WPCwe 2HB%XK Z3|X' (TT)Times New RomanTimes New Roman Bold (Bold) (TT)Times New Roman (Italic) (TT)"i~'^09CSS999S]+9+/SSSSSSSSSS//]]]Ixnnxg]xx9?xgxx]xn]gxxxxg9/9MS9ISISI9SS//S/SSSS9?/SSxSSIP!PZ9+ZM999+99999999S/xIxIxIxIxIlnIgIgIgIgI9/9/9/9/xSxSxSxSxSxSxSxSxSxSxIxSxRxSxSxS]SxIxIxInInInZnIxigIgIgIgIxSxSxSxZxSxZxS9/9S999Su]ZZxSg/gCg9g9g/xSbxSxSxSxSxn9n9n9]?]?]?]ZgFg/gMxSxSxSxSxSxSxxZgIgIgIxSg9xS]?g9xSi+SS88WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN/>/>/>/x]SSSSx]x]x]x]xSxSx]SSxSxSf]xSxSxSxIxIxWxIx{nInInInISSSWS]a?/?]?9?]]WW]n/nKn9nCn/x]xx]x]SSxxIxIxI]?]?]?]WnUn9nax]x]x]x]x]x]xxWnInInIx]n9x]]?n9xSz+SS8-8WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNdYzzzzCCCCqodYYYYYYYYYYY8888dddddddnddddddd"i~'^:DPddDDDdp4D48dddddddddd88pppX|pDL|pp||D8D\dDXdXdXDdd88d8ddddDL8ddddX`(`lD4l\DDD4DDDDDDDDd8XXXXXX|X|X|X|XD8D8D8D8ddddddddddXdbdddpdXXXXXlX~|X|X|X|XdddldldD8DdDDDdplld|8|P|D|D|8dvddddDDDpLpLpLpl|T|8|\ddddddl|X|X|Xd|DdpL|Dd~4ddC$CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxH\dDXddddd8@d<@d<DDXXdDDxddzHxxHvppDXd<"dxtldpxxd2Coddȧ8CCdr2C28ddddddddddCCrrrdzNdzoȐC8CtdCdoYoYCdo8Co8odooYNCodddYO,OhCddddCoCȜCCddFdCNC2Cdddd,dCiI?^K@OqLA Mheader2>I ` hp x`    #FxX  Pg9CXP# heading 3?F` hp x #FxX  Pg9CXP# footer!@!!#d\  PCP#CitatorFormat Secretary's Citator Output FileAW r5-#d6X@`7Ͽ@# XX  X B r5-S  B2WKNK?RZT"i~'^:DpddȨDDDdp4D48ddddddddddDDpppd|Ld|pȐD8DtdDdpXpXDdp8Dp8pdppXLDpdddXP,PhD4htDDD4DDDDDDdDp8dddddȐXXXXXJ8J8J8J8pddddppppddpddddzpdddXXhXXXXXdddhdptL8LpLDLpphhp8ZDP8pppddƐXXXpLpLpLphfDtppppppȐhXXXpDppLDd4ddC6CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxHjdDdddddd8HH"&H>XHH8HB8>HH^HH>"".2",2,2,"222N2222"&22H22,006"6."""""""""""2H,H,H,H,H,XAB,>,>,>,>,""""H2H2H2H2H2H2H2H2H2H2H,H2H1H2H2H282H,H,H,B,B,B6B,H?>,>,>,>,H2H2H2H6H2H6H2""2"""2F866H2>>(>">">H2;H2H2H2H2XHB"B"B"8&8&8&86>*>>.H2H2H2H2H2H2^HH6>,>,>,H2>"H28&>"H2?22!!WFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN$<<$.2",2222`2 LL2 LL2L"",,2d""ddzzzzzzzzzzCCCCozdddddddYYYYY8888dddddddndddddYd"i~'^:DTddDDDd4D48ddddddddddDDd||||DXp||dp||ppL8LTdDddXdX8dd88X8ddddLL8dXXXLP8PlD4lTDDD4DDDDDDdDd8|d|d|d|d|dX|X|X|X|XD8D8D8D8dddddddddpX|ddddpXd|d|d|d|dXXlXx|X|X|X|XdddldldD8DdDDDddllXp8pHpDp@p8dtdddd|L|L|LdLdLdLllpHp8pTddddddplpLpLpLdpDddLpDpdx4ddC,CWddddddddddddddddddddddddddddddddddddddddNHxxHhdLdddddd8@d<@d<DDppdDDxddzHxxHkddDpd<"dxtldxxd5PC2X3_XP*f9 xQXXTimes New Roman (TT)Times New Roman (Bold) (TT)Times New Roman (It) (TT) 2@ X 2\buey.X80,ɓX\  P6G;P y.\80,?\4  pG;"7jC:,yoXj\  P6G;XP!7nC:,ԍxFleet Call, Inc., Memorandum Opinion and Order, 6 FCC Rcd 1533 (1991), recon. dismissed, 6 FCC Rcd 6989 (1991). Following the Fleet Call decision, several parties",N(N(ZZp" filed petitions for rulemaking requesting that the Commission establish rules for widearea  X-licensing of socalled "enhanced" SMR systems, such as those being constructed by Nextel.^C {Ob-  zԍxSee Petition for Rulemaking by National Association of Business and Educational Radio, filed March 13,  {O,- x1992; Petition for Rulemaking by A & B Electronics, Inc., filed May 26, 1992; Petition for Rulemaking by American  {O-Mobile Telecommunications Association, filed October 26, 1992.   