Federal Communications Commission FCC 08-83 
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of
Amendment of Parts 1, 21, 73, 74 and 101 of 
the Commission’s Rules to Facilitate the 
Provision of Fixed and Mobile Broadband 
Access, Educational and Other Advanced 
Services in the 2150-2162 and 2500-2690 
MHz Bands
Part 1 of the Commission's Rules - Further 
Competitive Bidding Procedures
Amendment of Parts 21 and 74 
of the Commission's Rules With Regard to 
Licensing in the Multipoint
Distribution Service and in the
Instructional Television Fixed Service for the
Gulf of Mexico
Review of the Spectrum Sharing Plan Among 
Non-Geostationary Satellite Orbit Mobile 
Satellite Service Systems in the 1.6/2.4 GHz 
Bands
Amendment of Part 2 of the Commission’s 
Rules to Allocate Spectrum Below 3 GHz for 
Mobile and Fixed Services to Support the 
Introduction of New Advanced Wireless 
Services, Including Third Generation Wireless 
Systems
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WT Docket No. 03-66
RM-10586
WT Docket No. 03-67
WT Docket No. 02-68
RM-9718
IB Docket No. 02-364
ET Docket No. 00-258
THIRD ORDER ON RECONSIDERATION AND SIXTH MEMORANDUM OPINION 
AND ORDER AND
FOURTH MEMORANDUM OPINION AND ORDER AND SECOND FURTHER NOTICE 
OF PROPOSED RULEMAKING AND DECLARATORY RULING
Adopted:  March 18, 2008 Released:  March 20, 2008
Comment Date:  60 days after publication in the Federal Register
Reply Comment Date:  90 days after publication in the Federal Register
By the Commission:
Federal Communications Commission FCC 08-83 
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TABLE OF CONTENTS
Heading Paragraph #
I. INTRODUCTION.....................................................................................................................1
II. EXECUTIVE SUMMARY .......................................................................................................2
III. BACKGROUND.......................................................................................................................3
A. BRS/EBS R&O and FNPRM ..............................................................................................3
B. BRS/EBS 3rd MO&O and 2nd R&O..................................................................................7
IV. DISCUSSION..........................................................................................................................11
A. Licensing Unassigned Spectrum in the Band....................................................................11
B. BRS Competitive Bidding Rules.......................................................................................21
C. Transition...........................................................................................................................29
1. Self-transitioning before January 21, 2009..................................................................29
2. Proponent-driven transitions .......................................................................................38
3. Technical corrections...................................................................................................40
D. Multichannel Video Programming Distributors (MVPD) Opt-Out ..................................42
1. The Waiver Standard...................................................................................................42
2. Misaligned channels in overlapping GSAs .................................................................45
E. Technical Issues.................................................................................................................48
1. Antenna height benchmarking.....................................................................................48
2. Out-of-band emissions.................................................................................................53
a. For user stations.....................................................................................................53
b. Measuring out-of-band emissions for contiguous channels ..................................56
c. Interference complaint process..............................................................................60
(i) Deadlines for compliance ................................................................................60
(ii) Limiting Right to File Documented Interference Complaints to First 
Adjacent Channel Licensees............................................................................66
3. GSA Boundaries..........................................................................................................70
a. Straight Line v. Great Ellipses...............................................................................70
b. GSA Boundaries – Pending Applications .............................................................75
4. Grandfathering of EBS facilities under Section 27.55 (a)(4)(iii) ................................79
5. Technical corrections...................................................................................................84
F. Simultaneous Operation on Old and New BRS Channels 1 and 2/2A..............................85
G. 2496-2502 MHz Band Sharing Issues...............................................................................88
H. BRS 2/2A Channel Issues .................................................................................................95
I. Grandfathered E and F Group Channel EBS Stations.....................................................101
J. Gulf of Mexico Proceeding and Related Issues...............................................................115
K. Leasing ............................................................................................................................130
1. Automatic Renewal Provisions in EBS leases executed before January 10, 
2005 ...........................................................................................................................130
2. Equipment on Lease Termination .............................................................................138
L. Substantial Service ..........................................................................................................140
1. Credit for Discontinued Service ................................................................................140
2. Safe Harbors -- heavily encumbered or highly truncated GSAs and BTAs..............143
M. EBS Eligibility.................................................................................................................146
1. Nonprofit Educational Organizations........................................................................146
2. Commercial EBS Licensees ......................................................................................150
Federal Communications Commission FCC 08-83 
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N. Mutually Exclusive Applications ....................................................................................152
V.  DECLARATORY RULING – LATE-FILED APPLICATIONS .........................................161
VI. SECOND FURTHER NOTICE OF PROPOSED RULEMAKING.....................................180
A. Licensing EBS Spectrum in the Gulf of Mexico.............................................................180
B. Licensing Available and Unassigned EBS Spectrum......................................................181
1. Introduction ...............................................................................................................181
2. Competitive Bidding .................................................................................................189
3. Other Assignment Mechanisms.................................................................................196
VII. PROCEDURAL MATTERS ...............................................................................................205
A. Ex Parte Rules – Permit-But-Disclose.............................................................................205
B. Comment Period and Procedures ....................................................................................206
C. Final Regulatory Flexibility Analysis of BRS/EBS 4th MO&O.....................................211
D. Initial Regulatory Flexibility Analysis ............................................................................212
E. Paperwork Reduction Analysis .......................................................................................213
F. Further Information .........................................................................................................216
VIII. ORDERING CLAUSES.....................................................................................................217
APPENDIX A - Final Rules
APPENDIX B - Final Regulatory Flexibility Analysis
APPENDIX C - Initial Regulatory Flexibility Analysis
APPENDIX D - List of Petitioners to BRS/EBS 3rd MO&O
I. INTRODUCTION
1. In this Third Order on Reconsideration and Sixth Memorandum Opinion and 
Order and Fourth Memorandum Opinion and Order and Second Further Notice of Proposed 
Rulemaking (Big LEO 3rd Order on Reconsideration and AWS 6th MO&O and BRS/EBS 4th 
MO&O and 2nd FNPRM), we continue our efforts to transform our rules and policies governing 
the licensing of the Educational Broadband Service (EBS) and the Broadband Radio Service 
(BRS) in the 2495-2690 MHz (2.5 GHz band).  In particular, we adopt rules for auctioning 
unassigned BRS spectrum as proposed in the Further Notice of Proposed Rulemaking (BRS/EBS 
FNPRM),1 and seek further comment on alternatives for licensing unassigned EBS spectrum.  In 
addition, we address petitions for reconsideration filed in response to the Order on 
Reconsideration and Fifth Memorandum Opinion and Order and Third Memorandum Opinion 
and Order and Second Report and Order (Big LEO Order on Reconsideration and AWS 5th
MO&O and BRS/EBS 3rd MO&O and 2nd R&O, as appropriate) in this proceeding2 by, among 
other things, further refining our technical rules to enable licensees to deploy new and innovative 
wireless services in the 2.5 GHz band.  We believe that the actions we take today will facilitate 
the promotion of broadband service to all Americans.  
