*Pages 1--54 from Microsoft Word - 2718.doc* Federal Communications Commission FCC 00- 264 D:\ Ready_ To_ Convert\ Doc\ 2718.doc Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D. C. 20554 In the Matter of ) ) The Development of Operational, ) Technical and Spectrum Requirements ) For Meeting Federal, State and Local ) WT Docket No. 96- 86 Public Safety Agency Communication ) Requirements Through the Year 2010 ) ) Establishment of Rules and Requirements ) For Priority Access Service ) SECOND MEMORANDUM OPINION AND ORDER Adopted: July 21, 2000 Released: August 1, 2000 By the Commission: TABLE OF CONTENTS Paragraph I. INTRODUCTION....................................................................................................................... 1 II. EXECUTIVE SUMMARY.......................................................................................................... 2 III. BACKGROUND......................................................................................................................... 3 IV. DISCUSSION............................................................................................................................. 7 A. Technical Requirements.................................................................................................. 7 1. Digital Modulation Requirement......................................................................... 7 2. Transmitter Power/ Antenna Height................................................................... 11 3. Automatic Power Control ................................................................................. 13 4. Emission Limitations........................................................................................ 15 5. Frequency Stability........................................................................................... 17 6. Channel Efficiency Standards — Wideband Channels....................................... 19 7. Receiver Standards ........................................................................................... 21 B. Broadcast TV/ Land Mobile Interference........................................................................ 24 C. Eligibility to Hold a License.......................................................................................... 36 1. Identity of Licensee .......................................................................................... 36 1 Federal Communications Commission FCC 00- 264 2 D:\ Ready_ To_ Convert\ Doc\ 2718.doc 2. State/ Local Licensees Allied with Federal Public Safety Service Providers .......................................................................................................... 41 D. Administration.............................................................................................................. 55 1. Regional Planning ............................................................................................ 55 2. National Planning............................................................................................. 69 3. Frequency Coordination; Common Data Bases ................................................. 78 V. PROCEDURAL MATTERS ..................................................................................................... 88 VI. ORDERING CLAUSES............................................................................................................ 95 APPENDIX A List of Pleadings APPENDIX B Supplemental Final Regulatory Flexibility Analysis APPENDIX C Final Rules 2 Federal Communications Commission FCC 00- 264 3 D:\ Ready_ To_ Convert\ Doc\ 2718.doc I. INTRODUCTION 1. On September 29, 1998, we established a band plan and adopted service rules in the public safety spectrum at 764- 776 MHz and 794- 806 MHz (" the 700 MHz band"). 1 Seventeen parties filed petitions for reconsideration and/ or clarification (" Petition( s)") of decisions contained in the First Report and Order. 2 On May 4, 1999, we resolved two petitions filed by the American National Standards Institute (" ANSI") and the Telecommunications Industry Association (" TIA"). 3 On February 25, 2000, the Public Safety National Coordination Committee (NCC) submitted its recommendations to the Commission for technical and operational standards for use of the 700 MHz band. 4 We recognize that the NCC Recommendations pertain to matters that are the subject of some of the Petitions. Given that we anticipate seeking public comment on the substance of the NCC Recommendations, we will defer resolution of the reconsideration requests concerning digital standards in the 700 MHz band at this time. This Second Memorandum Opinion and Order (" Second MO& O") resolves those portions of the petitions that address our decisions in the First Report and Order on: x digital modulation requirement for public safety 700 MHz radios; 5 x certain technical requirements— namely, transmitter power and antenna height, 6 automatic power control, 7 emission limits, 8 frequency stability, 9 wideband channel efficiency standards, 10 and receiver standards; 11 x protection criteria established between television and land mobile operations; 12 1 The Development of Operational, Technical and Spectrum Requirements for Meeting Federal, State and Local Public Safety Agency Communications Requirements Through the Year 2010, WT Docket No. 96- 86, First Report and Order and Third Notice of Proposed Rulemaking, 14 FCC Rcd 152 (1998) (recon. pending) (referred to herein as "First Report and Order" or "Third Notice" as applicable). The issues contained in the Third Notice will be addressed in a separate document in this proceeding. 2 In addition, fourteen parties filed oppositions to specific petitions and replies to the oppositions. A list of the parties, with their acronyms, that filed Petitions, Oppositions and Replies is contained in Appendix A. 3 See The Development of Operational, Technical and Spectrum Requirements for Meeting Federal, State and Local Public Safety Agency Communications Requirements Through the Year 2010, WT Docket No. 96- 86, Memorandum Opinion and Order on Reconsideration, 14 FCC Rcd 8059 (1999) (" First MO& O"). 4 Public Safety National Coordination Committee, Recommendations to the Federal Communications Commission for Technical and Operational Standards fo Use of the 764- 776 MHz and 794- 806 MHz Public Safety Band Pending Development of Final Rules (Feb. 25, 2000) (“ NCC Recommendations”). 5 First Report and Order, 14 FCC Rcd at 203, 204 ¶¶ 107- 110. See Petitions of APCO, NPSTC, Motorola, AASHTO and NYSTEC. 6 First Report and Order, 14 FCC Rcd at 216 ¶¶ 143, 144. See Petitions of APCO and NYSTEC. 7 First Report and Order, 14 FCC Rcd at 216 ¶ 144. See Petitions of APCO, NYSTEC, Motorola and Ericsson. 8 First Report and Order, 14 FCC Rcd at 213, 214 ¶ 136- 38. See Petitions of Ericsson and Motorola. 9 First Report and Order, 14 FCC Rcd at 214, 215 ¶ 139. See Petition of Ericsson. 10 First Report and Order, 14 FCC Rcd at 172, 173 ¶¶ 37, 38. See Petitions of Ericsson, Dataradio and APCO. 11 First Report and Order, 14 FCC Rcd at 207- 209 ¶¶ 118- 121. See Petition of FLEWUG. 12 First Report and Order, 14 FCC Rcd at 217- 227 ¶¶ 146- 164. See Petitions of APCO, NYSTEC and Motorola. 3 Federal Communications Commission FCC 00- 264 4 D:\ Ready_ To_ Convert\ Doc\ 2718.doc x eligibility for licensing and alliances under Section 2.103( b) of our Rules, 13 and x administrative issues regarding regional planning, national planning, and frequency coordination. 14 II. EXECUTIVE SUMMARY 2. In this Second MO& O, we respond to the petitions addressing decisions made in the First Report and Order. The major decisions we adopt today include: x Digital Modulation Requirement for Public Safety 700 MHz Radios: We uphold our decision to require that all 700 MHz equipment be designed to employ digital modulation as the primary modulation mode, and decline to permit analog modulation as a primary mode for an interim period. x Technical standards: We retain the rules regarding limitations on transmitter power and antenna height because any necessary variance from the transmitter power and antenna height limits required by an applicant can be pursued through the normal waiver process. We decide that the requirement of an automatic power control (" APC"), a feature that allows the radio system to automatically adjust the output power of transmitters for mobile and portable units, should be optional. We amend the transmitter frequency stability requirement for public safety 700 MHz band equipment. x Protection Criteria Established Between Television and Land Mobile Operations: We retain the current TV/ land mobile protection criteria and reiterate that public safety applicants can submit an engineering study to justify TV/ land mobile station separations other than those specified in the Rules. x Applications and Licensing of Nongovernmental Organizations: We clarify and revise implementation matters concerning applications and licensing of nongovernmental organizations (NGOs), while affirming the eligibility criteria for NGO licensing adopted in the First Report and Order. x Federal Use of the 700 MHz Band: We confirm that Federal Government use of the 700 MHz band pursuant to "Section 2.103( b) agreements" with state or local government licensees is permissible and consistent with the Commission’s Rules. 15 x 700 MHz Band Administration Issues: We affirm and clarify matters related to regional planning, national planning, and frequency coordination in the 700 MHz band. 13 First Report and Order, 14 FCC Rcd at 178- 188 ¶¶ 49- 72. See Petitions of API, NPSTC, NYSTEC, FLEWUG, UTC and AASHTO. 14 First Report and Order, 14 FCC Rcd at 188- 201 ¶¶ 73- 100. See Petitions of APCO, API, NPSTC, NYSTEC, FLEWUG, California, Pennsylvania, UTC and AASHTO. 15 Section 2. 103( b) provides a new sharing option for the 700 MHz band under which the Commission authorizes its state or local governmental licensee to allow a federal public safety entity to use the licensed channels pursuant to the terms of a written agreement between the licensee and the federal entity. 4 Federal Communications Commission FCC 00- 264 5 D:\ Ready_ To_ Convert\ Doc\ 2718.doc III. BACKGROUND 3. On August 14, 1996, the Commission acknowledged that a portion of the spectrum recovered from TV channels 60- 69 upon the full deployment of digital television (DTV) "could be used to meet public safety needs." 16 In the DTV Sixth Report and Order, the Commission decided to initiate a separate proceeding to address the allocation of TV channels 60- 69, with serious consideration to allocating 24 MHz of that spectrum for public safety use. 17 Subsequently, in the 1997 Budget Act, Congress directed the Commission to reallocate 24 MHz of the spectrum recovered from TV channels 60- 69 for public safety services. 18 4. Shortly thereafter, the Commission reallocated 24 MHz of spectrum located in the 700 MHz band for public safety services. 19 This was the largest allocation ever made for public safety communications and constituted a significant public benefit derived from the conversion of television broadcasting in the United States from analog technology to state- of- the- art digital technology. 20 In the Public Safety Second Notice, the Commission sought comment on how best to use the newly reallocated 24 MHz of spectrum in the 700 MHz band, including a broad range of options to promote the efficient and effective use of the 700 MHz band to meet those needs. 21 5. In the First Report and Order, we took steps to develop a flexible regulatory framework to meet vital current and future public safety communications needs and ensure that sufficient spectrum to accommodate efficient, effective telecommunications facilities and services will be available to satisfy public safety communications needs into the 21st century. In this connection, we established a band plan and adopted service rules to commence the licensing process for the 700 MHz band. 22 In addition, we designated 2.6 MHz of spectrum in the 700 MHz band for interoperability purposes (the ability of different governmental agencies to communicate across jurisdictions and with each other). 23 We also adopted technical specifications to enhance spectrum efficiency and minimize harmful interference in the 700 MHz band. 24 16 Advanced Television Systems and Their Impact Upon the Existing Television Broadcast Service, MM Docket No. 87- 268, Sixth Further Notice of Proposed Rule Making, 11 FCC Rcd 10, 968, 10, 980 (1996). 17 Advanced Television Systems and Their Impact Upon the Existing Television Broadcast Service, MM Docket No. 87- 268, Sixth Report and Order, 12 FCC Rcd 14, 588, 14, 626 (1997) (" DTV Sixth Report & Order"). 18 1997 Budget Act, codified at 47 U. S. C. § 337. 19 Reallocation of Television Channels 60- 69, the 746- 806 MHz Band, ET Docket No. 97- 157, Notice of Proposed Rule Making, 12 FCC Rcd 14, 141 (1997); Reallocation Report and Order, 12 FCC Rcd 22, 953 (1998). 20 DTV Sixth Report and Order, 12 FCC Rcd at 14,588. 21 Development of Operational, Technical and Spectrum Requirements For Meeting Federal, State and Local Public Safety Agency Communications Requirements Through the Year 2010; Establishment of Rules and Requirements of Priority Access Service, WT Docket No. 96- 86, Second Notice of Proposed Rule Making, 12 FCC Rcd 17, 706 (1997) (" Second Notice"). 22 First Report and Order, Appendix E, 14 FCC Rcd at 266. 23 Id. at 165 ¶ 20. 24 Id. at 266, Appendix E. 5 Federal Communications Commission FCC 00- 264 6 D:\ Ready_ To_ Convert\ Doc\ 2718.doc Frequency (MHz) 764 770 776 794 800 806 TV Channel 63 TV Channel 64 TV Channel 68 TV Channel 69 NB WB NB NB WB NB 3 MHz 6 MHz 3 MHz 3 MHz 6 MHz 3 MHz NB = narrowband channels WB = wideband channels 700 MHz Public Safety Band Spectrum & Channels As Adopted in the First Report and Order Designated Purpose Amount of Spectrum Narrowband (6. 