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pG;46n=H@,- PE37P6ogzm,-L PE37LP PbU,]p\  P6G;pPp dzj,ՠL\  P6G;LP APF,/\  P6G;P qRdW,R\  P6G;P 6s8xC;,-Xx PE37XP t7jC:,Xj\  P6G;XP!* u@|ND,C|\  P6G;P3 v@ND,4  pG;1 w7nC:,4Xn4  pG;X, xW!@(#,h@\  P6G;hP yP:% ,J:\  P6G;JP z0_=5,6]&_*f9 xr G;&X {5hC:,6Xh*f9 xr G;XX- ~/_:2,_4  pG;"d;wH?,يw4  pG;#|}*i88,%ixP7P&%}}*j88,MCVjps7~K?!!,%Z,?xP7,P ~/\:2,\\  P6G;P'c;sH?,hs\  P6G;P( t,U5.,xU\  P6G;P)t7jC:,Xj\  P6G;XP!* t,X5.,X4  pG;+w7nC:,4Xn4  pG;X,Z 6jC:,ZE3Xj9 xOG;X2~CC,%KX~xP7XP2CC,MXps7X 3g>6,H0g4  pG;00v@ND,4  pG;1 3c>6,0c\  P6G;0P2u@|ND,C|\  P6G;P3lDSI,A4  pG;4 H5!,x,5\  P6G;,P ;xC4,v9Xxjp P7XP987 <{C8,X{V p7Xb ;sC0,Xs4@ x7XX T$H(,v:hHjp P7hP2~S `2a=5,r&a\  P6G;&P  a2e=5,d[&e4  pG;&b.t==,%&&txP7&P c;sH?,hs\  P6G;P( d;wH?,يw4  pG;# p dzj,ՠL\  P6G;LP e dzj, L4  pG;L PbU,p4  pG;pe dzj, L4  pG;L rRdW,R\  P6G;P  gRdW,Dc4  pG;  APF,`4  pG; fRdW,Dc4  pG; iIYM,$ \  P6G; P hIYM, 4  pG;  jVj\,r\  P6G;P kVj\,dD4  pG; mDSI,\  P6G;P lDSI,A4  pG;46n=H@,- PE37P6ogzm,-L PE37LP PbU,]p\  P6G;pPp dzj,ՠL\  P6G;LP APF,/\  P6G;P qRdW,R\  P6G;P 6s8xC;,-Xx PE37XP t7jC:,Xj\  P6G;XP!* u@|ND,C|\  P6G;P3 v@ND,4  pG;1 w7nC:,4Xn4  pG;X, xW!@(#,h@\  P6G;hP yP:% ,J:\  P6G;JP z0_=5,6]&_*f9 xr G;&X: {5hC:,6Xh*f9 xr G;XX- ~/_:2,_4  pG;"d;wH?,يw4  pG;#|}*i88,%ixP7P&%}}*j88,MCVjps7~K?!!,%Z,?xP7,P ~/\:2,\\  P6G;P'c;sH?,hs\  P6G;P( t,U5.,xU\  P6G;P)t7jC:,Xj\  P6G;XP!* t,X5.,X4  pG;+w7nC:,4Xn4  pG;X,Z 6jC:,ZE3Xj9 xOG;X2~CC,%KX~xP7XP2CC,MXps7X 3g>6,H0g4  pG;00v@ND,4  pG;1 3c>6,0c\  P6G;0P2u@|ND,C|\  P6G;P3lDSI,A4  pG;4 H5!,x,5\  P6G;,P ;xC4,v9Xxjp P7XP987 <{C8,X{V p7Xb ;sC0,Xs4@ x7XX T$H(,v:hHjp P7hPZ 1a=5,Z\&a9 xOG;& 7kC:,҃\k\  P6G;\P4H5!,,5\  P6G;, S-  Federal Communications Commission`(#AFCC 9757 ă  yxdddxy S-sP#&sxP7&&P#PAGE #&a\  P6G;r&P#у1Њ  \-F#s\  P6G;hP# Before the  sKT #L\  P6G;ՠLP##\  P6G; RP#Federal Communications Commissionă  sK# \  P6G; $ P#Washington, D.C. ă X` hp x (#%'0*,.8135@8:>..10.   ;   B: Channel Groups 3, 16 NN>>..10.      C: Channel Groups 5, 18  NN>>..10.      D: Channel Groups 8, 19  NN>>..10.       E: Channels 171180  NN>>..10.       }Kl - TOTAL Ɔ <   }Kl -NN>>.. 50 .     X  <     }K-  REGIONAL BLOCK ăt  }K-t2 CHANNELS ă  X    F: Channel Groups 1, 6, 11  NN>>..15.  t    G: Channel Groups 4, 9, 14 NN>>..15.      H: Channel Groups 7, 12, 17 NN>>..15.      I: Channel Groups 10, 15, 20  }K- >>..15.      J: Channels 186200 NN>>..15. ,   ,   }KL- TOTAL Ɔ ,,  }KL-NN>> ..75 .,  ,fx  X-#$Xj\  P6G;XP#  X- x hXH8(xhXH8 (!"##$%&'p` P @ 0 p`P@0  !"#$%p&`'fxWe make these channels available to all eligible applicants, and we resolve mutually exclusive applications for these channels through competitive bidding.(#  X<-fxWe permit EA and Regional licensees to operate stations anywhere within their geographic borders, provided that their transmissions do not exceed a predicted field  X-strength of 38 dBuV/m at their border, and they protect the base stations of Phase I licensees in accordance with the existing cochannel separation criteria for 220 MHz stations.(#  X-fxWe provide a 10year license term for EA and Regional licensees, and we require EA  X-and Regional licensees to meet five and tenyear construction benchmarks. (# " 0*&&gg!E"Ԍ X-fxWe continue to assign, on a singlestation basis, 10 channels to applicants eligible in the Public Safety Radio Services (PSRS) and five channels to applicants eligible in the Emergency Medical Radio Service (EMRS) to meet internal communications needs.(#  X@-fxWe assign five of the 10 PSRS channel pairs on a shared basis to all public safety eligibles. In so doing, we enable public safety licensees within a particular geographic area to share these channels and coordinate the location and operation of base stations on these channels, which will enable them to communicate more effectively with each  X-other during emergencies.(#  X -fxWe assign channels in the PSRS and EMRS pools on a firstcome, firstserved basis and resolve mutually exclusive applications by random selection procedures.(#  \ -#w4  pG;ي#  \ -C. Paging Operations; Channel Aggregation#Xj\  P6G;XP#  X0 -fxWe allow Phase I and Phase II, nationwide and nonnationwide 220 MHz licensees to operate paging systems without the requirement that such use be on an ancillary basis to land mobile operations.(#  X-  Xp-fxWe allow Phase I and Phase II, nationwide and nonnationwide 220 MHz licensees, to aggregate any of their contiguous 5 kHz channels and operate on channels wider than 5 kHz, so long as they comply with the prescribed spectrum efficiency standard.(#  \-#w4  pG;ي#D. Other Issues #Xj\  P6G;XP#  XP-f1. Technical and Operational Matters p` P @ 0 p`P@0  !"#$%p&`'X` hp x (#%'0*,.8135@8:v SI-ԍ Metricom Comments at 89; Pagenet Comments at 89; Pagenet Reply at 1617; SMR Comments at 79; SMR Reply at 56; U.S. Mobilcomm Comments at 4. Pagenet contends that, with the advances that have  X-been made in efficient use of the spectrum, it is hard to envision any business with internal communication needs which will require the total spectrum allotted for each 220 MHz  X@-authorization.@?@@v S1-ԍ Pagenet Comments at 8.@ U.S. Mobilcomm contends that, since the Commission's rules allow for the  X-leasing of excess capacity, there is already a de facto commercial allotment of this spectrum.l@v S -ԍ U.S. Mobilcomm Comments at 4. See also Pagenet Reply at 16.l Pagenet alleges that a noncommercial setaside will do nothing to encourage the development  X-and efficient use of the 220 MHz band.@Av S -ԍ Pagenet Comments at 8.@ U.S. Mobilcomm and Pagenet argue that, if the spectrum is redesignated, marketplace economics will ensure that licensees will use the  XP-spectrum to the fullest possible extent.`BP"v S#-ԍ U.S. Mobilcomm Comments at 4; Pagenet Comments at 89.` Metricom contends that redesignating this spectrum for commercial use will open the nationwide spectrum to a myriad of uses that would provide  X-a variety of services to consumers.AC v Sc-ԍ Metricom Comments at 9.A Pagenet points out that widearea or nationwide service  X -needs of individual companies can be met by commercial operators.@D b v S-ԍ Pagenet Comments at 8.@  X` - (41. Several commenters point out that the original reason for the noncommercial set aside was to encourage development of 5 kHz technology, and not to satisfy perceived  X -demand for noncommercial use.E  v S-ԍ Metricom Comments at 8; SMR Comments at 8 n.7; SMR Reply at 5 n.12; U.S. Mobilcomm Comments at 4 n.4. Metricom argues that this goal has been achieved through  X -the authorization of 3,800 licenses for 220 MHz services.AF zv S-ԍ Metricom Comments at 8.A SMR and U.S. Mobilcomm state  X-that narrowband technology has been widely developed and employed.tGv Sk!-ԍ SMR Comments at 8 n.7; SMR Reply at 56; U.S. Mobilcomm Comments at 4 n.4.t  X@-X` hp x (#%'0*,.8135@8:^ v S-ԍ  220 MHz Report and Order, 6 FCC Rcd at 2362 (para. 44) (allocating Channels 181200 for ``dataonly'' use). We subsequently reallocated five of these channels for the exclusive use of  Sq-licensees in the Emergency Medical Radio Service in the EMRS Report and Order, thus leaving  SK-Channels 186200 as the current ``dataonly'' channels. See EMRS Report and Order, 8 FCC Rcd at 1459 (para. 28). The only restrictions on the  X-remaining channels (Channels 171180) are that they be licensed individually and that they be used for nontrunked operation. The current allocation of nonnationwide channels is described in the following Table:" dg0*&&gg` E"  X- #X~ps7/X# The Existing (Phase I) Band Plan#/Xj\  P6G;XP#у  J!^ dd<  A dd< ` J ,        }K-X` hp x (#%'0*,.8135@8: D NONNATIONWIDE ăJ  }K-t2 CHANNELS ăL   X J  Twenty 5Channel Trunked Groups   Group No. 1: Channels 1, 31, 61, 91 and 121 Group No. 2: Channels 2, 32, 62, 92, and 122 . . . Group No. 20: Channels 20, 50, 80, 110 and 140      }K-Ten Public Safety Channels` j\ Channels 161170  @   Ten NonTrunked Channels x Channels 171180  \   Five EMRS Channels Channels 181185  x   Fifteen DataOnly Channels Channels 186200       }K- Z Z TOTALZ  }K- |  }K- 140 CHANNELSn  }K-     X<#$Xj\  P6G;XP#fx b.  Assignment and Permissible Uses of Channels 161200#Xj\  P6G;XP# (#  X- x hXH8(xhXH8 (!"##$%&'p` P @ 0 p`P@0  !"#$%p&`' fx(1) Assignment of Public Safety Service Channels (Channels 161170)  X\<fxpp (a) #Xj9 xOG;-E3X#Proposal#-Xj\  P6G;XP#p` P @ 0 p`P@0  !"#$%p&`'X` hp x (#%'0*,.8135@8:63. Under the rules adopted in the 220 MHz Report and Order, all 10 of the public safety mobile frequency channels may be used by public safety eligibles for mobile or"P s0*&&gg"  X-portable use on a shared basis.,ty Sy-ԍ Section 90.720 of our Rules permits Public Safety entities to operate mobile and portable stations under certain conditions, as specified in Section 90.720(a) on any of the Public Safety channels, without separate authorization. 47 C.F.R.  90.720., Authorizations for base/mobile and base/portable operations on the public safety channel pairs, however, are assigned on an exclusive basis. We believe that the possibility of allowing a single licensee within a particular geographic area to exercise exclusive control over all of the available channels in that area would defeat the purpose of our allocation of these channels for mutual aid use. We therefore will assign five of the 10  X-channel pairs, Channels 161165, on a nonexclusive, i.e., shared basis, to all public safety eligibles. Licensees operating on these channels in a given geographic area will coordinate amongst themselves to locate base stations to maximize interoperability. Under this allocation scheme, the public safety licensees within a particular geographic area will be able to share Channels 161165 and coordinate the location and operation of base stations on these channels, which will enable them to communicate more effectively with each other during emergencies. We will assign the remaining base station fivechannel pairs Channels 166170 to individual licensees on an exclusive basis, with licensees on such frequencies  X -authorized to construct a base station for base/mobile and base/portable operations.u8 y SY-ԍ There is one licensee currently authorized to operate exclusively on the 220 MHz public safety channels for base/mobile operations. That licensee, call sign WPCC439, is authorized on Channels 161165, which are to be shared channels under our Phase II rules. We will therefore continue to allow this licensee to retain its exclusive authorization on Channels 161165 to conduct base/mobile operations.   X` -Procedures for the assignment of these channels are contained in Section IV.B.2.d(2), infra. In addition, the existing requirement, under Section 90.713(d), that an applicant for authorization on the public safety/mutual aid channels may not have an interest in more than one pending application for public safety/mutual aid channels in the same geographic area will apply only to applicants seeking authorization on Channels 166170. Finally, in accordance with the provisions of Section 90.720(a), we will continue to permit operation, without separate authorization, on all 10 public safety/mutual aid channels, by public safety eligibles using the channels in mobile or portable radios and, in accordance with Section 90.720(b), we will continue to require base/mobile and base/portable operations on all 10 channels to be on a secondary basis to the emergency communications that are identified in that section. X` hp x (#%'0*,.8135@8:y S?-ԍ AMTA Comments at 11.> W e conclude that applicants intending to provide subscriberbased services as well applicants intending to use spectrum for their internal use should be eligible to obtain authorizations on licenses associated with the 125 channels. All licensees authorized on these channels will also be permitted, but not required to provide interconnected service.  X- X` hp x (#%'0*,.8135@8:u S-ԍ AMTA Comments at 15.> while PCIA proposes one 5channel block, two 10 X -channel blocks, one 15channel block, and one 20channel EA block.= u S-ԍ PCIA Comments at 9.= With regard to Regional licenses, AMTA favors the assignment of two 30channel blocks; and PCIA proposes one 10channel block, one 15channel block and two 20channel blocks. Based on the comments, we conclude that it would be best to generally provide more channels to both EA and Regional licensees than initially proposed.  X-X` hp x (#%'0*,.8135@8:u SQ -ԍ Metricom Reply at 3.> X[W]hether or not there is adequate spectrum for paging is irrelevant to the issue of whether paging should be permitted in the 220 MHz band. The real issue is whether licensees should be allowed to provide the services consumers desire.  . . . [I]f adequate spectrum exists for paging, and ample paging services are being offered to the public, then there would not be a market for paging services in the 220 MHz band and licensees would have little, if any incentive to offer such services. In arguing against Pronet's position, Metricom contends that no unique windfall will accrue to Phase I licensees, and that such licensees would receive no more windfall than licensees who  X -provide paging on other spectrum that was not auctioned.9 0u S-ԍ Id. at 6.9  X<X` hp x (#%'0*,.8135@8:60*&&gg " indicated that in removing the Federal Government's coprimary status with respect to these channels, it ``seeks to increase potentially this spectrum's value at auction and to promote the  X-availability of this radio spectrum for commercial services.''v S-ԍ Letter from L. Irving, Assistant Secretary for Communications, U.S. Department of Commerce, to R. Hundt, Chairman, Federal Communications Commission (Apr. 15, 1996).  X@<X` hp x (#%'0*,.8135@8:v Sy-ԍ AMTA Comments at 12.> E.F. Johnson notes that using its technology for fixed applications will ``increase its utility and offer more options for  X-communications customers.''Ehv S-ԍ E.F. Johnson Comments at 5.E E.F. Johnson also indicates that its equipment ``can support  Xp-fixed, as well as mobile transmissions.''pv S)-ԍ Id. See also Comtech Comments at 7; Metricom Comments at 3; Pagemart Comments at 4; Kelley Comments at 3; Overall Wireless Comments at 2.  X<X` hp x (#%'0*,.8135@8:v S-ԍ Pronet Reply at 34.> We agree that to restrict 220 MHz licensees to oneway paging systems would not be an efficient use of the spectrum. For this reason, and because we believe that it is appropriate to provide 220 MHz licensees operating paging systems with the flexibility to employ the type of paging systems that best meets the needs of their customers, we will permit both oneway and twoway paging operations.  X- 150. SEA suggests that, if we permit twoway paging, we should continue to limit maximum power on the mobile frequencies to 50 watts ERP, and that we should not allow licensees to construct base stations on the mobile frequencies at heights greater than 7 meters"@G00*&&gg " above ground. SEA believes that operation of base stations above this height could cause interference to adjacent channel licensees, and that, in general, ``[t]o permit paging on the mobile transmit frequencies would result in serious interference problems for Phase I and  Xp-Phase II halfduplex systems.''= pv S-ԍ SEA Comments at 18.= Metricom, in its reply comments, believes that SEA's proposed limit on mobile station power and base antenna height should not be applied to  X-nationwide 220 MHz systems.@ hv S)-ԍ Metricom Reply at 56.@  X- 151. We agree with SEA that restrictions on the use of the mobile channels by licensees operating twoway paging systems is appropriate. When we adopted the 50watt effective radiated power (ERP) limitation for mobile and portable units operating in the 220 MHz band, we did not envision the use of the mobile channels for ``base stations'' situated at high elevations. To permit such operations without restriction could, as SEA suggests, result in interference to nearby, adjacent channel 220 MHz licensees. We will therefore limit mobile and portable ERP to 50 watts for licensees operating twoway paging systems, and will modify Section 90.729(b) of our rules to require licensees constructing base stations on  X0 -the mobile channels, i.e., channels in the 221222 MHz band, to operate such stations at heights no greater than 7 meters above ground except that transmissions from antennas that are more than 7 meters above ground will be permitted if the effective radiated power of such  Xitransmissions is reduced below 50 watts ERP by 20 log10(h/7) dB, where h is the height of the  Xp-antenna above ground, in meters. pv S)-ԍ Using this power reduction formula, licensees operating at antenna heights greater that 7 meters above ground will provide a signal equivalent to that produced by a 50 watt ERP transmission  S-at 7 meters above ground. This formula was utilized in our Report and Order for LMS systems and  S-adoption of the formula herein is consistent with its use in that proceeding. See Amendment of Part 90 of the Commission's Rules to Adopt Regulations for Automatic Vehicle Monitoring Systems, PR Docket No. 9361, Report and Order, 10 FCC Rcd 4695, 471516 (para. 36) (1995). This antenna height and power limitation is necessary to ensure that transmissions from paging base stations operating in the 221222 MHz band do not cause adjacent channel interference. Metricom suggests that such a limitation only apply to nonnationwide licensees. We conclude, however, that the adjacent channel interference that could result from licensees operating at high elevations could be caused by nationwide as well as nonnationwide licensees. We shall therefore apply the height limitation to all 220 MHz licensees. Finally, we will require Phase I nonnationwide licensees to comply with the  X -prescribed environmental, air safety, and international regulations outlined in para.  B480 , supra. for paging base stations transmitting on frequencies in the 221222 MHz and 220221 MHz bands.  X`-X` hp x (#%'0*,.8135@8:!Pjv Sk -ԍ AMTA Comments at 16.> Comtech notes that under our current rules, licensees must construct all of their channels at their authorized base station location to meet their construction requirement. Comtech is concerned that, because Phase II licenses must protect multiple Phase I licensees under our contiguous channel assignment configuration, ``Phase II licensees  X -will likely be unable to construct all of their channels at a single site.''@" v SK-ԍ Comtech Comments at 6.@ It therefore suggests that Phase II licensees be permitted to ``construct any subset of their authorized channels in their licensed service area, so as to provide substantial service [in accordance with  X -Section 22.940] to the required population or coverage area.''9# v S[-ԍ Id. at 7.9  X-X` hp x (#%'0*,.8135@8:3 $v Se$-ԍ Incom Comments at 5.> Incom argues that we should similarly acknowledge that we were equally incorrect in originally establishing the 38 dBu service contour for the 220 MHz service and that we"` R30*&&gg "  X-should now recognize our error and change the 220 MHz service contour to 32 dBu.F4v Sy-ԍ See id. at 45, 78. F Finally, Incom, in its reply comments, states that the 1993 Budget Act ``obligates the  X-Commission to make rules that eliminate inconsistencies between similar mobile services.''D5jv S-ԍ Incom Reply Comments at 3.D Incom argues that ``[o]ne conceivable reason for this dissimilar treatment is that the cellular industry is a more powerful lobbying group than the 220222 MHz industry. Another conceivable reason is that the Commission is attempting to create value for auction bidders by selling off areas already receiving reliable service from incumbents, which is an abdication of the Commission's spectrum management responsibility and a tremendous disservice to the  X-public. Neither of these reasons would withstand judicial review.''?6 v S; -ԍ Id. at 3 n.3. ?  XP-  X - 172. Roamer One asserts that the Commission should provide 10 dB protection to a Phase I licensee's 28 dBu contour, arguing that ``[its] experience as is that of the entire 220222 MHz industry is that the typical 220222 MHz system provides reliable service for  X -roughly 40 miles . . . .''U7 v S-ԍ Roamer Comments at 5, 6 (emphasis omitted).U Finally, Kelley believes that by ``under estimat[ing] [sic] the excellent propagation characteristics of narrowband single sideband signals at 220 MHz, [the Commission's proposal] will set the stage for a cacophony of interfering signals near the weak signal but still useable border area of every cochannel Phase I and Phase II station, seriously  X -degrading overall service to the public.''?8 Lv S-ԍ Kelley Comments at 5.? Therefore, Kelley recommends that we adopt an easy to use distancebased protection criteria, and suggests that a 130 km standard be  Xp-employed, with an additional correction factor of 5 or 10 km for mountaintop stations.39pv S -ԍ Id.3  X<X` hp x (#%'0*,.8135@8:>v SY-ԍ See An Inquiry Relative to the Future Use of the Frequency Band 806960 MHz; and Amendment of Parts 2, 18, 21, 73, 74, 89, 91, and 93 of the Rules Relative to Operation in Land Mobile Services Between 806 and 960 MHz, Docket No. 18262, Second Report and Order, 46 FCC  S-2d 752, 774 n.26 (para. 76) (1974), recon. granted in part, 51 FCC 2d 945, clarified, 55 FCC 2d 771  S-(1975), aff'd sub nom. NARUC v. FCC, 525 F. 2d 630 (1976), cert. denied, 425 U.S. 992 (1976).= We concluded that to accomplish this objective, ``the average desired signal  X-should be 40 dBu at the edge of the service area.''3?v S/-ԍ Id.3 This, we stated, would ``give a high  X-level of service in the area in which [the licensee] planned to operate.''3@pv S-ԍ Id.3 We concluded that, to maintain this quality of service in the presence of an interfering signal, the interfering signal ``should be 10 dB less than the desired signal at the boundary of the service area of the  X-protected station.''4A v S -ԍ Id. 4  X- 177. Similarly, in the 220 MHz service we proposed to adopt technical parameters to  X`-``enable private land mobile licensees to obtain quality service . . .'']B` v S$-ԍ 220 MHz Notice, 4 FCC Rcd at 8601 (para. 55).] and we determined that a 220 MHz station should be protected from interference by the provision of 10 dB"0UV B0*&&gg"  X-protection to the station's 38 dBu contour.hCv Sy-ԍ 220 MHz Report and Order, 6 FCC Rcd at 2371 (para. 119).h E.F. Johnson states that ``reliable'' 220 MHz  X-signals may be received at more distant contours than the 38 dBu contour.ODjv S-ԍ See E.F. Johnson Comments at 7.O Other  X-commenters state that ``reliable service'' is being provided at such contours.eE v S]-ԍ See Incom Comments at 5; Roamer One Comments at 5, 6.e However, these commenters do not define what is meant by a reliable signal or reliable service in the context of the 220 MHz service nor do they draw a relationship between the use of these  X-terms and our adoption of criteria to provide for the protection of 220 MHz signals in the presence of interfering signals. The signal contour at which they claim ``reliable service''  X-may be provided or where a ``reliable signal'' may be received by a mobile (e.g., the location of the 32 dBu or 28 dBu contour) is therefore not determinative in deciding the appropriate 220 MHz signal contour to be protected.  