  
1 Amendment of Parts 1, 21, 73, 74 and 101 of the Commission’s Rules to Facilitate the Provision of Fixed and 
Mobile Broadband Access, Educational and Other Advanced Services in the 2150-2162 and 2500-2690 MHz Bands, 
Report and Order and Further Notice of Proposed Rulemaking, WT Docket No. 03-66, 19 FCC Rcd 14165, 14270, 
14271-14272 ถถ 281, 286 (2004) (BRS/EBS R&O and FNPRM, as appropriate).
2 Amendment of Parts 1, 21, 73, 74 and 101 of the Commission’s Rules to Facilitate the Provision of Fixed and 
Mobile Broadband Access, Educational and Other Advanced Services in the 2150-2162 and 2500-2690 MHz Bands, 
Third Memorandum Opinion and Order and Second Report and Order, WT Docket No. 03-66, 21 FCC Rcd 5606 
(2006) (BRS/EBS 3rd MO&O & 2nd R&O).
Federal Communications Commission FCC 08-83 
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II. EXECUTIVE SUMMARY
2. In the Big LEO 3rd Order on Reconsideration and AWS 6th MO&O and BRS/EBS 
4th MO&O, we take the following actions with respect to petitions for reconsideration filed in 
response to the Big LEO Order on Reconsideration and AWS 5th MO&O and BRS/EBS 3rd 
MO&O and 2nd R&O:
ท Grant a petition, in part, by adopting the Part 1, Subpart Q competitive bidding rules 
for future BRS auctions, seeking further comment on rules for future licenses for EBS 
spectrum, and directing WTB to review inventory and schedule auction(s) of 
unassigned BRS spectrum as soon as practicable.
ท Adopt the small business size standards and bidding credits proposed in the BRS/EBS
FNPRM (“small business” -- an entity with attributed average annual gross revenues 
not exceeding $40 million for the preceding three years; “very small business” -- an 
entity with attributed average annual gross revenues not exceeding $15 million for the 
same period; and an “entrepreneur” -- an entity with attributed annual average gross 
revenues not exceeding $3 million for the same period).  
ท Deny a petition requesting that the Commission permit licensees to self-transition 
before January 21, 2009, the deadline for proponents to file an Initiation Plan with the 
Commission.  
ท Grant a petition asking the Commission to correct the inconsistency between the 
BRS/EBS 3rd MO&O and the text of Section 27.1236(b)(6), and on the Commission’s 
own motion, change references in Sections 27.1231(f), 27.1236(a), 27.1236(b)(1) and 
27.1236(b)(6) to dates certain.  
ท Deny as moot a petition requesting that the Commission clarify the requirements for 
multichannel video programming distribution (MVPD) operators seeking to opt-out 
of the transition.  
ท Deny a petition seeking reconsideration on the effect of MVPD opt-out on adjacent 
licensees with overlapping geographic service areas (GSAs).  
ท Grant a petition asking the Commission to modify the height benchmarking rule to 
establish deadlines for compliance.
ท Grant a petition asking the Commission to modify the out-of-band emissions rule to 
establish deadlines for compliance.
ท Grant a petition asking the Commission to modify the out-of-band emissions rule to 
provide that out-of-band emissions are to be measured from the outermost edge of the 
channels when two or more channels are combined.
ท Deny a petition and reaffirm that only first adjacent channel licensees may file an 
interference complaint concerning adjacent channel interference.
ท Deny a petition and affirm the Commission’s decision regarding out-of-band 
emissions for mobile digital stations.
ท Deny a petition asking to establish different deadlines for user stations to cure 
interference where an existing base station suffers interference from an outdoor 
antenna user station.
Federal Communications Commission FCC 08-83 
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ท Grant a petition and allow licensees to maintain existing operations post-transition in 
the mid-band segment (MBS) at 2572-2614 MHz, even if such operations exceed the 
current -73.0 dBW/m2 contour limit.
ท Deny a petition asking the Commission to adopt technical standards should it become 
necessary to “split the football” to determine each licensee’s GSA.
ท Grant a petition and permit BRS Channels No. 1 and 2/2A licensees to operate 
simultaneously in the 2150-2160/62 MHz and 2496-2690 MHz bands until every 
subscriber is relocated to the 2496-2690 MHz band.  
ท Deny a petition asking the Commission to provide greater protection to BRS Channel 
No. 1 operations by reducing the power flux density (PFD) radiated from the Mobile 
Satellite Service (MSS) in the 2496-2500 MHz band.
ท Deny a petition and affirm the use of splitting the football for BRS Channels No. 2 
and 2A licensees.
ท Deny petitions concerning overlaps between grandfathered EBS E and F Group 
licensees and co-channel BRS E and F Group licensees and affirm the existing rule.
ท Deny a petition asking for procedural changes to the 90-day negotiation period for 
significant GSA overlaps (more than 50 percent) between grandfathered EBS E and F 
Group channel licensees and incumbent BRS E and F Group channel licensees.
ท Grant a petition and reinstate a Gulf of Mexico Service Area.
ท Establish the Gulf of Mexico boundary 12 nautical miles from the shore.
ท Apply the existing technical rules to the Gulf of Mexico Service Area.
ท Grant a petition and affirm that EBS excess capacity leases executed before January 
10, 2005, are limited to 15 years.
ท Deny a petition relating to pre-1998 legacy, video-only excess capacity leases but 
affirm that leases executed before January 10, 2005, are limited to 15 years.
ท Grant a petition and amend rules to permit lessees to offer EBS licensees/lessors the 
actual equipment used or comparable equipment on lease termination. 