25 kHz) Wideband (50 kHz) General Use 12.6 MHz (52.5 %) 7.8 MHz (1248 channels) 4.8 MHz (96 channels) Nationwide Interoperability 2.6 MHz (10.8 %) 0.8 MHz (128 channels) 1.8 MHz (36 channels) Reserved 8.8 MHz (36.7 %) 3.4 MHz (544 channels) 5.4 MHz (108 channels) TOTAL 24 MHz (100 %) 12 MHz (1920 channels) 12 MHz (240 channels) 6. The band plan designates 764- 776 MHz (TV Channels 63 and 64) for base- to- mobile communications and 794- 806 MHz (TV Channels 68 and 69) for mobile- to- base communications. 25 The band plan also accommodates all of the existing operational modes (voice, data, image/ HSD, and video) and is flexible enough to allow deployment of future technologies. Therefore, the band is divided into separate segments for narrowband and wideband communications for both general use and nationwide interoperability. To promote efficient spectrum usage and flexibility, the band plan incorporates a "building block" channelization approach, based on the smallest practical channel sizes for narrowband and wideband public safety communications. Channels may be combined for both general use, and interoperability. We also permit the combination of up to four narrowband 6.25 kHz channels and three wideband 50 kHz channels to create larger channels as needed to accommodate transitional technology, such as 12. 5 kHz or 25 kHz voice and data channels, or communications requiring higher data speeds. 26 25 Id. at 168, 169 ¶¶ 28, 29. 26 Id. at 173- 75 ¶¶ 38, 41. 6 Federal Communications Commission FCC 00- 264 7 D:\ Ready_ To_ Convert\ Doc\ 2718.doc IV. DISCUSSION A. Technical Requirements 1. Digital Modulation Requirement 7. In the First Report and Order, we noted that we have a unique opportunity to ensure that spectrally efficient modulation technology is incorporated in public safety equipment for this band from the outset. 27 Thus, we required that all 700 MHz band public safety equipment, when operating on the general use, interoperability, and reserve channels, employ digital modulation as the primary modulation mode. Mobile and portable units, when operating on the interoperability channels, could also utilize analog modulation as a secondary mode in addition to the primary digital mode. 28 8. The Petitioners addressing our digital modulation requirement are concerned about increased equipment costs and long delays in the availability of 700 MHz band equipment due to the lack of an approved digital standard. 29 The Petitioners suggest that we either allow analog modulation for some interim period, or adopt a digital standard immediately. APCO, NPSTC and AASHTO request a transition period in which we permit analog operation for varying periods of time. 30 The Petitioners argue that the transition period is necessary because digital equipment is not available, and small agencies cannot afford the higher costs involved in upgrading to digital equipment. 31 The Petitioners also assert that their plan would create an incentive for public safety entities to transition to 6.25 kHz digital systems, while also allowing immediate licensing. For example, AASHTO states that to permit rapid implementation of equipment manufacturing and deployment in the 700 MHz band, we should adopt a transition process that will allow the immediate use of current 12.5 kHz analog technology, consistent with the appropriate regional and national planning processes. 32 9. In the Second Notice we asked whether the possible delay in setting a digital modulation standard for interoperability might outweigh the advantages of digital modulation. After review of the comments, we concluded that the long- term advantages of digital modulation outweigh the delay associated with the development of digital standards for interoperability. 33 27 First Report and Order, 14 FCC Rcd at 204 ¶ 109. 28 First Report and Order, 14 FCC Rcd at 204, 210 ¶¶ 110, 128. 29 Apart from stated preferences for specific standards, several Petitioners contend that we should adopt a digital standard immediately to avoid delay in equipment availability. For example, NPSTC is concerned about the time needed for the NCC to develop new standards for the 700 MHz band. NPSTC Petition at 6, 7. NYSTEC indicates that it is implementing a statewide public safety communications system and cannot begin the Request for Proposals procedure until a digital standard is adopted and spectrum is obtained. NYSTEC Petition at 3- 9. Motorola maintains that our decision to direct a Federal Advisory Committee to develop a digital technology standard for the public safety interoperability channels will delay the introduction of 700 MHz public safety radios and will not fully promote interoperability among public safety users. Motorola Petition at 5- 13. 30 APCO Petition at 13- 15 (five years after selection of a digital standard); NPSTC Petition at 7, 8 (five to ten years); AASHTO Petition at 5, 6 (cut- off date of January 1, 2007). 31 See, e. g., NPSTC Petition at 7, 8. 32 AASHTO Petition at 5. 33 First Report and Order, 14 FCC Rcd at 204 ¶ 110. 7 Federal Communications Commission FCC 00- 264 8 D:\ Ready_ To_ Convert\ Doc\ 2718.doc 10. The Petitions do not persuade us otherwise. We continue to believe that this allocation— the largest ever made for public safety communications— presents a unique opportunity to ensure from the outset the incorporation of spectrally efficient modulation (i. e., digital) technology in all 700 MHz band public safety equipment. 34 Thus, we decline to adopt an interim analog modulation standard. Further, we note that the submission of the NCC Recommendations regarding technical and other standards on the interoperability channels indicates that considerable progress has already been made on this matter. 35 Hence, we believe that the immediate lack of a digital standard will not substantially delay implementation. Accordingly, we affirm our decision in the First Report and Order to require that all 700 MHz band equipment (general use, interoperability, and reserve) use digital modulation as its primary modulation mode. 36 2. Transmitter Power/ Antenna Height 11. In the First Report and Order, we adopted transmitting power and antenna height limits for the 700 MHz band that correspond to those power and height limits applicable to the 800 MHz band. 37 While APCO and NYSTEC do not object to these limitations, they indicate that they seek to ensure the most efficient and effective spectrum utilization. They assert that Regional Planning Committees (RPCs) need flexibility to accommodate the unique geography and usage patterns that occur in some regions, therefore, they request that we allow RPCs to revise the transmitting power and antenna height limits as necessary. 38 12. As discussed in the First Report and Order, one of the elements that a RPC must include in its Regional Plan is a general description of the allotment of spectrum among the various eligible users within the region. The description must also contain an explanation of how the requirements of all eligible entities within the region were considered and, to the degree possible, met. 39 Applications for station authorizations would be submitted to the RPC, who would review the application for concurrence with the regional plan. Upon approval by the RPC, the applicant would then submit the application to a frequency coordinator. In accordance with the Commission's Rules, any request for a waiver of the Commission's Rules required by an applicant to meet its system's requirements would be submitted with the applications and would be acted upon by the Commission. 40 While we agree with APCO that in some regions there may be occasional requirements in which transmitter power or antenna height requirements exceeding the Rules may be necessary to accommodate unique geography or usage patterns, we conclude that such circumstances must be resolved under existing procedures contained in our Rules. We, therefore, decline to modify our Rules to permit RPCs to revise any technical provisions in an application, in light of our belief that our existing waiver process provides an efficient and effective mechanism by which the Petitioners’ stated concerns can be addressed. 34 See also id. at 204 ¶ 109. 35 See NCC Recommendations. To allow the NCC to proceed in a timely fashion, we decided in our First MO& O to allow the NCC to recommend technical standards developed and approved by one or more existing ANSI Accredited Standards Developers. See First MO& O, 14 FCC Rcd at 8061 ¶ 3. 36 We will allow mobile and portable units to have analog modulation capability as a secondary mode in addition to its primary digital mode. 37 First Report and Order, 14 FCC Rcd at 216 ¶ 143. 38 APCO Petition at 22; NYSTEC Petition at 10. 39 First Report and Order, 14 FCC Rcd at 193 ¶ 84. 40 See 47 C. F. R. § 90. 151. 8 Federal Communications Commission FCC 00- 264 9 D:\ Ready_ To_ Convert\ Doc\ 2718.doc 3. Automatic Power Control 13. In the First Report and Order, we required mobile and portable transmitters to be designed to employ automatic power control (" APC"). 41 APC is a system capability that allows the system to automatically adjust the output power of mobile and portable transmitters in order to maintain the minimum transmitting power necessary for effective communications, and to minimize interference. In their Petitions, APCO and NYSTEC ask that we delete the APC design requirement for mobile and portable transmitters, because APC is incompatible with most public safety dispatch systems. Specifically, APCO indicates that APC will not function in the satellite receiver/ voter comparator systems that many public safety radio operations use. APCO explains that APC could reduce a unit’s power to the point where only a single receiver in the multiple receiver comparator system can receive the signal. APCO, NYSTEC and Motorola, therefore, suggest that the use of APC should be optional and not mandated by rule. 42 Additionally, NYSTEC states that digital cellular applications that do not require dispatch operation commonly use APC; however, it believes that APC would preclude technologies designed for public safety dispatch systems. 43 Ericsson also argues that it is inappropriate to require APC on mobile and portable units alone because this feature must be implemented throughout the network, including the radio infrastructure, to achieve the benefits associated with APC. 44 14. We concur with the petitioners that the use of APC in mobile and portable transmitters should be an optional equipment requirement. Therefore, we are deleting Section 90.541( d) of our Rules which requires the design of mobile and portable units to employ APC. While we are deleting this requirement from our Rules, this does not preclude the ability of licensees to use transmitters employing APC should they desire to do so. 4. Emission Limitations 15. In the First Report and Order, we specified emission limits based upon adjacent channel coupled power (" ACCP") rather than specifying emission masks for various types of communications in the 700 MHz band. 45 Ericsson and Motorola support the ACCP concept but they contend that further analysis is required to establish appropriate intercepted adjacent band power levels that will cause interference to an adjacent channel receiver, and to translate these values into corresponding ACCP requirement values. 46 Motorola recommends that we allow manufacturers to address this matter, in the context of the TIA process, to ensure the submission of final ACCP recommendations within a short time frame. 47 Motorola adds that industry consensus is strongly preferred to further requests for reconsideration, and regulatory uncertainty. 48 41 First Report and Order, 14 FCC Rcd at 216 ¶ 144; 47 C. F. R. § 90. 541( d). 42 APCO Petition at 22; NYSTEC Petition at 10, 11; Motorola Comments to Petitions for Reconsideration at 6, 7. 43 NYSTEC Petition at 10, 11. 44 Ericsson Petition at 15. 45 First Report and Order, 14 FCC Rcd at 214 ¶ 138. 46 Ericsson Petition at 10; Motorola Comments on Petitions at 6. Both Ericcson and Motorola recommend ACCP changes even though they believe that further analysis is necessary. See Ericsson Petition at 10- 14; Motorola Petition at 25- 27, Appendix B. 47 Motorola Comments on Petitions at 6. By way of reference, we note that the Telecommunications Industry Association (TIA) Engineering Committee TR– 8 is an American National Standards Institute (ANSI) Accredited 9 Federal Communications Commission FCC 00- 264 10 D:\ Ready_ To_ Convert\ Doc\ 2718.doc 16. We agree with Ericsson and Motorola that further industry consensus recommendations would be useful to refine ACCP values. Accordingly, we defer further action on this issue at this time, while retaining the values adopted in our First Report and Order. We request that the industry review this technical issue and provide us, within a reasonable time frame (but not to exceed one year), consensus recommendations for values of ACCP emission limits. 49 5. Frequency Stability 17. In the First Report and Order, we adopted Motorola's suggestion for a frequency stability requirement for narrowband mobile and portable units of 0.4 parts per million (" ppm") or better when the automatic frequency control (" AFC") is locked to the base station, and 2.5 ppm when the AFC is not locked. 50 In its Petition, Ericsson requests reconsideration of the narrowband frequency stability requirements. Ericsson argues that the frequency stability required by our current Rules for narrowband mobile and portable units (i. e., 2. 5 ppm) appears to be incorrect. 51 Ericsson states that the 2.5 ppm stability requirement for narrowband mobiles and portables limits the modulation spectral bandwidth in a 6.25 kHz channel to 2.25 kHz, and that this limitation might inflate the cost of equipment in an amount "greater than the improved frequency stability requirements." 