[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