X- 178. Incom argues that we should modify the 38 dBu service contour for the 220 MHz service because we have changed the method by which protected service areas for  X -cellular service are determined,WF v S-ԍ See para.  CC171 , supra.W and have also changed the distance that defines protected  X` -service areas for MMDS stations.BG` Pv Sa-ԍ Incom Comments at 5 (citing Amendment of Parts 21, 43, 74, 78 and 94 of the Commission's Rules Governing Use of the Frequencies in the 2.1 and 2.5 GHz Bands Affecting Private Operationalfixed Microwave Service, Multipoint Distribution Service, Multichannel Multipoint Distribution Service, Instructional Television Fixed Service, and Cable Television Relay Service, GN Docket Nos.  S-9054 and 80113, Second Order on Reconsideration, 10 FCC Rcd 7074 (1995) (Second Order on  S-Reconsideration).B However, as explained in footnote  DD306 , our action in the  X0 -Cellular Unserved Second Report and Order was not an adjustment from one field strength level to another; rather, it was a fundamental change in the methodology for determining a cellular licensee's CGSA, from an arbitrarily determined area to one that is based on the technical parameters of authorized existing and proposed facilities. Similarly, in the MMDS service, while we increased the ``protected service area" for MMDS stations, we did not indicate that we did so in an effort to expand the area within which quality television service  X-signals could be provided.oH, v S-ԍ See Second Order on Reconsideration at 7078 (para. 9). o Thus, we find that one of the principal objectives of our signal protection rules for the 220 MHz service the design of technical parameters to enable licensees to obtain quality service does not have a parallel in the MMDS service, and, therefore, we reject Incom's unsupported suggestion that the MMDS decision is somehow relevant to the issues presented here. Further, no commenter has provided assurance that this principal objective would not be compromised by proposals to provide protection to other than the 38 dBu contour. "VH0*&&ggP"Ԍ X- 179. We do not believe, therefore, that these actions should be applied to our use of the 38 dBu service contour as the protected contour for the 220 MHz land mobile radio  X-service. Moreover, we conclude that our recent decisions in which we have examined the  Xp-protected contour for other mobile services support our decision to not change the 38 dBu contour for the 220 MHz service. For example, in our proceedings addressing the licensing  X-of the 800 MHz and 900 MHz SMR service, we proposed the continued use of the 40 dBu contour as the basis for protection for these services. In both instances, we concluded that we should continue to base interference protection in these services on the provision of protection  X-to the 40 dBu contour.Ivv S-ԍ See Amendment of Part 90 of the Commission's Rules to Facilitate Future Development of SMR Systems in the 800 MHz Frequency Band, PR Docket No. 93144, Implementation of Sections 3(n) and 322 of the Communications Act, Regulatory Treatment of Mobile Services, GN Docket No. 93252, Implementation of Section 309(j) of the Communications Act Competitive Bidding, PP Docket No. 93253, First Report and Order, Eighth Report and Order, and Second Further Notice of  S3 -Proposed Rulemaking, 11 FCC Rcd 1463 (1995) (800 MHz SMR Report and Order); Amendment of Parts 2 and 90 of the Commission's Rules to Provide for the Use of 200 Channels Outside the Designated Filing Areas in the 896901 MHz and the 935940 MHz Bands to the Specialized Mobile Radio Pool, PR Docket No. 89553, Second Report and Order and Second Further Notice of Proposed  S-Rule Making, 10 FCC Rcd 6884 (1995) (900 MHz SMR Second Report and Order).  In the 800 MHz SMR Report and Order, for example, we decided to ``require EA licensees to afford interference protection to incumbent SMR systems, as  X -provided in Section 90.621 of the Commission's rules''lJ  v S-ԍ 800 MHz SMR Report and Order, 11 FCC Rcd at 1516 (para. 92).l which provides for protection of a licensee's 40 dBu contour. In support of our decision, we stated that this will ``ensure adequate protection of incumbent operations, without hampering the ability of EA licensees to  X -construct stations throughout their authorized service areas.''K v S-ԍ Id. See also 900 MHz SMR Second Report and Order, 10 FCC Rcd at 68996900 (para. 44), where we decided to continue to base interference protection on the provision of protection to the 40 dBu contour. For all of these reasons, we believe that it is appropriate to continue to employ the predicted 38 dBu contour as the contour that must be protected by cochannel 220 MHz licensees, and thus we will require Phase II licensees to provide 10 dB protection to the predicted 38 dBu service contour of the base stations of Phase I licensees.  Xp-X` hp x (#%'0*,.8135@8:h v Sm-ԍ SMR Comments at 89.>  Xp- 190. Columbia, Mtel, and WLF argue that the pending applicants will be subjected to disparate treatment as compared to other 220 MHz Phase I licensees if the licenses for  X-pending applicants are not awarded by lottery.i v SM-ԍ Columbia Comments at 67; Columbia Reply at 34; Mtel Comments at 89; WLF Comments at 3. They point out that these applicants will be singled out unfairly for different treatment and will have to spend substantial sums for their licenses while other Phase I applicants have been permitted to receive their licenses at  X-relatively low cost.Tj v S5"-ԍ Columbia Comments at 7; WLF Comments at 3.T On the other hand, Pagenet contends that awarding the licenses by auction is the only way to prevent disparate treatment between winners of the lottery who"P\j0*&&gg" will, at a minimum, be able to lease excess capacity, and other commercial mobile radio  X-service providers who have paid substantial sums for their spectrum licenses.[kv SI-ԍ Pagenet Comments at 6, 9; Pagenet Reply at 1112.[  Xp- 191. Commenters generally acknowledge that the Budget Act granted the Commission  X@-the discretion to award these licenses by either lotteries or competitive bidding.l@hv SY-ԍ Columbia Comments at 23; Pagenet Reply at 45; PNC Comments at 4; SMR Comments at 67; SMR Reply at 67; U.S. Mobilcomm Comments at 67; WLF Comments at 3. Several  X-commenters cite two recent decisions, the MMDS Report and Order and Unserved Cellular  X-Lottery Order, in which the Commission decided to award licenses to pending applicants by  X-lottery rather than by competitive bidding.mv SA -ԍ Columbia Comments at 3; Columbia Reply at 4; PNC Comments at 910, 1213; WLF Comments at 4; Mtel Comments at 89; UTC Comments at 78; U.S. Central Comments at 12. Mtel, PNC, and Columbia believe that, if the Commission does not follow this precedent in this proceeding, then the Commission would be  XP-subjecting these applicants to disparate treatment.jnPXv SY-ԍ Mtel Comments at 89; PNC Comments at 910; Columbia Reply at 4.j Some commenters also argue that the same considerations that led the Commission to decide to award the licenses by lottery in  X-these cases are present in this case.o8v S-ԍ PNC Comments at 1213 (delay and costs to the Commission and applicants); PNC Comments at 89 (stringent construction and operation requirements will prevent speculation, business plans did not take auctions into account); U.S. Central Comments at 12 (delay was not the fault of applicants who had assumed that the Commission would conduct lotteries); UTC Comments at 78 (few applications, pending a significant period of time). Several commenters contend that since the Commission did not have auction authority until after these applications were filed, the Commission cannot  X -now retroactively apply new rules to pending applications.p v S9-ԍ AMTA Comments at 89; AMTA Reply at 67; Global Comments at 2; 360 Mobile Comments at 2; Mtel Comments at 45. SMR and Pagenet argue, however, that the Commission's action would not result in the retroactive application of our  X0 -rules.Pq0 pv SQ-ԍ SMR Reply at 5; Pagenet Reply at 811.P Pagenet contends that there is ample precedent for dismissing pending applications,Ur0 v S-ԍ Pagenet Comments at 16; Pagenet Reply at 6.U"0 ]r0*&&gg "Ԍ X-and also argues that in the Cellular Lottery Rulemakings<v Sy-ԍ Amendment of the Commission's Rules to Allow the Selection from Among Mutually Exclusive Competing Cellular Applications Using Random Selection or Lotteries Instead of  S)-Comparative Hearings, CC Docket No. 831096, Report and Order, 98 FCC 2d 175 (1984) (Cellular  S-Lottery Rulemaking). At the time the applications were filed licenses were awarded on the basis of comparative hearings.  the Commission decided to amend its rules and implemented the use of lotteries for cellular applications that were already on  X-file.=tv S -ԍ Pagenet Reply at 7.=  X@- 192. Several commenters are concerned that the Commission's willingness to adopt competitive bidding with respect to these licenses indicates that the Commission has decided  X-to elevate revenue raising over the public interest and the needs of potential users.julv S -ԍ Comtech Comments at 3; Columbia Reply at 7; ITA Comments at 89.j  X-Comtech contends that such a policy is proscribed by the Communications Act.@v v Sm-ԍ Comtech Comments at 3.@ Pagenet, however, argues that auctions allow the Federal Government, on behalf of the American  XP-people, to collect some measure of value in return for the use of the public spectrum.WwP v S-ԍ Pagenet Comments at 45; Pagenet Reply at 11.W Pagenet also argues that under the Communications Act the Commission is charged with promoting the development and rapid deployment of services to the public and ensuring that  X -the spectrum is used productively and efficiently.[x L v S-ԍ Pagenet Comments at 7; Pagenet Reply at 5, 1011.[  X` - 193. Pagenet and Metricom assert that using auctions will speed development and lead  X0 -to the more efficient use of 220 MHz spectrum.[y0 v S-ԍ Pagenet Comments at 5, 7; Metricom Comments at 7.[ Pagenet argues that lotteries do not ensure that the winner will actually provide service, and asserts that many prior licenses granted by lottery were eventually forfeited for failure to construct or were sold prior to construction of  X-any systems to serve the public.@zv S-ԍ Pagenet Comments at 5.@ Pagenet points out that lottery winners would be more likely to construct a system using relatively inexpensive, spectrum inefficient technology, with  X@-an eye toward selling their licenses as soon as the rules permit.B{@,v S#-ԍ Pagenet Comments at 78.B Pagenet asserts that the  X-competitive bidding process discourages this type of speculation.@|v S%-ԍ Pagenet Comments at 5.@ Columbia points out,"^l|0*&&gg" however, that in the case of the 220 MHz spectrum there are stringent entry criteria, build out  X-requirements, and rules to prevent unjust enrichment which will prevent trafficking and  X-speculation in these licenses.}}v S-ԍ Columbia Comments at 9. See also PNC Comments at 9 (buildout requirements).}  X@- 194. SMR argues that awarding licenses through competitive bidding ensures that the spectrum will be held by the parties that value it the most, not by those who are the  X-luckiest.<~jv S-ԍ SMR Comments at 9.< Columbia asserts, however, that a party's ability to pay does not equate with the party who values the spectrum the most, and that the Commission will never be able to meet its statutory obligation to provide spectrum for private, noncommercial requirements under  XP-this mistaken rationale.>P v S -ԍ Columbia Reply at 6.>  X- 195. No commenters prefer using comparative hearings rather than lotteries to award these licenses. Airborne is the sole commenter supporting the use of comparative hearings if  X -the Commission were choosing between comparative hearings and auctions.A v S-ԍ Airborne Comments at 3.A Several  X` -commenters cite the delays and costs associated with comparative hearings.` Jv S[-ԍ AMTA Comments at 8 n.16; Columbia Comments at 1112; Pagenet Comments at 5, 7; Pagenet Reply at 56; PNC Comments at 1719; SMR Comments at 8. PNC believes that comparative hearings do not necessarily result in the selection of more qualified  X -licensees.@ v Ss-ԍ PNC Comments at 1517.@ In addition, commenters assert that the Commission has previously rejected the  X -option of using comparative hearings to award licenses in the 220 MHz Report and Order,  X-and that there is no need to revisit the issue at this time.b v S-ԍ Columbia Comments at 1011; Mtel Comments at 3; PNC Comments at 1415; UTC Comments at 45.  X@- 196. Finally, Echo asks that, regardless of the option selected, the Commission allow  X-the pending applicants to withdraw their applications and recoup their filing fees.? v S -ԍ Echo Comments at 24.? Echo argues that, because of the extended delay, business conditions have changed dramatically and the Commission should accommodate those applicants who have undergone unforeseen  X-changed circumstances by allowing pending applicants this option.3zv S$-ԍ Id.3  XP-X` hp x (#%'0*,.8135@8:hv S)-ԍ Id. at 2113. > As a  X-result of the Adarand decision, any federal program that makes distinctions on the basis of race must serve a compelling governmental interest and must be narrowly tailored to serve  X-that interest in order to pass constitutional muster.5 v S; -ԍ Id. 5 Genderbased programs must satisfy  XP-intermediate scrutiny.\Pv S-ԍ United States v. Virginia, 116 S. Ct. 2263 (1996).\ Under this standard, there must be an ``exceedingly persuasive justification'' for a genderbased government provision and such a provision is constitutional if it serves an important governmental objective and is substantially related to achievement of  X -that objective. Lv S-ԍ Id. at 2275. See also J.E.B. v. Alabama ex. rel T.B., 511 U.S. 127 (1994); Mississippi Univ. for Women v. Hogan, 458 U.S. 718 (1982). In the Third Notice, we emphasized that we had not concluded that race and genderbased measures are unconstitutional or otherwise inappropriate for spectrum auctions we will hold in the future. At a minimum, however, we stated that we must build a thorough factual record concerning the participation of minorities and women in spectrumbased services to support race and genderbased measures. We expressed our belief that a sufficient factual record does not exist with respect to spectrumbased services generally or  X-the 220 MHz service specifically to sustain such measures under strict scrutiny.\ v S-ԍ Third Notice, 11 FCC Rcd at 266 (para. 158).\ We also indicated our uncertainty regarding the sufficiency of the record to sustain genderbased  X@-preferences under intermediate scrutiny.4@h v SY-ԍ Id. 4 In light of these considerations, we proposed to  X-limit designated entity provisions for the 220 MHz service to small businesses.4 v S-ԍ  Id. 4  X- 285. We requested comment, however, on the possibility that in addition to small business provisions, separate provisions for women and minorityowned entities should be adopted for the 220 MHz service. We asked commenters to discuss whether the capital requirements of the 220 MHz service pose a barrier to entry by minorities and women and whether assisting women and minorities to overcome such a barrier, if it exists, would constitute a compelling government interest. In particular, we sought comment on the actual"{0*&&gg" cost of acquisition, construction and operation of 220 MHz systems, and the proportion of existing 220 MHz businesses that are owned by women or minorities. We also sought comment on the analytical framework for establishing a history of past discrimination in the 220 MHz service industry and urged parties to submit evidence (statistical, documentary, anecdotal or otherwise) about patterns or cases of discrimination in this and related communications services. We sought comment on whether, assuming that a compelling governmental interest is established, separate provisions for women and minorities are necessary to further this interest and whether such provisions can be narrowly tailored to  X-satisfy the standard of judicial review.Gv S-ԍ Id. at 267 (para. 159).G  X -X` hp x (#%'0*,.8135@8: v S-ԍ AMTA Comments at 21.> AMTA also is unable to provide the Commission with any particular evidence, other than general societal trends, linking past discrimination with either 220 MHz service specifically or communications services in  Xp-general.=pv S-ԍ Id. at 2122.= Comtech's comments generally concur with AMTA's position.Ap&v SG-ԍ Comtech Comments at 16.A Comtech believes that the best way to promote opportunities for women and minorities is to make special provisions, such as bidding credits, reduced down payments, and installment payments,  X-available to small businesses on all 220 MHz channel blocks.3 v SW-ԍ Id.3  X-X` hp x (#%'0*,.8135@8:v S-ԍ  See, e.g., Competitive Bidding Sixth Report and Order, 11 FCC Rcd 136, 161 (para. 47)  S-(1995) (25 percent for broadband PCS); Competitive Bidding Seventh Report and Order, 11 FCC Rcd at 26869 (paras. 16165) (15 and 10 percent for 900 MHz SMR).>  X@<X` hp x (#%'0*,.8135@8:319. Because there will be both a large number and a large variety of licenses available in the Phase II 220 MHz auction, we will not adopt an entrepreneurs' block for the service. We conclude that small businesses will have a significant opportunity to compete for Phase II 220 MHz licenses, particularly given the special provisions that we have adopted for small businesses. "j(0*&&gg."  a<  #s\  P6G;hP##|\  P6G;CP#FIFTH NOTICE OF PROPOSED RULEMAKING #Xj\  P6G;XP#у  \- #s\  P6G;hP##V. INTRODUCTION#Xj\  P6G;XP#у  Xp-  X@- ?320. A86 In the Order we are adopting today we have concluded that we will permit any  X-holder of a Phase II EA, Regional, or nationwide 220 MHz license)v S-ԍ We refer to such licensees in this Fifth Notice as ``covered Phase II licensees.'' Phase II licensees that are not included in this definition are those Phase II licensees that are authorized to use Public Safety or EMRS channels. to partition portions of  X-its authorization.Q*v S -ԍ See para.  X3308 , supra.Q In the recent Partitioning Report and Order we expanded our rules to permit geographic partitioning and disaggregation for broadband PCS licensees, and we sought comment on geographic partitioning and spectrum disaggregation for cellular and  XP-General Wireless Communications Service (GWCS).+<Pv S-ԍ Geographic Partitioning and Spectrum Disaggregation by Commercial Mobile Radio Services Licensees, WT Docket No. 96148, Implementation of Section 257 of the Communications Act Elimination of Market Entry Barriers, GN Docket No. 96113, Report and Order and Further Notice of  SC-Proposed Rulemaking, FCC 96474, paras. 93113 (released Dec. 20, 1996) (Partitioning Report and  S-Order). We have previously examined partitioning and disaggregation issues for other services on a servicebyservice basis and we presently permit, or are seeking comment on, geographic partitioning and spectrum disaggre X -gation for several services, e.g., Multipoint Distribution Service (MDS),*, v S/-ԍ Amendment of Parts 21 and 74 of the Commission's Rules With Regard to Filing Procedures in the Multipoint Distribution Service and in the Instructional Television Fixed Service, MM Docket  S-No. 94131, Report and Order, 10 FCC Rcd 9589, 961415 (paras. 4647) (1995) (MDS Report and  S-Order). Additionally, we impose unjust enrichment provisions for partitioning by small businesses to  S-other businesses. See Amendment of Parts 21 and 74 of the Commission's Rules With Regard to Filing Procedures in the Multipoint Distribution Service and in the Instructional Television Fixed Service, MM Docket No. 94131, Memorandum and Order on Reconsideration, 10 FCC Rcd 13821, 13833 (paras. 6970) (1995).* GWCS,a- Lv S-ԍ Allocation of Spectrum Below 5 GHz Transferred from Federal Government Use, ET Docket  S-No. 9432, Second Report and Order, 11 FCC Rcd 624, 665 (para. 105) (1995) (GWCS Second Report  So-and Order), recon. pending (permitting rural telephone company partitioning).a " -0*&&gg@ "Ԍ X-800 MHz Specialized Mobile Radio (SMR),.:v Sy-ԍ Amendment of Part 90 of the Commission's Rules to Facilitate Future Development of SMR Systems in the 800 MHz Frequency Band, PR Docket No. 93144, First Report and Order, Eighth Report and Order, and Second Further Notice of Proposed Rule Making, 11 FCC Rcd 1463, 1576,  S-1578, 1580 (paras. 253, 257, 264) (1995) (800 MHz Second FNPRM) (requesting comment on partitioning and disaggregation). paging,/:v S{-ԍ Revision of Part 22 and Part 90 of the Commission's Rules to Facilitate Future Development of Paging Systems, WT Docket No. 96-18, Second Report and Order and Further Notice of Proposed  S+ -Rulemaking, FCC 97-59, paras. 192-94 (released February 24, 1997) (Paging Report and Order) (permitting all geographic area paging licensees to partition to any party eligible to be a paging licensee). 38 GHz fixed pointtopoint  X-microwave,0: v SM -ԍ Amendment of the Commission's Rules Regarding the 37.0 38.6 GHz and 38.6 40.0 GHz Bands, ET Docket No. 95183, Notice of Proposed Rulemaking and Order, 11 FCC Rcd 4930, 4942 S-43, 497273, (paras. 24, 8990) (1995) (38 GHz NPRM) (proposing partitioning for rural telephone companies, and seeking comment on whether partitioning and disaggregation should be available to all licensees in the 37 GHz band). 900 MHz SMR,1( v SO-ԍ Amendment of Parts 2 and 90 of the Commission's Rules to Provide for the Use of 200 Channels Outside the Designated Filing Areas in the 896901 MHz and the 935940 MHz Bands Allotted to the Specialized Mobile Radio Pool, PR Docket No. 89553, Second Order on Reconsid S-eration and Seventh Report and Order, 11 FCC Rcd 2639, 271112 (paras. 177179) (1995) (900 MHz  S-Second Reconsideration Order) (adopting rural telephone company partitioning). On September 20, 1996, American Mobile Telecommunications Association, Inc., filed a Petition for Rulemaking requesting the Commission to expand its rules to permit partitioning to include all 900 MHz SMR  S;-licenses and to permit spectrum disaggregation. See American Mobile Telecommunications Association, Inc., Files Petition for Rulemaking to Expand Geographic Partitioning and Spectrum Disaggregation Provisions for 900 MHz SMR, Public Notice, DA 961654 (released Oct. 4, 1996). That Petition for Rulemaking was incorporated into the 800 MHz rulemaking proceeding, PR Docket  S-No. 94144, where similar partitioning and disaggregation issues are being considered. Id. and the Wireless Communications Service (WCS).2v S?