprints, graphical
files, etc.
The SWBN should support and be compatible with standards used by
public safety. For example, these may include the standards and
practices established by the National Information Exchange Model
(NIEM). NIEM is a partnership of the U.S. Department of Justice and
the Department of Homeland Security (DHS). Its purpose is to
develop, disseminate and support enterprise-wide information
exchange standards and processes that enable jurisdictions to
effectively share critical information in emergency situations, as
well as support the day-to-day operations of agencies throughout the
nation.\261\
---------------------------------------------------------------------------
\261\ See http://www.niem.gov/. ``NIEM enables information
sharing, focusing on information exchanged among organizations as
part of their current or intended business practices. The NIEM
exchange development methodology results in a common semantic
understanding among participating organizations and data formatted
in a semantically consistent manner. NIEM will standardize content
(actual data exchange standards), provide tools, and managed
processes.''
---------------------------------------------------------------------------
In addition, DHS created the National Incident Management System
(NIMS) to establish a framework for organizations to work together
to prepare for, protect against, respond to, and recover from the
entire spectrum of all-hazard events.\262\ Other standards
organizations that are important in the development of the
transmission and information exchange standards that the network may
employ include the Organization for the Advancement of Structured
Information Standards (OASIS) \263\ EDXL standards, and the Global
Justice XML (GJXML) data model.\264\
---------------------------------------------------------------------------
\262\ See http://www.fema.gov/emergency/nims/standards.shtm. DHS
created the National Incident Management System as required under
Homeland Security Presidential Directive (HSPD)-5. NIMS is a
framework that provides guidelines and principles to first
responders in an effort to achieve a single nationwide system for
managing incidents.
\263\ See http://www.oasis-open.org/who/.
\264\ See http://www.ncsconline.org/WC/CourTopics/ResourceGuide.asp?topic=GJXDM.
---------------------------------------------------------------------------
Users of the network should have access to the full range and
suites of evolving commercial voice, data, and video services and
applications as well. The Table below from the Public Safety
Spectrum Trust Bidder Information Document (BID) Version 2.0
reflects example applications and services that may be supported.
Actual data rates should exceed the minimum for acceptable quality
of service measures and key performance indicators shown but also
should be consistent with the performance indicators listed
separately in this document. However, it may not be necessary to
specify data rates or performance criteria for each individual
application.
[[Page 29622]]
[GRAPHIC] [TIFF OMITTED] TP21MY08.012
VIII. Operational Control and Use of the Network
Sections 27.1305(h) and 90.1405(h) require the SWBH to
incorporate ``[o]perational control of the network by the [PSBL] to
the extent necessary to ensure that public safety requirements are
met.''
The D Block licensee should provide control capabilities or a
level of network transparency sufficient to permit the PSBL to
exercise its role in general administration of access to the SWBN by
individual public safety entities. These functions should include:
1. Real time or near real time messages detailing material
violations of the technical requirements contained in the
Commission's rules or the NSA, including the scale and scope of the
violation. The timeframes, format and the scenarios in which this
information is required should be addressed in the NSA. The PBSL
should be notified immediately of any situations that impede vital
public safety communications, with details to be made available as
soon as practicable.
2. The ability of the PSBL to host services subject to
negotiation requiring elements of IP multimedia subsystem (IMS) or
Service Architecture Evolution.
3. Capabilities permitting the PSBL and/or authorized public
safety entities the ability to set up and manage user/user group/
application profiles, authenticate users and devices and provision
services.
4. Over the air framework to allow the management of end user
devices, either singly or in groups, permitting such functions as
over the air programming of devices and the clearing of data and
disabling of devices.
5. Notification to the PSBL of system downtime (or any work that
may affect service or system performance over any given geographic
area) due to planned maintenance, configuration changes, or
upgrades. The PSBL should provide the D Block licensee with advance
notice to address planned public safety events.
Procedural Matters
Ex Parte Rules-Permit-But-Disclose Proceeding
This proceeding shall be treated as a ``permit-but-disclose''
proceeding in accordance with the Commission's ex parte rules.
Persons making oral ex parte presentations are reminded that
memoranda summarizing the presentations must contain summaries of
the substance of the presentations and not merely a listing of the
subjects discussed. More than a one-or two sentence description of
the views and arguments presented is generally required. Other rules
pertaining to oral and written presentations are set forth in Sec.
