Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by firstclass or overnight U.S. Postal Service mail (although we continue to experience delays in receiving U.S. Postal Service mail). All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.

People with Disabilities: To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an email to fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau at 2024180530 (voice), 202 4180432 (tty).

I. Summary of Notice of Proposed Rulemaking

1. In a In this Further Notice of Proposed Rule Making (FNPRM), we seek comment on proposed service rules for Advanced Wireless Service (AWS) \1\ spectrum in the 19151920 MHz, 19952000 MHz, and 21552180 MHz bands, as set forth in Appendix A. In taking a further step towards adoption of service rules for these bands, our goal is to promote the deployment and ubiquitous availability of broadband services across the country and to facilitate the use of AWS spectrum for the benefit of consumers.
\1\ Advanced Wireless Services is the collective term we use for new and innovative fixed and mobile terrestrial wireless
applications using bandwidth that is sufficient for the provision of a variety of applications, including those using voice and data (such as Internet browsing, message services, and fullmotion video) content. Although AWS is commonly associated with socalled third generation (3G) applications and has been predicted to build on the successes of such currentgeneration commercial wireless services as cellular and Broadband Personal Communications Services (PCS), the services ultimately provided by AWS licensees are limited only by the Fixed and Mobile designation of the spectrum we allocate for AWS and the service rules we ultimately adopt for the bands.

2. In a Notice of Proposed Rulemaking in WT Docket No. 04356, the Commission sought comment on rules for AWS spectrum in the 19151920 MHz, 19952000 MHz, 20202025 MHz, and 21752180 MHz bands.\2\ In a Notice of Proposed Rulemaking in WT Docket No. 07195, we sought comment on rules for AWS spectrum in the 21552175 MHz band.\3\ To further supplement these Notices of Proposed Rulemaking and the current extensive record in these proceedings, we are seeking expedited comment on a proposed set of rules for these bands. We will consider comments on these proposed rules in conjunction with the record developed in response to the various proposals set out in the earlier NPRM's. \2\ Service Rules for Advanced Wireless Services in the 1915 1920 MHz, 19952000 MHz, 20202025 MHz and 21752180 MHz Bands, WT Docket No. 04356, Service Rules for Advanced Wireless Services in the 1.7 GHz and 2.1 GHz Bands, WT Docket No. 02353, Notice of Proposed Rulemaking, 19 FCC Rcd 19263 (2004) (AWS2 NPRM ).
\3\ Service Rules for Advanced Wireless Services in the 2155 2175 MHz Band, WT Docket No. 07195, Notice of Proposed Rulemaking, 22 FCC Rcd 17035 (2007) (AWS3 NPRM ).

3. Specifically, we propose to adopt application, licensing, operating, and technical rules for the 21552180 MHz band (AWS3 band), including rules that would:
[[Page 35997]]

4. We also propose to adopt application, licensing, operating, and technical rules for the 19151920 MHz and 19952000 MHz bands (H Block), including rules that would:

5. We seek comment on these proposed rules for the AWS3 band and the H Block, as set forth in Appendix A. We note that combining the 21552175 MHz band with the 21752180 MHz band may allow an AWS3 licensee to make more robust use of this spectrum block while meeting a stricter OOBE limit than traditionally applied in bands designated for flexible use, such as the AWS1 and 700 MHz bands.\4\ To the extent that commenters do not support combining the 21552175 MHz band with the 21752180 MHz band, they should indicate whether, in the alternative, a more traditional OOBE limit of 43+10log(P) dB would be appropriate for the 21552175 MHz band.
\4\ See, e.g., 47 CFR 27.53(c)(1)(2), 27.53(h).
Procedural Matters

Ex Parte RulesPermitButDisclose

6. This is a permitbutdisclose notice and comment rulemaking proceeding. Ex parte presentations are permitted, except during the Sunshine Agenda period, provided they are disclosed pursuant to the Commission's rules.\5\
\5\ See generally 47 CFR 1.1202, 1.1203, 1.1206.

Initial Paperwork Reduction Analysis

7. This document contains proposed new or modified information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and the Office of Management and Budget (OMB) to comment on the information collection requirements contained in this document, as required by the Paperwork Reduction Act of 1995, Public Law 10413. Public and agency comments are due 60 days after date of publication in the Federal Register. Comments should address: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimates; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology. In addition, pursuant to the Small Business Paperwork Relief Act of 2002,\6\ we seek specific comment on how we might ``further reduce the information collection burden for small business concerns with fewer than 25 employees.''
\6\ Public Law 107198, see 44 U.S.C. 3506(c)(4).

Supplemental Initial Regulatory Flexibility Analysis

8. As required by the Regulatory Flexibility Act of 1980 (RFA),\7\ the Commission has prepared a Supplemental Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on small entities of the policies and rules proposed in the FNPRM. The analysis is found in the attached Appendix B of the FNPRM. We request written public comment on the analysis. Comments must be filed on or before July 9, 2008, and reply comments must be filed on or before July 16, 2008 and must have a separate and distinct heading designating them as responses to the Supplemental IRFA. The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, will send a copy of this FNPRM, including the Supplemental IRFA, to the Chief Counsel for Advocacy of the Small Business Administration.
\7\ 5 U.S.C. 603.

A. Need for, and Objectives of, the Proposed Rules

9. The FNPRM contemplates service rules for licensed fixed and mobile services, including advanced wireless services (AWS), in the 19151920 MHz
[[Page 35998]]
and 19952000 MHz bands (collectively the ``H Block'') and the 2155 2175 MHz and 21752180 MHz bands (collectively the ``AWS3 band''). These service rules include application, licensing, operating and technical rules for the AWS3 band and H Block. Consistent with the Commission's policy objective of affording licensees the flexibility to deploy new technologies, to implement service innovations, and to respond to market forces, the FNPRM proposes service rules that provide AWS3 and H Block licensees with the flexibility to provide any fixed or mobile service, including advanced wireless services, which is consistent with the allocations for this spectrum. The marketoriented licensing framework for these bands would ensure that this spectrum is efficiently utilized and will foster the development of new and innovative technologies and services, as well as encourage the growth and development of broadband services, ultimately leading to greater benefits to consumers.