X-In 1993, the Commission responded to these petitions by adopting a Notice of Proposed  X-Rulemaking in PR Docket No. 93144,t^C {O\-  /ԍxSee Amendment of Part 90 of the Commission's Rules to Facilitate Future Development of SMR Systems  {O& - xYin the 800 MHz Frequency Band, Notice of Proposed Rulemaking, PR Docket No. 93144, 8 FCC Rcd 3950 (1993)  {O -(800 MHz Notice).t which proposed to allow 800 MHz SMR operators to  X-obtain licenses that would permit aggregation of multiple SMR channels within an MTA.C {Om -  ԍxId. at  7. The 800 MHz Notice proposed Basic Trading Areas (BTAs) as an alternative service area definition.  X-We note that the Commission did not, before adoption of the 800 MHz Notice, release a public notice specifying the cutoff date for acceptance of 800 MHz pioneer's preference  Xe-applications, pursuant to Section 1.402(c) as was then in effect.f en C yO-ԍx47 C.F.R.  1.402(c) (1994) provided as follows:  OXxPioneer's preference requests relating to a specific new spectrumbased service or technology that  will be considered by the Commission will not be accepted after a specified date prior to the  Commission's consideration of a notice of proposed rule making that addresses the service or technology. This date will be announced by public notice at least 30 days in advance.   {O- xxSubsequent to the filing of Nextel's pioneer's preference request, the Commission modified its rules in the Second  {O- xReport and Order in the pioneer's preference review proceeding to provide that pioneer's preference requests must  xbe filed prior to the Sunshine Notice for the agenda meeting that announces the initiation, by either a notice of  xKinquiry or notice of proposed rulemaking, of a proceeding pertaining to a specific new spectrumbased service or  {O -technology. See 47 C.F.R. 1.402(b). Nextel's request, however,  XN-was filed almost 16 months after the 800 MHz Notice was released. Even if Nextel was  X9-unaware that the Commission intended to release the 800 MHz Notice before that Notice was released, Nextel's 16month delay in filing its request was an unreasonably long period of time.  X -x6. Nextel contends that notwithstanding the Commission's release of the 800 MHz  X -Notice, its request should be treated as timely because it predates the Commission's Further  X -Notice of Proposed Rulemaking in PR Docket No. 93144.& C {O#-  ԍxAmendment of Part 90 of the Commission's Rules to Facilitate Future Development of SMR Systems in the  {M#- x800 MHz Frequency Band and Implementation of Section 309(j) of the Communications Act Competitive Bidding,  {O$- xKFurther Notice of Proposed Rulemaking, PR Docket No. 93144 and PP Docket No. 93253, 10 FCC Rcd 7970  {O^%-(1994) (800 MHz Further Notice).  In this 800 MHz Further Notice, the Commission modified its prior widearea licensing proposal by designating 10 MHz of contiguous SMR spectrum for MTAbased licensing, with licensees to be selected by",N(N(ZZ"  X-competitive bidding. Prior to the 800 MHz Further Notice, Nextel proposed using a 10 MHz block for widearea systems in comments filed in the Commission's Commercial Mobile  X-Radio Services (CMRS) proceeding in GN Docket No. 93252,C {OM-  ԍxImplementation of Sections 3(n) and 332 of the Communications Act Regulatory Treatment of Mobile  {O-Services, First Report and Order, GN Docket No. 93252, 9 FCC Rcd 1056 (1994). which sought to establish regulatory parity in the rules governing SMR and competing CMRS services, such as cellular  X-and PCS.I$C yO{-ԍxNextel Request at 2 n.4.I Because the 800 MHz Further Notice in PR Docket No. 93144 follows Nextel's  X-proposal in this respect, Nextel contends that it should be allowed to seek a pioneer's  Xz-preference based on the proposal.