ท Deny a petition asking that licensees be permitted to demonstrate substantial service 
based on past-discontinued service.
ท Grant a petition asking for a new safe harbor for heavily encumbered or highly 
truncated Basic Trading Areas (BTAs) and GSAs.
ท Grant a petition seeking minor changes in the EBS eligibility rule to conform it to 
other changes made by the Commission.
ท Grant a petition asking the Commission to adopt a rule that clarifies that commercial 
EBS licensees are not subject to educational programming requirements or the special 
EBS leasing restrictions.  
ท Deny a petition asking the Commission to reinstate pending mutually exclusive 
applications for new EBS stations. 
Federal Communications Commission FCC 08-83 
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ท Grant in part requests for declaratory ruling and clarify how the splitting the football 
process for determining GSAs works with respect to licenses that were expired on 
January 10, 2005.
In the BRS/EBS 2nd FNPRM, we seek comment on whether and how to license EBS spectrum in 
the Gulf of Mexico.  We also seek comment on various alternatives for licensing unassigned 
EBS spectrum.  Specifically, we seek comment on the following issues:
ท We ask whether it would be in the public interest to develop a scheme for licensing 
unassigned EBS spectrum that avoids mutual exclusivity.
ท We ask whether EBS eligible entities could participate fully in a spectrum auction.
ท We seek comment on the use of small business size standards and bidding credits for 
EBS if we adopt a licensing scheme that could result in mutually exclusive 
applications.
ท We seek comment on the proper market size and size of spectrum blocks for new 
EBS licenses.
ท We seek comment on issuing one license to a State agency designated by the 
Governor to be the spectrum manager, using frequency coordinators to avoid 
mutually exclusive EBS applications, as well as other alternative licensing schemes.
III. BACKGROUND3  
A. BRS/EBS R&O and FNPRM
3. On July 19, 2004, the Commission, in response to a “White Paper” submitted by 
the Wireless Communications Association International, Inc. (WCA), the Catholic Television 
Network (CTN), and the National ITFS Association (NIA) (the Coalition) released the BRS/EBS 
R&O & FNPRM.4  In the BRS/EBS R&O & FNPRM, the Commission restructured the 2500-
2690 MHz band from an interleaved band plan to a three-segment band plan divided into upper 
and lower-band segments (UBS and LBS, respectively) for low-power operations and a mid-
band segment (MBS) for high-power operations, and designated the 2495-2500 MHz band for 
use in connection with the 2500-2690 MHz band.5 The following charts illustrate the former and 
current band plans: 
FORMER BRS/EBS BAND PLAN:
  
3 A full discussion of the background and history involving this band is contained in Amendment of Parts 1, 21, 73, 
74 and 101 of the Commission’s Rules to Facilitate the Provision of Fixed and Mobile Broadband Access, 
Educational and Other Advanced Services in the 2150-2162 and 2500-2690 MHz Bands, Notice of Proposed 
Rulemaking and Memorandum Opinion and Order, WT Docket No. 03-66, 18 FCC Rcd 6722, 6726-6739 ถถ 6-31 
(2003) (BRS/EBS NPRM), BRS/EBS R&O & FNPRM, 19 FCC Rcd at 14171-14176 ถถ 9-20, and BRS/EBS 3rd 
MO&O & 2nd R&O, 21 FCC Rcd at 5614-5618 ถถ 9-19.  
4 BRS/EBS R&O and FNPRM.
5 BRS/EBS R&O and FNPRM, 19 FCC Rcd at 14182-14187 ถถ 36-47.
Federal Communications Commission FCC 08-83 
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1 2/2A A1 B! A2 B2 A3 B3 A4 B4 C1 D1 C2 D2 C3 D3 C4 D4 E1 F1 E2 F2 E3 F3 E4 F4 G1 H1 G2 H2 G3 H3 G4 R
2150 2162 2500 2596 2644 2686 2690
CURRENT BRS/EBS BAND PLAN:
Commission Band Plan
Channel 
Designatio
n
Lower 
Frequenc
y
Upper 
Frequenc
y
N/A 2495 2496 Guard Band
BRS 1 2496 2502
A1 2502 2507.5
A2 2507.5 2513
A3 2513 2518.5
B1 2518.5 2524
B2 2524 2529.5
B3 2529.5 2535
C1 2535 2540.5 LBS
C2 2540.5 2546
C3 2546 2551.5
D1 2551.5 2557
D2 2557 2562.5
D3 2562.5 2568
J 2568 2572 Guard Band
A4 2572 2578
B4 2578 2584
C4 2584 2590
D4 2590 2596 MBS
G4 2596 2602
F4 2602 2608
E4 2608 2614
K 2614 2618 Guard Band
BRS 2 2618 2624
E1 2624 2629.5
E2 2629.5 2635
E3 2635 2640.5
F1 2640.5 2646
F2 2646 2651.5
F3 2651.5 2657 UBS
H1 2657 2662.5
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H2 2662.5 2668
H3 2668 2673.5
G1 2673.5 2679
G2 2679 2684.5
G3 2684.5 2690
The Commission also renamed the Multipoint Distribution Service (MDS) and Instructional 
Television Fixed Service (ITFS) as the “Broadband Radio Service” and “Educational Broadband 
Service,” respectively, to better reflect the new services anticipated for this band.6 In addition, 
the Commission retained conditions on the use of EBS licenses in continued furtherance of the 
educational objectives that led to the establishment of ITFS, and removed all non-statutory 
eligibility restrictions applicable to cable and digital subscriber line (DSL) operators for the BRS 
(thus permitting these operators to provide non-video services like broadband internet access).7  
Further, the Commission adopted service rules and took actions that gave licensees increased 
flexibility, reduced administrative burdens on both licensees and the Commission, and promoted 
regulatory parity.  In particular, among other actions, the Commission implemented geographic 
area licensing for all licensees in the band; consolidated licensing and service rules for EBS and 
BRS in Part 27; allowed spectrum leasing for BRS and EBS under our secondary markets 
spectrum leasing policies and procedures; provided licensees with the flexibility to employ the 
technologies of their choice in the band; applied the Part 1 Wireless Telecommunications Bureau 
rules to the BRS/EBS spectrum; and dismissed pending mutually exclusive applications for new 
ITFS stations.8
4. To facilitate the transition to the new band plan, the Commission adopted a 
market-oriented transition mechanism, in which a proponent would transition the 2.5 GHz band 
within a Major Economic Area (MEA).9 The transition timeline consisted of the following three 
phases:  the Initiation Phase (which was to have lasted three years starting on January 10, 2005), 
in which potential proponents contact all the BRS and EBS licensees in the MEA by sending 
them a Pre-transition Data Request and a Transition Notice; the 90-day Transition Planning 
Phase, in which the proponent and BRS and EBS licensees negotiate the Transition; and the 18-
month Transition Completion Phase, in which the proponent replaces downconverters and 
migrates video programming tracks for EBS licensees in the MEA.10 Under this transition 
mechanism, the transition costs of EBS licensees were to be shared by the proponent and all 
commercial licensees and lessees in the MEA.11 Transition plans were required to conform to 
certain safeguards to ensure a smooth transition and equitable treatment of incumbents.  The 
Commission permitted qualifying MVPD operators to seek a waiver to opt-out of the transition.12
  