10. The FNPRM seeks to adopt rules that will reduce regulatory burdens, promote innovative services, and encourage flexible use of this spectrum. Such an approach opens up economic opportunities to a variety of spectrum users, which could include small businesses.

11. The FNPRM proposes combining the 21552175 MHz band with the 21752180 MHz band to form a 25 MHz block of spectrum.

12. In the FNPRM, the Commission also seeks comments on its proposal to permit both downlink and uplink transmissions throughout the entire AWS3 band.

13. In the FNPRM, the Commission also seeks comments on its proposal to require an AWS3 licensee to provide free, twoway broadband Internet service that includes engineered data rates of at least 768 kps downstream for the average user experience using up to 25 percent of the licensee's wireless network capacity and an ``always on'' networkbased filtering mechanism.

14. In the FNPRM, the Commission seeks comments on its proposal to require the licensee to provide for open devices and open applications for its premium service and open devices for its free service.

15. In the FNPRM, the Commission seeks comments on its proposal to adopt a single nationwide license for the 21552180 MHz band.

16. In the FNPRM, the Commission seeks comments on its proposal to adopt open eligibility for the AWS3 band.

17. In the FNPRM, the Commission seeks comments on its proposal to allow licensees to disaggregate, partition, and lease the spectrum.

18. In the FNPRM, the Commission seeks comments on its proposal to require AWS3 licensees to provide signal coverage and offer service to: (1) At least 50 percent of the total population of the nation within four years of commencement of the license term and (2) at least 95 percent of the total population of the nation at the end of the 10 year license term.

19. In the FNPRM, the Commission seeks comments on its proposal to provide initial license term of ten years and subsequent renewal terms of ten years.

20. In the FNPRM, the Commission seeks comments on its proposal to provide that mutually exclusive applications should be resolved through competitive bidding.

21. In the FNPRM, the Commission seeks comments on its proposal to require AWS3 mobiles to attenuate outofband emissions (OOBE) by 60 + 10log (P) dB outside of the AWS3 band, and establish a power limit for AWS3 mobile devices of 23 dBm/MHz equivalent isotropically radiated power (EIRP).

22. In the FNPRM, the Commission seeks comments on its proposal to require an OOBE limit of 43 + 10 log (P) dB for AWS3 base and fixed downlink stations and a power limit of 1640 watts peak EIRP in non rural areas and 3280 watts peak EIRP in rural areas.

23. In the FNPRM, the Commission seeks comments on its proposal to license the H Block using exclusive geographic area licensing on a Basic Trading Area (BTA) basis.

24. In the FNPRM, the Commission seeks comments on its proposal to adopt open eligibility for the H Block.

25. In the FNPRM, the Commission seeks comments on its proposal to allow licensees to disaggregate, partition, and lease the spectrum.

26. In the FNPRM, the Commission seeks comments on its proposal to require an H Block licensee to provide signal coverage and offer service to: 1) at least 35 percent of the population in each licensed area within four years and 2) at least 70 percent of the population in each licensed area at the end of the license term.

27. In the FNPRM, the Commission seeks comments on its proposal to provide an initial license term of ten years and subsequent renewal terms of ten years.

28. In the FNPRM, the Commission seeks comments on its proposal to provide that mutually exclusive applications should be resolved through competitive bidding.

29. In the FNPRM, the Commission seeks comments on its proposal to require H Block licensees in the 19151920 MHz band to pay a pro rata share of expenses previously incurred by UTAM Inc. in clearing that band.

30. In the FNPRM, the Commission seeks comments on its proposal to adopt both relocation requirements for H Block entrants in the 1995 2000 MHz band and procedures for costsharing among other new entrants in the Broadcast Auxiliary Service band, including Sprint Nextel and Mobile Satellite Service entrants.

31. In the FNPRM, the Commission seeks comments on its proposal to prohibit base and fixed transmission in the 19151920 MHz band.

32. In the FNPRM, the Commission seeks comments on its proposal to require mobiles at 19151920 MHz to attenuate OOBE by 90 + 10log P dB within the PCS band (19301990 MHz band), and establish a power limit for mobiles of 23 dBm/MHz EIRP.

33. In the FNPRM, the Commission seeks comments on its proposal to prohibit mobile transmission in the 19952000 MHz band.

34. In the FNPRM, the Commission seeks comments on its proposal to adopt an OOBE limit of 43 + 10 log (P) dB for base and fixed stations at 19952000 MHz and a power limit of 1640 watts peak EIRP in nonrural areas and 3280 watts peak EIRP in rural areas.

35. Our actions today bring us closer to our goals of achieving the universal availability of broadband access and increasing competition in the provision of such broadband services both in terms of the types of services offered and in the technologies utilized to provide those services. The widespread deployment of broadband will bring new services to consumers, stimulate economic activity, improve national productivity, and advance many other objectivessuch as improving education, and advancing economic opportunity for more Americans. By encouraging the growth and development of broadband, our actions today also foster the development of facilitiesbased competition. We achieve these objectives by taking a marketoriented approach to licensing this spectrum that provides greater certainty, minimal regulatory intervention, and leads to greater benefits to consumers.