52 Ericsson recommends that we adopt frequency stability requirements for this new band with varying operating channel bandwidths that are consistent with the stability requirements required for other public safety bands. 53 18. Upon reconsideration, we are persuaded that the frequency stability requirement for narrowband equipment should be modified to improve equipment performance, and thereby, offer greater co- channel and adjacent channel protection within the 700 MHz band. Although no comments were received from the public safety community or equipment manufacturers regarding Ericsson's petition, we have reviewed the issue of frequency stability again and conclude that it should be revised. First, we note that the stability requirement for mobiles and portables in the 821- 824 MHz public safety band (12.5 kHz channels) is 1.5 ppm, while the 806- 821 MHz band 54 (25 kHz channels) is 2.5 ppm. 55 Additionally, the frequency stability requirements for 6. 25 kHz channels that were adopted in the Refarming Proceeding Standards Developer (ASD) with experience in this area of telecommunications work. See First MO& O, 14 FCC Rcd at 8064, 8065 ¶¶ 10, 11. 48 Motorola Comments on Petitions at 6. 49 See also 1998 Biennial Regulatory Review - 47 C. F. R. Part 90 - Private Land Mobile Radio Services, Report and Order and Further Notice of Proposed Rule Making, WT Docket No. 98- 182, FCC 00- 235, at ¶¶ 33, 34 (WTB PSPWD rel. July 12, 2000) (the Commission recently encouraged industry consensus on emission limitations). 50 First Report and Order, 14 FCC Rcd at 214 ¶ 139; 47 C. F. R. § 90. 539( c). 51 Ericsson Petition at 16. 52 Id. 53 Id. See also 47 C. F. R. § 90. 213( a); Replacement of Part 90 by Part 88 to Revise the Private Land Mobile Radio Services and Modify the Policies Governing Them, Memorandum Opinion and Order, PR Docket No. 92- 235, 11 FCC Rcd 17676, 17, 699 (1996) (" Refarming Proceeding"). 54 The 806- 821 MHz band is used by business, industrial and public safety entities for mobile and portable operations, as well as by commercial wireless services. 55 See 47 C. F. R. § 90. 213( a). 10 Federal Communications Commission FCC 00- 264 11 D:\ Ready_ To_ Convert\ Doc\ 2718.doc are more stringent (2. 0 ppm for the 150 MHz band and 1.0 ppm for the 450 MHz band), and offer a greater level of interference protection than the 25 kHz channel 2.5 ppm for the 806- 821 MHz band. While Ericsson's argument that the 2.5 ppm stability requirement limits the modulation spectral bandwidth to 2. 25 kHz appears to consider the "worst case" situation (i. e., mobile- to- mobile communications where one mobile transmitter has drifted downward in frequency and the other mobile has simultaneously drifted upward), we agree that more stringent requirements are desirable to improve channel reuse in the 700 MHz band. For these reasons, we adopt a frequency stability requirement with varying operating channel bandwidths for narrowband mobile and portable units of 1.0 ppm for 6.25 kHz, 1.5 ppm for 12.5 kHz (2 channel aggregate), and 2.5 ppm for 25 kHz (4 channel aggregate). 56 6. Channel Efficiency Standards — Wideband Channels 57 19. In the First Report and Order we established a channel efficiency standard of 384 kbps per 150 kilohertz of spectrum 58 for the wideband channels. 59 Ericsson and Dataradio have requested changes to the channel efficiency standard. Ericsson requests that we reduce the wideband channel data efficiency to 384 kbps per 200 kHz to be consistent with high speed data equipment now under development for application in other wireless communications markets. Ericsson states that the public safety market is not sufficient to support the development of equipment with our more stringent wideband data standard. 60 Dataradio recommends that we exempt rural areas (i. e., locations within 120.7 km (75 miles) of the center of urbanized areas having 200,000 or more in population), from the wideband channel data efficiency standard. 61 Dataradio contends that a lower spectrum efficiency requirement for rural areas is more consistent with the needs and budgeting capabilities of lower- density jurisdictions. 62 56 We note here that the NCC is looking into this issue of technical standards. We reserve the discretion to revisit this issue if the NCC recommends changes to these requirements. 57 It should be noted, however, that channel efficiency standards for narrowband channels are not addressed by this Second Memorandum and Opinion because they may be affected by our disposition of the NCC Recommendations, particularly, the adoption of a digital standard. 58 The equivalent bit rates are 128 kbps and 256 kbps for 50 kHz and 100 kHz channels, respectively. 59 First Report and Order, 14 FCC Rcd at 174 ¶ 41; 47 C. F. R. § 90. 535( c). In general, several Petitioners suggest alternative phrasings of 47 C. F. R. § 90. 535. For example, Dataradio, in its Petition at n. 7, states that the word “throughput,” as generally used, involves other factors such as error correction and multiple bits per symbol, which are optional equipment design factors that the Commission has no control over. APCO, in its Petition at n. 15, indicates that the term "channel data rate" would be more precise and consistent with industry nomenclature. Motorola, in its Petition at 28, recommends that the text of the new rules regarding 700 MHz band spectrum efficiency standards (47 C. F. R. §§ 90. 535( b) and (c)) be amended to better comport with the existing spectrum efficiency standards for the 150 and 450 MHz bands as given in 47 C. F. R. § 90.203( j). We concur with these comments and will amend Section 90. 535 of our Rules accordingly. 60 Ericsson Petition at 9. 61 Dataradio Reply to Response of APCO at 2- 5. Originally, Dataradio requested that we clarify and/ or amend the bit rate requirement for wideband channels less than 150 kHz and implement lower digital bit rates of 56 kbps and 128 kbps for 50 kHz and 100 kHz channels respectively to permit lower cost data equipment to be purchased by smaller public safety agencies. Dataradio Petition at 5- 9. 62 Dataradio Petition at 4. Dataradio also notes, “For most small and medium- sized jurisdictions, and particularly entities such as Native American Indian tribes occupying largely undeveloped and wide- spread reservations, budgetary constraints absolutely foreclose the ability to invest in redundant, ubiquitous infrastructure.” Id. at 6. 11 Federal Communications Commission FCC 00- 264 12 D:\ Ready_ To_ Convert\ Doc\ 2718.doc 20. In the First Report and Order, we considered the various factors needed to establish a meaningful wideband channel efficiency standard. 63 We gave favorable consideration to the recommendations suggested by NPSTC and the Public Safety Wireless Advisory Committee (" PSWAC"), resulting in the adoption of a wideband channel efficiency standard of 384 kbps for 150 kHz channels as recommended in the PSWAC Final Report. 64 We also refused to permit applicants to combine 50 kHz channels to make wideband channels larger than 150 kHz, because doing so could significantly reduce the limited number of wideband channels available for other public safety providers. 65 After review of the record on this issue, we remain convinced that this rationale is proper and find that the Ericsson and Dataradio arguments are not persuasive. We agree with APCO that the efficiency standards should not be lowered to meet vendors’ marketing requirements. 66 Therefore, we reject Ericsson's request to establish a reduced data rate standard of 384 kbps for a 200 kHz channel. We also reject Dataradio's suggestion to require only those users in urbanized areas to comply with the adopted wideband channel efficiency standard. Dataradio's proposal would result in public safety agencies within the specified urban areas using different equipment than agencies outside of the urbanized areas. We believe that such a result would frustrate our goal of facilitating the achievement of nationwide interoperability. Moreover, Dataradio fails to address both the significant burdens of enforcement, and the confusion that would result from implementing its suggested two- tiered approach. We are, therefore, retaining the nationwide wideband channel data efficiency standard as adopted in the First Report and Order. We note, however, that the NCC recognizes the need for further evaluation concerning user needs for wideband data systems, 67 and we may decide to revisit the issue pursuant to further NCC recommendations. 7. Receiver Standards 21. In the First Report and Order, we stated that we would require that the NCC fulfill the same requirements regarding recommendation of receiver standards for the nationwide interoperability channels as for the interoperability digital modulation standard. 68 We charged the NCC with recommending the parameters (e. g., sensitivity, selectivity, dynamic range, durability characteristics) to include in the receiver standards. 69 For general use channels, RPCs are required to establish reference values for adjacent channel selectivity, spurious response attenuation, and intermodulation rejection in their plans. 70 22. FLEWUG asks that we reconsider our decision to have the NCC issue receiver standards. 71 Specifically, FLEWUG urges the adoption of receiver standard provisions that are 63 First Report and Order, 14 FCC Rcd at 172 ¶ 37. 64 Id. at 172 ¶ 37. See also PSWAC Final Report at 231, 232. 65 First Report and Order, 14 FCC Rcd at 174 ¶ 41. 66 APCO Response to Petitions at 8. 67 NCC Recommendations at 21 ¶ 66. 68 First Report and Order, 14 FCC Rcd at 208 ¶ 121. 69 Id. 70 Id. at 211, 212 ¶ 132. We noted that this approach will allow public safety entities to avail themselves of competitive market choices while establishing a "reference receiver," thereby assisting all parties, including the Commission, in resolving interference disputes. Id. 71 FLEWUG Petition at 23. 12 Federal Communications Commission FCC 00- 264 13 D:\ Ready_ To_ Convert\ Doc\ 2718.doc established by TIA, and adopted by both the user and vendor communities. 72 FLEWUG recommends that because NTIA has been a proponent of receiver standards for managing the radio spectrum effectively and efficiently, that we use the NTIA Manual of Regulation and Procedures for Federal Radio Frequency Management as an outline for such standards. 73 FLEWUG further recommends that we apply the receiver standards to general use as well as interoperability channels. 74 23. After considering FLEWUG's comments regarding receiver standards, we reiterate our conclusions presented in the First Report and Order as to whether we should establish a certain minimum quality for public safety receivers, particularly for interoperability purposes. We previously noted that the comments in this proceeding did not support a distinction between general use and interoperability operations. 75 We remain concerned that interoperability communications may typically be of greater urgency than ordinary day- to- day public safety communications. To the extent that receiver standards could improve the reliability of interoperability communications systems used in critical safety of life and property circumstances, we believe that such standards may be appropriate. Absent additional information from the public safety community regarding the advantages, disadvantages and feasibility of mandating receiver standards for the 700 MHz band, we believe that the most prudent course of action would be to not adopt receiver standards at this time. We, therefore, decline to adopt FLEWUG’s suggested receiver standards, but we nonetheless affirm and reiterate our decision to require that the NCC fulfill the same requirements regarding recommendation of receiver standards for the nationwide interoperability channels as established for the recommendation of the interoperability digital modulation standard. We are aware that the NCC is including the matter of receiver standards in its second year workplan and direct the NCC to report its recommendations in that regard as soon as practicable. B. Broadcast TV/ Land Mobile Interference 24. Some of the petitioners seek reconsideration of our decisions regarding protection requirements between public safety base and mobile stations, television (TV) stations, 76 and DTV stations 77 in the recently allocated 24 megahertz of spectrum in the 700 MHz band for nationwide public safety use. During the transition from analog to DTV service (" DTV transition period"), 78 public safety entities must share the use of this 24 megahertz of spectrum with both analog and digital TV stations. 79 In the First Report and Order, we adopted a 40 dB desired- to- undesired (" D/ U") signal ratio for calculating co- channel land mobile/ TV station geographic separation requirements. We stated that the 40 dB D/ U signal ratio is a reasonable value that will provide sufficient TV protection, as prescribed by 72 Id. at 24. 73 Id. 74 Id. 75 First Report and Order, 14 FCC Rcd at 208, 209 ¶ 121. 76 Existing TV stations use the traditional analog (" NTSC") format. 77 DTV refers to any technology that uses digital techniques to provide advanced TV services such as high definition TV, multiple standard definition TV, and other advanced features and services. 78 The DTV transition period will end December 31, 2006, but may be extended in some markets for the reasons enumerated in Section 309( j)( 14)( B) of the Communications Act, as amended, 47 U. S. C. § 309( j)( 14)( B). 79 Reallocation of Television Channels 60- 69, the 746- 806 MHz Band, ET Docket No. 97- 157, Report and Order, 12 FCC Rcd 22,953 (1997). 