6 BRS/EBS R&O and FNPRM, 19 FCC Rcd at 14182, 14227 ถถ 6, 164.
7 BRS/EBS R&O and FNPRM, 19 FCC Rcd at 14221-14227, 14230-14232 ถถ 149-164, 170-176.
8 BRS/EBS R&O and FNPRM, 19 FCC Rcd at 14169-14170 ถ 6.
9 BRS/EBS R&O, 19 FCC Rcd at 14198 ถ 74.
10 BRS/EBS R&O, 19 FCC Rcd at 14200, 14203 ถถ 78, 88.
11 BRS/EBS R&O, 19 FCC Rcd at 14205 ถ 93.
12 BRS/EBS R&O, 19 FCC Rcd at 14198-14199 ถ 75.
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5. In addition, the BRS/EBS R&O resolved certain technical issues as follows:  set 
the signal strength limits for the low-power bands at the boundaries of the geographic service 
areas to 47 dBmV/m; restricted the transmitter output power of response stations to 2.0 watts; 
modified emission limits for stations that would operate on the LBS and UBS channels; and 
refrained from allowing high-power unlicensed operations in the 2500-2690 MHz band, but 
allowed unlicensed operation under our existing Part 15 rules in the 2655-2690 MHz band.13
6. In the BRS/EBS FNPRM, the Commission sought comment on a proposal to use 
competitive bidding to assign any new licenses, as well as competitive bidding mechanisms to 
transition licensees to the extent that licensee-negotiated transitions do not occur within the 
three-year transition period.14 Among other methods, we sought comment on a process whereby 
the Commission would offer incumbent licensees modified non-renewable licenses that would 
become secondary to new licenses to be assigned pursuant to the new band plan.15 Under this 
process, the Commission also would offer incumbent licensees tradable bidding offset credits 
that could be used to obtain new licenses, and that would provide spectrum access valued 
comparably to that provided by the incumbent’s existing license.16 In addition to alternate 
transition methods, we also sought further comment on the following issues: the Gulf of Mexico 
service area; performance requirements for licensees in the band; grandfathered ITFS stations on 
the E and F channel groups; limitations on the holdings of ITFS stations; the “wireless cable” 
exception to the ITFS eligibility rules; regulatory fees; methods of streamlining our review of 
transactions involving these services; and continuing our review of rules relating to these 
services.17
B. BRS/EBS 3rd MO&O and 2nd R&O
7. In the BRS/EBS 3rd MO&O, the Commission made further changes to the 
transition rules to further encourage the transition of the 2.5 GHz band.  In reviewing the 
petitions filed in response to the BRS/EBS R&O and FNPRM, the Commission found that the 
selection of MEAs as the transition area size discouraged potential proponents from filing 
Initiation Plans.18 Thus, the Commission changed the transition area size from MEA to the 
much-smaller Basic Trading Area (BTA).19 Moreover, since at the time the Commission 
released the BRS/EBS 3rd MO&O not one Initiation Plan had been filed, the Commission 
changed the timeframe of the Initiation Planning Period from January 10, 2005 through January 
10, 2008 to July 19, 2006 through January 21, 2009.20 Also, in response to petitioners who were 
afraid that they would lose their licenses if a proponent did not file or withdrew an Initiation Plan 
on or before January 21, 2009, the Commission adopted a rule permitting licensees to self-
  