B. Legal Basis

36. The proposed action is authorized pursuant to Sections 1, 2, 4(i), 7, 10, 201, 214, 301, 302, 303, 307, 308, 309, 310, 319, 324, 332 and 333 of the Communications Act of 1934, 47 U.S.C. 151, 152, 154(i), 157, 160, 201, 214, 301,
[[Page 35999]]
302, 303, 307, 308, 309, 310, 319, 324, 332, 333.
C. Description and Estimate of the Number of Small Entities to Which the Proposed Rules Will Apply

37. The RFA directs agencies to provide a description of, and where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted.\8\ The RFA generally defines the term ``small entity'' as having the same meaning as the terms ``small business,'' ``small organization,'' and ``small governmental jurisdiction.'' \9\ In addition, the term ``small business'' has the same meaning as the term ``small business concern'' under the Small Business Act.\10\ A ``small business concern'' is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA).\11\ \8\ 5 U.S.C. 603(b)(3).
\9\ 5 U.S.C. 601(6).
\10\ 5 U.S.C. 601(3) (incorporating by reference the definition of ``smallbusiness concern'' in the Small Business Act, 15 U.S.C. 632). Pursuant to 5 U.S.C. 601(3), the statutory definition of a small business applies ``unless an agency, after consultation with the Office of Advocacy of the Small Business Administration and after opportunity for public comment, establishes one or more definitions of such term which are appropriate to the activities of the agency and publishes such definition(s) in the Federal Register.''

\11\ 15 U.S.C. 632.

38. The Commission has not yet determined how many licenses will be awarded in the 19151920 MHz, 19952000 MHz, and 21552180 MHz bands. Moreover, the Commission does not yet know how many applicants or licensees in these bands will be small entities. Though the Commission does not know for certain which entities are likely to apply for these frequencies, we note that the H Block and AWS3 band are comparable to cellular service and personal communications service.\12\ Accordingly, we believe the following sorts of regulated entities might ultimately also be applicants or licensees in this context and thus might be directly affected by our contemplated rules.
\12\ See, e.g., AWS2 Service Rules NPRM; AWS3 Service Rules NPRM.

39. Small Businesses. Nationwide, there are a total of approximately 22.4 million small businesses, according to SBA data.\13\ \13\ See SBA, Programs and Services, SBA Pamphlet No. CO0028, at page 40 (July 2002).

40. Small Organizations. Nationwide, there are approximately 1.6 million small organizations.\14\
\14\ Independent Sector, The New Nonprofit Almanac & Desk Reference (2002).

41. Small Governmental Jurisdictions. The term ``small governmental jurisdiction'' is defined as ``governments of cities, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.'' \15\ As of 2002, there were approximately 87,525 governmental jurisdictions in the United States.\16\ This number includes 38,967 county governments, municipalities, and townships, of which 37,373 (approximately 95.9%) have populations of fewer than 50,000, and of which 1,594 have populations of 50,000 or more. Thus, we estimate the number of small governmental jurisdictions overall to be 85,931 or fewer.
\15\ 5 U.S.C. 601(5).
\16\ U.S. Census Bureau, Statistical Abstract of the United States: 2006, Section 8, pages 272273, Tables 415 and 417.

42. Wireless Telecommunications Carriers (except Satellite). Since 2007, the Census Bureau has placed wireless firms within this new, broad, economic census category.\17\ Prior to that time, such firms were within the nowsuperseded categories of ``Paging'' and ``Cellular and Other Wireless Telecommunications.'' \18\ Under the present and prior categories, the SBA has deemed a wireless business to be small if it has 1,500 or fewer employees.\19\ Because Census Bureau data are not yet available for the new category, we will estimate small business prevalence using the prior categories and associated data. For the category of Paging, data for 2002 show that there were 807 firms that operated for the entire year.\20\ Of this total, 804 firms had employment of 999 or fewer employees, and three firms had employment of 1,000 employees or more.\21\ For the category of Cellular and Other Wireless Telecommunications, data for 2002 show that there were 1,397 firms that operated for the entire year.\22\ Of this total, 1,378 firms had employment of 999 or fewer employees, and 19 firms had employment of 1,000 employees or more.\23\ Thus, we estimate that the majority of wireless firms are small.
\17\ U.S. Census Bureau, 2007 NAICS Definitions, ``517210 Wireless Telecommunications Categories (Except Satellite)''; http:// www.census.gov/naics/2007/def/ND517210.HTM#N517210.
\18\ U.S. Census Bureau, 2002 NAICS Definitions, ``517211 Paging''; http://www.census.gov/epcd/naics02/def/NDEF517.HTM.; U.S. Census Bureau, 2002 NAICS Definitions, ``517212 Cellular and Other Wireless Telecommunications''; http://www.census.gov/epcd/naics02/ def/NDEF517.HTM.
\19\ 13 CFR 121.201, NAICS code 517210 (2007 NAICS). The now superseded, pre2007 CFR citations were 13 CFR 121.201, NAICS codes 517211 and 517212 (referring to the 2002 NAICS).
\20\ U.S. Census Bureau, 2002 Economic Census, Subject Series: Information, ``Establishment and Firm Size (Including Legal Form of Organization)'' Table 5, NAICS code 517211 (issued Nov. 2005). \21\ Id. The census data do not provide a more precise estimate of the number of firms that have employment of 1,500 or fewer employees; the largest category provided is for firms with ``1000 employees or more.''
\22\ U.S. Census Bureau, 2002 Economic Census, Subject Series: Information, ``Establishment and Firm Size (Including Legal Form of Organization)'' Table 5, NAICS code 517212 (issued Nov. 2005). \23\ Id. The census data do not provide a more precise estimate of the number of firms that have employment of 1,500 or fewer employees; the largest category provided is for firms with ``1000 employees or more.''

43. Wireless Telephony. Wireless telephony includes cellular, personal communications services, and specialized mobile radio telephony carriers. As noted above, the SBA has developed a small business size standard for ``Wireless Telecommunications Carriers (except Satellite)'' services.\24\ Under that SBA small business size standard, a business is small if it has 1,500 or fewer employees.\25\ According to Commission data, 432 carriers reported that they were engaged in the provision of wireless telephony.\26\ We have estimated that 221 of these are small under the SBA small business size standard. \24\ 13 CFR 121.201, NAICS code 517210.
\25\ 13 CFR 121.201, NAICS code 517210.
\26\ FCC, Wireline Competition Bureau, Industry Analysis and Technology Division, ``Trends in Telephone Service'' at Table 5.3, page 55 (Feb. 2007). This source uses data that are current as of October 2005.

