Daily Rules, Proposed Rules, and Notices of the Federal Government
For detailed instructions for submitting comments and additional information on the rulemaking process, see the
This is a summary of the Commission's
1. In this Third Further Notice of Proposed Rulemaking (
2. As an initial matter, the Commission tentatively concludes that it should continue to require, as a license condition, that the D Block licensee enter into a public/private partnership with the Public Safety Broadband Licensee for the purpose of constructing a wireless broadband network that will operate over both D Block spectrum and public safety broadband spectrum and provide broadband services to both commercial users and public safety entities (shared wireless broadband network).
3. First, the Commission tentatively concludes that it should resolve two critical issues through the use of competitive bidding: (1) The appropriate geographic license area for the D Block, and (2) the need for a common broadband technology platform nationwide. The Commission tentatively concludes that it can resolve these issues through competitive bidding by offering alternative sets of D Block licenses with different license areas and broadband technology conditions. With regard to the appropriate geographic area, the Commission proposes to offer the D Block both as a single nationwide license and on a regional basis, using geographic areas that the Commission will refer to as Public Safety Regions (PSRs). PSRs would be comprised of fifty-five regions that mirror the geographic boundaries of the fifty-five 700 MHz Regional Planning Committee (RPC) regions, and three additional areas (for a total of 58 PSRs) to cover the whole country and match the geographic area of the nationwide license.
4. To resolve both of these issues, the Commission therefore proposes to offer simultaneously three alternative sets of licenses that vary by geographic license area and by conditions regarding the technology platform that must be used by the licensee(s). Specifically, under this proposal, the Commission would offer (1) a single license for service nationwide with the technology platform to be determined by the licensee; (2) a nationwide set of PSR licenses conditioned on the use of Long Term Evolution (LTE) by the licensees; and (3) a nationwide set of PSR licenses conditioned on the use of Worldwide Interoperability for Microwave Access (WiMAX) by the licensees. The Commission will then award the D Block license(s) in the set that receives bids on licenses covering the greatest aggregate population, subject to the requirement that the license(s) must
5. The Commission proposes significant clarifications and revisions of the parties' obligations regarding the construction and operation of the shared wireless broadband network. These clarifications and revisions address (1) the use of spectrum in the shared wireless broadband network, including requirements regarding public safety priority access to commercial capacity in emergencies; (2) the technical requirements of the shared wireless broadband network; (3) the performance requirements of the D Block licensee(s); and (4) the respective operational roles of the D Block licensee(s) and the Public Safety Broadband Licensee. With regard to spectrum use, the Commission first tentatively concludes that a D Block licensee may construct and operate its shared wireless broadband network using the entire 20 megahertz of D Block spectrum and public safety broadband spectrum as a combined, blended resource. Under this proposal, public safety users will still be guaranteed unconditionally preemptive access to 10 megahertz of capacity at all times, but the shared wireless broadband network may flexibly and dynamically assign frequencies from either the D Block or public safety spectrum to provide that capacity. Second, the Commission proposes to revise the rules governing public safety priority access to D Block spectrum capacity in emergencies. The Commission proposed revisions include: (1) Specifying in detail the circumstances that trigger public safety priority access to commercial spectrum capacity; (2) providing that, in this context, “priority access” means only that a public safety user would be assigned the next available channel within the commercial spectrum over a commercial user, and does not include a right to preempt any ongoing commercial calls being carried over commercial spectrum capacity; (3) limiting the additional capacity that must be provided to public safety users in emergencies to a specified percentage of the D Block spectrum capacity; (4) requiring that public safety priority access to D Block spectrum capacity be limited to the time and geographic scope affected by the emergency; and (5) specifying the procedures for requesting and obtaining such access. Third, the Commission tentatively concludes that the current rules for commercial access to public safety spectrum should remain the same subject to the Commission's clarification regarding blended use. Thus, the Commission proposes that commercial users will have secondary access to public safety's 10 megahertz of spectrum capacity subject to unconditional and immediate preemption when the spectrum capacity is needed by public safety users. Fourth, the Commission finds that the Commission tentative proposals regarding spectrum use are consistent with the requirements of Section 337 of the Communications Act, as amended.
6. With regard to the technical requirements of the network, in addition to the Commission's proposal regarding the broadband technology platform, it makes detailed proposals regarding (1) interoperability and public safety roaming; (2) availability, robustness, and hardening of the network; (3) capacity, throughput, and quality of service; (4) security and encryption; (5) power limits, power flux density limits, and related notification and coordination requirements; and (6) ensuring the availability of a satellite-capable handset.