13 BRS/EBS R&O, 19 FCC Rcd at 14208, 14211, 14218 ถถ 106, 116, 139.
14 BRS/EBS FNPRM, 19 FCC Rcd at 14265 ถ 265-266.
15 BRS/EBS FNPRM, 19 FCC Rcd at 14266 ถ 269.
16 BRS/EBS FNPRM, 19 FCC Rcd at 14273 ถ 290.
17 BRS/EBS FNPRM, 19 FCC Rcd at 14282-14301 ถถ 320-374.
18 BRS/EBS 3rd MO&O, 21 FCC Rcd at 5641 ถ 64.
19 BRS/EBS 3rd MO&O, 21 FCC Rcd at 5642 ถ 65.
20 BRS/EBS 3rd MO&O, 21 FCC Rcd at 5658-5659 ถ 106.
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transition to their default channel locations after January 21, 2009 if a proponent has not filed or 
has withdrawn an Initiation Plan on or before January 21, 2009.21 Other significant changes 
made by the Commission to the transition included the following: adopting a cost-sharing 
formula for proponent-driven and self transitions; adopting a “first-in time” rule in which the 
first entity to file an Initiation Plan with the Commission for a given BTA would be the 
proponent; requiring licensees to respond to the Pre-transition Data request within 45 days; and 
permitting proponents to file the Post-transition notification on behalf of itself and all of the BRS 
and EBS licensees in the BTA.22 The Commission clarified that BRS licensees and lessees, EBS 
lessees, and commercial EBS licensees must pay their own transition costs and share the cost to 
transition EBS licensees; that BRS licensees and lessees and EBS licensees and lessees may be a 
proponent; and that channel swapping to effectuate the transition is permitted.23 The 
Commission declined, however, to permit qualifying multichannel video programming 
distributors (MVPD) operators to automatically opt-out of the transition, but reaffirmed their 
right to seek a waiver to opt-out of the transition.24  
8. The Commission also made a series of decisions concerning the technical rules 
applicable to BRS and EBS.  Specifically, the Commission clarified that during the transition, all 
downconverters within the EBS geographic service area (GSA) must be replaced regardless of 
the desired or undesired signal strength, allowed a -10 dB adjacent channel desired-to-undesired 
signal ratio (D/U) for transitioned EBS receive sites, and reaffirmed its decision to permit 
licensees to exceed the signal level at the GSA boundary provided no constructed licensee 
providing service is affected.25 The Commission also reaffirmed its decision to require that a 
licensee receive a documented interference complaint before it is subject to a stricter emission 
mask for base stations, reaffirmed its decision that only the first adjacent channel licensee may 
submit a documented interference complaint, and amended the rules to permit the interfering 
licensee 60 days after receiving the documented interference complaint to resolve the 
complaint.26 In addition, the Commission declined to modify its decision to apply the attenuation 
factor, not less than 43 + 10 log (P) dB at the channel edge and 55 + 10 log (P) dB at 5.5 
megahertz from the channel edges, only to mobile digital stations; and reaffirmed its decision to 
require licensees to measure emission limits as close to the edges, both upper and lower, of the 
licensee’s bands of operation as the design permits, including BRS Channel No. 1 licensees.27  
Further, the Commission reaffirmed its decision to bifurcate and define overlapping GSA 
boundaries by drawing a chord between the intersection points of the licensee’s previous 35-mile 
Protected Service Area (PSA) and those of the respective adjacent market co-channel licensee.28  
Also, the Commission reaffirmed its decision to permit two-way mobile operations prior to the 
  
21 BRS/EBS 3rd MO&O, 21 FCC Rcd at 5671, 5673-5674 ถถ 135, 142.
22 BRS/EBS 3rd MO&O, 21 FCC Rcd at 5652, 5656, 5677-5686 ถถ 91, 101, 152-176.
23 BRS/EBS 3rd MO&O, 21 FCC Rcd at 5650, 5665, 5678-5679 ถถ 87, 122, 157-158.
24 BRS/EBS 3rd MO&O, 21 FCC Rcd at 5645-5646 ถถ 72-74.
25 BRS/EBS 3rd MO&O, 21 FCC Rcd at 5687-5689, 5699 ถถ 181-190, 219-220.
26 BRS/EBS 3rd MO&O, 21 FCC Rcd at 5689-5691 ถถ 191-197.
27 BRS/EBS 3rd MO&O, 21 FCC Rcd at 5691-5694 ถถ 198-204.
28 BRS/EBS 3rd MO&O, 21 FCC Rcd at 5694-5695 ถถ 205-208.
Federal Communications Commission FCC 08-83 
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transition, and reaffirmed its decision to permit low-power unlicensed operations in the 2655-
2690 MHz portion of the band.29  
9. In response to a request from EBS licensees, the Commission modified the 
application of the Secondary Markets rules and policies to EBS excess capacity leases entered 
into on or after July 19, 2006.30 Specifically, the Commission limited the term of these leases to 
30 years and required them to permit the EBS licensee/lessor to retain the right at year 15 and 
every five years thereafter to review the lease in light of their educational requirements.31 The 
Commission also stated that these leases could not be automatically renewed, although they 
could contain a right of first refusal clause.32 Also, the Commission affirmed its decision not to 
specify the manner in which EBS licensees reserve 5 percent of the capacity of their channels for 
educational usage when they lease their channels to a commercial lessee and reaffirmed its 
decision to permit cable operators and incumbent local exchange carriers (ILECs) to acquire or 
lease BRS or EBS spectrum for non-MVPD services.33 The Commission also reaffirmed its 
decision to dismiss mutually exclusive applications for new EBS stations.34  
10. In the BRS/EBS 2nd R&O, the Commission declined to adopt assignment rules for 
unassigned BRS or EBS spectrum at that time and terminated the Gulf of Mexico proceeding.35  
The Commission did, however, adopt substantial service as the performance standard for EBS 
and BRS licensees; established May 1, 2011 as the deadline for licensees to demonstrate 
substantial service for each license they hold; adopted safe harbors, including safe harbors for 
EBS licensees and rural areas; and indicated that a licensee’s prior, discontinued service may be 
considered as a factor in the substantial service determination made by the Commission.36 Also, 
the Commission adopted rules to resolve conflicts between the overlapping GSAs of 
grandfathered E and F Group EBS licensees and co-channel BRS E and F Group licensees.37  
IV. DISCUSSION
A. Licensing Unassigned Spectrum in the Band
11. Background. The Commission previously assigned all spectrum allocated to the 
MDS and Multichannel Multipoint Distribution Service (MMDS), the predecessor services to 
BRS.  Specifically, in 1996, the Commission conducted competitive bidding and issued 493 
BTA licenses granting access to all BRS spectrum nationwide that was not assigned to pre-
  
29 BRS/EBS 3rd MO&O, 21 FCC Rcd at 5695-5699 ถถ 209-218.
30 BRS/EBS 3rd MO&O, 21 FCC Rcd at 5716 ถ 268.
31 BRS/EBS 3rd MO&O, 21 FCC Rcd at 5716 ถ 268.
32 BRS/EBS 3rd MO&O, 21 FCC Rcd at 5716 ถ 270.
33 BRS/EBS 3rd MO&O, 21 FCC Rcd at 5701-5703 ถถ 227, 231-232.
34 BRS/EBS 3rd MO&O, 21 FCC Rcd at 5703-5704 ถถ 236-238. The Commission, however, reinstated one 
application based on evidence presented by the petitioner showing that its settlement agreement was approved 
before the April 2, 2003 deadline.  BRS/EBS 3rd MO&O, 21 FCC Rcd at 5704 ถ 239.
35 BRS/EBS 2nd R&O, 21 FCC Rcd at 5737, 5762 ถถ 313, 383.
36 BRS/EBS 2nd R&O, 21 FCC Rcd at 5718-5736 ถถ 274-310.
37 BRS/EBS 2nd R&O, 21 FCC Rcd at 5749-5750 ถถ 348-350.
Federal Communications Commission FCC 08-83 
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existing MDS or MMDS site-based licenses.38 Since the auction, 73 of the 493 BRS overlay 
licenses have cancelled and the related spectrum access rights are now unassigned although any 
underlying, pre-existing site-based licenses remain intact.   With respect to EBS spectrum, the 
Commission has extensively, but not exhaustively, assigned this spectrum through site-based 
licensing.  Commission analysis indicates that in 11 of 493 BTAs, there are currently no 
geographic or site-based BRS or EBS licensees.  In addition, there are six additional BTAs 
where only a very small portion of the BTA is covered by a BRS or EBS license. 