44. Broadband Personal Communications Service. The broadband personal communications services (PCS) spectrum is divided into six frequency blocks designated A through F, and the Commission has held auctions for each block. The Commission has created a small business size standard for Blocks C and F as an entity that has average gross revenues of less than $40 million in the three previous calendar years.\27\ For Block F, an additional small business size standard for ``very small business'' was added and is defined as an entity that, together with its affiliates, has average gross revenues of not more than $15 million for the preceding three calendar years.\28\ These small business size standards, in the context of
[[Page 36000]]
broadband PCS auctions, have been approved by the SBA.\29\ No small businesses within the SBAapproved small business size standards bid successfully for licenses in Blocks A and B. There were 90 winning bidders that qualified as small entities in the Block C auctions. A total of 93 ``small'' and ``very small'' business bidders won approximately 40 percent of the 1,479 licenses for Blocks D, E, and F.\30\ On March 23, 1999, the Commission reauctioned 155 C, D, E, and F Block licenses; there were 113 small business winning bidders.\31\ \27\ See Amendment of parts 20 and 24 of the Commission's RulesBroadband PCS Competitive Bidding and the Commercial Mobile Radio Service Spectrum Cap, Report and Order, 11 FCC Rcd 7824, 7850 7852, paras. 5760 (1996); see also 47 CFR 24.720(b).
\28\ See Amendment of parts 20 and 24 of the Commission's RulesBroadband PCS Competitive Bidding and the Commercial Mobile Radio Service Spectrum Cap, Report and Order, 11 FCC Rcd 7824, 7852, para. 60.
\29\ See Letter to Amy Zoslov, Chief, Auctions and Industry Analysis Division, Wireless Telecommunications Bureau, Federal Communications Commission, from Aida Alvarez, Administrator, Small Business Administration, dated December 2, 1998.
\30\ FCC News, ``Broadband PCS, D, E and F Block Auction Closes,'' No. 71744 (released January 14, 1997).
\31\ See ``C, D, E, and F Block Broadband PCS Auction Closes,'' public notice, 14 FCC Rcd 6688 (WTB 1999).

45. On January 26, 2001, the Commission completed the auction of 422 C and F Broadband PCS licenses in Auction No. 35. Of the 35 winning bidders in this auction, 29 qualified as ``small'' or ``very small'' businesses.\32\ Subsequent events concerning Auction 35, including judicial and agency determinations, resulted in a total of 163 C and F Block licenses being available for grant.
\32\ See ``C and F Block Broadband PCS Auction Closes; Winning Bidders Announced,'' public notice, 16 FCC Rcd 2339 (2001).

46. Cellular Licensees. As noted, the SBA has developed a small business size standard for wireless firms within the broad economic census category ``Wireless Telecommunications Carriers (except Satellite).'' \33\ Under this category, a wireless business is small if it has 1,500 or fewer employees. Also, as noted, using Commission data we have estimated that most of these entities are small.
\33\ 13 CFR 121.201, NAICS code 517210.
D. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements

47. The projected reporting, recordkeeping, and other compliance requirements resulting from the FNPRM will apply to all entities in the same manner. The Commission believes that applying the same rules equally to all entities in this context promotes fairness. The Commission does not believe that the costs and/or administrative burdens associated with the rules will unduly burden small entities. The revisions the Commission adopts should benefit small entities by giving them more information, more flexibility, and more options for gaining access to valuable wireless spectrum.

48. Applicants for AWS licenses in the H Block and AWS3 band will be required to file license applications using the Commission's automated Universal Licensing System (ULS). ULS is an online electronic filing system that also serves as a powerful information tool that enables potential licensees to research applications, licenses, and antennae structures. It also keeps the public informed with weekly public notices, FCC rulemakings, processing utilities, and a telecommunications glossary. Applicants will be required to submit shortform auction applications using FCC Form 175.\34\ In addition, winning bidders must submit longform license applications through ULS using Form 601,\35\ FCC Ownership Disclosure Information for the Wireless Telecommunications Services using FCC Form 602, and other appropriate forms.\36\
\34\ See generally, 47 CFR 1.2105.
\35\ 47 CFR 1.913(a)(1).
\36\ 47 CFR 1.2107.
E. Steps Taken To Minimize Significant Economic Impact on Small Entities, and Significant Alternatives Considered

49. The RFA requires an agency to describe any significant, specifically small business, alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): ``(1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities; (3) the use of performance rather than design standards; and (4) an exemption from coverage of the rule, or any part thereof, for such small entities.'' \37\

\37\ 5 U.S.C. 603(c)(1)(c)(4).

50. Here, we propose service rules that are efficient and also fair to all entities, including small entities. We also note that, specifically to assist small businesses, the associated AWS2 NPRM and the AWS3 NPRM propose to establish small business size standards and associated small business bidding credits for the 19151920 MHz, 1995 2000 MHz, 21552175 MHz, and 21752180 MHz bands.\38\ The AWS2 NPRM and the AWS3 NPRM propose to define a small business as an entity with average annual gross revenues for the preceding three years not exceeding $40 million, and a very small business as an entity with average annual gross revenues for the preceding three years not exceeding $15 million, if licenses are not nationwide.\39\ The AWS2 NPRM and the AWS3 NPRM propose a bidding credit of 15 percent for small businesses and a bidding credit of 25 percent for very small businesses under certain circumstances.\40\
\38\ See AWS2 NPRM, 19 FCC Rcd at 1930710 para 119124; AWS3 NPRM, 22 FCC Rcd at 1709698 para 15054.
\39\ AWS2 NPRM, 19 FCC Rcd at 1930809 para 122; AWS3 NPRM, 22 FCC Rcd at 17097 para 152.
\40\ AWS2 NPRM, 19 FCC Rcd at 1930910 para 12324; AWS3 NPRM, 22 FCC Rcd at 1709798 para 15354.