7. With regard to the D Block license term and performance requirements, the Commission proposes to extend the license term to fifteen years and to adopt performance benchmarks applicable at the fourth, tenth, and fifteenth years following the license grant date. For the first two benchmarks, the Commission proposes to require D Block licensees to provide signal coverage and offer service to at least 40 percent of the population in each PSR by the end of the fourth year, and at least 75 percent by the end of the tenth year. For the final benchmark at the fifteenth year, the Commission proposes to adopt a “tiered” approach, applying one of three different population coverage requirements depending on the population density of the PSR: (1) For PSRs with an average population density of less than 100 people per square mile, the licensee would be required to provide signal coverage and offer service to at least 90 percent of the population within that PSR; (2) for PSRs with an average population density of at least 100 people per square mile and less than 500 people per square mile, the licensee would be required to provide signal coverage and offer service to at least 94 percent of the population within that PSR; and (3) for PSRs with an average population density of at least 500 people per square mile, the licensee would be required to provide signal coverage and offer service to at least 98 percent of the population within that PSR.
8. The Commission also proposes modifications to certain rules governing the establishment of the Network Sharing Agreement and the licensing of the D Block following bidding for D Block licenses, in order to increase the likelihood of successful, rapid deployment of the shared wireless broadband network. First, the Commission tentatively proposes that it shall be able to offer any D Block license to a second highest bidder in the event that the original winning bidder is not assigned the license, either due to a failure to enter into an NSA or for any reason. Second, the Commission tentatively concludes that a winning bidder for a D Block license that is otherwise qualified will be liable for default payments only if it chooses not to execute a Commission-approved NSA. Thus, an otherwise-qualified winning bidder for a D Block license will not be liable for default payments if the lack of a Commission-approved NSA results from any other party's failure to execute the agreement or a Commission determination that there is no acceptable resolution to a dispute regarding terms to be included in the agreement. Finally, given the Commission decision to offer alternative D Block licenses by auction, the Commission tentatively concludes that it should adopt a D Block-specific rule regarding the amount of additional
9. The Commission also addresses certain additional issues related to the auction process. In particular, in order to further facilitate applications from potentially qualified parties, the Commission tentatively concludes that it will not restrict the eligibility to bid of any party that may qualify to hold a D Block license and that no reserve price beyond the minimum opening bid(s) will apply. Furthermore, given the oversight that already applies to the D Block, the Commission will codify an existing exception to the Commission's designated entity eligibility rules with respect to the spectrum capacity of D Block licenses, so that a designated entity applicant or licensee with lease or resale (including wholesale) arrangement(s) for more than 50% of the spectrum capacity of any D Block license will not on that basis alone lose its eligibility for designated entity benefits.
10. The Commission also makes a number of tentative conclusions and proposals with regard to the rules governing public safety users and the Public Safety Broadband Licensee. The Commission tentatively concludes that eligible users of the public safety broadband spectrum capacity must be providers of “public safety services” as defined in the Act.
11. With respect to the Public Safety Broadband Licensee, the Commission tentatively concludes that it should remain a non-profit entity, and proposes certain restrictions on its business relationships to avoid the potential for conflicts of interest. Specifically, the Commission proposes that an entity serving as an advisor, agent, or manager of the Public Safety Broadband Licensee will be ineligible to become a D Block licensee unless such entity completely severs its business relationship with the Public Safety Broadband Licensee no later than thirty days following release of an oder adopting final rules in this proceeding. Further, the Commission proposes to prohibit advisors, agents, or managers of the Public Safety Broadband Licensee from establishing business relationships with third party entities having a financial interest in the decisions of the Public Safety Broadband Licensee.
12. With respect to the mechanism of funding the Public Safety Broadband Licensee, the Commission tentatively concludes that the nationwide D Block licensee or, if the D Block is licensed on a regional basis, each regional D Block licensee, will make an annual payment to the Public Safety Broadband Licensee, which would constitute the sole allowable source of funding for the Public Safety Broadband Licensee's annual operating and administrative costs. The Commission further tentatively concludes that the Public Safety Broadband Licensee must establish an audited annual budgeting process, and must submit its proposed annual budget to the Commission for approval. The Commission also reserves the right to request an audit of the Public Safety Broadband Licensee's expenses at any time. The Commission further tentatively concludes that it should establish fixed nationwide service fees that the D Block licensee may charge to public safety users based on a discounted rate schedule.
13. The Commission proposes several changes to the Public Safety Broadband Licensee's articles of incorporation and by-laws. Specifically, the Commission proposes replacing the Public Safety Broadband Licensee board of directors position currently held by the National Emergency Management Association (NEMA) with the National Regional Planning Council (NRPC). The Commission also tentatively concludes that the positions of Chairman of the Board and Chief Executive Officer must be filled by separate individuals; that the Public Safety Spectrum Trust Corporation (PSST) may not hire a new individual to fill the CEO position until the D Block licensee(s) has made funding available to the PSST for its administrative and operational costs; and that any individual appointed as CEO cannot have served on the Public Safety Broadband Licensee executive committee during the period three years prior to his or her appointment as CEO. The Commission also tentatively concludes that the PSST board should elect a new executive committee with proposed new conditions on term limits, consecutive terms, and committee size. Further, the Commission tentatively concludes that it will require three-fourths supermajority voting on all major decisions by the board, that board meetings be open to the public (with some exceptions), that the minutes of each board meeting must be made publicly available (again with some exceptions), and several other conditions. The Commission tentatively declines to rescind the present PSST's license and reissue the license to a new licensee.