13 Federal Communications Commission FCC 00- 264 14 D:\ Ready_ To_ Convert\ Doc\ 2718.doc the 1997 Budget Act. 80 Our rules limit co- channel land mobile base station transmitters to a maximum signal strength at the hypothetical TV Grade B contour of 40 dB below 64 dBu, or 24 dBu. We also adopted a 0 dB D/ U signal ratio for adjacent channel operations where adjacent channel land mobile transmitters are limited to a maximum signal which can equal the TV Grade B contour signal of 64 dBu at the TV station's hypothetical Grade B contour distance of 88.5 km (55 miles). 81 25. The First Report and Order established a basis for applying the same geographic separation tables already in our Rules for protecting analog TV stations operating in the 470- 512 MHz band (TV channels 14- 20) to TV stations operating in the 784- 806 MHz band (TV channels 60- 69). 82 The geographical separation tables for protection of analog TV can be used for both analog TV and DTV service. Although the field strength for DTV noise- limited service is considerably weaker than that required for Grade B analog service, because DTV is considerably more robust the land mobile signal strength does not have to be correspondingly reduced. 83 Data measured for DTV support this conclusion and approximately confirm the D/ U ratios established by the First Report and Order for protecting DTV. 84 26. Motorola requests that we revise the technical criteria for protecting TV stations. 85 Motorola states that while the number of TV broadcast stations in the 700 MHz band is relatively small, the interference protection afforded these facilities is large and substantially affects the availability of the spectrum for public safety use. 86 Motorola, with support from APCO and NYSTEC, requests that we modify the co- channel and adjacent channel TV protection criteria to allow greater public safety access to the 700 MHz spectrum, contending that we did not adequately consider all relevant technical information in reaching our decision on this matter in the First Report and Order. 87 Similarly, APCO requests that we reconsider the land mobile/ TV co- channel separation rules, stating that unless these rules are changed, public safety operation in several key geographical areas will be delayed until the end of the DTV transition in 2006, if not later. Further, APCO contends that Motorola's petition for reconsideration provides further technical evidence supporting its position. 27. Propagation difference between the 470- 512 MHz and 746- 806 MHz bands. Motorola states that the propagation difference between the 470- 512 MHz and 746- 806 MHz bands is about 5.3 dB. Consequently, Motorola concludes that this factor can either shorten spacings between land mobile 80 See 47 U. S. C. § 337( d)( 2). 81 First Report and Order, 14 FCC Rcd at 221 ¶ 152; 47 C. F. R. § 90. 545. 82 First Report and Order, 14 FCC Rcd at 224- 26 ¶ 160- 62. 83 Id. at 221 ¶ 153. 84 See page I- 3- 28 of the Advanced Television Test Center, Inc., report entitled "Record of Test Results for Digital HDTV Grand Alliance System" submitted to the Technical Subgroup of the FCC Advisory Committee on Advanced Television Service, September 8, 1995. 85 Motorola Petition at 4, 5, 14- 25. 86 Id. at 14. 87 Motorola Petition at 14- 24; APCO Petition at 23; NYSTEC Petition at 11. 14 Federal Communications Commission FCC 00- 264 15 D:\ Ready_ To_ Convert\ Doc\ 2718.doc systems and TV or permit increased transmitter power for 700 MHz land mobile radio systems. 88 While we agree that there is a difference in propagation loss between the two bands, we nonetheless note that the R- 6602 propagation curves contained in our Rules were developed to protect television stations operating in the 470 to 890 MHz frequency range as a whole. 89 Although it may be argued that the R- 6602 propagation curves are overly conservative in protecting full service analog television transmitters, our experience with both the general public and the industry has shown that these propagation curves have worked successfully since their institution and we are not inclined to make any global changes to these parameters in light of our statutory mandate to protect full- service analog television service and digital television service during the DTV transition period. 90 Moreover, we believe that our Rules provide alternate methods for public safety applicants to meet the TV/ DTV protection requirements by: (1) submitting an engineering study to justify other separations to the Commission for approval; or (2) obtaining concurrence from the applicable TV/ DTV station( s). 91 28. TV antenna front- to- back directivity characteristics. Motorola contends that the front- to-back directivity of a television antenna can be considered to be about 15 dB and should be a factor considered in determining the appropriate TV protection criteria. 92 We concur that a directional TV antenna would offer greater protection from land mobile radio interference; however, directional TV antennas only account for a subset of all TV antennas currently in use. The other two types of antennas that are in extensive use are rabbit ear and simple dipole antennas, 93 which have very little, if any, front-to- back directivity. Therefore, we are concerned that any lowering of the existing TV protection criteria could potentially impact TV reception in cases where directional TV antennas are not employed. While protecting DTV might provide some justification for reducing the co- channel protection ratio in view of the greater directivity assumed as a planning factor for DTV service, we decline to do so at this time because we do not want to diminish protection for the full- service analog television service. We have previously noted that we are bound by a statutory mandate to protect this service during the DTV transition period, and again, we note that our Rules provide alternate methods for public safety applicants to meet the TV/ DTV protection requirements. 94 Moreover, we believe that making the requested change to the TV protection criteria would sacrifice the simplicity of the protection criteria adopted in the First Report and Order, which is premised upon use of the Section 90. 309 tables for DTV. 29. Overestimation of the interfering field strength. Motorola notes that the propagation charts in ITU recommendation ITU- R P. 370- 7, "VHF and UHF Propagation Curves for the Frequency Range 30 MHz to 1000 MHz," predict a lesser degree of time variation than we reference in our Rules. 95 88 Motorola Petition at 14; Comments of Motorola to the Second NPRM, Appendix, at 28, 29. In its analysis of the propagation difference, Motorola utilized FCC Report OCE RS76- 01 for the R- 6602 curves and band center frequencies of 491 MHz and 776 MHz. 89 See 47 C. F. R. § 73. 699. 90 See 47 U. S. C. §§ 337( d)( 2), 309( j)( 14). 91 See 47 C. F. R. § 90. 545( c). 92 Motorola Petition at 15. 93 Dipole antennas are straight, typically fixed- length wire antennas. Rabbit ears are a variation on dipole antennas in which the two elements can be moved and the length changed. 94 See supra note 90. 95 See 47 C. F. R. § 73. 699. 15 Federal Communications Commission FCC 00- 264 16 D:\ Ready_ To_ Convert\ Doc\ 2718.doc Motorola contends that, as a consequence, the interfering land mobile signal derived from our F( 50,10) curves may be overestimated, thus unrealistically penalizing land mobile radio operations. 96 As noted above, full power analog television stations are required to be protected during the DTV transition period. Our experience with both the general public and the industry has shown that R- 6602 curves have worked successfully since their institution. Our present curves are part of our working relationship with Canada and Mexico. Finally, as stated above, our Rules provide alternative methods for public safety applicants to meet the TV/ DTV protection requirements. Consequently, we are not inclined to make any changes at this time. 30. Actual versus hypothetical 55- mile TV/ DTV contours. Motorola states that in order to provide maximum availability of the 700 MHz spectrum to public safety entities, we should require public safety systems to protect only the actual TV station Grade B (64 dBu) contour and not a hypothetical contour. 97 In support of its proposed requirement, Motorola notes that such a requirement is appropriate given that incumbent broadcast stations will not be permitted to expand beyond their current operating parameters. 31. In the First Report and Order, we stated that a geographic separation distance table based on a standard 88. 5 km Grade B service contour (an equivalent Grade B for DTV operations) would be more appropriate and practicable than the alternatives we considered. 98 We also expressed concern that limiting TV/ land mobile separation to distances specified in a table could prevent public safety entities from fully utilizing the 700 MHz band in several major metropolitan areas until after the transition period ends. Therefore, we decided to permit applicants/ licensees to submit an engineering study supporting their proposed TV/ land mobile station separations to meet TV/ DTV protection requirements utilizing the actual parameters of the land mobile and TV/ DTV stations involved. Our approach allows public safety applicants to take into account intervening terrain and engineering techniques such as directional and down- tilt antennas in determining the separation necessary to provide the required protection. Additionally, we decided to allow public safety applicants to "short- space" their proposed facilities (i. e., locate them at distances closer than that permitted pursuant to the Table) if they obtain the approval of the licensees of the TV stations they are required to protect. Thus, under our Rules, public safety applicants may select one of three ways to meet the TV/ DTV protection requirements: (1) utilize the geographic separation specified in the Table; (2) submit an engineering study to justify other separations; or (3) obtain concurrence from the applicable TV/ DTV station( s). 99 We conclude that by providing for engineering studies as a permissible method (2) for meeting TV protection requirements, our Rules already address Motorola's concerns. On a separate but related matter, we note that Motorola has pointed out a redundancy in our Rules, namely the sentence in Section 90.545( c)( 2)( ii) that reads "Control and mobile stations shall keep a minimum distance of 96. 5 kilometers (60 miles) from all adjacent channel TV/ DTV stations." We will delete this sentence from Section 90.545( c)( 2)( ii) given that a minimum distance from the TV/ DTV contour is specified earlier in the paragraph. 100 96 Motorola Petition at 14- 16. 97 Motorola Petition at 16- 18. 98 First Report and Order, 14 FCC Rcd at 224 ¶ 158. 99 See 47 C. F. R. § 90. 545( c). 100 See 90.545( c)( 2)( ii) (1999) (required control and mobile stations to keep a minimum distance from Grade B contours of TV/ DTV stations). 16 Federal Communications Commission FCC 00- 264 17 D:\ Ready_ To_ Convert\ Doc\ 2718.doc 32. Greater interference rejection on frequencies further removed from adjacent TV channel edge. In its Petition, Motorola provides a table of increasingly favorable D/ U ratios as a function of frequency separation from the band edge of an adjacent analog TV channel. 101 The table is based on the FCC/ OET TM87- 1 Report (April 1986) entitled "Receiver Susceptibility Measurements Relating to Interference between UHF Television and Land Mobile Radio Services." Motorola states that, as reflected in its table, TV receivers exhibit greater interference rejection on frequencies further removed from the adjacent TV channel edge, and that this phenomenon should be exploited to allow TV/ land mobile sharing at closer separations when land mobile systems use the frequencies that are not immediately adjacent to the TV station. 33. We concur that land mobile systems operating on frequencies further away in frequency from a channel being used by a TV station may be able to operate at closer separations. However, frequency- dependent geographic separations would require consideration of all 700 MHz band frequencies used by land mobile radio stations. Currently, consideration is only given to the worst case, that of land mobile radio transmitters near the band edge of the protected TV/ DTV station thereby greatly simplifying the separation requirements. Further, as noted throughout this section, our Rules provided alternate methods for public safety applicants to meet the separation requirements. Therefore, we decline to make any changes at this time. 34. Motorola also argues that the different polarization of land mobile and broadcast TV transmissions 102 and the dipole factor adjustment 103 are other factors which also could influence reducing TV/ land mobile protection criteria. While the different polarization does favor smaller protection ratios, we do not believe that the dipole factor is relevant to interference calculations because it affects reception of desired and undesired stations alike. We conclude, therefore, that most of Motorola's objections can be accommodated in the submission of engineering studies as provided for in Section 90.545 and do not require a change in our Rules. 35. In summary, Motorola has asked that we take into account certain parameters in determining the TV/ DTV protection requirements (separation criteria). While we recognize that it may be argued that certain parameters should be taken into consideration when calculating the needed protection, we have declined to do so in this proceeding for the reasons stated above. In addition, we believe that any change in how land mobile/ TV protection is calculated should be addressed in a proceeding which looks at all spectrum shared between these services rather than one limited to a particular service band. C. Eligibility to Hold a License 1. Identity of Licensee 36. In the First Report and Order, we adopted a three- pronged test for determining eligibility to hold a license in the 700 MHz band, which follows the definition of “public safety services” contained in Section 337( f) of the Communications Act of 1934, as amended. 