-ԍ Wireless Communications Service Report and Order, ( paras. 96103) (adopting partitioning and  S-disaggregation for all licensees in the Wireless Communications Service).  Xp- @321.X2B2 We believe that it is appropriate at this time to consider whether to permit full  X@-partitioning and disaggregation in the 220 MHz service. As we indicated in the Partitioning  X-Report and Order, we found partitioning and disaggregation to be an effective means of providing broadband PCS licensees with the flexibility they need to tailor their service  X-offerings to meet market demands.Y38v S$-ԍ Partitioning Report and Order at para. 2.Y In addition, the Partitioning Report and Order concluded that partitioning and disaggregation may be used to overcome entry barriers"30*&&ggb" through the creation of smaller licenses that require less capital, thereby facilitating greater participation by small businesses, rural telephone companies, and minority and femaleowned  X-businesses.34v S-ԍ Id.3 Therefore, we seek comment on whether these benefits similarly justify extension of partitioning rules to Phase I nationwide licensees, and establishment of disaggregation rules for the 220 MHz service.  \- #s\  P6G;hP#.VI. DISCUSSION#Xj\  P6G;XP#у  \-X` hp x (#%'0*,.8135@8:Pv S#-ԍ See Partitioning Report and Order at paras. 4243. These objectives are the same in the case  S#-of the disaggregation rules adopted in the Partitioning Report and Order. See id. at para. 62.  Under the first option, the partitionee certifies that it will" >0*&&gg"  X-satisfy the same construction requirements as the original licensee.@?v Sy-ԍ Id. at para. 42.@ The partitionee then must meet the prescribed service requirements in its partitioned area while the partitioner is  X-responsible for meeting those requirements in the area it has retained.3@jv S-ԍ Id.3  X@- J331. Under the second option, the original licensee certifies that it has already met or will meet its fiveyear construction requirement and that it will meet the 10year construction  X-requirement for the entire market involved.3A v S -ԍ Id.3 Because the original licensee retains the responsibility for meeting the construction requirements for the entire market, the partitionee  X-is permitted to comply with a less rigorous construction requirement3Bv S -ԍ Id.3 the partitionee must only meet a substantial service requirement for its partitioned license area at the end of the  X -10year license term.3C Pv S!-ԍ Id.3  X - K332. In addition, we required that, at the fiveyear benchmark, broadband PCS partitionees must file supporting documentation showing compliance with the construction  X` -requirements.@D` v S-ԍ Id. at para. 43.@ The Partitioning Report and Order further provides that licensees failing to meet the service requirements will be subject to forfeiture, license cancellation, or other  X -penalties.3E v SE-ԍ Id.3  X- L333. We seek comment as to whether we should adopt rules for covered Phase II licensees to establish dual construction options and attendant requirements for 220 MHz service partitioners and partitionees, similar to those we have adopted for broadband PCS. Since our Rules do not currently provide for a lesser construction requirement, we particularly seek comment as to the appropriateness of the lesser construction requirement for the second option.  XP- M334. With respect to disaggregation, the Partitioning Report and Order has  X -established a flexible approach similar to the rules adopted for partitioning.@F 6 v S#-ԍ Id. at para. 62.@ This approach retains the underlying five and 10year construction requirements for the spectrum block as a" F0*&&gg" whole, but then allows either party to the disaggregation agreement to meet the construction  X-requirements with respect to its disaggregated portion of the license.3Gv SI-ԍ Id.3 Thus:3Hjv S-ԍ Id.3 X[A] . . . licensee who disaggregates a portion of its spectrum may elect to retain responsibility for meeting the five and tenyear coverage requirements, or it may negotiate a transfer of this obligation to the disaggregatee. In either case, the rules ensure that the spectrum will be developed to at least the same degree that was required prior to disaggregation.   XP-The rules we adopted in the Partitioning Report and Order also provide that parties seeking Commission approval of a disaggregation agreement must certify with respect to which party will assume responsibility for complying with the applicable five and 10year construction  X -requirements.@I v S}-ԍ Id. at para. 63.@ Parties may also propose to share the responsibility for meeting these  X -requirements.4J v S-ԍ Id. 4 As part of the Commission's public interest review under Section 310(d), the Commission will review each transaction to ensure that the party designated as responsible for  X0 -meeting the construction requirements is a bona fide licensee and has the requisite ability and resources to meet the applicable requirements. If only one party agrees to take responsibility for meeting the construction requirement and later fails to comply with the requirement, then  X-that party's license will be subject to forfeiture.3KPv S-ԍ Id.3 The license of the other party to the  Xp-agreement, however, will not be affected by such a failure to comply.4Lpv S-ԍ Id. 4 If both parties agree to share the responsibility for meeting the construction requirements and either party later fails  X-to do so, then both parties' licenses will be subject to forfeiture.3M v SU-ԍ Id.3  X- N335. We seek comment as to whether we should adopt rules for covered Phase II licensees similar to those disaggregation rules we have adopted for broadband PCS. Under such a certification approach, the disaggregating parties would be required to submit a certification, signed by both the disaggregator and disaggregatee, stating whether one or both of the parties will retain responsibility for meeting the five and 10year construction requirements for the 220 MHz market involved. If one party takes responsibility for meeting the construction requirements, then that party would be subject to license forfeiture for failing to meet the construction requirements, but such a failure would not affect the status of the other party's license. If both parties agree to share the responsibility for meeting the"06 M0*&&gg" construction requirements, then both parties' licenses would be subject to forfeiture if either party fails to meet the construction requirements.  Xp- O336. We are proposing rules for licensees other than covered Phase II licensees that  X@-differ from the approach we have taken in the Partitioning Report and Order. Phase I nonnationwide licensees and Phase II licensees authorized on Public Safety or EMRS channels are not authorized to operate within a particular geographic area, but instead are authorized to construct a single land mobile base station for base and mobile operations. Phase I nonnationwide licensees must construct their systems, having all specified base stations constructed with all channels, and place their systems in operation within eight months of the  X -initial license grant.N v S -ԍ Section 90.725(f) of the Commission's Rules, 47 C.F.R.  90.725(f). The construction  Sq -deadline was extended as outlined at para.  P2222  n. N1717 , supra.  X - P337. In the Order we adopted today we have concluded that Phase II licensees operating on Public Safety or EMRS channels must construct their authorized base station and  X` -place it in operation within 12 months of initial authorization.RO` Bv SS-ԍ See para.  X10166 , supra.R Consistent with our decision in this Order that Phase I nonnationwide licensees will be permitted to begin primary fixed or paging operations only after meeting the requirement that they construct their land mobile  X -base station and place it in operation or commence service,RP v Se-ԍ See para.  X11139 , supra.R we propose that Phase I nonnationwide licensees be permitted to disaggregate their licensed spectrum only after they have met the applicable construction deadline. We also propose that Phase II licensees operating on Public Safety or EMRS channels should be permitted to disaggregate their licensed spectrum only after they have met the applicable construction deadline. Since the construction deadline would therefore be met before any disaggregation is allowed, no construction requirement would be imposed on a disaggregatee. We seek comment on these proposals.  X - Q338. Phase I nationwide licensees are subject to a series of construction requirements set out in Section 90.725 of our Rules at two, four, six, and 10 years after the initial license  X-grant.jQv S-ԍ Section 90.725 of the Commission's Rules, 47 C.F.R.  90.725.j These construction requirements are based on the licensee constructing base stations in specific percentages of geographic areas that the licensee designated in its application, including base stations in a specific number of urban areas listed in Section 90.741 of the  X0-Commission's Rules.jR0&v S#-ԍ Section 90.741 of the Commission's Rules, 47 C.F.R.  90.741.j Unlike the broadband PCS rules, which do not dictate a minimum  X-level of spectrum usage by the original PCS licensee,^S v Sw%-ԍ See Partitioning Report and Order at para. 62.^ our construction rules for Phase I"h S0*&&gg" nationwide licensees require that the constructed base stations have a minimum of five nationwide channels. We tentatively conclude, therefore, that a disaggregatee obtaining spectrum from a Phase I nationwide licensee should be required to meet the same construction requirements as the original licensee. The disaggregatee would be required to meet the same two, four, six, and 10year requirements as the original licensee for the spectrum it obtains, while the original licensee would be responsible for meeting the requirements for the spectrum it retains. We seek comment on this tentative conclusion.  X- R339. Since the construction requirements for Phase I nationwide licensees differ so markedly from those pertaining to Phase II nationwide licensees or licensees in other services such as broadband PCS or GWCS, it does not appear, as a practical matter, to be possible to have similar construction options for Phase I nationwide partitionees. For example, a Phase I partitionee may never be able to meet the requirement of Section 90.725(a)(2) that, within four years, it construct base stations in at least 28 of the 100 urban areas listed in Section 90.741, since a Phase I partitionee may not even have that many urban areas in its partitioned  X0 -area. Thus, the first option adopted in the Partitioning Report and Order, under which the partitionee certifies that it will satisfy the same construction requirements as the original license, does not appear to be a viable mechanism in the case of Phase I nationwide licensees in the 220 MHz service.  X@- S340.Y5 Similarly, the original licensee may not have 28 urban areas remaining after it  X-partitions its license. Thus, the second option adopted in the Partitioning Report and Order, under which the original licensee certifies that it has met or will meet all of the construction requirements, would likewise not be possible. Given the difficulties created by these construction requirements, we seek comment on whether partitioning of Phase I nationwide licenses should be permitted. If such partitioning is allowed, we seek comment on what construction requirements could be imposed on the original licensee and any partitionees. In light of the unique construction requirements imposed on Phase I nationwide licensees, we also seek comment on what type of construction requirements should be imposed on Phase I licensees and their partitionees and disaggregatees if a Phase I nationwide license is both partitioned and disaggregated.  \- #s\  P6G;hP#F. License Term#Xj\  P6G;XP#  X-  X-X` hp x (#%'0*,.8135@8: (2)"l f (3)",Allocation MHz :(4)+"@Allocation MHz T (5)+"Q' '(6)+"D- ?-(7)(( (  ( &++& "u<* * * * *p Y" * * * * * y @ +"b0* * * * *@ +"* * * * *@ +"O * * * * *@ +"&* * * * *@ +":-* * * * *&(  h  & &+s&  220 222 BROADCASTING 621 623 628 629s 220 222 AMATEUR FIXED MOBILE Radiolocation 627 s 220 222 FIXED MOBILE BROADCASTING 626s 220 222 FIXED LAND MOBILE Radiolocation 627 G2 US335 s 220 222 FIXED LAND MOBILE 627 US335 s  PRIVATE LAND MOBILE (90)s &h  h  @ & &sh& "u<* * * * *h" * * * * *h"b0* * * * *h"* * * * *h"O * * * * *h"&* * * * *h":-* * * * *h  h" xg"  X- '3'3Standardal)HPLAS4.PRS 4&a\ 3'3'Standardal)HPLAS4.PRS 4&a\    #5Xj\  P6G;XP# UNITED STATES (US) FOOTNOTES * * * * * US335 The primary Government and nonGovernment allocations for the various segments of the 220222 MHz band are divided as follows: (1) the 220.0220.55/221.0221.55, 220.6220.8/221.6221.8, 220.85220.90/221.85221.90 and 220.925221.0/221.925222.0 MHz bands (Channels 1110, 121160, 171180 and 186200, respectively) are available for exclusive nonGovernment use; (2) the 220.55220.60/221.55221.60 MHz bands (Channels 111120) are available for exclusive Government use; and (3) the 220.80220.85/221.80221.85 and 220.900220.925/221.900221.925 MHz bands (Channels 161170 and 181185, respectively) are available for shared Government and nonGovernment use. The exclusive nonGovernment band segments are also available for temporary fixed geophysical telemetry operations on a secondary basis to the fixed and mobile services. * * * * *  X - PART 90 PRIVATE LAND MOBILE RADIO SERVICES  X- 1. The authority citation for Part 90 continues to read as follows: AUTHORITY: 47 U.S.C. 154, 303, 309 and 332, unless otherwise noted. 2. Section 90.7 is amended by revising the definitions for ``EAbased or EA license'' and ``Economic Areas (EAs),'' and by adding definitions for ``Geophysical Telemetry,''  X-``Regional Economic Area Groupings (REAGs),'' ``Regional License,'' and ``220 MHz Service'' in alphabetical order to read as follows:  X0- Section 90.7 Definitions. * * * * *  Xp-EAbased or EA license. A license authorizing the right to use a specified block of SMR and 220222 MHz spectrum within one of 175 Economic Areas (EAs) as defined by the Department of Commerce Bureau of Economic Analysis. The EA Listings and the EA Map are available for public inspection at the Wireless Telecommunications Bureau's public reference room, Room 5608, 2025 M St. NW, Washington, DC 20554 and Office of Operations Gettysburg, 1270 Fairfield Road, Gettysburg, PA 17325.  X "-Economic Areas (EAs). A total of 175 licensing regions based on the United States  X"-Department of Commerce Bureau of Economic Analysis Economic Areas (see 60 FR 13114 (March 10, 1995)) defined as of February 1995, with the following exceptions: "$ 0*&&gg'"Ԍ X-(1)` ` Guam and Northern Mariana Islands are licensed as a single EAlike area  X-(identified as EA 173 in the 220 MHz Service);(#`  Xp-(2)` ` Puerto Rico and the U.S. Virgin Islands are licensed as a single EAlike area  X@-(identified as EA 174 in the 220 MHz Service); and(#`  X-(3)` ` American Samoa is licensed as a single EAlike area (identified as EA 175 in the 220 MHz Service).(#` * * * * *  X-Geophysical Telemetry. Telemetry involving the simultaneous transmission of seismic data  X -from numerous locations to a central receiver and digital recording unit.  X` - * * * * *  X0 -  X -Regional Economic Area Groupings (REAGs). The six geographic areas for Regional licensing in the 220222 MHz band, based on the United States Department of Commerce Bureau of Economic Analysis Economic Areas (see 60 FR 13114 (March 10, 1995)) defined as of February 1995, and specified as follows: REAG 1 (Northeast): REAG 1 consists of the following EAs: EA 001 (Bangor, ME) through EA 011 (HarrisburgLebanonCarlisle, PA); and EA 054 (Erie, PA). REAG 2 (MidAtlantic): REAG 2 consists of the following EAs: EA 012 (PhiladelphiaWilmingtonAtlantic City, PANJDEMD) through EA 026 (CharlestonNorth Charleston, SC); EA 041 (GreenvilleSpartanburgAnderson, SCNC); EA 042 (Asheville, NC); EA 044 (Knoxville, TN) through EA 053 (Pittsburgh, PAWV); and EA 070 (Louisville, KYIN). REAG 3 (Southeast): REAG 3 consists of the following EAs: EA 027 (AugustaAiken, GASC) through EA 040 (Atlanta, GAALNC); EA 043 (Chattanooga, TNGA); EA 069 (EvansvilleHenderson, INKYIL); EA 071 (Nashville, TNKY) through EA 086 (Lake Charles, LA); EA 088 (ShreveportBossier City, LAAR) through EA 090 (Little RockNorth Little Rock, AR); EA 095 (Jonesboro, ARMO); EA 096 (St. Louis, MOIL); and EA 174 (Puerto Rico and the U.S. Virgin Islands). REAG 4 (Great Lakes): REAG 4 consists of the following EAs: EA 055 ClevelandAkron, OHPA) through EA 068 (ChampaignUrbana, IL); EA 097 (Springfield, ILMO); and EA 100 (Des Moines, IAILMO) through EA 109 (DuluthSuperior, MNWI). REAG 5 (Central/Mountain): REAG 5 consists of the following EAs: EA 087 (BeaumontPort Arthur, TX); EA 091 (Forth Smith, AROK) through EA 094 (Springfield, MO); EA 098 (Colombia, MO); EA 099 (Kansas City, MOKS); EA 110 (Grand Forks, NDMN) through EA 146 (Missoula, MT); EA 148 (Idaho Falls, IDWY); EA 149 (Twin Falls, ID); EA 152 (Salt Lake CityOgden, UTID); and EA 154 (Flagstaff, AZUT) through EA 159 (Tucson, AZ). "`% 0*&&ggn("ԌREAG 6 (Pacific): REAG 6 consists of the following EAs: EA 147 (Spokane, WAID); EA 150 (Boise City, IDOR); EA 151 (Reno, NVCA); EA 153 (Las Vegas, NVAZUT); EA 160 (Los AngelesRiversideOrange County, CAAZ) through EA 173 (Guam and the Northern Mariana Islands); and EA 175 (American Samoa).  X-Regional License. A license authorizing the right to use a specified block of 220222 MHz spectrum within one of six Regional Economic Area Groupings (REAGs). * * * * *  X-220 MHz Service. The radio service for the licensing of frequencies in the 220222 MHz  X -band.  * * * * * 3. Section 90.41(a) is revised to read as follows:  Xp- Section 90.41 Disaster relief organizations. (a) Eligibility. Organizations established for disaster relief purposes having an emergency radio communications plan are eligible to hold authorizations to operate radio stations for the transmission of communications relating to the safety of life or property, the establishment and maintenance of temporary relief facilities, and the alleviation of emergency situations during periods of actual or impending emergency, or disaster, and until substantially normal conditions are restored. In addition, the stations may be used for training exercises, incidental to the emergency communications plan, and for operational communications of the disaster relief organization or its chapter affiliates. * * * * * 4. Section 90.137 is amended by revising paragraph (a)(3) to read as follows:  Xp- Section90.137 Applications for operation at temporary locations. (a) * * * (3) Applications for operation at temporary locations exceeding 180 days must be accompanied by evidence of frequency coordination, except that applications for operation at temporary locations exceeding 180 days by applicants using 220222 MHz spectrum for geophysical telemetry operations need not be accompanied by evidence of frequency coordination. * * * * * "`% 0*&&ggn("Ԍ5. Section 90.203 is amended by adding paragraph (k) to read as follows:  X- Section 90.203 Type acceptance required. * * * * * (k) (1) For transmitters operating on frequencies in the 220222 MHz band, type acceptance will only be granted for equipment with channel bandwidths up to 5 kHz, except that type acceptance will be granted for equipment operating on 220222 MHz band Channels 1 through 160 (220.0025 through 220.7975/221.0025 through 221.7975), 171 through 180 (220.8525 through 220.8975/221.8525 through 221.8975), and 186 through 200 (220.9275 through 220.9975/221.9275 through 221.9975) with channel bandwidths greater than 5 kHz if the equipment meets the following spectrum efficiency standard: applications for Part 90 type acceptance of transmitters designed to operate on frequencies in the 220222 MHz band must include a statement that the equipment meets a spectrum efficiency standard of at least one voice channel per 5 kHz of channel bandwidth (for voice communications), and a data rate of at least 4,800 bits per second per 5 kHz of channel bandwidth (for data communications). Type acceptance for transmitters operating on 220222 MHz band Channels 1 through 160 (220.0025 through 220.7975/221.0025 through 221.7975), 171 through 180 (220.8525 through 220.8975/221.8525 through 221.8975), and 186 through 200 (220.9275 through 220.9975/221.9275 through 221.9975) with channel bandwidths greater than 5 kHz will be granted without the requirement that a statement be included that the equipment meets the spectrum efficiency standard if the requests for type acceptance of such transmitters are filed after December 31, 2001. (2) Type acceptance may be granted on a casebycase basis by the Commission's Equipment Authorization Division for equipment operating on 220222 MHz band Channels 1 through 160 (220.0025 through 220.7975/221.0025 through 221.7975), 171 through 180 (220.8525 through 220.8975/221.8525 through 221.8975), and 186 through 200 (220.9275 through 220.9975/221.9275 through 221.9975) with channel bandwidths greater than 5 kHz  X`-and not satisfying the spectrum efficiency standard identified in paragraph (k)(1) of this section, if requests for Part 90 type acceptance of such transmitters are accompanied by a technical analysis that satisfactorily demonstrates that the transmitters will provide more spectral efficiency than that which would be provided by use of the spectrum efficiency standard. ` ` 6. Section 90.701 is revised to read as follows:  X- Section 90.701 Scope. (a) Frequencies in the 220-222 MHz band are available for land mobile and fixed use for both Government and non-Government operations. This subpart sets out the regulations governing the licensing and operation of non-Government systems operating in the 220-222 MHz band. It includes eligibility requirements, application procedures, and operational and technical standards for stations licensed in these bands. The rules in this subpart are to be read in"`% 0*&&ggn("Ԍ conjunction with the applicable requirements contained elsewhere in this part; however, in case of conflicts, the provisions of this subpart shall govern with respect to licensing and operation in this frequency band. (b) (1) Licensees granted initial authorizations for operations in the 220222 MHz band from among applications filed on or before May 24, 1991 are referred to in this subpart as ``Phase I'' licensees; (2) Applicants that filed initial applications for operations in the 220222 MHz band on or before May 24, 1991 are referred to in this subpart as ``Phase I'' applicants; and (3) All assignments, operations, stations, and systems of licensees granted authorizations from among applications filed for operations in the 220222 MHz band on or before May 24, 1991 are referred to in this subpart as ``Phase I'' assignments, operations,  X -stations, and systems, respectively. hh, (c) (1) Licensees granted initial authorizations for operations in the 220222 MHz band from among applications filed after May 24, 1991 are referred to in this subpart as ``Phase II'' licensees; (2) Applicants that filed initial applications for operations in the 220222 MHz band after May 24, 1991 are referred to in this subpart as ``Phase II'' applicants; and (3) All assignments, operations, stations, and systems of licensees granted authorizations from among applications filed for operations in the 220222 MHz band after May 24, 1991 are referred to in this subpart as ``Phase II'' assignments, operations, stations,  X-and systems, respectively.  (d) The rules in this subpart apply to both Phase I and Phase II licensees, applicants, assignments, operations, stations, and systems, unless otherwise specified. 7. Section 90.705 is revised to read as follows:  X`- Section 90.705 Forms to be used.  X0- Phase II applications for EA, Regional, or Nationwide radio facilities under this subpart must be prepared in accordance with Section 90.1009 and 90.1013. Phase II applications for radio facilities operating on public safety/mutual aid channels (Channels 161 through 170) or Emergency Medical Radio Service channels (Channels 181 through 185) under this subpart must be prepared on FCC Form 600 and submitted or filed in accordance with Section 90.127. 8. Paragraphs (a) and (c) of Section 90.709 are revised and paragraph (e) is added to read as follows:  X"- Section 90.709 Special limitations on amendment of applications and on assignment or transfer of authorizations licensed under this subpart.  X$- (a) Except as indicated in paragraph (b) of this section, the Commission"`% 0*&&ggn("Ԍ will not consent to the following: (1) Any request to amend an application so as to substitute a new entity as the applicant; (2) Any application to assign or transfer a license for a Phase I, non-nationwide system prior to the completion of construction of facilities; or (3) Any application to transfer or assign a license for a Phase I nationwide system before the licensee has constructed at least 40 percent of the proposed system pursuant to the provisions of Section 90.725(a) or Section 90.725(h), as applicable. * * * * * (c) The assignee or transferee of a Phase I nationwide system is subject to the construction benchmarks and reporting requirements of Section 90.725. The assignee or transferee of a Phase I nationwide system is not subject to the entry criteria described in Section 90.713. * * * * * (e) The assignee or transferee of a Phase II system is subject to the provisions of Section  Xp-90.1017 and Section 1.2111(a) of this chapter.  9. Section 90.711 is revised to read as follows:  X- Section 90.711 Processing of Phase II applications.  XP- (a) Phase II applications for authorizations on Channels 166 through 170 and Channels 181 through 185 will be processed on a first-come, first-served basis. When multiple applications are filed on the same day for these frequencies in the same geographic area, and insufficient  X-frequencies are available to grant all applications (i.e., if all applications were granted, violation of the station separation provisions of Sec. 90.723(i) would result), these applications will be considered mutually exclusive and will be subject to random selection procedures pursuant to Section 1.972 of this chapter. (1) All applications will first be considered to determine whether they are substantially complete and acceptable for filing. If so, they will be assigned a file number and put in pending status. If not, they will be dismissed. (2) Except as otherwise provided in this section, all applications in pending status will be processed in the order in which they are received, determined by the date on which the application was received by the Commission in its Gettysburg, Pennsylvania office (or the address set forth at Section 1.1102 of this chapter for applications requiring the fees established by part 1, subpart G of this chapter). (3) Each application that is accepted for filing will then be reviewed to determine whether it can be granted. Frequencies will be assigned by the Commission pursuant to the provisions of Section 90.723. (4) An application which is dismissed will lose its place in the processing"`% 0*&&ggn("Ԍ line. (5) If an application is returned for correction and resubmitted and received by the Commission within 60 days from the date on which it was returned to the applicant, it will retain its place in the processing line. If it is not received within 60 days, it will lose its place in the processing line. (b) All applications for Channels 161 through 165 that comply with the applicable rules of this part shall be granted. Licensees operating on such channels shall cooperate in the selection and use of frequencies and resolve any instances of interference in accordance with the provisions of Section 90.173. (c) Phase II applications for authorization on all nonGovernment channels other than Channels 161 through 170 and 181 through 185 shall be processed in accordance with the provisions of Subpart W of this part. 10. Section 90.713 is revised to read as follows:  X - Section 90.713 Entry criteria. (a) As set forth in Section 90.717, four 5-channel blocks are available for nationwide, commercial use to non-Government, Phase I applicants. Applicants for these nationwide channel blocks must comply with paragraphs (b), (c), and (d) of this section. (b) (1) An applicant must include certification that, within ten years of receiving a license, it will construct a minimum of one base station in a least 70 different geographic areas designated in the application; that base stations will be located in a minimum of 28 of the 100 urban areas listed in Section 90.741; and that each base station will have all five assigned nationwide channels constructed and placed in operation (regularly interacting with mobile and/or portable units). (2) An applicant must include certification that it will meet the construction requirements set forth in Section 90.725. (3) An applicant must include a ten-year schedule detailing plans for construction of the proposed system. (4) An applicant must include an itemized estimate of the cost of constructing 40 percent of the system and operating the system during the first four years of the license term. (5) An applicant must include proof that the applicant has sufficient financial resources to construct 40 percent of the system and operate the proposed land mobile system for the  X@-first four years of the license term; i.e., that the applicant has net current assets sufficient to cover estimated costs or a firm financial commitment sufficient to cover estimated costs. (c) An applicant relying on personal or internal resources for the showing required in paragraph (b) of this section must submit independently audited financial statements certified within one year of the date of the application showing net current assets sufficient to meet estimated construction and operating costs. An applicant must also submit an unaudited balance sheet, current within 60 days of the date of submission, that clearly shows the continued availability of sufficient net current assets to construct and operate the proposed system, and a certification by the applicant or an officer of the applicant organization attesting to the validity of the balance sheet. (d) An applicant submitting evidence of a firm financial commitment for the"`% 0*&&ggn("Ԍ showing required in paragraph (b) of this section must obtain the commitment  X- from a bona fide commercially acceptable source, e.g., a state or federally chartered bank or savings and loan institution, other recognized financial institution, the financial arm of a capital equipment supplier, or an investment banking house. If the lender is not a state or federally chartered bank or savings and loan institution, other recognized financial institution, the financial arm of a capital equipment supplier, or an investment banking house, the lender must also demonstrate that it has funds available to cover the total commitments it has made. The lender's commitment shall contain a statement that the lender: (1) Has examined the financial condition of the applicant including an audited financial statement, and has determined that the applicant is creditworthy; (2) Has examined the financial viability of the proposed system for which the applicant intends to use the commitment; and (3) Is willing, if the applicant is seeking a Phase I, commercial nationwide license, to provide a sum to the applicant sufficient to cover the realistic and prudent estimated costs of construction of 40 percent of the system and operation of the system for the first four years of the license term. (e) A Phase II applicant for authorization in a geographic area for Channels 166 through 170 in the public safety/mutual aid category may not have any interest in another pending application in the same geographic area for Channels 166 through 170 in the public safety/mutual aid category, and a Phase II applicant for authorization in a geographic area for channels in the Emergency Medical Radio Service (EMRS) category may not have any interest in another pending application in the same geographic area for channels in the EMRS category. 11. Section 90.717 is revised to read as follows:  X0- Section 90.717 Channels available for nationwide systems in the 220-222 MHz  X- band. (a) Channels 51-60, 8190, and 141-150 are 10-channel blocks available to nonGovernment applicants only for nationwide Phase II systems. (b) Channels 21-25, 26-30, 151-155, and 156-160 are 5-channel blocks available to non-Government applicants only for nationwide, commercial Phase I systems. (c) Channels 111-115 and 116-120 are 5-channel blocks available for Government nationwide use only. "P! 0*&&gg $" 12. Section 90.719 is revised to read as follows:  X- Section 90.719 Individual channels available for assignment in the 220-222 MHz  Xp- band. (a) Channels 171 through 200 are available to both Government and non-Government Phase I applicants, and may be assigned singly or in contiguous channel groups. (b) Channels 171 through 180 are available for any use by Phase I applicants consistent with this subpart. (c) Channels 181 through 185 are set aside for Phase II Emergency Medical Radio Service (EMRS) use under subpart B of this part. (d) Channels 161 through 170 and 181 through 185 are the only 220222 MHz channels  X -available to Phase II nonnationwide, Government users.pp 13. Section 90.720 is revised to read as follows:  X - Section 90.720 Channels available for public safety/mutual aid.  X- (a) Part 90 licensees whose licenses reflect a two-letter radio service code beginning with the letter ``P'' (except for licensees whose licenses reflect a two-letter radio service code beginning with the letters ``PS'' and are not eligible under Sections 90.35, 90.37, 90.41, and 90.45) are authorized by this rule to use mobile and/or portable units on Channels 161-170 throughout the United States, its territories, and possessions to transmit: (1) Communications relating to the immediate safety of life;  X - (2) Communications to facilitate interoperability among public safety entities and Special Emergency Radio Service (SERS) entities eligible under Sections 90.35, 90.37, 90.41 and 90.45; or  X- (3) Communications on behalf of and by members of organizations established for  X`-disaster relief purposes having an emergency radio communications plan (i.e., licensees eligible under Section 90.41) for the transmission of communications relating to the safety of life or property, the establishment and maintenance of temporary relief facilities, and the alleviation of emergency conditions during periods of actual or impending emergency, or disaster, until substantially normal conditions are restored; for limited training exercises incidental to an emergency radio communications plan, and for necessary operational communications of the disaster relief organization or its chapter affiliates. (b) Any Government entity and any nonGovernment entity eligible to obtain a license under Subpart B of this part or eligible to obtain a license under Sections 90.35, 90.37, 90.41 and 90.45 is also eligible to obtain a license for base/mobile operations on Channels 161 through 170. Base/mobile or base/portable communications on these channels that do not relate to the immediate safety of life or to communications interoperability among public safety entities and the above specified SERS entities, may only be conducted on a secondary non-interference basis to such communications. "`% 0*&&ggn("Ԍ14. Section 90.721 is revised to read as follows:  X- Section 90.721 Other channels available for nonnationwide systems in the 220-222  Xp-MHz band. (a) The channel groups listed in the following Table are available to both Government and non-Government Phase I applicants for trunked operations or operations of equivalent or greater efficiency for non-commercial or commercial operations. Table 1--Phase I Trunked Channel Groups Group No. Channel Nos. 1 1-31-61-91-121 2 2-32-62-92-122 3 3-33-63-93-123 4 4-34-64-94-124 5 5-35-65-95-125 6 6-36-66-96-126 7 7-37-67-97-127 8 8-38-68-98-128 9 9-39-69-99-129 10 10-40-70-100-130 11 11-41-71-101-131 12 12-42-72-102-132 13 13-43-73-103-133 14 14-44-74-104-134 15 15-45-75-105-135 16 16-46-76-106-136 17 17-47-77-107-137 18 18-48-78-108-138 19 19-49-79-109-139 20 20-50-80-110-140 (b) The channels listed in the following Table are available to nonGovernment applicants for Phase II assignments in Economic Areas (EAs) and Regional Economic Area Groupings  X-(REAGs) (see Sections 90.761 and 90.763) . " 0*&&ggG"" ` `  hh,Table 2 ` `  Phase II EA and Regional Channel Assignments ` `  hh,V Group Nos.  X-Assignment` `  Assignment AreaV (from Table 1)Channel Nos.(#`  X- A` `  EAhh,V 2 and 13pp  X- B` `  EAhh,V 3 and 16  XP- C` `  EAhh,V 5 and 18pp  X - D` `  EAhh,V 8 and 19  X- E` `  EAhh,Vpp 171180xx-  X(#(#  X - F` `  REAGhh,V 1, 6, and 11    X` - G` `  REAGhh,V 4, 9, and 14  X0 - H` `  REAGhh,V 7, 12, and 17  X - I` `  REAGhh,V 10, 15, and 20  X - J` `  REAGhh,Vpp 186200 15. Section 90.723 is revised to read as follows:  X- Section 90.723 Selection and assignment of frequencies.  X- (a) Phase II applications for frequencies in the 220-222 MHz band shall specify whether their intended use is for 10-channel nationwide systems, 10-channel EA systems, 15channel Regional systems, public safety/mutual aid use, or EMRS use. Phase II applicants for frequencies for public safety/mutual aid use or EMRS use shall specify the number of frequencies requested. All frequencies in this band will be assigned by the Commission. (b) Phase II channels will be assigned pursuant to Sections 90.717, 90.719, 90.720, 90.721, 90.761 and 90.763. (c) Phase II applicants for public safety/mutual aid and EMRS channels will be assigned only the number of channels justified to meet their requirements. (d) Phase I base or fixed station receivers utilizing 221222 MHz frequencies assigned from Sub-band A as designated in Section 90.715(b) will be geographically separated from those Phase I base or fixed station transmitters utilizing 220221 MHz frequencies removed 200 kHz or less and assigned from Sub-band B as follows: " 0*&&gg " Geographic Separation of Sub-Band A Base or Fixed Station Receivers and Sub-Band B Base or Fixed Station Transmitters Effective Separation radiated distance power (kilometers) (watts)/1/ 0.0-0.3 (/2/) 0.3-0.5 5 0.5-0.6 10 0.6-0.8 20 0.8-2.0 25 2.0-4.0 50 4.0-5.0 100 5.0-6.0 200 Over 6.0 500 /1/ Transmitter peak envelope power shall be used to determine effective radiated power. /2/ Stations separated by 0.3 km or less shall not be authorized. This table does not apply to the low-power channels 196-200. See Section 90.729(c). (e) Phase II licensees authorized on 220221 MHz frequencies assigned from Subband B will be required to geographically separate their base station or fixed station transmitters from the base station or fixed station receivers of Phase I licensees authorized on 221222 MHz frequencies 200 kHz removed or less in Subband A in accordance with the Table in paragraph (d) of this section. (f) Phase II licensees with base or fixed stations transmitting on 220221 MHz frequencies assigned from Subband B and Phase II licensees with base or fixed station stations receiving on Subband A 221222 MHz frequencies, if such transmitting and receiving frequencies are 200 kHz or less removed from one another, will be required to coordinate the location of their base stations or fixed stations to avoid interference and to cooperate to resolve any instances of interference in accordance with the provisions of Section 90.173(b). (g) A mobile station is authorized to transmit on any frequency assigned to its associated  X"-base station. Mobile units not associated with base stations (see Section 90.720(a)) must operate on ``mobile'' channels. "$ 0*&&gg'"Ԍ (h) A licensee's fixed station is authorized to transmit on any of the licensee's assigned base station frequencies or mobile station frequencies. (i) Except for nationwide assignments, the separation of co-channel Phase I base stations, or fixed stations transmitting on base station frequencies, shall be 120 kilometers. Except for Phase I licensees seeking license modification in accordance with the provisions of Sections 90.751 and 90.753, shorter separations between such stations will be considered by the Commission on a case-by-case basis upon submission of a technical analysis indicating that at least 10 dB protection will be provided to an existing Phase I station's predicted 38 dBu signal level contour. The existing Phase I station's predicted 38 dBu signal level contour shall be calculated using the F(50,50) field strength chart for Channels 713 in Section 73.699 (Fig. 10) of this chapter, with a 9 dB correction factor for antenna height differential. The 10 dB protection to the existing Phase I station's predicted 38 dBu signal level contour shall be calculated using the F(50,10) field strength chart for Channels 713 in Section 73.699 (Fig. 10a) of this chapter, with a 9 dB correction factor for antenna height differential. 16. Section 90.725 is amended by revising the section heading and paragraphs (f) and (h) to read as follows:  X@- Sec. 90.725 Construction requirements for Phase I licensees.  X- * * * * * (f) Licensees authorized Phase I non-nationwide systems, or authorized on Channels 161  XP-through 170 or Channels 181 through 185, must construct their systems (i.e., have all specified base stations constructed with all channels) and place their systems in operation, or  X-commence service in accordance with the provisions of Section 90.167, within twelve months of the initial license grant date. Authorizations for systems not constructed and placed in operation, or having commenced service, within twelve months from the date of initial license grant cancel automatically. * * * * * (h) The requirements and conditions of paragraphs (a) through (e) and paragraph (g) of this section apply to nationwide licensees that construct and operate stations for fixed or paging operations on a primary basis instead of, or in addition to, stations for land mobile operations on a primary basis except that, in satisfying the base station construction and placed in operation requirements of paragraph (a) of this section and the system progress report requirements of paragraphs (d) and (e) of this section, licensees operating stations for fixed operation on a primary basis instead of, or in addition to, stations for land mobile or paging operations on a primary basis in a given geographic area may demonstrate how such fixed stations are providing substantial service to the public in those geographic areas. "$ 0*&&gg'" 17. The section heading of Section 90.727 is revised to read as follows:  X- Section 90.727 Extended implementation schedules for Phase I licensees. * * * * * 18. Section 90.729 is revised to read as follows:  XP- Section 90.729 Limitations on power and antenna height. (a) The permissible effective radiated power (ERP) with respect to antenna heights for land mobile, paging, or fixed stations transmitting on frequencies in the 220221 MHz band shall be determined from the following Table. These are maximum values and applicants are required to justify power levels requested. ERP vs. Antenna Height Table /2/ ` ` Antenna height above average Effective terrain radiated (HAAT), power, meters watts /1/ Up to 150 500 150 to 225 250 225 to 300 125 300 to 450 60 450 to 600 30 600 to 750 20 750 to 900 15 900 to 1050 10 Above 1050 5 /1/ Transmitter PEP shall be used to determine ERP.  /2/ These power levels apply to stations used for land mobile, paging, and fixed operations. (b) The maximum permissible ERP for mobile units is 50 watts. Portable units are considered as mobile units. Licensees operating fixed stations or paging base stations transmitting on frequencies in the 221222 MHz band may not operate such fixed stations or paging base stations at power levels greater than 50 watts ERP, and may not transmit from antennas that are higher than 7 meters above ground, except that transmissions from antennas"`% 0*&&ggn(" that are higher than 7 meters above ground will be permitted if the effective radiated power of  Xisuch transmissions is reduced below 50 watts ERP by 20 log10(h/7) dB, where h is the height of the antenna above ground, in meters. (c) Base station and fixed station transmissions on base station transmit Channels 196200 are limited to 2 watts ERP and a maximum antenna height of 6.1 meters (20 ft) above ground. Licensees authorized on these channels may operate at power levels above 2 watts ERP or with a maximum antenna height greater than 6.1 meters (20 ft) above ground if: (1) They obtain the concurrence of all Phase I and Phase II licensees with base stations or fixed stations receiving on base station receive Channels 140 and located within 6 km of their base station or fixed station; and (2) Their base station or fixed station is not located in the United States/Mexico or United States/Canada border areas. 