51. The AWS2 NPRM and the AWS3 NPRM also solicit comment on a number of proposals and alternatives regarding the service rules for the 19151920 MHz, 19952000 MHz, 21552175 MHz, and 21752180 MHz bands.\41\ The AWS2 NPRM and the AWS3 NPRM seek to adopt rules that will reduce regulatory burdens, promote innovate services and encourage flexible use of this spectrum. It opens up economic opportunities to a variety of spectrum users, which could include small businesses. The AWS2 NPRM and the AWS3 NPRM consider various proposals and alternatives partly because the Commission seeks to minimize, to the extent possible, the economic impact on small businesses.\42\ \41\ See generally AWS2 NPRM; AWS3 NPRM.
\42\ AWS2 NPRM, 19 FCC Rcd at 1932526 para 2631; AWS3 NPRM, 22 FCC Rcd at 1710608 para 2125.

52. The AWS2 NPRM and the AWS3 NPRM invite comment on various alternative licensing and service rules and on a number of issues relating to how the Commission should craft service rules for this spectrum, which could have an impact on small entities. For example, the Commission seeks comment on the licensing approach for these frequencies and how the size of spectrum blocks would impact small entities.\43\ The AWS2 NPRM and the AWS3 NPRM seek proposals for a geographic area approach to geographic areas as opposed to a station defined licensing approach.\44\
\43\ See AWS2 NPRM, 19 FCC Rcd at 1927277 para 2131; AWS3 NPRM, 22 FCC Rcd at 1710608 para 3438.
\44\ See AWS2 NPRM, 19 FCC Rcd at 1927172 para 1820; AWS3 NPRM, 22 FCC Rcd at 1705051 para 3133.

53. The regulatory burdens proposed in the AWS2 NPRM and the AWS3 NPRM, such as filing applications on appropriate forms, appear necessary in order to ensure that the public receives the benefits of innovative new services, or enhanced existing services, in a prompt and efficient manner. The Commission will continue to examine
[[Page 36001]]
alternatives in the future with the objectives of eliminating unnecessary regulations and minimizing any significant economic impact on small entities. The Commission invites comment on any additional significant alternatives parties believe should be considered and on how the approach outlined in the AWS2 NPRM and the AWS3 NPRM will impact small entities, including small businesses and small government entities.

54. In addition, we seek comment on proposed rules that would permit licensees, including small entity licensees, to disaggregate, partition, and lease the spectrum. These options are helpful to small entities, and we seek comment on these proposals.
F. Federal Rules That May Duplicate, Overlap, or Conflict With the Proposed Rules

55. None.

Ordering Clauses

56. Pursuant to sections 1, 2, 4(i), 7, 10, 201, 214, 301, 302, 303, 307, 308, 309, 310, 319, 324, 332 and 333 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i), 157, 160, 201, 214, 301, 302, 303, 307, 308, 309, 310, 319, 324, 332, 333, that this FNPRM is hereby adopted.

57. Notice is given of the proposed regulatory changes described in this FNPRM, and that comment is sought on these proposals.

58. It is further ordered that the Supplemental Initial Regulatory Flexibility Analysis is adopted.

59. The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Notice of Proposed Rulemaking, including the Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.
Federal Communications Commission.
Marlene H. Dortch,

Secretary.

For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR parts 27, 74, 78 and 101 as follows:

PART 27MISCELLANEOUS WIRELESS COMMUNICATIONS SERVICES

1. The authority citation for part 27 continues to read as follows:

Authority: 47 U.S.C. 154, 301, 302, 303, 307, 309, 332, 336, and 337 unless otherwise noted.

2. Section 27.1 is revised to read as follows:

Sec. 27.1 Basis and purpose.

This section contains the statutory basis for this part of the rules and provides the purpose for which this part is issued. (a) Basis. The rules for miscellaneous wireless communications services (WCS) in this part are promulgated under the provisions of the Communications Act of 1934, as amended, that vest authority in the Federal Communications Commission to regulate radio transmission and to issue licenses for radio stations.
(b) Purpose. This part states the conditions under which spectrum is made available and licensed for the provision of wireless communications services in the following bands.
(1) 23052320 MHz and 23452360 MHz.
(2) 746763 MHz, 775793 MHz, and 805806 MHz.
(3) 698746 MHz.
(4) 13901392 MHz.
(5) 13921395 MHz and 14321435 MHz.
(6) 16701675 MHz.
(7) [Reserved]
(8) 17101755 MHz and 21102155 MHz.
(9) 24952690 MHz.
(10) 21552180 MHz.
(11) 19151920 MHz and 19952000 MHz.
(c) Scope. The rules in this part apply only to stations authorized under this part.

3. Section 27.4 is amended by adding the definitions for ``Downlink Fixed Station '' and ``Uplink Fixed Station'' in alphabetical order to read as follows:
Sec. 27.4 Terms and definitions.

* * * * *

Downlink Fixed Station. A fixed station employed by a carrier or licensee to transmit to an end user's fixed station.

* * * * *

Uplink Fixed Station. A fixed station employed by an end user to transmit to a carrier's or licensee's fixed stations.