104 The three prongs for determining eligibility are: (1) purpose of use; (2) identity of licensee; and (3) compliance of noncommercial 101 Motorola Petition at 20- 22. 102 Id. at 15. 103 Id. at 16. 104 See 47 U. S. C. § 337( f). 17 Federal Communications Commission FCC 00- 264 18 D:\ Ready_ To_ Convert\ Doc\ 2718.doc proviso. 105 We concluded that entities eligible to be licensed in the 700 MHz band public safety spectrum are: (1) state and local governments; and (2) non- governmental organizations (NGOs) expressly authorized by a state or local governmental entity whose mission is the oversight of or provision of services to protect the safety of life, health or property. 106 We noted that this approach was consistent with our eligibility rules for public safety spectrum outside of the 700 MHz band, where NGOs generally receive some type of approval from state or local government entities before being licensed on such spectrum. 107 Moreover, we adopted a provision that expressly conditions all 700 MHz band licenses issued to NGOs, on the requirement that the NGO continues to meet the public safety service definition of Section 337. 108 We also noted that if a governmental entity rescinds its authorization and the safety of the public requires immediate suspension of the NGO's 700 MHz band operation, the governmental entity should notify the Commission directly in writing of such occurrence and requirement. 37. Non- governmental organizations (" NGOs"). NYSTEC and NPSTC ask us to reconsider our conclusion that NGOs are eligible for licensing when expressly authorized by a state or local governmental entity whose mission is the oversight of or provision of services to protect the safety of life, health or property. 109 These petitioners recommend only allowing NGOs to operate in the 700 MHz band under the license of the governmental entity for which the NGO is providing public safety services. 110 API counters that the conditions for NGO licensing in the 700 MHz band are already sufficiently narrow to ensure that qualified NGOs use the spectrum for public safety services. 111 UTC also opposes the petitioners' suggested additional eligibility restrictions on NGOs, contending that we should have differentiated between NGOs that use spectrum for private communications and those “that provide radio service for a fee.” 112 Alternatively, UTC asks that we treat utilities and pipeline companies differently by eliminating the governmental sponsorship requirement as it applies to them. 113 In this regard, UTC avers 105 See First Report and Order, 14 FCC Rcd at 178 ¶ 48. 106 See id. at 180, 188 ¶¶ 54, 56 (citing 47 U. S. C. § 337( f)( 1)). 107 Id. at 182 n. 143 (citing Refarming Second Report and Order, 12 FCC Rcd 14307, 14319 (1999) (eligibility for licensing in Public Safety Pool below 512 MHz is typically established by the governmental status of the applicant; NGOs almost always need governmental approval to be licensed)). 108 47 C. F. R. § 90. 523( c) (1999); see also First Report and Order, 14 FCC Rcd at 183 ¶ 58 n. 146 (citing generally AAT Electronics Corp., 93 FCC 2d 1034 (1983), and P & R Temmer, 93 FCC 2d 1051 (1983), both aff'd sub. nom., P & R Temmer v. FCC, 743 F. 2d 918 (D. C. Cir. 1984)). 109 NPSTC Petition at 5; NYSTEC Petition at 12. 110 NPSTC Petition at 5; NYSTEC Petition at 12. 111 API Opposition at 6- 9. To respond to situations such as oil spills, API states that many of its members (e. g., oil, gas, and pipeline companies) have emergency response equipment, including telecommunications facilities, assembled and stored for expedited transport to an incident site. Id. at 7. In this connection, API states that a streamlined approval process to use the 700 MHz interoperability channels is required so that these API members may use the 700 MHz band interoperability channels as soon as these emergency response communication facilities are needed to respond to an emergency anywhere throughout the country. Id. 112 UTC Opposition at 3 (citing First Report and Order, 14 FCC Rcd at 178- 183 ¶¶ 50- 59). 113 Id. To the extent that UTC seeks reconsideration of our NGO licensing decisions in the First Report and Order, these contentions are untimely presented in an opposition pleading, rather than being timely raised in a formal petition for reconsideration. See 47 C. F. R. § 1. 429( d). 18 Federal Communications Commission FCC 00- 264 19 D:\ Ready_ To_ Convert\ Doc\ 2718.doc that the public safety role of utilities and pipeline companies is well recognized both by the Commission and local agencies. 114 38. We concluded in the First Report and Order that Congress intended for NGOs to be eligible to hold licenses in the 700 MHz band because the definition of public safety services enumerates certain NGOs along with state and local governments. 115 NPSTC and NYSTEC seek reconsideration of this conclusion based on policy preferences or concerns about NGO licensing, 116 many of which were raised and considered during earlier stages of this proceeding. By contrast, these petitioners do not offer an interpretation of the statute that would be consistent with barring NGO licensing, nor contend that we misinterpreted the statute. 117 We find therefore that these petitions provide no basis for modifying the conclusions in the First Report and Order as to NGO licensing. 39. UTC's request to eliminate the governmental sponsorship requirement for utilities and pipeline companies is similarly unpersuasive because the statute requires all NGOs to have government sponsorship. 118 In connection with UTC's request, however, we clarify on our own motion that providing radio service to public safety subscribers is not a service for the sole or principal purpose of protecting the safety of life, health, or property. Rather, it is appropriately characterized as commercial use of the radio spectrum. We conclude, therefore, that such radio communication services do not fall within the public safety services definition for which this spectrum is allocated. Moreover, under the noncommercial proviso 119 the public safety services for which the 700 MHz band is used must not be made commercially available to the public. In this connection, we concluded in the First Report and Order that all providers of public safety services are eligible for NGO licensing. 120 We clarify that this conclusion provides no basis for licensing entities (commercial or noncommercial) that provide radio service for a fee because the 700 MHz band is allocated for public safety services. 40. On the other hand, we agree with NPSTC's recommendation to require supporting governmental entities to recertify their NGO licensees at license renewal time. 121 Thus, as part of license renewal, NGO applicants must submit a written statement of continuing authorization by their supporting governmental entity. 122 This recertification requirement will be an additional safeguard towards ensuring that the licensing of the 700 MHz band is in accordance with the statute. For this reason, on our own motion, we will also require recertification as part of NGO modification applications. We believe this 114 Id. (citations omitted). 115 See First Report and Order, 14 FCC Rcd at 181 ¶ 56. 116 See, e. g., NPSTC Petition at 5, 6. 117 In the First Report and Order, we concluded that the statutory definition of public safety services is necessarily framed around our licensing powers and, as such, that the omission of Federal entities from this definition is only relevant for licensing purposes. First Report and Order, 14 FCC Rcd at 185 ¶ 66. 118 See 47 U. S. C. § 337( f)( 1)( B)( ii). 119 47 U. S. C. § 337( f)( 1)( C). 120 First Report and Order, 14 FCC Rcd at 187, 188 ¶¶ 71, 72. 121 See NPSTC Petition at 5. 122 We are amending 47 C. F. R. § 90. 523( b) as set forth in Appendix C to set forth general requirements for NGO authorization letters. 19 Federal Communications Commission FCC 00- 264 20 D:\ Ready_ To_ Convert\ Doc\ 2718.doc additional safeguard imposes almost no additional burden on NGOs because license renewal occurs once every ten years and, in all events, NGOs are required to keep the governmental entity apprised of system changes. Thus, we will require NGOs to obtain written consent for their 700 MHz band applications, i. e., initial, modification, assignment, transfer, and renewal, directly from the state or local governmental entity that authorized the NGO to use the 700 MHz band. We clarify that this recertification requirement is an additional safeguard and does not replace or modify the conditional grant that applies to all NGO licenses. For application processing purposes, so long as the NGO applicant submits the required written authorization of such a state or local governmental entity, we will deem these provisions satisfied. 2. State/ Local Licensees Allied with Federal Public Safety Service Providers 41. In the First Report and Order, we amended Section 2.103 of our Rules so that the criteria for Federal use of the 700 MHz band would better follow the intent of Section 337 of the Act. 123 Under new Section 2.103( b) of our rules, Government stations may use channels in the 764- 776 MHz and 794- 806 MHz public safety bands with non- Government entities if the Commission finds such use necessary, where: (a) The stations are used for interoperability or part of a Government/ non-Government shared or joint- use system; (b) The Government entity obtains the approval of the non- Government (State/ local government) licensee( s) or applicant( s) involved; (c) Government operation is in accordance with the Commission's Rules governing operation of this band and conforms with any conditions agreed upon by the Commission and the [NTIA]; and (d) Interoperability, shared or joint- use systems are the subject of a mutual agreement between the Government and non- Government entities. This section does not preclude other arrangements or agreements as permitted under Part 90 of the Rules. See 47 C. F. R. §§ 90. 179 and 90.421. 124 Requests to invoke the NTIA/ FCC process for Federal government use of non- Federal government spectrum in the 700 MHz band must satisfy all four paragraphs of Section 2.103( b). 42. Clarification of Section 2.103( b). Stressing that it is not seeking federal- only systems, 125 FLEWUG asks for clarification that Section 2.103( b) of our Rules provides "co- equal access" to 700 MHz band channels that are covered by an agreement, for an interoperability, shared or joint- use system. 126 According to FLEWUG, Section 2.103( b) is unclear as to whether a Federal governmental 123 In Part 2 of our Rules, the term “Government” means Federal government and the term “non- government” means state/ local governments and civilians. See First Report and Order, 14 FCC Rcd at 185 ¶ 67; see also 47 C. F. R. § 2. 105( b); Non- Substantive Revisions to the Table of Frequency Allocations, Memorandum Opinion and Order, DA 99- 2743 (OET rel. Dec. 20, 1999). 124 47 C. F. R. § 2. 103( b) (1999). Use of the terms “government” and “non- government” are pursuant to the language in the First Report and Order, which notes, “In the United States, radio spectrum may be allocated exclusively or for shared use to either government (Federal government) or non- government (state/ local governments and civilians).” First Report and Order, 14 FCC Rcd at 185 ¶ 67. 125 See FLEWUG Ex Parte Letter dated September 16, 1999; FLEWUG Ex Parte Letter dated May 20, 1999. 126 See FLEWUG Petition at 4- 6. FLEWUG states that 47 C. F. R. § 2.103( b) includes Federal entities obtaining the approval of the licensees for co- equal use of the channels; Federal operations being in accordance with affiliated 20 Federal Communications Commission FCC 00- 264 21 D:\ Ready_ To_ Convert\ Doc\ 2718.doc entity can maintain its own operations and have a permanent presence on a 700 MHz band system (Interoperability channels or General- use channels) that is licensed to a state or local governmental entity. 127 FLEWUG explains that federal entities that enter agreements with state or local licensees will be committing substantial resources and foregoing other radio- system options. Thus, FLEWUG contends that such agreements must constitute a binding commitment that the state or local government will allow the Federal entity to use the radio system as agreed, i. e., it will not remove the Federal entity in favor of a local or regional interest. 128 Specifically, FLEWUG asks for a clarification that the terms of obtaining co-equal access will be specified as part of the partnership agreements in force among the federal and the state and/ or local entities jointly operating the interoperable, shared, or joint- use systems in question under Section 2.103( b)( 4) of our Rules. In this connection, FLEWUG requests that we confirm its understanding that approvals granted under Section 2.103( b)( 2) will remain in effect throughout the useable life of the systems in question. 129 FLEWUG separately submitted a recommendation to the NCC on this subject. 130 The NCC Recommendations endorse the flexibility that FLEWUG seeks, while noting that Section 2.103( b) of the Rules offers considerable flexibility when agreements are concluded between federal and non- federal entities. 