12. In the BRS/EBS FNPRM, the Commission sought comment on procedures for 
assigning new licenses in these services by competitive bidding.39 Commenters were asked to 
address these issues in addition to a larger proposal to use competitive bidding to transfer 
existing licensees to the new band plan.40 Specifically, the Commission asked parties to 
comment on adopting Part 1 competitive bidding rules for these services, as well as the adoption 
of three levels of size-based bidding credits.41
13. Commenters addressing competitive bidding issues in response to the BRS/EBS 
FNPRM generally focused on when to conduct competitive bidding, and whether and how to 
distinguish among EBS applicants for purposes of offering small businesses bidding 
preferences.42 Then, as now, several parties sought early auctions of currently unassigned 
spectrum.43 Organizations representing EBS licensees, however, argued that auctions of EBS 
licenses should wait until after the transition, so that EBS licensees could devote appropriate 
attention to the transition process.44 In addition, there were divergent views regarding what 
frequencies in the band should be licensed together (particularly whether or not to group low and 
high power frequencies) and the appropriate geographic area for licensing.45 These latter 
concerns primarily pertained to new EBS licenses.  
14. In the BRS/EBS 2d R&O, the Commission concluded that it would be premature 
to decide how to license currently unassigned spectrum in the band until after the period for 
existing licensees to transition to the new band plan expires.46 The Commission reached this 
conclusion based on the limited amount of currently unassigned spectrum relative to assigned 
spectrum subject to transitioning; the limited utility of new licenses in areas where existing 
licensees were transitioning from the old to the new band plan; and the efficiency of licensing all 
  
38 These types of licenses are commonly referred to as geographic “overlay” licenses.  See Winning Bidders in the 
Auction of Authorizations to Provide Multipoint Distribution Service in 493 Basic Trading Areas, Public Notice
(MMB WTB Mar. 29, 1996).
39 BRS/EBS FNPRM, 19 FCC Rcd at 14265-14272 ถถ 266-288.
40 BRS/EBS FNPRM, 19 FCC Rcd at 14272-14282 ถถ 289-319.
41 BRS/EBS FNPRM, 19 FCC Rcd at 14270-14272 ถถ 281-288.
42 BRS/EBS 2nd R&O, 21 FCC Rcd at 5738-5739, 5741 ถถ 317-319, 325.
43 BRS/EBS 2nd R&O, 21 FCC Rcd at 5738 n.786.
44 BRS/EBS 2nd R&O, 21 FCC Rcd at 5738-5739 ถ 318.
45 BRS/EBS 2nd R&O, 21 FCC Rcd at 5740-5741 ถ 325.
46 BRS/EBS 2d R&O, 21 FCC Rcd at 5739 ถ 320.
Federal Communications Commission FCC 08-83 
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available spectrum at one time.47 Moreover, the Commission observed that completion of the 
transition would permit an assessment of existing and potential uses of new licenses and might 
lead to the identification of additional spectrum available for assignment.48 The Commission 
concluded that waiting to assign new licenses until after the completion of the transition 
therefore might enable a more effective initial assignment of new licenses.49
15. NextWave Broadband, Inc. (NextWave) asks the Commission to reconsider this 
conclusion and immediately auction “all available and unassigned” BRS and EBS spectrum.50 In 
seeking reconsideration, NextWave asserts that the benefits from assigning new licenses prior to 
the end of the transition outweigh any potential benefits that could be obtained from waiting to 
assign licenses for more available spectrum at one time.51 WiMAX Forum (WiMAX), Sprint 
Nextel, Clearwire Corporation (Clearwire), the Hispanic Information and Telecommunications 
Network (HITN) and WCA support NextWave’s request.52 Proponents of earlier licensing of 
BRS BTA licenses contend that new BRS BTA licensees may be more likely to initiate 
transitions to the new band plan than other existing licensees, thereby furthering the transition.53  
More broadly, WCA and NextWave contend that the sooner the Commission licenses unassigned 
spectrum, the sooner new licensees can begin planning their post-transition deployments.54  
16. A few parties, specifically NIA, CTN, and ITFS/2.5 GHz Mobile Wireless 
Engineering & Development Alliance, Inc. (IMWED), oppose NextWave's petition with respect 
to assigning EBS spectrum.  NIA and CTN contend that “EBS licensees will be significantly 
occupied with other matters over the next few years, including transitions to the new band plan, 
spectrum lease negotiations, and, critically, the development of educational service plans that 
focus on new technologies tailored to the revised plan and rules.”55 IMWED contends that 
auctioning EBS spectrum in urban areas is unnecessary because there is insufficient white space 
available to institute new services in those areas.56 IMWED states that the primary purpose of 
EBS is educational, not commercial.57 Finally, IMWED anticipates that auctions would not 
  
47 BRS/EBS 2d R&O, 21 FCC Rcd at 5739-5740 ถถ 320-324.
48 BRS/EBS 2d R&O, 21 FCC Rcd at 5740 ถ 322.
49 BRS/EBS 2d R&O, 21 FCC Rcd at 5740 ถ 322.
50 NextWave PFR at 3-12.  In referring to pleadings filed in response to the BRS/EBS 3rd MO&O, we will use the 
short name of the party as indicated in Appendix D to this document, followed by "PFR" if the document is a 
petition for reconsideration, "Comments" or "Opposition" if the document is comments on or oppositions to 
petitions for reconsideration, and "Reply" if the pleading is a reply to an opposition or comment.
51 NextWave PFR at 5.
52 WCA Opposition at 12-16. In addition to WCA, WiMAX (a non-profit corporation formed to help promote and 
certify the compatibility and interoperability of broadband wireless products using the IEEE 802.16 and ETSI 
HiperMAN wireless MAN specifications), Clearwire, and HITN all support early auction of new licenses.  WiMAX 
Comments at 5-6; Sprint Nextel Opposition at 13-15; Clearwire Opposition at 3-5; HITN Opposition at 3-4.