* * * * *

4. Section 27.5 is revised by adding paragraphs (j) and (k) to read as follows:
Sec. 27.5 Frequencies.
* * * * *
(j) 21552180 MHz band. The 21552180 MHz band is available for assignment for Advanced Wireless Services.
(k) The paired 19151920 MHz and 19952000 MHz. The paired 1915 1920 MHz and 19952000 MHz bands are available for assignment for Advanced Wireless Services. Each winning bidder awarded a license in the initial AWS auction for spectrum authorizations in the 19151920 MHz band must reimburse UTAM, Inc. a pro rata share of the total expenses incurred by UTAM, Inc. as of the date that the new entrants gain access to the band. Specifically, AWS licensees in the 19151920 MHz band, which constitutes 25% of the 19101930 MHz band, shall, on a pro rata shared basis, reimburse 25% of the total relocation costs incurred by UTAM, Inc. in clearing the 19101930 MHz band of part 101 Fixed Microwave Service (FS) links. We will require a winning bidder of an AWS H Block license (19151920 MHz; 19952000 MHz) to reimburse UTAM, Inc., pursuant to the following formula within 30 days of grant of their longform application for the license. The amount owed will be determined by multiplying the net winning bid for an H Block license (i.e., an individual BTA) by $12,629,857 and then dividing by the sum of the net winning bids for all H Block licenses won in the initial auction. New entrants will be responsible for the actual costs associated with future relocation activities in their licensed spectrum, but will be entitled to seek reimbursement from UTAM, Inc. for the proportion of those band clearing costs that benefit users of the 19101915 MHz and 19201930 MHz band. Because the Commission's rules governing the relocation of FS licensees from this band and the right to compensation for costs associated with such relocation has already sunset on April 4, 2005, AWS licensees at 19151920 MHz are not responsible for reimbursing PCS entities for any costs incurred by PCS entities, other than those incurred by UTAM, Inc., as noted above, for the relocation of FS links that may otherwise have triggered a cost sharing obligation absent the sunset date for those rules.

5. Section 27.6 is amending by paragraphs (a) introductory text and (h) to read as follows:
Sec. 27.6 Service areas.
(a) WCS and AWS service areas include Basic Trading Areas (as defined in Sec. 24.202(b) of this chapter), Economic Areas (EAs), Major Economic Areas (MEAs), Regional Economic Area Groupings (REAGs), cellular markets comprising Metropolitan Statistical Areas (MSAs) and Rural Service Areas (RSAs), and a nationwide area. MEAs and REAGs are defined in the Table immediately following paragraph (a)(1) of this section. Both MEAs and REAGs are based on the U.S. Department of Commerce's EAs. See 60 FR 13114 March 10, 1995. In addition, the [[Page 36002]]
Commission shall separately license Guam and the Northern Mariana Islands, Puerto Rico and the United States Virgin Islands, American Samoa, and the Gulf of Mexico, which have been assigned Commission created EA numbers 173176, respectively. The nationwide area is composed of the contiguous 48 states, Alaska, Hawaii, the Gulf of Mexico, and the U.S. territories. Maps of the EAs, MEAs, MSAs, RSAs, and REAGs and the Federal Register notice that established the 172 EAs are available for public inspection and copying at the Reference Information Center, Consumer and Governmental Affairs Bureau, Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554. * * * * *
(h) Advanced Wireless Services (AWS ). AWS service areas for the 17101755 MHz and 21102155 MHz, 19151920 MHz and 19952000 MHz, and 21552180 MHz bands are as follows:
(1) Service areas for Block A (17101720 MHz and 21102120 MHz) are based on cellular markets comprising Metropolitan Statistical Areas (MSAs) and Rural Service Areas (RSAs) as defined by Public Notice Report No. CL9240 ``Common Carrier Public Mobile Services
Information, Cellular MSA/RSA Markets and Counties,'' dated January 24, 1992, DA 92109, 7 FCC Rcd 742 (1992), with the following
modifications:
(i) The service areas of cellular markets that border the U.S. coastline of the Gulf of Mexico extend 12 nautical miles from the U.S. Gulf coastline.
(ii) The service area of cellular market 306 that comprises the water area of the Gulf of Mexico extends from 12 nautical miles off the U.S. Gulf coast outward into the Gulf.
(2) Service areas for Blocks B (17201730 MHz and 21202130 MHz) and C (17301735 MHz and 21302135 MHz) are based on Economic Areas (EAs) as defined in paragraph (a) of this section.
(3) Service areas for blocks D (17351740 MHz and 21352140 MHz), E (17401745 MHz and 21402145 MHz) and F (17451755 MHz and 21452155 MHz) are based on Regional Economic Area Groupings (REAGs) as defined by paragraph (a) of this section.
(4) The service areas for 19151920 and 19952000 MHz Service are based on Basic Trading Areas as defined in paragraph (a) of this section.
(5) The service area for 21552180 MHz is nationwide as defined by paragraph (a) of this section.

6. Section 27.11 is amended by adding paragraphs (j) and (k) to read as follows:
Sec. 27.11 Initial authorization.
* * * * *
(j) 21552180 MHz band. Authorization for the 21552180 MHz band shall consist of a single 25 megahertz block of spectrum based on the geographic area specified in Sec. 27.6(h).
(k) The paired 19151920 MHz and 19952000 MHz bands.
Authorizations for the paired 19151920 MHz and 19952000 MHz bands shall consist of two paired channels of 5 megahertz each based on the geographic areas specified in Sec. 27.6(h).

7. Section 27.13 is amended by adding paragraphs (i) and (j) to read as follows:
Sec. 27.13 License period.
* * * * *
(i) 21552180 MHz band. Initial authorizations for the 21552180 MHz band will have a term not to exceed ten years from the date of initial issuance or renewal.
(j) The paired 19151920 MHz and 19952000 MHz bands. Initial authorizations for the paired 19151920 MHz and 19952000 MHz bands will have a term not to exceed ten years from the date of initial issuance or renewal.