@zC {O -ԍxId. at 2.@  XL-x7. Nextel's reliance on the timing of the 800 MHz Further Notice in relation to its pioneer's preference request is misplaced. Section 1.402 states, in relevant part, that a pioneer's preference may be filed only in a proceeding in which "a notice of proposed  X -rulemaking has not yet been adopted."I FC yO-ԍx47 C.F.R.  1.402(a).I By its plain language, the rule does not provide for reopening of the pioneer's preference filing window where an initial Notice of Proposed Rulemaking is later modified by a Further Notice of Proposed Rulemaking. Moreover, such an interpretation would be inconsistent with the intent of the rule. The purpose of the restriction is to ensure that pioneer's preferences stimulate future innovation. As the Commission stated in adopting the rule, "until we make a proposal an innovator may submit a rulemaking petition or preference request that may become the foundation of our proposal, but after the NPRM is adopted the nature of the proposed new service or technology is essentially  XQ-defined."QC {O-ԍxPioneer's Preference Memorandum Opinion and Order, 7 FCC Rcd at 1811,  23.  X#-x8. Further, Nextel's proposal to designate 10 MHz of spectrum for widearea SMR systems does not fit within the category of innovative "new service or technology" as required  X-by Section 1.402(a).Yh C {O -ԍxSee 47 C.F.R.  1.402(a).Y The proposal did not fundamentally alter the Commission's plans for the service, but was simply a modification to a preexisting Commission proposal for wide X-area licensing. The Commission stated that the rule changes proposed in the 800 MHz  X-Further Notice were "intended to build upon and refine our previous efforts to promote the development of widearea SMR service in the 800 MHz band, particularly our 1993 Notice of  X-Proposed Rulemaking that initiated this docket."l C {O1&-ԍx800 MHz Further Notice, supra note 21,  2.l Consistent with that purpose, the  Xo-differences between the Commission's proposals in the 800 MHz Further Notice and those in"o ,N(N(ZZO"  X-the earlier 800 MHz Notice are primarily an outgrowth of statutory and regulatory changes particularly the reclassification of interconnected SMR as CMRS and the advent of the Commission's auction authority rather than of technological innovation within the service.  V-x2. Substantive Issues  Xx-x9. Even if Nextel had filed its request before the 800 MHz Notice was issued, Nextel would still not be eligible for a pioneer's preference based on the information submitted. Section 1.402 of the Commission's Rules requires that a party requesting a pioneer's preference demonstrate that it has developed the capabilities or possibilities of a new technology or service, or has brought the technology or service to a more advanced or  X -effective state.I C yO -ԍx47 C.F.R.  1.402(a).I The applicant must also demonstrate that the new service or   technology is technically feasible by submitting either the summarized results of an experiment or a  X -technical showing.F XC yO-ԍx47 C.F.R.  5.207.F In addition, a preference is granted only if the service rules adopted are a reasonable outgrowth of the applicant's proposal and lend themselves to grant of a  X -preference.I C yOD-ԍx47 C.F.R.  1.402(a).I  X}-x 10. Furthermore, Section 1.402, as amended pursuant to GATT, requires an applicant in services in which licenses are awarded by competitive bidding and in which pioneer's preference requests were accepted for filing after September 1, 1994, to demonstrate that "the Commission's public rulemaking process inhibits it from capturing the economic rewards of  X!