1.1206(b) of the Commission's rules as well.
Comment Dates
Pursuant to Sec. Sec. 1.415 and 1.419 of the Commission's
rules, 47 CFR 1.415, 1.419, interested parties may file comments and
reply comments on or before the dates indicated on the first page of
this document. Comments may be filed using: (1) The Commission's
Electronic Comment Filing System (ECFS), (2) the Federal
Government's eRulemaking Portal, or (3) by filing paper copies. See
Electronic Filing of Documents in Rulemaking Proceedings, 63 FR
24121 (1998).
Electronic Filers: Comments may be filed electronically
using the Internet by accessing the ECFS: http://www.fcc.gov/cgb/ecfs/ or the Federal eRulemaking Portal: http://www.regulations.gov.
Filers should follow the instructions provided on the Web site
for submitting comments.
For ECFS filers, if multiple docket for rulemaking
numbers appear in the caption of
[[Page 29623]]
this proceeding, filers must transmit one electronic copy of the
comments for each docket or rulemaking number referenced in the
caption. In completing the transmittal screen, filers should include
their full name, U.S. Postal Service mailing address, and the
applicable docket or rulemaking number. Parties may also submit an
electronic comment by Internet e-mail. To get filing instructions,
filers should send an e-mail to [email protected], and include the
following words in the body of the message, ``get form.'' A sample
form and directions will be sent in response.
Paper Filers: Parties who choose to file by paper must
file an original and four copies of each filing. If more than one
docket or rulemaking number appears in the caption of this
proceeding, filers must submit two additional copies for each
additional docket or rulemaking number. Filings can be sent by hand
or messenger delivery, by commercial overnight courier, or by first-
class or overnight U.S. Postal Service mail (although the Commission
continues to experience delays in receiving U.S. Postal Service
mail). All filings must be addressed to the Commission's Secretary,
Office of the Secretary, Federal Communications Commission.
The Commission's contractor will receive hand-delivered
or messenger delivered paper filings for the Commission's Secretary
at 236 Massachusetts Avenue, NE., Suite 110, Washington, DC 20002.
The filing hours at this location are 8 a.m. to 7 p.m. All hand
deliveries must be held together with rubber bands or fasteners. Any
envelopes must be disposed of before entering the building.
Commercial overnight mail (other than U.S. Postal
Service Express Mail and Priority Mail) must be sent to 9300 East
Hampton Drive, Capitol Heights, MD 20743.
U.S. Postal Service first-class, Express, and Priority
mail must be addressed to 445 12th Street, SW., Washington, DC
20554.
Comments and reply comments and any other filed documents in
this matter may be obtained from Best Copy and Printing, Inc., in
person at 445 12th Street, SW., Room CY-B402, Washington, DC 20554,
via telephone at (202) 488-5300, via facsimile at (202) 488-5563, or
via e-mail at [email protected]. The pleadings will be also available
for public inspection and copying during regular business hours in
the FCC Reference Information Center, Room CY-A257, 445 12th Street,
SW., Washington, DC 20554, and through the Commission's Electronic
Filing System (ECFS) accessible on the Commission's Web site, http://www.fcc.gov/cgb/ecfs. People with Disabilities: To request
materials in accessible formats for people with disabilities
(braille, large print, electronic files, audio format), send an e-
mail to [email protected] or call the Consumer & Governmental Affairs
Bureau at 202-418-0530 (voice), 202-418-0432 (tty).
Commenters who file information that they believe should be
withheld from public inspection may request confidential treatment
pursuant to Sec. 0.459 of the Commission's rules. Commenters should
file both their original comments for which they request
confidentiality and redacted comments, along with their request for
confidential treatment. Commenters should not file proprietary
information electronically. Even if the Commission grants
confidential treatment, information that does not fall within a
specific exemption pursuant to the Freedom of Information Act (FOIA)
must be publicly disclosed pursuant to an appropriate request. See
47 CFR 0.461; 5 U.S.C. 552. We note that the Commission may grant
requests for confidential treatment either conditionally or
unconditionally. As such, we note that the Commission has the
discretion to release information on public interest grounds that
does fall within the scope of a FOIA exemption.
[FR Doc. E8-11247 Filed 5-20-08; 8:45 am]
BILLING CODE 6712-01-P