131 43. We encourage partnering of FCC- licensed state or local government entities with Federal entities in these bands. Such partnering is in the public interest for a variety of reasons, including interoperability, public safety responsiveness to safety of life and safety of property crises, and spectrum efficiency. Section 2.103 provides for a process consistent with Section 337 of the Act, which directed the allocation of this spectrum for public safety services in consultation with the Secretary of Commerce (NTIA) and the Attorney General. In this connection, we note that recent developments in trunking technology and other technologies that maximize spectrum use have made possible radio systems that can accommodate many users and distinct user groups— each group with its own insulated communications network— on the same system. 132 At the same time, however, these systems also offer a high level of built- in interoperability between the distinct user groups sharing a radio system. 133 The funding required to develop the infrastructure necessary for such systems is often too great to permit small public safety agencies to participate in new, sophisticated, spectrum efficient wireless radio systems. 134 These same FCC rules and conditions agreed by the Commission and the NTIA; and the interoperable, shared, or joint- use systems being subject to a mutual agreement between the Federal entities and the state and/ or local entities. Id. 127 See FLEWUG Petition at 4- 6. See also Joint Commenters (AASHTO, FCCA et al.) Joint Reply to Petitions at 7. 128 See FLEWUG Ex Parte Letter at 2 (dated May 20, 1999). 129 FLEWUG Petition at 6. FLEWUG anticipates long- standing agreements that will not terminate unless and until the operation of the system in- question ceases under terms agreed to by all system partners. Id. 130 See NCC Recommendations at 23 ¶ 72 (citing Appendix J, Federal Co- Equal Access to Non- Federal Spectrum in the 764- 766 and the 794- 806 MHz Frequency Band). 131 Id. at 23 ¶ 73. The NCC Recommendations state that because FLEWUG was not specific as to rules the Steering Committee was unable to recommend a definite rule change. Id. 132 See, e. g., PSWAC Final Report at 317, 318, 734, 735. Shared, multi- use systems typically serve a wider- area than stand- alone systems and also typically offer more advanced technological features. 133 Id. at 317, 318. 134 According to the PSWAC Final Report, public safety agencies have not been able to implement advanced features to aid in their mission even though a wide variety of technologies, both existing and under development, 21 Federal Communications Commission FCC 00- 264 22 D:\ Ready_ To_ Convert\ Doc\ 2718.doc agencies, however, might be able to participate in such systems by entering into "Section 2.103( b) agreements." 135 44. As FLEWUG suggests, each party to an agreement entered pursuant to Section 2.103( b) will be committing substantial resources and relying on the agreed- to radio system to support its provision of public safety services. In this connection, we share FLEWUG's concern that federal entities, as well as Commission licensees, are unlikely to view "Section 2. 103( b) agreements" as a viable option unless each party to such an agreement can be reasonably confident that it has bargained for legally binding and enforceable commitments that enable it to access the radio system as agreed. 45. Unlike the typical sharing arrangements entered pursuant to Sections 90.179 or 90. 421 of our Rules, 136 agreements entered pursuant to Section 2.103( b) are likely to be long- standing agreements that do not terminate unless and until the operation of the system in- question ceases under either the Commission’s Rules, 137 or terms agreed to by all system partners. In all events, the 700 MHz band channels are used for noncommercial services the sole or principal purpose of which is to protect the safety of life, health, or property. 46. NTIA approval. NTIA and the Commission share licensing authority over a number of bands but the Commission has sole jurisdiction over the 700 MHz band because it is allocated exclusively for non- government assignments. 138 In addition to authority over bands that include Federal allocations, NTIA is also charged with managing all Federal government use of radio spectrum regardless of the band involved. 139 Thus, federal entities cannot lawfully use FCC- administered 700 MHz band spectrum without NTIA approval in its capacity of overseer and policy manager of all Federal use of radio spectrum. 140 However, NTIA approval alone does not authorize a Federal entity to transmit electromagnetic energy in the 700 MHz band, as would a license. 141 In the 700 MHz band, that authority hold substantial promise to reduce danger to public safety personnel and to achieve greater efficiencies in the performance of their duties. See, e. g., PSWAC Final Report at 2. 135 Recognizing the budgetary constraints that public safety entities face as a matter of course, the PSWAC Steering Committee stated that more sharing and joint use should be encouraged. See PSWAC Final Report at 3- 4. 136 47 C. F. R. §§ 90. 179, 90. 421. 137 For example, licenses are issued for ten- year, renewable terms, and a federal entity can only use the 700 MHz band under a Section 2. 103( b) agreement for as long as the state or local ally remains licensed. 138 See 47 C. F. R. § 2.106; NTIA Manual § 4. 1. 3. See also Reallocation Report and Order. Section 337 of the Act required the Commission to consult with the Secretary of Commerce and the Attorney General in the reallocation of the 700 MHz band spectrum. See 47 U. S. C. § 337( a)( 1). 139 See First Report and Order, 14 FCC Rcd at 184 ¶ 62 (citing 47 U. S. C. § 305; 47 U. S. C. §§ 901- 904 (NTIA Organization Act). Section 305 of the Act grants NTIA exclusive authority over "radio stations belonging to and operated by the United States" and requires these stations to use frequencies assigned by NTIA. See also Federal Spectrum Management Processes Report, Public Safety Wireless Network, at 3- 8 (September 1998). 140 See NTIA Manual §§ 2. 1- 2. 3 (Telecommunications Policy). “Telecommunications policies are made by the Congress, by the Court, by the President, and the [NTIA] with respect to the agencies and establishments of the Federal Government . . .” Id. at § 2. 2. In this connection, we observed that there may be benefits to providing for the adoption of a single, "blanket" authorization that would confer NTIA's authorization to all Federal entities as described in 47 C. F. R. § 2.103( b) and clarified herein. See First Report and Order, 14 FCC Rcd at 186, 187 ¶ 69. 141 For example, the Commission noted NTIA's policy approval in several proceedings that amended Commission Rules to extend end- user (customer) eligibility to include Federal agencies. See, e. g., In the Matter of Amendment 22 Federal Communications Commission FCC 00- 264 23 D:\ Ready_ To_ Convert\ Doc\ 2718.doc derives from the Commission's grant of a state or local licensee's request for authority, pursuant to Section 2.103( b) of our Rules, to allow a federal entity to use its licensed frequencies under the terms of an agreement for an interoperability, shared or joint- use system. In this connection, we note that Section 2.103( b)( 3) of our Rules provides that the Government operation must be in accordance with our Rules governing operation of this band and must conform with any conditions agreed upon by the Commission and NTIA. Thus, to avoid any uncertainty as to whether Federal entities must conform to our Rules, we will require Federal entities to receive NTIA approval that expressly requires their use of the 700 MHz band to conform to our rules and regulations. We observe that there may be benefits to providing for the adoption of a standard condition or limitation that would apply to all NTIA approvals. 47. Federal Operation is Permissible. "Section 2.103( b) agreements" are in accordance with the Communications Act of 1934, as amended. 142 As noted in the First Report and Order, this use of the 700 MHz band by Federal public safety providers falls within the reasonable interpretation of the uses for which the spectrum is allocated because such use will benefit, support, and in some cases be critical to, the successful provision of public safety services by Commission licensees; 143 it is also generally consistent with the consultation provision of Section 337. 144 48. We are concerned that federal entities may not invest and partner with state and local government 700 MHz systems unless they have some assurance that their operations are valid under the Communications Act and other applicable Federal law. Otherwise, they could face the prospect of building a system and expecting to share it, only to be told by a state or local government that they cannot legally use the system. The above discussion should suffice to allay any such fear. Moreover, Section 2.103 agreements also are consistent with Section 337 because, by definition, a state or local governmental licensee that is a party to such an agreement has voluntarily agreed to the Federal use of its licensed frequencies. In this connection, we concluded in the First Report and Order that state and local governmental entities are eligible for licensing in the 700 MHz band without further showing as to of Part 90, Subparts M and S of the Commission's Rules, PR Docket No. 86- 404, Report and Order, 3 FCC Rcd 1838 (1988), Memorandum Opinion and Order, 4 FCC Rcd 356, 356- 57 (1989); In the Matter of Amendment of Part 90 of the Commission's Rules to Expand Eligibility and Shared Use Criteria For Private Land Mobile Frequencies, PR Docket No. 89- 45, Report and Order, 6 FCC Rcd 542 (1991); In the Matter of Federal Access to Low Power 18 GHz Private Operational Fixed Microwave Systems, PR Docket No. 92- 15, Report and Order, 8 FCC Rcd 3210 (1993). 142 In addition to the specific questions posed concerning Section 2.103( b), we note that FLEWUG's request for clarification indirectly raises issues concerning the "intersection" of contract law and federal communications law that could occur under a Section 2.103( b) agreement. We believe that consideration of such issues is premature and would require us to speculate over what will be highly fact- specific scenarios. Generally speaking, the parties to Section 2. 103( b) agreements are required to comply with FCC rules and policies, so the agreements themselves should not contain terms that violate our rules and policies. We are confident that the parties will conduct themselves in compliance with these strictures, and we therefore do not consider the agreements to be inherently at odds with any of the requirements of the Communications Act. Moreover, to the extent that the agreements comply with the parties’ obligations under federal communications law, their rights under the agreements would be controlled by applicable contract law. 143 Put differently, these alliances are consistent with Section 337 because the allied use of the spectrum can fairly be said to be “for” the public safety services for which this spectrum is allocated. 144 NTIA states that Congress required the Commission to consult with the Secretary of Commerce and the Attorney General in the reallocation of the 700 MHz band spectrum because it recognized the vital role that Federal agencies play in providing public safety related services to the American people. See also WT Docket No. 96- 86, Ex Parte Letter filed with the Commission on July 22, 1998, from Janet Reno, Attorney General, and William M. Daley, Secretary of Commerce, to the Honorable William E. Kennard, Chairman, FCC. 23 Federal Communications Commission FCC 00- 264 24 D:\ Ready_ To_ Convert\ Doc\ 2718.doc eligibility. 145 We now conclude that requests from among this same class of applicants/ licensees that satisfy subsections (1) through (4) of Section 2.103( b) of our Rules establish per se that such Federal use of the licensee's 700 MHz band channels is necessary. In this connection, we emphasize that a request under Section 2.103( b) is the state or local licensee's representation to the Commission that it has determined that its agreement with the federal entity (for an interoperability, shared or joint- use system) is necessary to protect the safety of life, health, or property. 49. Contractual nature of "Section 2.103( b) agreements." We expect that Section 2.103( b) agreements will be negotiated between state and local governments, on the one hand, and Federal entities, on the other hand. Many terms and conditions will serve as consideration for both the licensees and Federal entities to reach such agreements, including the nature of the service and termination rights and responsibilities. 146 We are not the appropriate forum to litigate disputes that arise between parties over specific terms of negotiated "Section 2.103( b) agreements." 147 Rather, as with most contract disputes, actions for injunctive relief, damages, or specific performance are more appropriately resolved by a local court of competent jurisdiction. 148 50. Scope of clarification. Today's clarification is operative only as to the general use spectrum 149 because we have not yet adopted a licensing method for the interoperability spectrum. Moreover, both the interoperability spectrum and the "reserve" spectrum are subject to further Commission action in response to the comments to the Third Notice. 150 Thus, we have already concluded that "Section 2.103( b) agreements" are in accordance with Section 337 of the Act, 151 which governs all 700 MHz band spectrum; we are merely reserving decision on how best to implement this conclusion for the interoperability and "reserve" spectrum. 51. Implementation matters— Federal Coordinated Use of a 700 MHz System Licensed to a State or Local Entity. 152 Federal public safety entities proposing to use frequencies licensed to a state or local entity first must coordinate the terms and conditions of their frequency use with the state or local licensee. Upon written agreement of the terms and conditions, the state or local licensee sends a letter to the Federal entity's headquarters that summarizes the interoperability, shared, or joint- use agreement, 145 See First Report and Order, 14 FCC Rcd at 180, 181 ¶ 54 (Commission concluded that this approach reflected the intent of the statute better than less inclusive proposals). 