14. In relation to narrowband relocation issues, the Commission tentatively concludes that the Commission will extend the current February 17, 2009 deadline for completing such relocation twelve months from the date upon which narrowband relocation funding is made available by the D Block licensee(s). The Commission also proposes that the current $10 million cap on narrowband relocation costs should be increased to $27 million. The Commission also tentatively concludes that the existing August 30, 2007 cut-off date for narrowband deployments outside of the consolidated narrowband spectrum should not be changed, and propose conditions under which waiver relief may be granted for deployment of narrowband equipment beyond that date.
15. The Commission seeks comment on all of the tentative conclusions and proposals presented in this Third FNPRM, and on whether these proposals will lead to a successful auction and, more importantly, a successful partnership or partnerships that will fulfill the Commission's goal of making interoperable broadband wireless service available to public safety entities across the Nation.
16. In this section, the Commission reviews the history of its efforts to establish a public/private partnership to address the need for nationwide interoperable public safety communications and to promote public safety access to advanced broadband communication systems and technologies. The Commission first describes the rules it promulgated in the
17. The commercial and public safety spectrum bands at issue in this proceeding are part of the 700 MHz Band (698-806 MHz), which is currently occupied by television broadcasters, but which must be cleared of such transmissions and made available for wireless services by February 17, 2009, as part of the digital television (DTV) transition.
18. In the
19. With regard to the commercial spectrum in the 700 MHz Band, and as described in greater detail below, the Commission created a nationwide license in the D Block (the 758-763 MHz and 788-793 MHz bands, located adjacent to the public safety broadband spectrum), and required the D Block licensee, working with the Public Safety Broadband Licensee in a public/private partnership (the 700 MHz Public/Private Partnership) and using the spectrum associated with both licenses, to construct and operate a nationwide network that would be shared by commercial and public safety users.
21. To ensure that the 700 MHz Public/Private Partnership would serve the needs of the public safety community and to address concerns about its success, the Commission specified certain mandatory features. First, the Commission specified requirements regarding the shared network to be constructed and the timing for that construction. In particular, the Commission established certain technical requirements for the shared network, including requirements relating to the network technology platform, signal coverage, robustness and reliability, capacity, security, operational capabilities and control, and certain equipment specifications.
22. Next, while finding it appropriate to establish these mandatory terms, the Commission also concluded that many details of the 700 MHz Public/Private Partnership should be left to the parties to negotiate.
23. The Commission also established a number of measures to safeguard the interests of public safety on an ongoing basis after the NSA is executed. These measures included: (1) Requirements related to the organization and structure of the 700 MHz Public/Private Partnership, intended to protect the D Block license and network assets from being drawn into a bankruptcy proceeding; (2) a prohibition on discontinuance of service provided to public safety entities; (3) special remedies in the event that the D Block licensee or Public Safety Broadband Licensee fails to comply with either the Commission's rules or the terms of the NSA; (4) a special, exclusive process for resolving any disputes related to the execution of the terms of the NSA; and (5) ongoing reporting obligations.
26. The Commission provided in the
27. Ten parties filed petitions for reconsideration seeking review of various aspects of the
28. Two of the ten petitioners sought reconsideration of the aggregate reserve prices set for the commercial license blocks, including the reserve price for the D Block.
29. Finally, two other parties filed petitions seeking reconsideration of some or all of the requirements regarding public safety narrowband relocation, as well as requests for waiver of some of these requirements.
32. On May 14, 2008, to begin the process of reconsidering the appropriate rules for the D Block and the Public
• To facilitate public safety access to a nationwide, interoperable broadband network in a timely manner;
• To identify concerns in the existing structure of the 700 MHz Public/Private Partnership to inform the Commission decision making going forward;
• To promote wireless innovation and broadband network penetration while meeting the communications needs of the first responder community in a commercially viable manner;
• To identify funding opportunities for the public safety community to realize the promise of a broadband communications infrastructure with a nationwide level of interoperability; and
• To maximize the commercial and public safety benefits of the D Block spectrum.
33. With these goals and principles in mind, the Commission sought comment first on whether and how to clarify or revise the rules governing the public safety component of the 700 MHz Public/Private Partnership, including rules governing the Public Safety Broadband Licensee, the entities eligible to obtain access to the public safety broadband network,
34. With regard to the Public Safety Broadband Licensee, the Commission sought comment on (1) whether to revise or clarify the structure and criteria of the Public Safety Broadband Licensee as adopted in the
35. Regarding access to the public safety broadband network, the Commission sought comment on (1) whether to clarify which entities are eligible to use the public safety broadband network; (2) whether to adopt measures requiring or promoting use of the public safety broadband network by eligible public safety entities;
36. With regard to the relocation of public safety narrowband operations, the Commission sought comment on issues including (1) whether to revise or eliminate the cap on relocation expenses; (2) whether, in light of the proposed re-auction of the D Block and associated timing issues, the Commission should continue to require relocation to be completed by the DTV transition date; (3) whether to amend the process for accomplishing the relocation; and (4) whether the Commission should extend the August 30, 2007 cut-off date for new nar