19. Section 90.731 is removed. 20. Section 90.733 is amended by removing paragraph (d), revising paragraphs (a)(1), and (c) and adding new paragraphs (d), (e), (f), (g), (h), and (i) to read as follows:  X@- Section 90.733 Permissible operations.  X- (a) * * *  X- (1) (i) For government and nongovernment land mobile operations, i.e., for base/mobile and mobile relay transmissions, on a primary basis; or (ii) For the following operations instead of or in addition to a licensee's land mobile operations: oneway or twoway paging operations on a primary basis by all nonGovernment Phase II licensees, fixed operations on a primary basis by all nonGovernment Phase II licensees and all Government licensees, oneway or twoway paging or fixed operations on a primary basis by all nonGovernment Phase I licensees, except that before a nonGovernment Phase I licensee may operate oneway or twoway paging or fixed systems on a primary basis instead of or in addition to its land mobile operations, it must meet the following requirements: ` ` (A) A nationwide Phase I licensee must;  Xp- ` `  (1) Meet its twoyear benchmark for the construction of its land mobile system base stations as prescribed in Section 90.725(a); and  X-` `  (2) Provide a new 10year schedule, as required in Section 90.713(b)(3), for the construction of the fixed and/or paging system it intends to construct instead of, or in addition to, its nationwide land mobile system; and  X -` `  (3) Certify that the financial showings and all other certifications provided in demonstrating its ability to construct and operate its nationwide land mobile system, as required in Sections 90.713(b), (c) and (d), remain applicable to the nationwide system it intends to construct consisting of fixed and/or paging operations on a primary basis instead of, or in addition to, its land mobile operations; or  X$-` `  (4) In lieu of providing the requirements of paragraph (a)(1)(ii)(A)(3) of this section, provide the financial showings and all other certifications required in Sections"`% 0*&&gg(" 90.713(b), (c) and (d) to demonstrate its ability to construct and operate a nationwide system consisting of fixed and/or paging operations on a primary basis instead of, or in addition to, its land mobile operations. ` ` (B) A nonnationwide Phase I licensee must first meet the requirement to construct its land mobile base station and place it in operation, or commence service (in accordance with Section 90.167) as prescribed in Sections 90.725(f) or 90.727, as applicable. * * * * * (c) For operations requiring less than a 4 kHz bandwidth, more than a single emission may be utilized within the authorized bandwidth. In such cases, the frequency stability requirements of Section 90.213 do not apply, but the outofband emission limits of Section 90.210(f) must be met. (d) Licensees, except for licensees authorized on Channels 161 through 170 and 181 through 185, may combine any number of their authorized, contiguous channels to form channels wider than 5 kHz. In so doing, licensees must comply with the following spectrum efficiency standard, which will remain in effect through December 31, 2001: (1) For voice communications, licensees must employ equipment that provides at least one voice channel per 5 kHz of channel bandwidth; and (2) For data communications, licensees must employ equipment that operates at a data rate of at least 4,800 bits per second per 5 kHz of channel bandwidth. (3) Licensees authorized on channels other than Channels 161 through 170 and 181 through 185 may combine any number of their authorized, contiguous channels to form  XP-channels wider than 5 kHz without complying with the spectrum efficiency standard identified in paragraphs (d)(1) and (d)(2) of this section if they operate with equipment that has been granted type acceptance in accordance with the provisions of Section 90.203(k)(2). (e) In combining authorized contiguous channels to form channels wider than 5 kHz, the emission limits in Section 90.210(f) must be met only at the outermost edges of the contiguous channels. Transmitters shall be tested to confirm compliance with this requirement with the transmission located as close to the band edges as permitted by the design of the transmitter. The frequency stability requirements in Section 90.213 shall apply only to the outermost of the contiguous channels authorized to the licensee. However, the frequency stability employed for transmissions operating inside the outermost contiguous channels must be such that the emission limits in Section 90.210(f) are met over the temperature and voltage variations prescribed in Section 2.995 of this chapter. (f) A Phase I nonnationwide licensee operating a paging base station, or a fixed station transmitting on frequencies in the 220221 MHz band, may only operate such stations at the coordinates of the licensee's authorized land mobile base station. (g) The transmissions of a Phase I nonnationwide licensee's paging base station, or fixed station transmitting on frequencies in the 220221 MHz band, must meet the requirements of Sections 90.723(d) and (i), and 90.729, and such a station must operate at the effective"$ 0*&&gg'" radiated power and antenna heightaboveaverageterrain prescribed in the licensee's land mobile base station authorization. (h) Licensees using 220222 MHz spectrum for geophysical telemetry operations are authorized to operate fixed stations on a secondary, noninterference basis to licensees operating in the 220222 MHz band on a primary basis under the conditions that such licensees: (1) Provide notification of their operations to cochannel nonnationwide Phase I licensees with an authorized base station, or fixed station transmitting on frequencies in the 220221 MHz band, located within 45 km of the secondary licensee's station, to cochannel, Phase II EA or Regional licensee authorized to operate in the EA or REAG in which the secondary licensee's station is located, and to cochannel Phase I or Phase II nationwide licensees; (2) Operate only at temporary locations in accordance with the provisions of Section 90.137; (3) Not transmit at a power level greater than one watt ERP; (4) Not transmit from an antenna higher than 2 meters (6.6 feet) above ground; and (5) Not operate on Channels 111 through 120, 161 through 170, or 181 through 185. (i) All licensees constructing and operating base stations or fixed stations on frequencies in the 220222 MHz band must: (1) Comply with any rules and international agreements that restrict use of their authorized frequencies, including the provisions of  90.715 relating to U.S./Mexican border areas;  XP- (2) Comply with the provisions of Section 17.6 of this chapter with regard to antenna structures; and (3) Comply with the provisions of 1.1301 through 1.1319 of this chapter with regard to actions that may or will have a significant impact on the quality of the human environment. 21. Paragraph (d) of Section 90.735 is revised to read as follows:  X- Section 90.735 Station identification. * * * * * (d) Digital transmissions may also be identified by digital transmission of the station call sign. A licensee that identifies its station in this manner must provide the Commission, upon its request, information (such as digital codes and algorithms) sufficient to decipher the data transmission to ascertain the call sign transmitted. "" 0*&&gg%" 22. The section heading of Section 90.737 is revised to read as follows:  X- Section 90.737 Supplemental reports required of Phase I licensees. * * * * * 23. Section 90.739 is revised to read as follows:  XP- Section 90.739 Number of systems authorized in a geographical area.  X - (a) No licensee will be authorized more than one Phase I system in the 220-222 MHz band  X -in a single category (i.e., one nationwide system, one 5-channel trunked system, one data-only local system of 1 to 5 channels, one unrestricted non-trunked local system of 1 to 5 channels, or one public safety/mutual aid local system of 1 to 5 channels) within 64 kilometers (40 miles) of an existing system authorized to that licensee in the same category, unless the licensee can demonstrate that the additional system is justified on the basis of its communications requirements. (b) There is no limit on the number of Phase II nationwide, EA or Regional licenses that may be authorized to a single licensee. 24. The section heading and introductory paragraph of Section 90.741 are revised to read as follows:  XP- Section 90.741 Urban areas for Phase I nationwide systems. Licensees of Phase I nationwide systems must construct base stations, or fixed stations transmitting on frequencies in the 220221 MHz band, in a minimum of 28 of the urban areas listed in the following Table within ten years of initial license grant. A base station, or fixed station, is considered to be within one of the listed urban areas if it is within 60 kilometers (37.3 miles) of the specified coordinates. #Xj\  P6G;XP# * * * * * 25. A new Section 90.743 is added to read as follows:  X- Section 90.743 Renewal expectancy. (a) All licensees seeking renewal of their authorizations at the end of their license term must file a renewal application in accordance with the provisions of Section 90.149. Licensees must demonstrate, in their application, that: ` ` (1) They have provided ``substantial'' service during their past license term. ``Substantial'' service is defined in this rule as service that is sound, favorable, and substantially above a level of mediocre service that just might minimally warrant renewal; and"$ 0*&&gg'"Ԍ` ` (2) They have substantially complied with applicable FCC rules, policies, and the Communications Act of 1934, as amended. (b) In order to establish its right to a renewal expectancy, a renewal applicant must submit a showing explaining why it should receive a renewal expectancy. At a minimum, this showing must include: ` ` (1) A description of its current service in terms of geographic coverage and population served; ` ` (2) For an EA, Regional, or nationwide licensee, an explanation of its record of expansion, including a timetable of the construction of new stations to meet changes in demand for service; ` ` (3) A description of its investments in its system; ` ` (4) Copies of all FCC orders finding the licensee to have violated the Communications Act or any FCC rule or policy; and ` ` (5) A list of any pending proceedings that relate to any matter described in this paragraph. (c) Phase I nonnationwide licensees have license terms of 5 years, and therefore must meet these requirements 5 years from the date of initial authorization in order to receive a renewal expectancy. Phase I nationwide licensees and all Phase II licensees have license terms of 10 years, and therefore must meet these requirements 10 years from the date of initial authorization in order to receive a renewal expectancy. 26. Section 90.751 is revised to read as follows:  X- Section 90.751 Minor modifications of Phase I, non-nationwide licenses. Phase I non-nationwide licensees will be given an opportunity to seek modification of their  X-license to relocate their initially authorized base station, i.e., locate their base station at a site other than its initially authorized location. The conditions under which modifications will be granted and the procedures for applying for license modifications are described in Sections 90.753, 90.755, and 90.757. For CMRS licensees, these modifications will be treated as minor modifications in accordance with Section 90.164. 27. A new centered heading is added following Section 90.757 to read as follows: POLICIES GOVERNING THE LICENSING AND USE OF PHASE II EA, REGIONAL AND NATIONWIDE SYSTEMS. 28. A new Section 90.761 is added to read as follows:  X "- Section 90.761 EA and Regional licenses.  X"-  X#- (a) EA licenses for spectrum blocks listed in Table 2 of Section 90.721(b) are available in 175  X$-Economic Areas (EAs) as defined in Section 90.7. "`% 0*&&ggn("Ԍ X- (b) Regional licenses for spectrum blocks listed in Table 2 of Section 90.721(b) are available in six Regional Economic Area Groupings (REAGs) as defined in Section 90.7. 29. A new Section 90.763 is added to read as follows:  X- Section 90.763 EA, Regional and Nationwide system operations. (a) A nationwide licensee authorized pursuant to Section 90.717(a) may construct and operate any number of land mobile or paging base stations, or fixed stations, anywhere in the Nation, and transmit on any of its authorized channels, provided that the licensee complies with the requirements of Section 90.733(i). (b) An EA or Regional licensee authorized pursuant to Section 90.761 may construct and operate any number of land mobile or paging base stations, or fixed stations, anywhere within its authorized EA or REAG, and transmit on any of its authorized channels, provided that: (1) The licensee affords protection to all authorized cochannel Phase I nonnationwide base stations as follows: (i) The EA or Regional licensee must locate its land mobile or paging base stations, or fixed stations transmitting on base station transmit frequencies, at least 120 km from the land mobile or paging base stations, or fixed stations transmitting on base station transmit frequencies, of cochannel Phase I licensees, except that separations of less than 120 km shall be considered on a casebycase basis upon submission by the EA or Regional licensee of; ` ` (A) A technical analysis demonstrating at least 10 dB protection to the  XP-predicted 38 dBu service contour of the cochannel Phase I licensee, i.e., demonstrating that the predicted 28 dBu interfering contour of the EA or Regional licensee's base station or fixed station does not overlap the predicted 38 dBu service contour of the cochannel Phase I  X-licensee's base station or fixed station; or V ` ` (B) A written letter from the cochannel Phase I licensee consenting to a separation of less than 120 km, or to less than 10 dB protection to the predicted 38 dBu service contour of the licensee's base station or fixed station. (ii) The Phase I licensee's predicted 38 dBu service contour referred to in paragraph (a)(1)(i) of this section is calculated using the F(50,50) field strength chart for Channels 713 in Section 73.699 (Fig. 10) of this chapter, with a 9 dB correction factor for antenna height differential, and is based on the licensee's authorized effective radiated power and antenna heightaboveaverageterrain. The EA or Regional licensee's predicted 28 dBu interfering contour referred to in paragraph (a)(1)(i) of this section is calculated using the F(50,10) field strength chart for Channels 713 in Section 73.699 (Fig. 10a) of this chapter, with a 9 dB correction factor for antenna height differential. (2) The licensee complies with the requirements of Section 90.733(i). (3) The licensee limits the field strength of its base stations, or fixed stations operating on base station transmit frequencies, in accordance with the provisions of  90.771. (4) The licensee notifies the Commission within 30 days of the completion of the addition, removal, relocation or modification of any of its facilities within its authorized area of"$ 0*&&gg'" operation. Such notification must be made by submitting an FCC Form 600, and must include the appropriate filing fee, if any. (c) In the event that the authorization for a cochannel Phase I base station, or fixed station transmitting on base station transmit frequencies, within an EA or Regional licensee's border is terminated or revoked, the EA or Regional licensee's channel obligations to such stations will cease upon deletion of the facility from the Commission's official licensing records, and the EA or Regional licensee then will be able to construct and operate without regard to the previous authorization. 30. A new Section 90.765 is added to read as follows:  X - Section 90.765 Licenses term for Phase II licenses.  X0 - Nationwide licenses authorized pursuant to Section 90.717(a), EA and Regional licenses authorized pursuant to Section 90.761, and nonnationwide licenses authorized pursuant to Section 90.720 and Section 90.719(c) will be issued for a term not to exceed ten years.   Xp-  X@- 31. A new Section 90.767 is added to read as follows:  X- Section 90.767 Construction and implementation of EA and Regional licenses.  XP-(a) An EA or Regional licensee must construct a sufficient number of base stations (i.e., base stations for land mobile and/or paging operations) to provide coverage to: (1) At least onethird of the population of its EA or REAG within five years of the issuance of its initial license; and (2) At least twothirds of the population of its EA or REAG within ten years of the issuance of its initial license. (b) EA and Regional licensees offering fixed services as part of their system, and EA and Regional licensees that have one or more incumbent, cochannel Phase I licensees authorized within their EA or REAG may meet the construction requirements of paragraph (a) of this section by demonstrating an appropriate level of substantial service at their five and tenyear benchmarks. (c) Licensees must submit maps or other supporting documents to demonstrate compliance with the construction requirements of paragraphs (a) and (b) of this section. (d) Failure by an EA or Regional licensee to meet the construction requirements of paragraph (a) or (b) of this section, as applicable, will result in automatic cancellation of its entire EA or Regional license. In such instances, EA or Regional licenses will not be converted to individual, sitebysite authorizations for already constructed stations. "$ 0*&&gg'"Ԍ(e) EA and Regional licensees will not be permitted to count the resale of the services of  X-other providers in their EA or REAG, e.g., incumbent, Phase I licensees, to meet the construction requirement of paragraph (a) or (b) of this section, as applicable.  (f) EA and Regional licensees will not be required to construct and place in operation, or commence service on, all of their authorized channels at all of their base stations or fixed stations.  32. A new Section 90.769 is added to read as follows:  X- Section 90.769 Construction and implementation of Nationwide licenses.  X - (a) A nationwide licensee must construct a sufficient number of base stations (i.e., base stations for land mobile and/or paging operations) to provide coverage to: (1) A composite area of at least 750,000 square kilometers or 37.5 percent of the United States population within five years of the issuance of its initial license; and (2) A composite area of at least 1,500,000 square kilometers or 75 percent of the United States population within ten years of the issuance of its initial license. (b) Nationwide licensees offering fixed services as part of their system may meet the construction requirements of paragraph (a) of this section by demonstrating an appropriate level of substantial service at their five and tenyear benchmarks. (c) Licensees must submit maps or other supporting documents to demonstrate compliance with the construction requirements of paragraphs (a) and (b) of this section. (d) Failure by a nationwide licensee to meet the construction requirements of paragraphs (a) or (b) of this section, as applicable, will result in automatic cancellation of its entire nationwide license. In such instances, nationwide licenses will not be converted to individual, sitebysite authorizations for already constructed stations. (e) Nationwide licensees will not be required to construct and place in operation, or commence service on, all of their authorized channels at all of their base stations or fixed stations. 33. A new Section 90.771 is added to read as follows:  X- Section 90.771 Field strength limits.  X - (a) The transmissions from base stations, or fixed stations transmitting on base station transmit frequencies, of EA and Regional licensees may not exceed a predicted 38 dBu field strength at their EA or REAG border. The predicted 38 dBu field strength is calculated using the F(50,50) field strength chart for Channels 713 in Section 73.699 (Fig. 10) of this chapter, with a 9 dB correction factor for antenna height differential. "`% 0*&&ggn("Ԍ(b) Licensees will be permitted to exceed the predicted 38 dBu field strength required in paragraph (a) of this section if all affected, cochannel EA and Regional licensees agree to the higher field strength. (c) EA and Regional licensees must coordinate to minimize interference at or near their EA and REAG borders, and must cooperate to resolve any instances of interference in accordance with the provisions of Section 90.173(b). 34. A new Subpart W consisting of Sections 90.1001 through 90.1025 is added to Part 90 to read as follows:  90.1001 220 MHz service subject to competitive bidding.  90.1003 Competitive bidding design for the 220 MHz service.  90.1005 Competitive bidding mechanisms.  90.1007 Withdrawal, default and disqualification payments.  90.1009 Bidding application (FCC Form 175 and 175S Shortform).  90.1011 Submission of upfront payments and down payments.  90.1013 Longform application (FCC Form 600).  90.1015 License grant, denial, default, and disqualification.  90.1017 Bidding credits, down payments, and installment payments for small businesses and very small businesses.  90.1019 Eligibility for partitioned licenses.  90.1021 Definitions concerning competitive bidding process.  X- 90.1023 Certifications, disclosures, records maintenance and audits.    90.1025 Petitions to deny and limitations on settlements.  X- SUBPART W COMPETITIVE BIDDING PROCEDURES FOR THE 220 MHz  X-SERVICE  X0-  90.1001 220 MHz service subject to competitive bidding.  X- Mutually exclusive initial applications for 220 MHz geographic area licenses are subject to competitive bidding procedures. The procedures set forth in part 1, subpart Q, of this chapter will apply unless otherwise provided in this part.  X-  90.1003 Competitive bidding design for the 220 MHz service.  X- A simultaneous multiple round auction will be used to choose from among mutually exclusive initial applications for 220 MHz geographic area licenses, unless the Commission specifies otherwise by Public Notice prior to the competitive bidding procedure.  X"-  90.1005 Competitive bidding mechanisms.  X$-(a) Sequencing. The Commission will establish and may vary the sequence in which 220 MHz geographic area licenses are auctioned."`% 0*&&ggn("Ԍ X-ԙ(b) Grouping. The Commission will determine which licenses will be auctioned simultaneously or in combination.  