-its innovation unless it is granted a pioneer's preference."I !xC yOJ-ԍx47 C.F.R.  1.402(i).I Specifically, the applicant must show that it may lose its intellectual property protection because of our public process; that the damage to its intellectual property is likely to be more significant than in other contexts, such as the patent process; and that the guarantee of a license is a significant factor in its  X-ability to capture the rewards from its innovation. :!C {O~-ԍxId.:  X-x 11. Nextel does not satisfy any of the above criteria. Nextel does not present a compelling argument that its digital mobile technology is sufficiently innovative to justify a  Xi-preference.R"iC {O$-ԍxSee Nextel Request at 612.R That is, Nextel's request did not reflect technology that was substantially new and innovative when compared to its own pre1992 technology in order to qualify for a  X;-pioneer's preference under the Commission's program. W e also find that the Commission's rules governing the licensing of contiguous 800 MHz SMR channels by Major Trading Areas"$, ",N(N(ZZ" (MTAs) are not a reasonable outgrowth of Nextel's 1992 proposal to license fallow 800 MHz  X-spectrum for widearea systems.P#R {Ob-ԍxSee note 15, supra.P Although the Commission recognized the development of widearea SMR technology as early as 1991, Nextel's original proposal was based on technology developed for use on noncontiguous spectrum. The Commission's revised SMR rules, however, are designed to allow SMR licensees (including Nextel) to use technologies developed for contiguous spectrum. Because the 800 MHz SMR rules were developed independently of Nextel's proposal, they cannot be properly viewed as "a reasonable outgrowth of the proposal."  X1-x 12. Further, Nextel fails to demonstrate that the Commission's public rulemaking process inhibits Nextel from capturing the economic rewards of its innovation unless it is granted a pioneer's preference. In fact, by its own pleading, Nextel demonstrates that it has been implementing, and continues to implement, its "seamless digital mobile network" from as  X -early as 1992.I$ ZR yO-ԍxNextel Amendment at 56.I This digital system now provides commercial widearea SMR services to  X -various cities within the United States.U% R {OY-  ЍxId. at 4 n.14.U Given this continued growth, it is difficult to see how the Commission's rulemaking process inhibited Nextel from reaping the economic rewards of its innovation.  XK-D III. ORDERING CLAUSE ă  X-x 13. Accordingly, IT IS ORDERED that the Request for and Amendment to a Pioneer's Preference filed by Nextel Communications, Inc. IS DISMISSED. "|%,-(-(ZZr"  X-x 14. This action is taken pursuant to authority delegated in Sections 0.241 and 0.331 of the Commission's Rules, 47 C.F.R.  0.241 and 0.331. x` `  hh@FEDERAL COMMUNICATIONS COMMISSION x` `  hh@______________________________ x` `  hh@Michele C. Farquhar, Chief x` `  hh@Wireless Telecommunications Bureau x` `  hh@______________________________ x` `  hh@Richard M. Smith, Chief x` `  hh@Office of Engineering and Technology