146 See supra note 137 and accompanying text. 147 See, e. g., Metromedia Company, 3 FCC Rcd 595 (1988) (contractual problems should be asserted in state courts because those courts have the expertise to handle these types of disputes); John F. Runner, 36 Rad. Reg. 2d 773, 778 (P& F 1976) (local court of competent jurisdiction, not the FCC, is the proper forum to resolve private disputes). 148 Jurisdiction over civil suits in which the United States is a plaintiff or a defendant generally resides in the district courts of the United States or the United States Court of Federal Claims. See 28 U. S. C. §§ 1345, 1346. 149 We noted that RPCs could begin the planning process for general use spectrum upon release of the First Report and Order. Applicants are free to apply for general- use channels once their planning committee files and the Commission approves the regional plan for the applicant's region. First Report and Order, 14 FCC Rcd at 157 ¶ 8. 150 In the Third Notice, supra note 1, we sought comment on how to license the interoperability spectrum and on how to designate and license the remaining 8. 8 megahertz of "reserve" spectrum. 151 See First Report and Order, 14 FCC Rcd at 186 ¶ 68. 152 The following excerpt is adapted from PSWN's Federal Spectrum Management Processes Report. 24 Federal Communications Commission FCC 00- 264 25 D:\ Ready_ To_ Convert\ Doc\ 2718.doc including the following terms: (1) the expiration date of the agreement; (2) the total number of frequencies covered by the agreement; and (3) if known at the time of the request, the specific frequencies covered by the agreement. The state or local licensee must also certify that it approves the Federal entity's use of its licensed 700 MHz band frequencies pursuant to the terms of the Section 2.103( b) agreement and request that the Section 2.103( b) agreement be added/ attached to its license as an irrevocable special condition. The complete written agreement will not be routinely filed with the Commission; the licensee must retain a copy with its station records and provide it to the Commission upon request. 52. The Federal entity must ratify the letter and submit it along with the frequency application data to the Frequency Assignment Subcommittee (" FAS") of the Interdepartment Radio Advisory Committee (" IRAC") for review. 153 Additionally, a copy of this letter along with the frequency application data is also submitted to the Commission for its approval. The Commission responds to this action through the normal FAS voting process. If the Commission grants the state or local licensee's Section 2.103( b) request to share the use of its licensed 700 MHz band channels with a Federal public safety entity pursuant to the terms of the parties' "Section 2.103( b) agreement," this authority will be noted as a special condition of the license that will also serve to record the existence of a "Section 2.103( b) agreement" concerning the 700 MHz band license in question. 53. As with traditional PLMR sharing arrangements, the licensee remains fully responsible for all operations under its Commission license. 154 We further clarify that once the Commission grants a state or local licensee's Section 2.103( b) request, the licensee is precluded from raising any claim or complaint of harmful interference as to the federal entity( s) operation pursuant to the agreement. We also further clarify that "Section 2.103( b) authority" is not assignable nor transferable without prior Commission consent. 54. Summary. State or local governmental licensees in the 700 MHz band can allow an unlicensed entity to use their stations— on a revocable- at- will or "guest" basis— pursuant to Sections 90.179 and 90.421 of the Commission's Rules. 155 In the Third Notice, we proposed revisions to Section 90.179 that would allow state and local governmental licensees in the 700 MHz band the option to similarly share the use of their stations with Federal public- safety entities — on a revocable- at- will or "guest" basis. 156 Section 2.103( b) provides the public safety community a new sharing option for the 700 MHz band under which the Commission authorizes its state or local governmental licensee to allow a Federal public safety entity to use the licensed channels pursuant to the terms of a written "Section 2.103( b) agreement" between the licensee and the Federal entity. Put differently, Section 2.103( b) gives each governmental licensee the option to exercise its rights and privileges as a Commission licensee by entering a radio- system alliance with a federal entity (an agreement with a Federal entity for an interoperability, shared or joint- use system) whenever the licensee determines that such an alliance is necessary for the provision of public safety services. 153 IRAC advises NTIA in carrying out its spectrum management activities. 154 Federal operation must be in accordance with our Rules and must conform with any conditions agreed upon by the Commission and NTIA and, as discussed above, we will require Federal entities to receive NTIA approval that expressly requires their use of the 700 MHz band to conform to our rules and regulations. See generally NTIA Manual at § 7. 12 (Government use of frequencies authorized to non- Government stations under Part 90 of FCC Rules, inter alia, "shall be in accordance with [FCC] Rules and Regulations"). 155 See, e. g., First Report and Order, 14 FCC Rcd at 187 ¶ 70. 156 See Third Notice, 14 FCC Rcd at 234 ¶ 183. 25 Federal Communications Commission FCC 00- 264 26 D:\ Ready_ To_ Convert\ Doc\ 2718.doc D. Administration 1. Regional Planning 55. In the First Report and Order, we adopted a planning process for the general use channels 157 that calls for RPCs to determine the specific uses for these channels. 158 By way of background, the Commission tentatively concluded in the Second Notice that the regional planning approach afforded the flexibility to accommodate the wide variety of communications requirements in different areas of the Nation; for that reason the Commission proposed to use a regional planning approach for all of the 700 MHz band similar to that which governs the management of public safety spectrum in the 821- 824 MHz and the 866- 869 MHz bands (800 MHz). 159 56. Under the 800 MHz planning process, the Commission established certain common, national requirements, including eligibility for licensing, 160 and divided the Nation into fifty- five planning regions that had considerable autonomy to develop plans that met their different communications needs. 161 However, because radio signals do not stop at geopolitical boundaries, the Commission also established that regions are not electromagnetic "islands" wherein licensees can transmit radio signals without regard to neighboring regions. In this connection, the Commission concluded that inter- regional cooperation and concurrence was the best, most cost effective, and least complicated method for avoiding cross- border harmful interference problems between regions. 162 Each region then formed an 800 MHz RPC made up of members of the public safety community to develop a plan focused on how the available spectrum could best be used to satisfy the spectrum requirements of all eligible entities within the region. 163 Most of the fifty- five planning regions were designed along state boundaries 164 but some states were divided into several, intrastate regions, 165 or included entirely, or partially, in multi- state regions. 166 157 The Commission designated a total of 12. 6 MHz of spectrum, approximately 53 % of the 700 MHz band, for general (i. e. local, regional or state) use. First Report and Order, 14 FCC Rcd at 157 ¶ 8. 158 RPCs have been free to begin this planning process since release of the First Report and Order. Id. 159 See Second Notice, 12 FCC Rcd at 17, 757, 17,758 (citing Development and Implementation of a Public Safety National Plan and Amendment of Part 90 to Establish Service Rules and Technical Standards for Use of the 821- 824/ 866- 869 MHz Bands by the Public Safety Services, GEN Docket No. 87- 112, Report and Order, 3 FCC Rcd 905, 906 (1987) (National Plan Report and Order). 160 National Plan Report and Order, 3 FCC Rcd at 906. 161 See First Report and Order, 14 FCC Rcd at 160 ¶ 10 n. 3 (citing National Plan Report and Order). 162 See First Report and Order, 14 FCC Rcd at 195 ¶ 88. 163 See National Plan Report and Order, 3 FCC Rcd at 910- 12. RPC membership was open to all eligible user groups. Id. at 910. 164 See Appendix D of the First Report and Order for a list of the current regions for the 800 MHz band. 165 The State of California includes all of Region 5 (California- South) and Region- 6 (California- North). Similarly, the State of Texas includes all of Region 40 (Texas- Dallas), Region 49 (Texas- Austin), Region 50 (Texas- El Paso), Region 51 (Texas- Houston), Region 52 (Texas- Lubbock), and Region 53 (Texas- San Antonio). 166 Portions of the following states were either in more than one region or in regions comprised of more than one state (Regional numbers are shown as follows (8)): Connecticut (8, 19), Delaware (28), Illinois (13, 54), Indiana (14, 54), Maine (19), Maryland (20), Massachusetts (19), Michigan (21, 54), New Hampshire (19), New Jersey 26 Federal Communications Commission FCC 00- 264 27 D:\ Ready_ To_ Convert\ Doc\ 2718.doc APCO, as the certified frequency coordinator representing these eligible users, was directed to appoint a local convener to organize and publicize the initial meeting. 167 After the plan was approved by the Commission, applications were normally submitted to the committee in accordance with the procedures contained in the plan, and then, if approved, the applicant would forward the applications to APCO for coordination and filing with the Commission. 57. The 700 MHz planning process that we adopted in the First Report and Order is similar to the 800 MHz process, 168 although we clarified that 700 MHz RPCs are organizations separate and distinct from 800 MHz RPCs. We also clarified that if a 700 MHz RPC defaults or disbands, then the four certified frequency coordinators for the 700 MHz band are authorized to carry out that RPC's responsibilities on an interim basis. 169 We also clarified the coordination requirement of proposed plan modifications with adjacent regions by requiring the submission of letters of concurrence, signed by the chairperson of each adjacent region, to the Commission with a region's modification request. 58. We also added several "opt out" options after considering comments that raised concerns related to the use of multi- state regions for 800 MHz planning. 170 First, RPC members from each state that is included entirely within a multi- state region may "opt out" of the multi- state region to form a new RPC that conforms to the state's geographic boundaries. 171 Next, RPC members from a state that has portions of its state included in more than one region (i. e., a state divided into several intrastate RPCs or a state with a portion( s) included in multi- state RPC) may "opt out" of the multiple regions to form a new RPC that conforms to the state's geographic boundaries. 172 Finally, RPC members from each state that is divided among multi- state regions — that want to consolidate without having to form a new, separate region — may shift the whole state into one of the existing multi- state regions (that previously included a (8, 28), New York (8, 30, 55), Pennsylvania (28, 36), Rhode Island (19), Vermont (19), Virginia (20, 42), Washington, D. C. (20), and Wisconsin (45, 54). 167 National Plan Report and Order, 3 FCC Rcd at 910. Furthermore, APCO was required to submit to the FCC a list of all the conveners within 45 days of the release date of the Report and Order. Id. 168 In the First Report and Order, we agreed with the majority of the commenters' assessment that the regional planning approach has, for the most part, succeeded in ensuring that the six megahertz of public safety spectrum in the 800 MHz band was assigned fairly and efficiently and put to its best, most appropriate, and most efficient use for public safety services. First Report and Order, 14 FCC Rcd at 191 ¶ 78. 169 If a region does not choose to administer its band plan, we will permit the four certified frequency coordinators for the 700 MHz public safety band to continue processing applications consistent with the existing plan. If an RPC disbands without adopting a 700 MHz plan (unless the RPC disbanded as part of the “opt out” process) then the four certified frequency coordinators for the 700 MHz public safety band are authorized to adopt one default plan and jointly file it for review. Upon FCC approval, the coordinators would process applications based on the default plan and any amendments or modifications to the plan would require prior FCC approval. The coordinators’ authority to use the plan would terminate upon the filing of a regional plan for the region or any of its members. See First Report and Order, 14 FCC Rcd at 196 ¶ 89. 170 One commenter noted that the use of multi- state regions often hampers the ability of states to coordinate statewide systems. See First Report and Order, 14 FCC Rcd at 192 ¶ 80 citing Pennsylvania Comments at 11, 12. Another commenter noted that states in multi- state RPCs have been hampered by regional politics and have been unable to obtain frequencies they vitally need. See First Report and Order, 14 FCC Rcd at 192 ¶ 80 (citing Joint Comments at 13). 171 See First Report and Order, 14 FCC Rcd 192 at ¶ 80. 