Xp-(c) Minimum Bid Increments. The Commission may, by public announcement before or during an auction, require minimum bid increments in dollar or percentage terms.  X-(d) Stopping Rules. The Commission may establish stopping rules before or during an auction in order to terminate the auction within a reasonable time.  XP-(e) Activity Rules. The Commission may establish activity rules which require a minimum amount of bidding activity. In the event that the Commission establishes an activity rule in connection with a simultaneous multiple round auction, each bidder may request waivers of such rule during the auction. The Commission may, by public announcement either before or during the auction, specify or vary the number of waivers available to each bidder.  X0 -  90.1007 Withdrawal, default and disqualification payments.  X - The Commission will impose payments on bidders who withdraw high bids during the course of an auction, who default on payments due after an auction terminates, or who are disqualified. When the Commission conducts a simultaneous multiple round auction, payments will be calculated as set forth in  1.2104(g) and 1.2109 of this chapter. When the amount of such a payment cannot be determined, a deposit of up to 20 percent of the amount bid on the license will be required.  X-  90.1009 Bidding application (FCC Form 175 and 175S Shortform).  X - Each applicant to participate in competitive bidding for 220 MHz geographic area licenses must submit an application (FCC Forms 175 and 175S) pursuant to the provisions of  1.2105 of this chapter.  X`-  90.1011 Submission of upfront payments and down payments.  X- (a) The Commission will require applicants to submit an upfront payment prior to the start of a 220 MHz service auction. The amount of the upfront payment for each geographic area license auctioned and the procedures for submitting it will be set forth by the Wireless Telecommunications Bureau in a Public Notice in accordance with  1.2106 of this chapter. (b) Each winning bidder in a 220 MHz service auction, except those that qualify as small businesses or very small businesses pursuant to  90.1021(b)(1) or  90.1021(b)(2), must submit a down payment to the Commission in an amount sufficient to bring its total deposits up to 20 percent of its winning bid within ten (10) business days following the release of a Public Notice announcing the close of bidding. Small businesses and very small businesses must submit a down payment to the Commission in accordance with  90.1017(c).  X#- "# 0*&&gg&"  90.1013 Longform application (FCC Form 600).  X- Each successful bidder for a 220 MHz geographic area license must submit a longform  Xp-application (FCC Form 600) within ten (10) business days after being notified by Public Notice that it is the winning bidder. Applications for 220 MHz geographic area licenses on FCC Form 600 must be submitted in accordance with  1.2107 of this chapter, all applicable procedures set forth in the rules in this part, and any applicable Public Notices that the Commission may issue in connection with an auction. After an auction, the Commission will not accept longform applications for 220 MHz geographic area licenses from anyone other than the auction winners and parties seeking partitioned licenses pursuant to agreements with auction winners under  90.1019 of this chapter.  X -  90.1015 License grant, denial, default, and disqualification .  X` -(a) Each winning bidder, except those eligible for installment payments, will be required to pay the full balance of its winning bid within ten (10) business days following Public Notice that the Commission is prepared to award the license. (b) A bidder that withdraws its bid subsequent to the close of bidding, defaults on a payment due, or is disqualified, is subject to the payments specified in  1.2104(g),  1.2109, and  90.1007 of this chapter, as applicable.  X-  90.1017 Bidding credits, down payments, and installment payments for small businesses and very small businesses.  XP- (a) Bidding Credits. A winning bidder that qualifies as a small business or a consortium of small businesses as defined in  90.1021(b)(1) or  90.1021(b)(4) may use a bidding credit of 10 percent to lower the cost of its winning bid. A winning bidder that qualifies as a very small business or a consortium of very small businesses as defined in  90.1021(b)(2) or  90.1021(b)(4) may use a bidding credit of 25 percent to lower the cost of its winning bid.  X`-  X0-(b) Unjust Enrichment Bidding Credits (1) If a small business or very small business (as defined in  90.1021(b)(1) and 90.1021(b)(2), respectively) that utilizes a bidding credit under this section seeks to transfer control or assign an authorization to an entity that is not a small business or a very small business, or seeks to make any other change in ownership that would result in the licensee losing eligibility as a small business or very small business, the small business or very small business must seek Commission approval and reimburse the U.S. government for the amount of the bidding credit, plus interest at the rate imposed for installment financing at the time the license was awarded, as a condition of approval of the assignment, transfer, or other ownership change. (2) If a very small business (as defined in  90.1021(b)(2)) that utilizes a bidding credit under this section seeks to transfer control or assign an authorization to a small business meeting the eligibility standards for a lower bidding credit, or seeks to make any other change in ownership that would result in the licensee qualifying for a lower bidding credit under this"`% 0*&&ggn(" section, the licensee must seek Commission approval and reimburse the U.S. government for the difference between the amount of the bidding credit obtained by the licensee and the bidding credit for which the assignee, transferee, or licensee is eligible under this section, plus interest at the rate imposed for installment financing at the time the license was awarded, as a condition of the approval of such assignment, transfer, or other ownership change. (3) The amount of payments made pursuant to paragraphs (b)(1) and (b)(2) of this section will be reduced over time as follows: A transfer in the first two years of the license term will result in a forfeiture of 100 percent of the value of the bidding credit (or the difference between the bidding credit obtained by the original licensee and the bidding credit for which the posttransfer licensee is eligible); in year 3 of the license term the payment will be 75 percent; in year 4 the payment will be 50 percent; and in year 5 the payment will be 25 percent, after which there will be no assessment.  X` -(c) Down Payments. Winning bidders in a 220 MHz service auction that qualify as small businesses under  90.1021(b)(1) or very small businesses under  90.1021(b)(2) must submit a down payment to the Commission in an amount sufficient to bring their total deposits up to 20 percent of their winning bids. Small businesses and very small businesses must bring their deposit up to 10 percent of their winning bids within ten (10) business days following a Public Notice announcing the close of bidding. Prior to licensing, by a date and time to be specified by Public Notice, they must pay an additional 10 percent.  X-(d) Installment Payments (1) Each licensee that qualifies as a small business under  90.1021(b)(1) or as a very small business under  90.1021(b)(2) may pay the remaining 80 percent of the net auction price for the license in installment payments over the term of the geographic area license. Interest charges shall be fixed at the time of licensing at a rate equal to the rate for tenyear U.S. Treasury obligations plus 2.5 percent. An eligible licensee may make interestonly payments for two years. Payments of interest and principal shall be amortized over the remaining eight years of the license term. (2) Late installment payment. Any licensee that submits a scheduled installment payment more than fifteen days late will be charged a late payment fee equal to five percent of the amount of the past due payment. (3) Payments will be applied in the following order: late charges, interest charges, principal payments.  X-(e) Unjust Enrichment Installment Payments (1) If a licensee that utilizes installment financing under this section seeks to assign or transfer control of its license to an entity not meeting the eligibility standards for installment financing, the licensee must seek Commission approval and make full payment of the remaining unpaid principal and unpaid interest accrued through the date of assignment or transfer as a condition of Commission approval. "`% 0*&&ggn("Ԍ(2) If a licensee that utilizes installment financing under this section seeks to make any change in ownership structure that would result in the licensee losing eligibility for installment payments, the licensee shall first seek Commission approval before making such a change in ownership structure and must make full payment of the remaining unpaid principal and unpaid interest accrued through the date of such change in ownership structure as a condition of Commission approval.  X-  90.1019 Eligibility for partitioned licenses.  X- If partitioned licenses are being applied for in conjunction with a license(s) to be awarded through competitive bidding procedures (a) The applicable procedures for filing shortform applications and for submitting upfront payments and down payments contained in this chapter shall be followed by the applicant, who must disclose as part of its shortform application all parties to agreement(s) with or  X0 -among other entities to partition the license pursuant to this section, if won at auction (see 47 CFR  1.2105(a)(2)(viii)); (b) Each party to an agreement to partition the license must file a longform application (FCC Form 600) for its respective, mutually agreedupon geographic license area together with the application for the remainder of the geographic license area filed by the auction winner. (c) If the partitioned license is being applied for as a partial assignment of the geographic area license following grant of the initial license, request for authorization for partial assignment of a license shall be made pursuant to  90.153.  X-  90.1021 Definitions concerning competitive bidding process.   X-(a) Scope. The definitions in this section apply to  90.1001 through 90.1025, unless otherwise specified in those sections.  X-(b) Small Business; Very Small Business; Consortium of Small Businesses or Very Small  X-Businesses. (1) A small business is an entity that, together with its affiliates and controlling principals, has average gross revenues that are not more than $15 million for the preceding three years. (2) A very small business is an entity that, together with its affiliates and controlling principals, has average gross revenues that are not more than $3 million for the preceding three years. (3) For purposes of determining whether an entity meets either of the definitions set forth in paragraph (b)(1) or (b)(2) of this section, the gross revenues of the entity, its affiliates, and controlling principals shall be considered on a cumulative basis and aggregated. "$ 0*&&gg'"Ԍ (4) A consortium of small businesses (or a consortium of very small businesses) is a  X-conglomerate organization formed as a joint venture between or among mutually independent business firms, each of which individually satisfies the definition in paragraph (b)(1) of this section or each of which individually satisfies the definition in paragraph (b)(2) of this section. Where an applicant (or licensee) is a consortium of small businesses (or very small businesses), the gross revenues of each small business (or very small business) shall not be aggregated.  X-(c) Gross Revenues. Gross revenues shall mean all income received by an entity, whether  XP-earned or passive, before any deductions are made for costs of doing business (e.g., cost of goods sold). Gross revenues are evidenced by audited financial statements for the relevant number of calendar or fiscal years preceding the filing of the applicant's shortform application (FCC Form 175). If an entity was not in existence for all or part of the relevant period, gross revenues shall be evidenced by the audited financial statements of the entity's predecessorininterest or, if there is no identifiable predecessorininterest, unaudited financial statements certified by the applicant as accurate. When an applicant does not otherwise use audited financial statements, its gross revenues may be certified by its chief financial officer or its equivalent.  Xp-(d) Affiliate.  X- (1) Basis for Affiliation. An individual or entity is an affiliate of an applicant if such individual or entity:  X- (i) Directly or indirectly controls or has the power to control the applicant, or  X - (ii) Is directly or indirectly controlled by the applicant, or (iii) Is directly or indirectly controlled by a third party or parties who also control or have the power to control the applicant, or  X0- (iv) Has an ``identity of interest'' with the applicant.  X- (2) Nature of control in determining affiliation. (i) Every business concern is considered to have one or more parties who directly or indirectly control or have the power to control it. Control may be affirmative or negative and it is immaterial whether it is exercised so long as the power to control exists.  X-XExample for paragraph (d)(2)(i). An applicant owning 50 percent of the voting stock of another concern would have negative power to control such concern since such party can block any action of the other stockholders. Also, the bylaws of a corporation may permit a stockholder with less than 50 percent of the voting stock to block any actions taken by the other stockholders in the other entity. Affiliation exists when the applicant has the power to control a concern while at the same time another person, or persons, are in control of the concern at the will of the party or parties with the power of control. "`% 0*&&ggn("Ԍ(ii) Control can arise through stock ownership; occupancy of director, officer, or key employee positions; contractual or other business relations; or combinations of these and other factors. A key employee is an employee who, because of his/her position in the concern, has a critical influence in or substantive control over the operations or management of the concern. (iii) Control can arise through management positions if the voting stock is so widely distributed that no effective control can be established.  XP-XExample for paragraph (d)(2)(iii). In a corporation where the officers and directors own various size blocks of stock totaling 40 percent of the corporation's voting stock, but no officer or director has a block sufficient to give him/her control or the power to control and the remaining 60 percent is widely distributed with no individual stockholder having a stock interest greater than 10 percent, management has the power to control. If persons with such management control of the other entity are controlling principals of the applicant, the other entity will be deemed an affiliate of the applicant.   X- (3) Identity of interest between and among persons. Affiliation can arise between or among two or more persons with an identity of interest, such as members of the same family or persons with common investments. In determining if the applicant controls or is controlled by a concern, persons with an identity of interest will be treated as though they were one person.  XP-(i) Spousal Affiliation. Both spouses are deemed to own or control or have the power to control interests owned or controlled by either of them, unless they are subject to a legal separation recognized by a court of competent jurisdiction in the United States.  X-(ii) Kinship Affiliation. Immediate family members will be presumed to own or control or have the power to control interests owned or controlled by other immediate family members. In this context ``immediate family member'' means father, mother, husband, wife, son, daughter, brother, sister, father- or mother-in-law, son- or daughter-in-law, brother- or sister-in-law, step-father or -mother, step-brother or -sister, step-son or -daughter, halfbrother or sister. This presumption may be rebutted by showing that: (A) The family members are estranged, (B) The family ties are remote, or (C) The family members are not closely involved with each other in business matters.  X "-XExample for paragraph (d)(3)(ii). A owns a controlling interest in Corporation X. A's sister-in-law, B, has a controlling interest in a 220 MHz service geographic area license application. Because A and B have a presumptive kinship affiliation, A's interest in Corporation X is attributable to B, and thus to the applicant, unless B rebuts the presumption with the necessary showing. "`% 0*&&ggn("Ԍ X-ԙ (4) Affiliation through stock ownership. (i) An applicant is presumed to control or have the power to control a concern if he/she owns or controls or has the power to control 50 percent or more of its voting stock. (ii) An applicant is presumed to control or have the power to control a concern even though he/she owns, controls, or has the power to control less than 50 percent of the concern's voting stock, if the block of stock he/she owns, controls, or has the power to control is large as compared with any other outstanding block of stock. (iii) If two or more persons each owns, controls or has the power to control less than 50 percent of the voting stock of a concern, such minority holdings are equal or approximately equal in size, and the aggregate of these minority holdings is large as compared with any other stock holding, the presumption arises that each one of these persons individually controls or has the power to control the concern; however, such presumption may be rebutted by a showing that such control or power to control, in fact, does not exist.  X - (5) Affiliation arising under stock options, convertible debentures, and agreements to merge. Stock options, convertible debentures, and agreements to merge (including agreements in principle) are generally considered to have a present effect on the power to control the concern. Therefore, in making a size determination, such options, debentures, and agreements will generally be treated as though the rights held thereunder had been exercised. However, neither an affiliate nor an applicant can use such options and debentures to appear to terminate its control over another concern before it actually does so.  XP-XExample 1 for paragraph (d)(5). If company B holds an option to purchase a controlling interest in company A, who holds a controlling interest in a 220 MHz service geographic area license application, the situation is treated as though company B had exercised its rights and had become owner of a controlling interest in company A. The gross revenues of company B must be taken into account in determining the size of the applicant.   X-XExample 2 for paragraph (d)(5). If a large company, BigCo, holds 70% (70 of 100 outstanding shares) of the voting stock of company A, who holds a controlling interest in a 220 MHz service geographic area license application, and gives a third party, SmallCo, an option to purchase 50 of the 70 shares owned by BigCo, BigCo will be deemed to be an affiliate of company A, and thus the applicant, until SmallCo actually exercises its options to purchase such shares. In order to prevent BigCo from circumventing the intent of the rule, which requires such options to be considered on a fully diluted basis, the option is not considered to have present effect in this case.   X "-XExample 3 for paragraph (d)(5). If company A has entered into an agreement to merge with company B in the future, the situation is treated as though the merger has taken place.   X`%- (6) Affiliation under voting trusts."`% 0*&&ggn("Ԍ(i) Stock interests held in trust shall be deemed controlled by any person who holds or shares the power to vote such stock, to any person who has the sole power to sell such stock, and to any person who has the right to revoke the trust at will or to replace the trustee at will. (ii) If a trustee has a familial, personal or extra-trust business relationship to the grantor or the beneficiary, the stock interests held in trust will be deemed controlled by the grantor or beneficiary, as appropriate. (iii) If the primary purpose of a voting trust, or similar agreement, is to separate voting power from beneficial ownership of voting stock for the purpose of shifting control of or the power to control a concern in order that such concern or another concern may meet the Commission's size standards, such voting trust shall not be considered valid for this purpose regardless of whether it is or is not recognized within the appropriate jurisdiction.  X` - (7) Affiliation through common management. Affiliation generally arises where officers, directors, or key employees serve as the majority or otherwise as the controlling element of the board of directors and/or the management of another entity.  X- (8) Affiliation through common facilities. Affiliation generally arises where one concern shares office space and/or employees and/or other facilities with another concern, particularly where such concerns are in the same or related industry or field of operations, or where such concerns were formerly affiliated, and through these sharing arrangements one concern has control, or potential control, of the other concern.  X- (9) Affiliation through contractual relationships. Affiliation generally arises where one concern is dependent upon another concern for contracts and business to such a degree that one concern has control, or potential control, of the other concern.  X- (10) Affiliation under joint venture arrangements. (i) A joint venture for size determination purposes is an association of concerns and/or individuals, with interests in any degree or proportion, formed by contract, express or implied, to engage in and carry out a single, specific business venture for joint profit for which purpose they combine their efforts, property, money, skill and knowledge, but not on a continuing or permanent basis for conducting business generally. The determination whether an entity is a joint venture is based upon the facts of the business operation, regardless of how the business operation may be designated by the parties involved. An agreement to share profits/losses proportionate to each party's contribution to the business operation is a significant factor in determining whether the business operation is a joint venture. (ii) The parties to a joint venture are considered to be affiliated with each other.  