8. Section 27.14 is revised to read as follows:
Sec. 27.14 Construction requirements; Criteria for renewal. (a) AWS and WCS licensees, with the exception of WCS licensees holding authorizations for Block A in the 698704 MHz and 728734 MHz bands, Block B in the 704710 MHz and 734740 MHz bands, Block E in the 722728 MHz band, Block C, C1, or C2 in the 746757 MHz and 776787 MHz bands, or Block D in the 758763 MHz and 788793 MHz bands, and with the exception of AWS licensees holding authorizations in the 19151920 MHz, 19952000 MHz, and 21552180 MHz bands, must, as a performance requirement, make a showing of ``substantial service'' in their license area within the prescribed license term set forth in Sec. 27.13. ``Substantial service'' is defined as service which is sound, favorable and substantially above a level of mediocre service which just might minimally warrant renewal. Failure by any licensee to meet this requirement will result in forfeiture of the license and the licensee will be ineligible to regain it.
(b) A renewal applicant involved in a comparative renewal proceeding shall receive a preference, commonly referred to as a renewal expectancy, which is the most important comparative factor to be considered in the proceeding, if its past record for the relevant license period demonstrates that:
(1) The renewal applicant has provided ``substantial'' service during its past license term; and
(2) The renewal applicant has substantially complied with applicable FCC rules, policies and the Communications Act of 1934, as amended.
(c) In order to establish its right to a renewal expectancy, a WCS renewal applicant involved in a comparative renewal proceeding 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) An explanation of its record of expansion, including a timetable of new construction to meet changes in demand for service; (3) A description of its investments in its WCS system; and (4) Copies of all FCC orders finding the licensee to have violated the Communications Act or any FCC rule or policy; and a list of any pending proceedings that relate to any matter described in this paragraph.
(d) In making its showing of entitlement to a renewal expectancy, a renewal applicant may claim credit for any system modification applications that were pending on the date it filed its renewal application. Such credit will not be allowed if the modification application is dismissed or denied.
(e) Comparative renewal proceedings do not apply to AWS licensees holding authorizations in the 19151920 MHz, 19952000 MHz, and 2155 2180 MHz bands or to WCS licensees holding authorizations for Block A in the 698704 MHz, 728734 MHz bands, Block B in the 704710 MHz and 734740 MHz bands, Block C in the 710716 MHz and 740746 MHz bands, Block D in the 716722 MHz band, Block E in the 722728 MHz band, Block C, C1, or C2 in the 746757 MHz and 776787 MHz bands, or Block D in the 758763 MHz and 788793 MHz bands. Each of these licensees must file a renewal application in accordance with the provisions set forth in Sec. 1.949 of this chapter, and must make a showing of substantial service, independent of its performance requirements, as a condition for renewal at the end of each license term.
(f) Comparative renewal proceedings do not apply to WCS licensees holding authorizations for the 698746 MHz, 747762 MHz, and 777792 MHz bands. These licensees must file a renewal application in accordance with the
[[Page 36003]]
provisions set forth in Sec. 1.949 of this chapter.
(g) WCS licensees holding EA authorizations for Block A in the 698 704 MHz and 728734 MHz bands, cellular market authorizations for Block B in the 704710 MHz and 734740 MHz bands, or EA authorizations for Block E in the 722728 MHz band, if the results of the first auction in which licenses for such authorizations are offered satisfy the reserve price for the applicable block, shall provide signal coverage and offer service over at least 35 percent of the geographic area of each of their license authorizations no later than February 17, 2013 (or within four years of initial license grant if the initial authorization in a market is granted after February 17, 2009), and shall provide such service over at least 70 percent of the geographic area of each of these authorizations by the end of the license term. In applying these geographic benchmarks, licensees are not required to include land owned or administered by government as a part of the relevant service area. Licensees may count covered government land for purposes of meeting their geographic construction benchmark, but are required to add the covered government land to the total geographic area used for measurement purposes. Licensees are required to include those populated lands held by tribal governments and those held by the Federal Government in trust or for the benefit of a recognized tribe. (1) If an EA or CMA licensee holding an authorization in these particular blocks fails to provide signal coverage and offer service over at least 35 percent of the geographic area of its license authorization by no later than February 17, 2013 (or within four years of initial license grant, if the initial authorization in a market is granted after February 17, 2009), the term of that license authorization will be reduced by two years and such licensee may be subject to enforcement action, including forfeitures. In addition, an EA or CMA licensee that provides signal coverage and offers service at a level that is below this interim benchmark may lose authority to operate in part of the remaining unserved areas of the license. (2) If any such EA or CMA licensee fails to provide signal coverage and offer service to at least 70 percent of the geographic area of its license authorization by the end of the license term, that licensee's authorization will terminate automatically without Commission action for those geographic portions of its license in which the licensee is not providing service, and those unserved areas will become available for reassignment by the Commission. Such licensee may also be subject to enforcement action, including forfeitures. In addition, an EA or CMA licensee that provides signal coverage and offers service at a level that is below this endofterm benchmark may be subject to license termination. In the event that a licensee's authority to operate in a license area terminates automatically without Commission action, such areas will become available for reassignment pursuant to the procedures in paragraph (j) of this section.
(3) For licenses under paragraph (g) of this section, the geographic service area to be made available for reassignment must include a contiguous area of at least 130 square kilometers (50 square miles), and areas smaller than a contiguous area of at least 130 square kilometers (50 square miles) will not be deemed unserved.
(h) WCS licensees holding REAG authorizations for Block C in the 746757 MHz and 776787 MHz bands or REAG authorizations for Block C2 in the 752757 MHz and 782787 MHz bands shall provide signal coverage and offer service over at least 40 percent of the population in each EA comprising the REAG license area no later than February 17, 2013 (or within four years of initial license grant, if the initial authorization in a market is granted after February 17, 2009), and shall provide such service over at least 75 percent of the population of each of these EAs by the end of the license term. For purposes of compliance with this requirement, licensees should determine population based on the most recently available U.S. Census Data.
(1) If a licensee holding a Block C authorization fails to provide signal coverage and offer service over at least 40 percent of the population in each EA comprising the REAG license area by no later than February 17, 2013 (or within four years of initial license grant if the initial authorization in a market is granted after February 17, 2009), the term of the license authorization will be reduced by two years and such licensee may be subject to enforcement action, including forfeitures. In addition, a licensee that provides signal coverage and offers service at a level that is below this interim benchmark may lose authority to operate in part of the remaining unserved areas of the license.