172 Id. 27 Federal Communications Commission FCC 00- 264 28 D:\ Ready_ To_ Convert\ Doc\ 2718.doc portion of the state). 173 We specified that for the RPC members from a state to exercise an "opt out," there must be a consensus to withdraw among all those representatives to an RPC from that particular state. 174 In this connection, we noted that RPC members from a state wishing to "opt out" of their existing regional boundaries should do so within 120 days of the effective date of the First Report and Order. 175 We also decided, however, that the deadline date by which states must indicate any "opt out" decisions would be as specified in a Public Notice. 176 59. Use of RPCs; Membership. FLEWUG claims that we must reform shortfalls in the RPC process because the planning process is not adequately inclusive of the public safety community. Specifically, FLEWUG argues that the 800 MHz RPCs have been dominated by law enforcement agencies to the exclusion of other public safety officials, and that many of the commenters who favor the RPC process have vested interests in retaining the status quo. 177 FLEWUG also argues that we may have oversold the success of the RPC process by inadequately balancing all of the views represented in the record. Specifically, FLEWUG disagrees with our observation that a majority of commenters considered the 800 MHz regional planning approach to be successful, for the most part. 178 FLEWUG's reforms would include requiring every RPC to have at least one Federal representative, selected by FLEWUG, with full membership authority. 179 APCO opposes FLEWUG's petition in this regard and it notes that no petitions for reconsideration on this issue were filed by state or local government agencies, or by organizations representing their interests. 180 60. We continue to believe that the regional planning approach is a reasonably proven and successful method of ensuring that 700 MHz band public safety spectrum is assigned fairly and put to its most appropriate and efficient use. As discussed in the First Report and Order, the RPC approach also facilitates accommodation of a wide variety of localized public safety communication requirements in different areas of the nation, and it is noteworthy that participants in 800 MHz regional planning now have up to ten years of regional spectrum- planning experience. Many commenters to the Second Notice agreed that the 800 MHz RPC process has been successful for the most part and many urged retention of a similar RPC process for the 700 MHz band. 181 FLEWUG's Petition is unavailing because it largely 173 Id. 174 Id. at 194 ¶ 85. 175 Id. 176 Id. at 194 ¶ 85 n. 219 and accompanying text. 177 FLEWUG Petition at 8. 178 FLEWUG Petition at 6- 8. FLEWUG contends that the comments specifically cited in note 199 of the First Report and Order do not necessarily represent the majority view because the Commission should have given more weight to comments filed by FLEWUG and others. Id. at 7 n. 23 citing the following pleadings that were filed in response to the Second Notice: APCO Comments at 2, Reply Comments at 3; Joint Commenters at 6; NLC Comments at 3; Richardson, TX Comments at 3; and Pennsylvania Comments at 9 (the full names of these commenters are set forth at Appendix C of First Report and Order). 179 FLEWUG Petition at 9, 10. 180 APCO Opposition at 9. 181 According to a 1997 mail survey of the interoperability experiences and needs of law enforcement agencies across the nation, sheriffs, local police, and special police clearly preferred local (multi- jurisdiction) planning over State, multi- State, or national interoperability planning. See National Institute of Justice Research Report; State and 28 Federal Communications Commission FCC 00- 264 29 D:\ Ready_ To_ Convert\ Doc\ 2718.doc restates concerns about the 800 MHz planning process that it presented in comments to the Second Notice and we believe the record amply demonstrates substantial consideration of FLEWUG's views throughout this proceeding. For example, to address concerns of FLEWUG and other commenters about 800 MHz RPCs, we revised and added elements to the 700 MHz planning process to help ensure that RPCs are representative of all public safety entities in their regions. 182 Additionally, FLEWUG's Petition fails to consider our departure from the tentative conclusion to use RPCs for all of the 700 MHz band as well as our Third Notice request for comments on issues related to RPCs. We also note that several of the commenters referenced in FLEWUG's petition did not themselves seek reconsideration of our underlying decision to use RPCs 183 and that one of the cited commenters states that it "strongly supports the Commission's decision to rely on [RPCs] for most of the 700 MHz spectrum . . ." 184 Nor does FLEWUG's Petition provide a persuasive basis for requiring every RPC to have at least one Federal representative with full membership authority. 185 The channels set for regional planning in the First Report and Order are the general use channels, which are designated for local, regional or state use. Federal entities are not eligible for licensing in the 700 MHz band. Federal entities that provide public safety services within a given region will generally have a right to participate in the planning process, on a nonvoting basis, and particularly as to planning matters that are not related to applications and licenses. 186 Moreover, when federal entities are allied with state or local governmental applicants/ licensees, pursuant to "Section 2.103( b)" agreements that involve general use spectrum, the federal entity will participate in the regional planning/ review process along with the state or local government that is prosecuting the request. 187 61. RPC Authority and Responsibilities. 188 APCO asks us to clarify that RPCs are authorized to prioritize the “highest and best” use( s) of the 700 MHz band spectrum from among all eligibles as well Local Law Enforcement Wireless Communications and Interoperability: A Quantitative Analysis, ix, 61 (Jan. 1998) (NIJ Report). The National Institute of Justice (NIJ) is a component of U. S. Department of Justice, Office of Justice Programs. The NIJ Report is the result of an NIJ- sponsored study designed to provide a baseline portrait of law enforcement agencies' experiences with wireless telecommunications equipment for routine operations and interoperability. Id. at 79. A follow- on study is currently underway to collect similar information from the fire, emergency medical, and emergency management communities. See id. at ix. 182 See, e. g., First Report and Order, 14 FCC Rcd at 193, 194 ¶ 83, 84. 183 For example, the Joint Commenters did not petition for reconsideration of our underlying decision to rely on RPCs. See AASHTO Petition at 4. Accord APCO Opposition at 9. 184 See APCO Petition at 18. 185 Accord National Plan Report and Order, 3 FCC Rcd 913, 914. 186 RPC meetings are public and public notice is required. See, e. g., First Report and Order, 14 FCC Rcd at 193, 194 ¶ 84. 187 See State/ Local Licensees Allied with Federal Public Safety Service Providers, supra section C. 2, wherein we address FLEWUG's request to clarify matters related to Federal use of the 700 MHz band. 188 Several petitioners seek reconsideration of decisions in the First Report and Order related to the relationship between the NCC and the RPCs. These issues are discussed under National Planning, infra section D. 2. In addition, FLEWUG raises issues related to RPC responsibilities and the role of frequency coordinators in the event an RPC defaults or disbands. These issues are discussed below under RPC Funding in this section. We also clarify certain matters related to the role of RPCs and frequency coordinators in the planning and application process for the 700 MHz band general use channels. These matters are discussed under Frequency Coordination; Common Data Bases, infra section D. 3. 29 Federal Communications Commission FCC 00- 264 30 D:\ Ready_ To_ Convert\ Doc\ 2718.doc as to scrutinize the qualifications of NGOs during the review process. 189 California recommends that NGO licensees be subject to initial and periodic reaffirmation by the RPC to ensure that the overall design of each NGO radio system is consistent with its then- current contract. 190 NPSTC asks whether the Commission expects RPCs to review and approve each NGO system design for necessary and appropriate coverage. 191 UTC contends, however, that RPCs should not have a "veto power" over local public safety agencies that sponsor NGOs. 192 API adds that oil and gas companies that receive governmental approval should not need RPC approval to use interoperability channels. 193 APCO also contends that the Commission, or the NCC, must clarify whether RPCs are: (1) authorized to make frequency- specific assignments; or (2) limited to allotting channels among users or types of users, thus leaving it to applicants and coordinators to identify specific frequencies to be used. 194 62. We clarify that RPCs are authorized to prioritize the “highest and best” use( s) of the 700 MHz band general- use spectrum from among all eligibles as well as to examine claims of eligibility for licensing. 195 As noted above, the 700 MHz planning process is similar to the 800 MHz planning process, wherein the Commission specifically addressed the fact that it would not be possible to grant requests for assignments to everyone who was eligible to be licensed. In this connection, we clarify that the same analysis applies for 700 MHz regional planning: if there is not enough spectrum for all eligibles, the highest priority must be given to those organizations most fundamentally involved in protection of life and property. 196 Moreover, we conclude that RPCs are in the best position to determine the services of the greatest importance to public safety in their region. Thus, as was the case for 800 MHz planning, we clarify that each RPC is authorized to make these determinations for 700 MHz regional planning. 197 We clarify in this connection that RPCs must ensure that their committees are representative 189 APCO Petition at 17, 18. APCO notes that RPCs must develop procedures for ensuring fair and efficient channel allotments among eligible applicants, id. citing First Report and Order, 14 FCC Rcd at 193, 194 ¶ 84, but it contends that unscrupulous, for- profit NGOs could seek 700 MHz band licenses under the “veil” of public safety, using unsophisticated agencies as unknowing “pawns.” Id. 190 California Petition at 9- 11. California notes an NGO's radio- coverage needs will fluctuate over time because individual contracts for service will come and go as the bid/ rebid process moves along. Id. at 10. California is also concerned that as an NGO contracts with multiple jurisdictions in a single area which may not be contiguous, the NGO is likely, for economic reasons, to design a system which covers all of the contracted area with a minimum of infrastructure. The problem, according to California, is that the NGO's coverage area is likely to extend over areas for which the NGO does not have a contract to provide services. Id. at 10. 191 NPSTC Petition at 5. NPSTC states that if RPCs are to monitor spectrum use, the Commission must copy the relevant RPC with any/ all Commission actions addressed to licensees within a given region. Id. 192 See UTC Opposition at 2- 5. 193 See API Opposition at 6- 9. 194 APCO Petition at 18, 19. 195 In the Second Notice, the Commission tentatively concluded that its review of the regional plans, and the opportunity for public comment during the review process, would sufficiently ensure the adoption of fair and reasonable assignments. Second Notice, 12 FCC Rcd at 17, 762 ¶ 121. 196 The Commission first set this planning standard for 800 MHz regional planning. See National Plan Report and Order, 3 FCC Rcd at 906. 197 National Plan Report and Order, 3 FCC Rcd at 906, 907. Where a regional plan did not accommodate all eligible entities, the Commission required an explanation of the criteria used to determine which eligibles were to be given assignments. Id. at 907, 911. 30 Federal Communications Commission FCC 00- 264 31 D:\ Ready_ To_ Convert\ Doc\ 2718.doc of all public safety entities in their regions. 198 With respect to API’s concern regarding RPC approval on NGO use of interoperability channels, we note that the use and administration of interoperability spectrum are matters that we requested the NCC to study. 199 Thus, we believe that the substance of API’s concern should be presented and addressed in the context of our review of the NCC’s recommendations on these matters. 63. In addition to establishing the region's priorities and allotting channels among users or types of users, we clarify that RPCs also have the option to assign discrete frequencies or to leave it to applicants and coordinators to identify specific frequencies to be used. While not a "cure all" of RPC funding issues, this option should provide some measure of assistance to RPCs without sufficient resources to assign discrete frequencies and establish other technical parameters to each entity to be licensed under the plan. We further clarify that, similar to 800 MHz regional planning, the frequency coordination process applies whether the RPC assigns discrete frequencies or leaves it to the applicants and coordinators to identify the specific frequencies to be used. 64. RPC Funding. APCO maintains that we must develop or at least sanction a funding mechanism for the RPCs. APCO states that RPCs will have significant out- of- pocket expenses and that while some in- kind costs might be absorbed by agencies sending representatives to RPCs, most of the overhead expenses will be left unresolved. 200 According to APCO, we should either adopt a cost-recovery proposal, or require the four public safe