X"-  90.1023 Certifications, disclosures, records maintenance and audits.  X#-  X$-(a) ShortForm Applications: Certifications and Disclosure. In addition to certifications and disclosures required in part 1, subpart Q, of this chapter, each applicant for a 220 MHz"`% 0*&&ggn(" service geographic area license which qualifies as a small business, very small business, consortium of small businesses, or consortium of very small businesses, shall append the following information as an exhibit to its FCC Form 175: (1) The identity of the applicant's affiliates and controlling principals, and, if a consortium of small businesses (or consortium of very small businesses), the members of the joint venture; and (2) The applicant's gross revenues, computed in accordance with  90.1021.  X -(b) LongForm Applications: Certifications and Disclosure. In addition to the requirements in  90.1013, each applicant submitting a longform application for a 220 MHz service geographic area license and qualifying as a small business or very small business shall, in an exhibit to its longform application:  X0 - (1) Disclose separately and in the aggregate the gross revenues, computed in accordance with  90.1021, for each of the following: the applicant, the applicant's affiliates, the applicant's controlling principals, and, if a consortium of small businesses (or consortium of very small businesses), the members of the joint venture; (2) List and summarize all agreements or other instruments (with appropriate references to specific provisions in the text of such agreements and instruments) that support the applicant's eligibility as a small business or very small business under  90.1017 through 90.1023,  X-including the establishment of de facto and de jure control; such agreements and instruments include, but are not limited to, articles of incorporation and bylaws, shareholder agreements, voting or other trust agreements, franchise agreements, and any other relevant agreements including letters of intent, oral or written; and (3) List and summarize any investor protection agreements, including rights of first refusal, supermajority clauses, options, veto rights, and rights to hire and fire employees and to appoint members to boards of directors or management committees.  X-(c) Records Maintenance. All winning bidders qualifying as small businesses or very small businesses shall maintain at their principal place of business an updated file of ownership, revenue, and asset information, including any documents necessary to establish eligibility as a small business or very small business and/or consortium of small businesses (or consortium of  X@-very small businesses) under  90.1021. Licensees (and their successorsininterest) shall maintain such files for the term of the license. Applicants that do not obtain the license(s) for which they applied shall maintain such files until the grant of such license(s) is final, or one year from the date of the filing of their shortform application (FCC Form 175), whichever is earlier.  X "-(d) Audits.  X#- (1) Applicants and licensees claiming eligibility as a small business or very small business  X$-or consortium of small businesses (or consortium of very small businesses) under  90.1017"$ 0*&&gg'" through 90.1023 shall be subject to audits by the Commission. Selection for audit may be random, on information, or on the basis of other factors.  Xp- (2) Consent to such audits is part of the certification included in the shortform application (FCC Form 175). Such consent shall include consent to the audit of the applicant's or licensee's books, documents and other material (including accounting procedures and practices) regardless of form or type, sufficient to confirm that such applicant's or licensee's representations are, and remain, accurate. Such consent shall include inspection at all reasonable times of the facilities, or parts thereof, engaged in providing and transacting business, or keeping records regarding licensed 220 MHz service, and shall also include consent to the interview of principals, employees, customers and suppliers of the applicant or licensee.  X -(e) Definitions. The terms affiliate, small business, very small business, consortium of small businesses (or consortium of very small businesses), and gross revenues used in this section  X0 -are defined in  90.1021.  X -  90.1025 Petitions to deny and limitations on settlements.  X-  Xp- (a) Procedures regarding petitions to deny longform applications in the 220 MHz service will be governed by  1.2108(b) through 1.2108(d) and  90.163 of this chapter. (b) The consideration that an individual or an entity will be permitted to receive for agreeing to withdraw an application or a petition to deny will be limited by the provisions set forth in  90.162 and  1.2105(c) of this chapter. " 0*&&gg}"  X- $ ,c X-?K#ips7%CV#PAGE C#%Xj\  P6G;XP#у1A APPENDIX C  X-  X- LIST OF PARTIES FILING COMMENTS AND REPLY COMMENTS  X@- The following is the list of parties filing comments and reply comments in this proceeding  X-COMMENTS  Puerto Rico Telephone Company Fairfield Industries, Inc. (Fairfield) Association of PublicSafety Communications OfficialsInternational, Inc. (APCO) Airborne Freight Corporation (Airborne) Echo Group L.P. (Echo)  X0 -Pagemart Operations, Inc. (Pagemart) Fleet Maintenance, Inc. (Fleet) Columbia Cellular Corporation (Columbia) SMR Advisory Group (SMR) SEA Inc. (SEA) Roamer One, Inc. (Roamer) Personal Communications Industry Association (PCIA) Industrial Telecommunications Association, Inc. (ITA) Ericsson Corporation (Ericsson) PLMRS Narrowband Corp. (PLMRS) E.F. Johnson Company (Johnson) Comtech Communications, Inc. (Comtech) Incom Communications Corporation (Incom) American Mobile Telecommunications Association, Inc. (AMTA) UTC, The Telecommunications Association (UTC) Metricom, Inc. (Metricom) Global Cellular Communications, Inc. (Global) 360 Mobile Data Joint Venture (360 Mobile) Overall Wireless Communications Corporation (Overall Wireless) Pronet Inc. (Pronet) Securicor Radiocoms, Ltd. (Securicor) U.S. Mobilcomm, Inc. (U.S. Mobilcomm) U.S. Central, Inc. (U. S. Central) Michael R. Kelley d/b/a/ Shannondale Wireless (Kelley) Suncom Mobile & Data, Inc. (Suncom) Mtel Technologies, Inc. (Mtel) Washington Legal Foundation (WLF) Paging Network, Inc. (Pagenet) "" 10*y(y(gg%"  X-REPLY COMMENTS  X- Securicor Pronet Suncom Mtel Global Incom Comtech Fairfield SEA SMR Metricom Columbia Pagenet US Mobil AMTA  X-  Xp-  X@-"@ 0*&&gg"  X-   c X->J#ips7%CV#PAGE D#%Xj\  P6G;XP#у1 ]?APPENDIX D 7 CODES AND NAMES FOR ECONOMIC AREAS (EAs)  X- Codes from 001 to 172 are assigned to the new EAs in approximate geographic order, beginning with 001 in northern Maine, continuing south to Florida, then north to the Great Lakes, and continuing in a serpentine pattern to the West Coast. Except for the Western Oklahoma EA (126), the Northern Michigan EA (058), and the 17 EAs that mainly correspond to consolidated metropolitan statistical areas (CMSAs), each EA is named for the metropolitan area or city that is the node of its largest component economic area (CEA) and  X -that is usually, but not always, the largest metropolitan area or city in the EA. Each CEA consists of a single economic node and the surrounding counties that are economically related to the node. The following list provides EA codes and names. EA boundaries and codes are shown on the map following the list.  X -EA  X-Code Name` ` 001 Bangor, ME 002 Portland, ME 003 Boston-Worcester-Lawrence-Lowell-Brockton, MA-NH 004 Burlington, VT 005 Albany-Schenectady-Troy, NY 006 Syracuse, NY 007 Rochester, NY 008 Buffalo-Niagara Falls, NY 009 State College, PA 010 New York-No. New Jersey-Long Island, NY-NJ-CT-PA 011 Harrisburg-Lebanon-Carlisle, PA 012 Philadelphia-Wilmington-Atlantic City, PA-NJ-DE-MD 013 Washington-Baltimore, DC-MD-VA-WV 014 Salisbury, MD 015 Richmond-Petersburg, VA 016 Staunton, VA 017 Roanoke, VA 018 Greensboro-Winston-Salem-High Point, NC 019 Raleigh-Durham-Chapel Hill, NC 020 Norfolk-Virginia Beach-Newport News, VA-NC 021 Greenville, NC 022 Fayetteville, NC 023 Charlotte-Gastonia-Rock Hill, NC-SC 024 Columbia, SC 025 Wilmington, NC 026 Charleston-North Charleston, SC 027 Augusta-Aiken, GA-SC 028 Savannah, GA 029 Jacksonville, FL"' 10*y(y(gg0*"Ԍ 030 Orlando, FL 031 Miami-Fort Lauderdale, FL 032 Fort Myers-Cape Coral, FL 033 Sarasota-Bradenton, FL 034 Tampa-St. Petersburg-Clearwater, FL 035 Tallahassee, FL 036 Dothan, AL 037 Albany, GA 038 Macon, GA 039 Columbus, GA-AL 040 Atlanta, GA 041 Greenville-Spartanburg-Anderson, SC 042 Asheville, NC 043 Chattanooga, TN-GA 044 Knoxville, TN 045 Johnson City-Kingsport-Bristol, TN-VA 046 Hickory-Morganton, NC 047 Lexington, KY 048 Charleston, WV 049 Cincinnati-Hamilton, OH-KY-IN 050 Dayton-Springfield, OH 051 Columbus, OH 052 Wheeling, WV-OH 053 Pittsburgh, PA 054 Erie, PA 055 Cleveland-Akron, OH 056 Toledo, OH 057 Detroit-Ann Arbor-Flint, MI 058 Northern Michigan, MI 059 Green Bay, WI 060 Appleton-Oshkosh-Neenah, WI 061 Traverse City, MI 062 Grand Rapids-Muskegon-Holland, MI 063 Milwaukee-Racine, WI 064 Chicago-Gary-Kenosha, IL-IN-WI 065 Elkhart-Goshen, IN 066 Fort Wayne, IN 067 Indianapolis, IN 068 Champaign-Urbana, IL 069 Evansville-Henderson, IN-KY 070 Louisville, KY-IN 071 Nashville, TN 072 Paducah, KY 073 Memphis, TN-AR-MS 074 Huntsville, AL 075 Tupelo, MS 076 Greenville, MS"`% 0*&&ggn("Ԍ 077 Jackson, MS 078 Birmingham, AL 079 Montgomery, AL 080 Mobile, AL 081 Pensacola, FL 082 Biloxi-Gulfport-Pascagoula, MS 083 New Orleans, LA 084 Baton Rouge, LA 085 Lafayette, LA 086 Lake Charles, LA 087 Beaumont-Port Arthur, TX 088 Shreveport-Bossier City, LA 089 Monroe, LA 090 Little Rock-North Little Rock, AR 091 Fort Smith, AR-OK 092 Fayetteville-Springdale-Rogers, AR 093 Joplin, MO 094 Springfield, MO 095 Jonesboro, AR 096 St. Louis, MO-IL 097 Springfield, IL 098 Columbia, MO 099 Kansas City, MO-KS 100 Des Moines, IA 101 Peoria-Pekin, IL 102 Davenport-Moline-Rock Island, IA-IL 103 Cedar Rapids, IA 104 Madison, WI 105 La Crosse, WI-MN 106 Rochester, MN 107 Minneapolis-St. Paul, MN-WI 108 Wausau, WI 109 Duluth-Superior, MN-WI 110 Grand Forks, ND-MN 111 Minot, ND 112 Bismarck, ND 113 Fargo-Moorhead, ND-MN 114 Aberdeen, SD 115 Rapid City, SD 116 Sioux Falls, SD 117 Sioux City, IA-NE 118 Omaha, NE-IA 119 Lincoln, NE 120 Grand Island, NE 121 North Platte, NE 122 Wichita, KS 123 Topeka, KS "`% 0*&&ggn("Ԍ 124 Tulsa, OK 125 Oklahoma City, OK 126 Western Oklahoma, OK 127 Dallas-Fort Worth, TX 128 Abilene, TX 129 San Angelo, TX 130 Austin-San Marcos, TX 131 Houston-Galveston-Brazoria, TX 132 Corpus Christi, TX 133 McAllen-Edinburg-Mission, TX 134 San Antonio, TX 135 Odessa-Midland, TX 136 Hobbs, NM 137 Lubbock, TX 138 Amarillo, TX 139 Santa Fe, NM 140 Pueblo, CO 141 Denver-Boulder-Greeley, CO 142 Scottsbluff, NE 143 Casper, WY 144 Billings, MT 145 Great Falls, MT 146 Missoula, MT 147 Spokane, WA 148 Idaho Falls, ID 149 Twin Falls, ID 150 Boise City, ID 151 Reno, NV 152 Salt Lake City-Ogden, UT 153 Las Vegas, NV-AZ 154 Flagstaff, AZ 155 Farmington, NM 156 Albuquerque, NM 157 El Paso, TX 158 Phoenix-Mesa, AZ 159 Tucson, AZ 160 Los Angeles-Riverside-Orange County, CA 161 San Diego, CA 162 Fresno, CA 163 San Francisco-Oakland-San Jose, CA 164 Sacramento-Yolo, CA 165 Redding, CA 166 Eugene-Springfield, OR 167 Portland-Salem, OR-WA 168 Pendleton, OR 169 Richland-Kennewick-Pasco, WA 170 Seattle-Tacoma-Bremerton, WA "`% 0*&&ggn("Ԍ 171 Anchorage, AK 172 Honolulu, HI 173 Guam and the Northern Mariana Islands 174 Puerto Rico and the United States Virgin Islands 175 American Samoa"@ 0*&&gg"  X-  1 !  X-JK#ips7%CV#PAGE E#%Xj\  P6G;XP#уB APPENDIX E ă  X- REGIONAL ECONOMIC AREA GROUPINGS (REAGs) ă The six geographic areas for Regional 220 MHz licensing are referred to as Regional Economic Area Groupings (REAGs), and are defined as follows: REAG 1 (Northeast): REAG 1 consists of the following EAs: EA 001 (Bangor, ME) through EA 011 (HarrisburgLebanonCarlisle, PA); and EA 054 (Erie, PA). REAG 2 (MidAtlantic): REAG 2 consists of the following EAs: EA 012 (PhiladelphiaWilmingtonAtlantic City, PANJDEMD) through EA 026 (CharlestonNorth Charleston, SC); EA 041 (GreenvilleSpartanburgAnderson, SCNC); EA 042 (Asheville, NC); EA 044 (Knoxville, TN) through EA 053 (Pittsburgh, PAWV); and EA 070 (Louisville, KYIN). REAG 3 (Southeast): REAG 3 consists of the following EAs: EA 027 (AugustaAiken, GASC) through EA 040 (Atlanta, GAALNC); EA 043 (Chattanooga, TNGA); EA 069 (EvansvilleHenderson, INKYIL); EA 071 (Nashville, TNKY) through EA 086 (Lake Charles, LA); EA 088 (ShreveportBossier City, LAAR) through EA 090 (Little RockNorth Little Rock, AR); EA 095 (Jonesboro, ARMO); EA 096 (St. Louis, MOIL); and EA 174 (Puerto Rico and the U.S. Virgin Islands). REAG 4 (Great Lakes): REAG 4 consists of the following EAs: EA 055 ClevelandAkron, OHPA) through EA 068 (ChampaignUrbana, IL); EA 097 (Springfield, ILMO); and EA 100 (Des Moines, IAILMO) through EA 109 (DuluthSuperior, MNWI). REAG 5 (Central/Mountain): REAG 5 consists of the following EAs: EA 087 (BeaumontPort Arthur, TX); EA 091 (Forth Smith, AROK) through EA 094 (Springfield, MO); EA 098 (Colombia, MO); EA 099 (Kansas City, MOKS); EA 110 (Grand Forks, NDMN) through EA 146 (Missoula, MT); EA 148 (Idaho Falls, IDWY); EA 149 (Twin Falls, ID); EA 152 (Salt Lake CityOgden, UTID); and EA 154 (Flagstaff, AZUT) through EA 159 (Tucson, AZ). REAG 6 (Pacific): REAG 6 consists of the following EAs: EA 147 (Spokane, WAID); EA 150 (Boise City, IDOR); EA 151 (Reno, NVCA); EA 153 (Las Vegas, NVAZUT); EA 160 (Los AngelesRiversideOrange County, CAAZ) through EA 173 (Guam and the Northern Mariana Islands); and EA 175 (American Samoa). "P! 10*y(y(gg $"  X-1!=*  X-KK#ips7%CV#PAGE F#%Xj\  P6G;XP#у    BAPPENDIX F INITIAL REGULATORY FLEXIBILITY ANALYSIS l  X- As required by Section 603 of the Regulatory Flexibility Act (RFA), 5 U.S.C.  603, the Commission has prepared an Initial Regulatory Flexibility Analysis (IRFA) of the  X-expected impact on small entities of the policies and rules proposed in this Fifth Notice of  X-Proposed Rulemaking (Fifth Notice). Written public comments are requested on the IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for  X -comments on the Fifth Notice as provided in paragraph  Y1347 . The Secretary shall send a copy  X-of the Fifth Notice, including the IRFA, to the Chief Counsel for Advocacy of the U.S. Small  X -Business Administration in accordance with the RFA.?  S9 -ԍ 5 U.S.C.  603(a).?  X` - Reason for Action: This rulemaking proceeding was initiated to secure comment on proposals to modify our 220 MHz service rules to permit partitioning of Phase I nationwide licenses. In addition, it seeks comment regarding disaggregation for all licensees in the 220  X -MHz service. The proposals advanced in the Fifth Notice are also designed to implement Congress' goal of giving small businesses the opportunity to participate in the provision of spectrumbased services in accordance with Sections 309(j) of the Communications Act of  X@-1934, as amended (the Communications Act).$@h  SY-ԍ 47 U.S.C.  309(j); see also Section 257 Proceeding to Identify and Eliminate Market Entry  S3-Barriers for Small Businesses, Notice of Inquiry, 11 FCC Rcd 6280 (1996) (commencing implementation of 47 U.S.C.  257).$  X- Objectives: The Commission proposes to change its rules for the 220 MHz service to facilitate the efficient use of 220 MHz spectrum, increase competition, and expedite the provision of 220 MHz service. These proposals, in accordance with our statutory mandate, seek to increase the level of small business participation in the provision of 220 MHz  X -services, particularly through the competitive bidding process.   S-ԍ The Omnibus Budget Reconciliation Act of 1993 (Budget Act), Pub. L. No. 10366, Title VI,  6002. The Commission considers whether to modify the existing 220 MHz service rules to provide for partitioning for Phase I 220 MHz licensees and to allow disaggregation of 220 MHz service spectrum for the first time. The Commission also proposes to establish license terms that permit 220 MHz service licensees to hold partitioned licenses and disaggregatees to hold disaggregated spectrum for the remaining duration of the original license term; and to establish construction requirements for 220 MHz service partitioning to ensure expedient access to 220 MHz service in partitioned areas to ensure coverage and to increase spectrum efficiency.  Xp- Legal Basis: The proposed action is authorized under Sections 4(i), 303(r) and 309(j)  X@-of the Communications Act of 1934, as amended.x@2  S#'-ԍ 47 U.S.C.  154(i), 303(r), 309(j). See also 47 U.S.C.  257.x"@ 10*y(y(gg"Ԍ X-ԙ Reporting, Recordkeeping, and Other Compliance Requirements: The proposals  X-under consideration in this Fifth Notice include the possibility of imposing reporting and recordkeeping requirements on small businesses seeking licenses through the proposed partitioning and disaggregation rules. The information requirements would be used to determine whether the licensee was qualified to obtain a partitioned license or disaggregated spectrum. This information will be a onetime filing by an applicant requesting 220 MHz service partitioning or disaggregation. This information will be submitted on FCC Forms 490, 600 and/or 430 (filed as one package under cover of the Form 490) which are currently in use and have already received OMB clearance.  X - Federal Rules Which Overlap, Duplicate or Conflict With These Rules: None.  X - Description and Number of Small Entities Involved : The rule changes proposed in this proceeding will affect all small businesses which avail themselves of these rule changes or which may acquire licenses through partitioning and/or disaggregation. Pursuant to the RFA, we are required to identify the number of small entities to which a rule will apply and  X -provide a description of such entities.< c Sy-ԍ 5 U.S.C.  603.< There are approximately 3,800 nonnationwide Phase I licensees and 4 nationwide licensees currently authorized to operate in the 220 MHz band. To estimate the number of such entities that are small businesses, we apply the definition of a  Xp-small entity under SBA rules #Xj\  P6G;XP#applicable to radiotelephone companies. This definition provides that a small entity is a radiotelephone company employing fewer than 1,500  X-persons.whc S)-ԍ 13 C.F.R.  121.201, Standard Industrial Classification (SIC) Code 4812. w However, the size data provided by the SBA do not allow us to make a meaningful estimate of the number of 220 MHz providers that are small entities because they combine all  X-radiotelephone companies with 500 or more employees.c Si-ԍ 1992 Economic Census Employment Report, Bureau of the Census, U.S. Department of Commerce, Table 3, SIC Code 4812 ( industry data adapted by the Office of Advocacy for the U.S. Small Business Administration). We therefore use the 1992 Census of Transportation, Communications, and Utilities, conducted by the Bureau of the Census, which is the most recent information available. Data from the Bureau of the Census' 1992 study indicate that only 12 out of a total 1,178 radiotelephone firms which operated during 1992 had 1,000 or more employees and these may or may not be small entities, depending  X-on whether they employed more or less than 1,500 employees."Xc S-ԍ U.S. Bureau of the Census, U.S. Department of Commerce, 1992 Census of Transportation, Communications, and Utilities, UC92S1, Subject Series, Establishment and Firm Size, Table 5, Employment Size of Firms; 1992, SIC Code 4812 (issued May 1995). " But 1,166 radiotelephone firms had fewer than 1,000 employees and therefore, under the SBA definition, are small entities. However, we do not know how many of these 1,166 firms are likely to be involved  X0-in the 220 MHz service. In the Third Report and Order, the Commission adopted a twotier definition for small businesses as follows: (1) a very small business is an entity that, together with its affiliates and controlling principals, has average gross revenues that are not more than" 0*&&ggy" $3 million for the three preceding years; and (2) a small business is an entity that, together with its affiliates and controlling principals, has average gross revenues that are not more than  X-$15 million for the three preceding years. c S-ԍ See para.  Y2291 , supra. See also Section III of Appendix A, supra (Final Regulatory Flexibility Analysis). To assist the Commission in this analysis, commenters are requested to provide information regarding how many total 220 MHz service  X@-entities, existing and potential, would be affected by the proposed rules in the Fifth Notice. In particular, we seek estimates of how many 220 MHz service entities, existing or potential, will be considered small businesses. Additionally, we request each commenter to identify whether it is a small business under this definition. If the commenter is a subsidiary of another entity, this information should be provided for both the subsidiary and the parent corporation or entity. The Commission anticipates that a total of 23,500 licensees or potential licensees in the 220 MHz service could take the opportunity to partition or disaggregate a license or obtain a license through partitioning and/or disaggregation. This estimate is based upon the current number of Phase I 220 MHz service licensees (approximately 3,800) and potential Phase II 220 MHz licensees (approximately 900) and our estimate that each license would probably not be partitioned and/or disaggregated to more than five parties. At this time, there is no basis upon which to estimate definitively the number of 220 MHz service licensees, either current  X-or potential, that are small businesses. Bc S-ԍ See Section III of Appendix A, supra (Final Regulatory Flexibility Analysis). However, we estimate that a significant number of the 220 MHz service licensees and potential licensees who take the opportunity to partition and/or disaggregate a license or who could obtain a license through partitioning and/or disaggregation will be small businesses.  