(2) If a licensee holding a Block C authorization fails to provide signal coverage and offer service over at least 75 percent of the population in any EA comprising the REAG license area by the end of the license term, for each such EA that licensee's authorization will terminate automatically without Commission action for those geographic portions of its license in which the licensee is not providing service. Such licensee may also be subject to enforcement action, including forfeitures. In the event that a licensee's authority to operate in a license area terminates automatically without Commission action, such areas will become available for reassignment pursuant to the procedures in paragraph (j) of this section. In addition, a REAG licensee that provides signal coverage and offers service at a level that is below this endofterm benchmark within any EA may be subject to license termination within that EA.
(3) For licenses under paragraph (h) of this section, the geographic service area to be made available for reassignment must include a contiguous area of at least 130 square kilometers (50 square miles), and areas smaller than a contiguous area of at least 130 square kilometers (50 square miles) will not be deemed unserved.
(i) WCS licensees holding EA authorizations for Block A in the 698 704 MHz and 728734 MHz bands, cellular market authorizations for Block B in the 704710 MHz and 734740 MHz bands, or EA authorizations for Block E in the 722728 MHz band, if the results of the first auction in which licenses for such authorizations in Blocks A, B, and E are offered do not satisfy the reserve price for the applicable block, as well as EA authorizations for Block C1 in the 746752 MHz and 776782 MHz bands, are subject to the following:
(1) If a licensee holding a cellular market area or EA authorization subject to this paragraph (i) fails to provide signal coverage and offer service over at least 40 percent of the population in its license area by no later than February 17, 2013 (or within four years of initial license grant, if the initial authorization in a market is granted after February 17, 2009), the term of that license authorization will be reduced by two years and such licensee may be subject to enforcement action, including forfeitures. In addition, such licensee that provides signal coverage and offers service at a level that is below this interim benchmark may lose authority to operate in part of the remaining unserved areas of the license. For purposes of compliance with this requirement, licensees should determine population based on the most recently available U.S. Census Data.
(2) If a licensee holding a cellular market area or EA authorization subject to this paragraph (i) fails to provide signal coverage and offer service over at
[[Page 36004]]
least 75 percent of the population in its license area by the end of the license term, that licensee's authorization will terminate automatically without Commission action for those geographic portions of its license in which the licensee is not providing service, and those unserved areas will become available for reassignment by the Commission. Such licensee may also be subject to enforcement action, including forfeitures. In the event that a licensee's authority to operate in a license area terminates automatically without Commission action, such areas will become available for reassignment pursuant to the procedures in paragraph (j) of this section. In addition, such a licensee that provides signal coverage and offers service at a level that is below this endofterm benchmark may be subject to license termination. For purposes of compliance with this requirement, licensees should determine population based on the most recently available U.S. Census Data.
(3) For licenses under this paragraph (i), the geographic service area to be made available for reassignment must include a contiguous area of at least 130 square kilometers (50 square miles), and areas smaller than a contiguous area of at least 130 square kilometers (50 square miles) will not be deemed unserved.
(j) In the event that a licensee's authority to operate in a license area terminates automatically under paragraphs (g), (h), (i), (p) or (q) of this section, such areas will become available for reassignment pursuant to the following procedures:
(1) The Wireless Telecommunications Bureau is delegated authority to announce by public notice that these license areas will be made available and establish a 30day window during which third parties may file license applications to serve these areas. During this 30day period, licensees that had their authority to operate terminate automatically for unserved areas may not file applications to provide service to these areas. Applications filed by third parties that propose areas overlapping with other applications will be deemed mutually exclusive, and will be resolved through an auction. The Wireless Telecommunications Bureau, by public notice, may specify a limited period before the filing of shortform applications (FCC Form 175) during which applicants may enter into a settlement to resolve their mutual exclusivity, subject to the provisions of Sec. 1.935 of this chapter.
(2) Following this 30day period, the original licensee and third parties can file license applications for remaining unserved areas where licenses have not been issued or for which there are no pending applications. If the original licensee or a third party files an application, that application will be placed on public notice for 30 days. If no mutually exclusive application is filed, the application will be granted, provided that a grant is found to be in the public interest. If a mutually exclusive application is filed, it will be resolved through an auction. The Wireless Telecommunications Bureau, by public notice, may specify a limited period before the filing of short form applications (FCC Form 175) during which applicants may enter into a settlement to resolve their mutual exclusivity, subject to the provisions of Sec. 1.935 of this chapter.
(3) The licensee will have one year from the date the new license is issued to complete its construction and provide signal coverage and offer service over 100 percent of the geographic area of the new license area. If the licensee fails to meet this construction requirement, its license will automatically terminate without Commission action and it will not be eligible to apply to provide service to this area at any future date.
(k) AWS and WCS licensees holding authorizations in the spectrum blocks enumerated in paragraphs (g), (h), (i), (p), or (q) of this section, including any licensee that obtained its license pursuant to the procedures set forth in paragraph (j) of this section, shall demonstrate compliance with performance requirements by filing a construction notification with the Commission, within 15 days of the expiration of the applicable benchmark, in accordance with the provisions set forth in Sec. 1.946(d) of this chapter. The licensee must certify whether it has met the applicable performance requirements. The licensee must file a description and certification of the areas for which it is providing service. The construction notifications must include electronic coverage maps, supporting technical documentation and any other information as the Wireless Telecommunications Bureau may prescribe by public notice.
(l) AWS and WCS licensees holding authorizations in the spectrum blocks enumerated in paragraphs (g), (h), (i), (p), or (q) of this section, excluding any licensee that obtained its license pursuant to the procedures set forth in paragraph (j) of this section, shall file reports with the Commission that provide the Commission, at a minimum, with information concerning the status of their efforts to meet the performance requirements applicable to their authorizations in such spectrum blocks and the manner in which that spectrum is being utilized. The information to be reported will include the date the license term commenced, a description of the steps the licensee has taken toward meeting its construction obligations in a timely manner, including the technology or technologies and service(s) being provided, and the areas within the license area in which those services are available.
(1) Each WCS licensee holding an authorization in the spectrum blocks enumerated in paragraphs (g), (h), or (i) of this section shall file its first report with the Commission no l

FOR FURTHER INFORMATION CONTACT Peter Daronco Esq., or Paul Malmud Esq., at 2024182486.