53 Clearwire Opposition at 4, NextWave Reply at 4.
54 WCA Opposition at 15, NextWave Reply at 4.
55 CTN NIA Opposition at 3-4.
56 IMWED Opposition at 3.
57 IMWED Opposition at 4.
Federal Communications Commission FCC 08-83 
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materially expedite the provision of wireless broadband service because widespread deployment 
will not occur until after transitions take place.58
17. Discussion.  With respect to BRS spectrum, we now conclude that the public 
interest favors expeditious relicensing of BTA authorizations in those areas where the 
authorization was forfeited or turned in for cancellation, regardless of the presence of other BRS 
or EBS incumbents.  BTA authorization holders eligible to pay for their licenses in installments 
recently submitted their final payments.  With final payment in hand, the possibility that 
additional BTA licenses will be added to the FCC’s auction inventory due to failure to pay is 
now foreclosed.  In addition, initial action has been taken with respect to requests regarding 
forfeited authorizations.59 These developments provide greater certainty regarding the 
geographic areas available for the grant of new BRS licenses.
18. We find that the expeditious licensing of BRS in those 11 BTAs where there is no 
existing BRS or EBS licensee serves the public interest by facilitating service in unserved 
areas.60 Expedited licensing in those markets will not disrupt the band plan transition process 
because there are no existing operations.  Transitions in adjacent BTAs will be protected by the 
requirements in our technical rules that new BTA licensees operate pursuant to the post-
transition band plan and provide protection to adjacent operations.  We also note that Sprint 
Nextel and Clearwire, two entities that have proposed transitions in other markets, support 
expeditious relicensing of available BRS spectrum.61
19. We also conclude that, on balance, early issuance of BTA authorizations serves 
the public interest in markets where there are incumbent non-BTA BRS or EBS licensees.  
Unlike the handful of markets without any existing BRS or EBS licensees, issuance of licenses 
where there are existing incumbents will supplement – rather than initiate – service within the 
BTA.  Nonetheless, a new BTA authorization will make service more widely available and will 
increase the opportunities for competitive offerings within the market.  We believe that our 
existing technical rules afford incumbent licensees protection against unwarranted interference.  
Specifically, any new BTA licenses will be required to limit their signal strength at the border of 
their GSA,62 provide adjacent channel protection in the same manner as any other licensee,63 and 
comply with the height benchmarking rule to ensure that base stations near the border of GSAs 
  
58 IMWED Opposition at 4.
59 See, e.g., Satellite Signals of New England, Order, 22 FCC Rcd 1937 (WTB 2007), petition for reconsideration 
pending, TV Communications Network, Inc., Order, 22 FCC Rcd 1397 (WTB 2007), application for review 
pending, Virginia Communications, Inc., Order, 22 FCC Rcd 1386 (WTB 2007), petition for reconsideration 
pending.
60 Three of these eleven BTAs previously were licensed to TV Communications Network, Inc. (TVCN).  TVCN 
sought relief from the cancellation of these and other BTA licenses.  The Wireless Telecommunications Bureau 
denied TVCN’s initial request for relief and TVCN has filed a pending application for review of that denial.  TV 
Communications Network, Inc., Order, 22 FCC Rcd 1397 (WTB 2007), application for review pending.
61 Sprint Nextel Opposition at 13-15; Clearwire Opposition at 3-5.  Sprint Nextel, Clearwire, and Polar 
Communications have filed transition initiation plans for 375 BTAs.
62 See 47 C.F.R. ง 27.55(a)(4).
63 See 47 C.F.R. ง 27.53(m).
Federal Communications Commission FCC 08-83 
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do not interfere with stations in neighboring GSAs.64 We also note that no party to this 
proceeding expressed concern that awarding new BRS BTA licenses would cause problems to 
existing operations.  Moreover, we will require new licensees to operate pursuant to the new 
band plan.  This requirement will protect existing licensees by ensuring that any future high-
power video operations are restricted to the MBS.  To the extent a market has existing pre-
transition operations, requiring the BTA operator to operate pursuant to the new band plan will 
provide that operator with maximum incentive to transition existing operations.  Furthermore, as 
an increasing number of adjacent markets are transitioned, requiring new licensees to operate 
pursuant to the new band plan will ensure that the new licensees operate in conformity with 
adjacent markets.  We expect that these requirements on how BRS licensees may operate under 
new BTA licenses pending the transition to the new band plan should provide an incentive for 
these licensees to propose transitions in markets currently lacking a transition plan. 
20. Although we decide to move forward with auctioning licenses for unassigned 
BRS spectrum, we believe that a broader record should be developed on how to distribute 
licenses for unassigned EBS spectrum.  EBS is a unique service designed to meet the unique 
needs of educators and students.65 Given the wide variety of educators and educational needs, 
we could foresee situations in which the ideal license size could be as small as a school district or 
as large as a state.  Furthermore, educators may encounter a variety of unique challenges that 
commercial operators may not face, such as state or county imposed budgeting cycles, the need 
to obtain grants, or state-imposed limitations on their ability to participate in spectrum 
acquisition.  Accordingly, as noted in further detail below, the Second Further Notice of 
Proposed Rulemaking seeks further comment on the best means of licensing unassigned EBS 
spectrum.
B. BRS Competitive Bidding Rules
21. Background.  The BRS/EBS FNPRM proposed to conduct any auction of new 
licenses in the BRS/EBS band in conformity with the general competitive bidding rules set forth 
in Part 1, Subpart Q, of the Commission’s rules, for example, rules governing competitive 
bidding design, designated entities, application and payment procedures, collusion issues, and 
unjust enrichment.66 We did not receive any noteworthy objection to the use of these 
competitive bidding rules with respect to new BRS licenses.
22. In the BRS/EBS FNPRM, the Commission sought comment on the appropriate 
geographic area size for new licenses in this band.67 With limited exceptions, commenters 
generally assert that new geographic area licenses should be BTAs.68 Commenters contend that 
BTAs are consistent with prior geographic area licensing in the band, i.e. MDS BTA overlay 
licenses; that BTAs are closer to the market size likely to be served by a licensee; and that areas 
larger than BTAs will result in inefficient license assignments, as bidders’ licenses may cover 
  
64 See 47 C.F.R. ง 27.1221.
65 See generally BRS R&O, 19 FCC Rcd at 14222-14227 ถถ 152-164.
66 BRS/EBS FNPRM, 19 FCC Rcd at 14270 ถ 281.
67 BRS/EBS R&O FNPRM, 19 FCC Rcd at 14268-14269 ถ 274-278.
68 WCA Comments (filed Jan. 10, 2005) at 24-25, Sprint Corporation Comments (filed Jan. 10, 2005) at 4, 
Comments of Nextel Corporation (filed Jan. 10, 2005) at 8-9.