X- Significant Alternatives Minimizing the Impact on Small Entities Consistent with  X-the Stated Objectives: The impact on small entities in the proposals in the Fifth Notice is the opportunity to enter the 220 MHz service market through partitioning and disaggregation. Through partitioning and disaggregation, additional entities, including small businesses, may participate in the provision of 220 MHz service without needing to acquire wholesale an existing license or a license awarded through competitive bidding. Acquiring ``less'' than a current license or a license awarded through competitive bidding will presumably be a more flexible and less expensive alternative for entities desiring to enter this service.  X-The rule changes proposed in the Fifth Notice by the Commission are consistent with the Communications Act's mandate to identify and eliminate market entry barriers for small business in the provision and ownership of telecommunications services under Section 257, and the mandate under Section 309(j) of the Communications Act, to utilize auctions to ensure that small businesses have an opportunity to participate in the provision of spectrum X-based services. The proposals in the Fifth Notice, if implemented, will facilitate market entry by parties, including small businesses, that may lack the financial resources for participation in 220 MHz service. "  0*&&ggd#"Ԍ X-The Commission proposes facilitating 220 MHz service partitioning by offering a  X-choice between two different buildout options, which could be negotiated by the parties.Q c SI-ԍ See para.  Y3133 , supra.Q The Commission tentatively concludes that these proposed flexible buildout requirements, if adopted, will encourage partitioning to entities that have a sincere interest in providing 220 MHz service and will thereby expedite the provision of service to geographic areas that otherwise may not receive it as quickly. The two buildout options may have a different impact on small entities. We seek comment on how the two options will affect small entities.  X-This Fifth Notice solicits comments on a variety of proposals discussed herein, i.e.,  XP-construction requirements,b Pjc Sk -ԍ See paras.  Y4328 ש Y5340 , supra.b combined partitioning and disaggregation,Q P c S -ԍ See para.  Y6327 , supra.Q and available license  X -areas.b c S-ԍ See paras.  Y7324 ש Y8325 , supra.b Any significant alternatives presented in the comments will be considered.  X0 - "P0*&&gg "Ԍ9KPartial Dissent lU wdof Chairman Reed E. Hundt  X-` `  hh,Vpp Released: March 12, 1997  V-  Re: Amendment of Part 90 of the Commission's Rules to Provide for the Use of the 220222 MHz Frequency Band by the Private Land Mobile Radio Service (PR Docket No. 89552); Implementation of Sections 3(n) and 332 of the Communications Act Regulatory Treatment of Mobile Services (GN Docket No. 93252); and Implementation of Sections 309(j) of the  V` -Communications Act Competitive Bidding 220222 MHz (PP Docket No. 93253).  X -The Commission has decided in this Third Report and Order (Order) that 220 MHz licensees aggregating contiguous 5 kHz channels to form channels wider than 5 kHz must adhere to a governmentmandated spectrum efficiency standard. This standard arbitrarily requires licensees offering voice services to employ equipment that provides at least one voice channel per 5 KHz channel of bandwidth. For data services, licensees are required to employ equipment that operates at a data rate of at least 4,800 bits per second per 5 KHz channel of bandwidth. The imposition of such a standard is inappropriate, unnecessary, and will have the effect of severely limiting users' equipment choices and will cause a costly delay in the provision of competitive services to the public. I dissent from this section of the Order. Regulatory intervention is the opposite of free market forces. In this Order we claim to be voting for free market forces in the form of competitive bidding, but in fact we're preserving the mantle of regulatory intervention in the guise of a mandated efficency standard. I believe the Commission should instead adhere to a consistent approach to spectrum policy that relies on marketbased mechanisms to ensure that spectrum is used to benefit the public. Under this approach, the Commission without exception should seek to promote competition over monopoly and provide users with the maximum flexibility to rapidly respond to consumer demand and technological innovation Such a policy in this case would mean that 220 MHz licensees should be given broad flexibility to aggregate channels wider than 5 kHz using any technology they deem appropriate to offer any service they believe the market demands. Licensees should be subject only to the minimum technical restrictions necessary to prevent interference with the operations of neighboring licensees and to protect public health. A governmentmandated efficiency standard is unnecessary to promote spectrum efficiency in this band for several reasons. First, additional spectrum in this band will be awarded through competitive bidding. In addition, licensees in this band have the ability to"`%0*&&ggn(" sell their licenses to other parties. One of the primary advantages of this marketbased  X-freedom is that in addition to awarding licenses to those who value them most highly, auctions and tradability impose economic incentives on licensees to use spectrum as efficiently as possible. Where spectrum is freely tradable, licensees have the incentive and the ability to determine the most efficient tradeoffs between acquiring more spectrum and using more efficient equipment. By mandating an efficiency standard here, we are eliminating the ability of users' to deploy the highest quality, lowest cost equipment that will best meet consumer needs. This view is affirmed by equipment manufacturers and service providers alike who have argued in this proceeding that the imposition of an efficiency standard will arbitrarily limit the ability of 220 MHz licensees to select affordable equipment that will enable them to offer the services consumers demand. Moreover, an efficiency standard will impair the ability of 220 MHz licensees to compete with service providers in other bands who are not subject to similar technical restrictions and will therefore benefit from a more competitive equipment market where they can select the highest quality, lowest cost and most efficient technology from competing manufacturers.  X -Second, the band plan adopted in this Order already recognizes the Commission's earlier policy of promoting spectrally efficient, narrowband technology in the 220222 MHz band, and thus a spectrum efficiency standard is unnecessary to fulfill that commitment. The Commission originally reallocated the 220 MHz band in 1988 to encourage the development of spectrally efficient technologies. The service rules and channelization plan subsequently adopted in 1991 were designed to afford spectrally efficient narrowband technology "an opportunity to gain acceptance in the marketplace." This goal, which may have been appropriate in a preauction environment, is no longer necessary where licensees will acquire additional spectrum through a marketbased auction process and must face the opportunity  XP-cost of inefficient use. Nonetheless, in this Order, the Commission leaves unchanged the original allocation of 100 channels assigned on noncontiguous basis in Phase I. This allocation will ensure that Phase I licensees who have made substantial investments in existing 5 KHz equipment will be able to expand their operations without substantial investment in new equipment. There is no legitimate reason, however, to place additional restrictions on users of this spectrum in order to protect manufacturers of 5 KHz equipment from facing competition in this band.  X-Third, the spectrum efficiency standard mandated in this Order will have the likely effect of delaying the ability of licensees to provide new competitive services that meet the needs of consumers. The efficiency standard will severely limit the ability of 220 Mhz  X@-licensees to provide services that require channels wider than 5 kHz. For example, the Order nominally allows 220 MHz licensees to provide a variety of services including paging on a primary basis; but the efficiency standard we impose is not currently achievable by paging systems and thus, paging is effectively precluded from this band until the efficiency standard sunsets in 2001. As a result, licensees will be forced to make costly and inefficient equipment decisions that will delay the provision of competitive services.  The decision to impose an efficiency standard in this band represents an unnecessary departure from the Commission's move towards a marketbased spectrum policy. It arbitrarily limits licensees' flexibility to provide a variety of services to the public and effectively dictates licensees technology choices. The imposition of this standard will cost users the"`%0*&&ggn(" benefits of a competitive equipment market and will deny consumers the benefits of the rapid introduction of competitive new services.  X-` `  hh,Vpp    a <l #|\  P6G;CP# l l l l l l l l l l l l l l l l l l l l l l l l l l l l l l l l l l l l"`%0*&&gg0"Ԍ!ԙSeparate Statement dof  a<Commissioner Susan Ness lU  X@-#Xj\  P6G;XP#  V-  X-Re: Use of the 220222 MHz Band, PR Docket No. 89552 Today we close a decadelong initiative to license services using spectrumefficient technologies in the 220222 MHz band. Our decision removes restrictions on the types of technology that can be used, increases the flexibility of licensees to provide any fixed or mobile services, allows for the expeditious licensing of remaining spectrum by competitive bidding, and furthers our statutory mandate to encourage development of new and spectrally efficient technologies. I disagree with those who advocate allowing only the current 5 kHz channel plan. The better approach is the one we take here to introduce flexibility for the channels and allow the newer technologies to be implemented by placing the channel bandwidth decision with the bidders and the marketplace. The channels will be auctioned in either adjacent or nonadjacent groups based upon the former channeling plan. Bidders may purchase, trade, aggregate, or partition in any fashion they wish. We also propose to permit spectrum disaggregation. Using these tools, licensees will be able to obtain the specific channel bandwidth(s) they desire.  X-In the Notice, we tentatively concluded that allowing channel aggregation should be accompanied by a spectral efficiency requirement at least equivalent to that obtained through 5 kHz channelization. The requirement here is based upon the one adopted unanimously last year in our Refarming proceeding, Docket 92235. It is technologyneutral, attainable, flexible, and will sunset in five years. Continuing to use the 220 MHz band as a commercial testbed for spectrumefficient technologies furthers the purposes set out in our competitive bidding authority, Section 309(j) of the Communications Act. This Act requires, among other things, that we "protect the public interest in the use of the spectrum" and promote its "efficient and intensive use." This Congressional directive within our competitive bidding authority is, of course, consistent with the goals and requirements expressed elsewhere in the Act. For example, Section 7  X-requires that we encourage (not merely permit) the provision of new technologies to the public. Similarly, Section 303(g) requires that we "study new uses for radio" and "generally encourage the larger and more effective use of radio in the public interest." Congress would not have charged us separately to ensure efficient spectrum use if competitive bidding itself was sufficient to attain this objective. Competitive bidding provides an  X"-incentive for economically efficient service, but does not necessarily result in use of the most  X#-spectral efficient technology. "$0*&&gg}("ԌBecause we have not imposed an efficiency requirement in other auctionable bands, the need is more compelling to continue the experiment in this small twomegahertz wide band. Here, licensees can experiment with spectrallyefficient, stateoftheart technologies without interfering with older, less efficient ones. Dale Hatfield, in his 1995 paper "The Economic Impact of Refarming" submitted in our Refarming proceeding demonstrates the value of spectrum efficiency. Hatfield explains that increasing efficiency to 5 kHz (from 7.5 and 6.25 kHz) in just the 150 and 450 MHz private bands would increase the number of available paired channels by 32 percent, resulting in the creation of over 8,000 service jobs and thousands more manufacturing jobs. Hatfield  X -estimates that in an auction, the additional spectrum capacity would have a value in the billions of dollars. Even if wildly optimistic, a fraction of this predicted benefit would be of  X -continuing value to the American public. Providers employing less spectrallyefficient technologies have the universe of other bands from which to choose. Some of these bands will also be available to competitive bidding within the same timeframe as the 220 MHz band. I have not supported an efficiency rule for other commercial bands, believing that marketplace forces should be relied upon for establishing the balance between efficient spectrum use and cost of service. However, allowing this testbed to continue for five years in a technologicallyneutral fashion furthers the goals established by Congress, harms no potential service provider, and has great potential to benefit the public. "$0*&&gg'"Ԍ \-  @--@=#Xxjp P769XP#` `  hh,VppMarch 12, 1997(#U  ]p-. Separate Statement  ]@-s  of Commissioner Rachelle B. Chong lU  \-Re:XAmendment of Part 90 of the Commission's Rules to Provide for the Use of the  \-220222 MHz Band by the Private Land Mobile Radio Service, PR Docket No.  \P-89552, RM8506, Third Report and Order; Fifth Notice of Proposed  \ -Rulemaking   \ -I support our decision today to provide 220 MHz licensees with more flexibility in  \` -the types of services that they can provide with their spectrum.v` p \ -#Xxjp P769XP#э#6Xxjp P769XP# Our decision today allows 220 MHz licensees to provide one and two way paging and fixed services on a primary basis, in addition to the land mobile services they are  \-currently allowed to provide.#6Xxjp P769XP#v I believe that this decision will allow 220 MHz licensees to compete more effectively in the wireless communications marketplace and will broaden the array of services for customers.  In order to facilitate the provision of certain of those services, I also supported our decision to allow 220 MHz licensees to aggregate 5 kHz channels into channels of larger bandwidth. However, precisely because we have decided to allow such aggregation, I  \-believe it is important, as we tentatively concluded in the Notice, to require licensees choosing to aggregate channels to maintain a degree of spectrum efficiency at least equivalent to that obtained through 5 kHz channelization. I write separately to set forth my reasoning for supporting adoption of a spectrum efficiency standard for this band and to explain why I respectfully disagree with the arguments raised by my dissenting colleague. I emphasize that my decision to support such a standard is limited to the unique circumstances of this service.  My dissenting colleague argues that licensees who will acquire this spectrum at auction will have incentive to use the spectrum as efficiently as possible. I agree that licensees acquiring 220 MHz spectrum at auction will have incentives to use their spectrum  \-in an economically efficient manner. The most economically efficient result, however, does  \-not necessarily require the use of the most spectrally efficient technology. While I generally prefer that the market drives the technology choice in wireless services such as  \p-this one , I believe that the equities of the situation mitigate in favor of the adoption of a limited spectrum efficiency standard.  As background, we reallocated the 220222 MHz band from the Amateur Radio  \-Service to private and federal government land mobile use in 1988.Kp S%-ԍAmendment of Part 2 of the Commission's Rules Regarding the Allocation of the 216225 MHz  S&-Band, GEN Docket No. 8714, Report and Order, 3 FCC Rcd 5287 (1988). In doing so, we  \ -specifically dedicated this 2 MHz of spectrum for the development of spectrally efficient narrowband technology. In addition, we stated at that time that, "[w]e are convinced that in order for narrowband land mobile technology to flourish, it must be afforded a" "=0*0*0*&%"  \-reasonable opportunity to gain full acceptance in the market place [sic]."HV Sy-ԍ Id. at 5289.H I n furtherance  \-of this policy, we channelized the 2 MHz into 200 5 kHz channel pairs.jV S-ԍ Amendment of Part 90 of the Commission's Rules to Provide for the Use of the 220222 MHz  S-Band by the Private Land Mobile Radio Services, PR Docket No. 89552, Report and Order, 6 FCC Rcd 2356 (1991). In spite of our good intentions and the best efforts of several manufacturers, narrowband technology has not yet had a real opportunity to gain acceptance in the marketplace. First, there were a number of delays associated with the Commission's  \-adoption of service rules and issuance of licenses in the 220 MHz band.~V SO -ԍ  Although we reallocated the spectrum in 1988, we did not actually issue any service rules for  S) -the 220222 MHz band until 1991. Id. Although we began accepting license applications almost immediately, within one month of opening the application window, the staff imposed a freeze on the  S-filing of all applications (which continued in place until last year).  Acceptance of 220222 MHz  S-Private Land Mobile Applications, 6 FCC Rcd 3333 (1991) . We held lotteries for nonnationwide and  S-nationwide licenses in 1992 and 1993, respectively, and issued the last licenses in 1995. Public Notice, Commission Announces Lottery for Rank Ordering of 220222 MHz Private Land Mobile  SA-"Local" Channels, 7 FCC Rcd 6378 (1992); Public Notice, Commission Announces Lottery to Select  S-Commercial Nationwide 220222 MHz Private Land Mobile Licensees, DA 93159 (rel. Feb. 16,  Q-1993), 58 Fed. Reg. 09174 (Feb. 19, 1993).Ċ Even after the licenses were issued, the new licensees were reluctant to invest in the narrowband technology and construct their systems because of a pending lawsuit challenging certain  \P-aspects of the Commission's licensing procedures in the 220222 MHz band.PV S-ԍ See Evans v. FCC, Order, per curiam, Case No. 921317 (D.C. Cir. Mar. 18, 1994). This suit was filed in July, 1992, and the case was settled in March, 1994. In recognition of these problems and delays, the Commission extended the 220 MHz  \-construction deadline five times with the last deadline expiring August, 1996.I~V S-ԍ Amendment of Part 90 of the Commission's Rules to Provide for the Use of the 220222 MHz  S-Band by the Private Land Mobile Radio Service, PR Docket No. 89552, Second Report and Order,  S-11 FCC Rcd 3668 (1996). I I believe that because we specifically set aside this band for the development of spectrally efficient technology, and some licensees and manufacturers relied our set aside decision, we should honor our commitment to spectrum efficiency in this band. That being said, I acknowledge that narrowband technology is not the only type of spectrally efficient technology. Because I did not want to preclude other spectrally efficient types of technologies that require wider bandwidths from being used in the 220 MHz band, I supported the decision to allow channel aggregation and the use of nonnarrowband technologies, so long as the licensee choosing to aggregate channels also maintains a level of spectrum efficiency."0*&&gg "ԌMy dissenting colleague argues that the efficiency standard will surely limit the ability of 220 MHz licensees to provide services that require channels wider than 5 kHz and will effectively preclude paging services. I disagree. In establishing the spectrum efficiency standard, we tried to choose an efficiency level that would promote efficiency,  \@-but would still be reasonably attainable by manufacturers. The standard we chose for voice, 1 voice channel per 5 kHz, and for data, 4800 bits per second per 5 kHz meets both of these criteria. This standard is similar to the standard that we recently adopted in  \-our refarming decision.?@V S)-ԍReplacement of Part 90 by Part 88 to Revise the Private Land Mobile Radio Services and Modify the Policies Governing Them and Examination of Exclusivity and Frequency Assignment  S -Policies of the Private Land Mobile Radio Services, PR Docket No. 92235, Amendment of the  S -Commission's Rules Concerning Maritime Communications, PR Docket No. 92257, Memorandum  S -Opinion and Order, FCC 96492 (rel. Dec. 30, 1996) (Refarming Reconsideration Order).?X01Í ÍX01Í Í6 It appears that it is a standard that can be met by both of the current narrowband manufacturers and in fact has been exceeded threefold by one of the  \P-manufacturers.rP \-ԍSecuricor Radiocoms Limited ("Securicor") is reporting that its current system is  \-operating at 14.4 kb/s. Securicor, Ex Parte Submission, PR Docket 89552, GN Docket 93252, and PP Docket 93252, filed November 12, 1996; SEA, Inc. ("SEA") proposed a data rate of 4,800 b/s. SEA Comments at 17.r Moreover, the data standard is one that other types of technologies, including TDMA and some new paging technologies, should be able to meet, if there is  \-enough available spectrum at 220 MHz.v<  \-ԍ Cellular and 800 MHz SMR digital TDMA equipment are operating at a data rate of 48,600 b/s for a 30 kHz channel. This translates to 8,100 b/s for a 5 kHz channel and  \-meets our 220 MHz data standard. In addition, Motorola is reported to have developed a paging technology, Inflexion, which is expected to have a data rate of 112,000 b/s for a 50 kHz channel. This translates to 11,200 b/s for a 5 kHz channel, a number far in excess of our efficiency standard.  In addition, we provided that a manufacturer may obtain type acceptance for 220 MHz equipment that does not meet the voice or data efficiency standard if they can meet certain other conditions. Although I believe that we should adopt a spectrum efficiency standard today, I do not believe that we should retain the spectrum efficiency standard indefinitely. For this reason, I supported a five year sunset date for the spectrum efficiency standard. I believe that this time period will provide a fair opportunity for spectrally efficient technologies to develop in the band and gain acceptance in the marketplace. Moreover, with the fast pace  \@-of wireless technological development, it is my hope that by the year 2002, the spectrum efficiency standard we adopt today will have long since been exceeded.  X-#6\k\  P6G;;҃\P#  XP- " z0*&&gg4"Ԍ  X-  m"[