Federal Communications Commission FCC 08-83 
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some areas in which they have no interest.69 A few commenters suggest geographic areas 
smaller than BTAs, such as counties (School Board of Miami Dade County Florida), telephone 
servicing areas (Gila River Telecommunications, Inc.), or MSAs/RSAs (National 
Telecommunications Cooperative Association – for MBS).70
23. With respect to bidding credits, in the BRS/EBS FNPRM, the Commission 
proposed to define three categories:  "small business" -- an entity with average annual gross 
revenues not exceeding $40 million for the preceding three years; "very small business" -- an 
entity with average gross revenues not exceeding $15 million for the same period; and 
"entrepreneur" -- an entity with average gross revenues not exceeding $3 million for the same 
period.71 The Commission also proposed to provide qualifying “small businesses” with a 
bidding credit of 15%, qualifying “very small businesses” with a bidding credit of 25%; and 
qualifying “entrepreneurs” with a bidding credit of 35%, consistent with Section 1.2110(f)(2) of 
the Commission’s Rules.72
24. Commenters responding to the BRS/EBS FNPRM focused on bidding credits for 
EBS licenses, rather than BRS licenses.  For example, one party proposed substantial bidding 
credits, of at least 50%, for EBS applicants not receiving financial support from outside parties.73  
WCA, which opposes bidding credits with respect to EBS licenses generally, advocates that any 
bidding credits for EBS applicants be based on their educational objectives, rather than their 
revenues.74  
25. With respect to other competitive bidding rules, the BRS/EBS FNPRM proposed 
to use Part 1, Subpart Q rules to auction geographic area licenses to access spectrum in the 2500-
2690 MHz band.75 We did not receive any comments objecting to the use of these Part 1 rules.
26. Discussion.  With respect to the assignment of new BRS licenses, we adopt the 
competitive bidding rules set forth in Part 1, Subpart Q, of the Commission’s Rules, consistent 
with the bidding procedures that have been employed in many previous auctions.76 Specifically, 
  
69 See, e.g., WCA Comments at 24-25.
70 Further Comments, The School Board of Miami Dade County Florida (filed Jan. 10, 2005) at 2-3, Comments of 
Gila River Telecommunications, Inc. (filed Jan. 10, 2005) at 2-3, Comments of the National Telecommunications 
Cooperative Association in Response to the Further Notice of Proposed Rulemaking and Initial Regulatory 
Flexibility Analysis (filed Jan. 10, 2005) at 3.  NTCA also suggested BTAs could be an alternative for the MBS.  Id.
71 BRS/EBS FNPRM, 19 FCC Rcd at 14272 ถ 286.  See 47 C.F.R. ง 1.2110(f)(2).  We will coordinate the small 
business size standards for BRS in this proceeding with the U.S. Small Business Administration.
72 47 C.F.R. ง 1.2110(f)(2)(i)-(iii).
73 See, e.g., Comments of SpeedNet, L.L.C. (filed Jan. 10, 2005) at 2.
74 WCA Reply Comments (filed Feb. 8, 2005) at 30-32.
75 BRS/EBS NPRM, 18 FCC Rcd at 6816 ถ 233.
76 See, e.g., Amendment of Part 1 of the Commission’s Rules—Competitive Bidding Procedures, WT Docket No. 
97-82, Order, Memorandum Opinion and Order and Notice of Proposed Rule Making, 12 FCC Rcd 5686 (1997); 
Third Report and Order and Second Further Notice of Proposed Rule Making, 13 FCC Rcd 374 (1997) (Part 1 
Third Report and Order); Order on Reconsideration of the Third Report and Order, Fifth Report and Order, and 
Fourth Further Notice of Proposed Rule Making, 15 FCC Rcd 15293 (2000) (recon. pending) (Part 1 Recon Order/ 
Fifth Report and Order and Fourth Further Notice of Proposed Rule Making);  Seventh Report and Order, 16 FCC 
Rcd 17546 (2001); Eighth Report and Order, 17 FCC Rcd 2962 (2002).
Federal Communications Commission FCC 08-83 
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we will adopt the Part 1 rules governing, among other things, competitive bidding design, 
designated entities, application and payment procedures, collusion issues, and unjust 
enrichment.77 We note that such rules would be subject to any modifications by the Commission 
in our ongoing Part 1 proceeding.78 In addition, consistent with current practice, matters such as 
the appropriate competitive bidding design, minimum opening bids and reserve prices, will be 
determined by the Wireless Telecommunications Bureau pursuant to its delegated authority.79  
27. We adopt rules providing that new licenses for unassigned BRS spectrum will be 
assigned by BTA, with each license authorizing access for all BRS spectrum not otherwise 
assigned either at the time of licensing or in the future.80 We agree with those commenters that 
there are benefits to issuing new licenses on a BTA basis because this approach is consistent with 
the existing BRS geographic overlay licenses.  Furthermore, adopting different geographic 
service areas for the available BRS licenses would be difficult to administer and would not 
appear to lead to any benefits for either potential licensees or the public.  
28. We also adopt rules providing for three size-based bidding credits in competitive 
bidding for new BRS licenses.  We have used similar credits in a range of other services and 
conclude that they are appropriate for BRS.  Applicants with attributable average annual gross 
revenues not exceeding $3 million for the preceding three years, “entrepreneurs,” will be eligible 
for a 35% discount on their winning bids; those with attributable average annual gross revenues 
not exceeding $15 million for the same period, “very small businesses,” will be eligible for a 
25% discount; and those with attributable average annual gross revenues not exceeding $40 
million for the same period, “small businesses,” will be eligible for a 15 percent discount.  
Applicants claiming eligibility will do so pursuant to our established Part 1 competitive bidding 
rules and procedures.
  
77 See 47 C.F.R. ง 1.2101 et seq.
78 See, e.g., Amendment of Part 1 of the Commission’s Rules — Competitive Bidding Procedures, Second Order on 
Reconsideration of the Fifth Report and Order, 20 FCC Rcd 1942 (2005) (“Part 1 Competitive Bidding Second 
Order on Reconsideration of the Fifth Report and Order”) (adopting modifications to the competitive bidding rules); 
Implementation of the Commercial Spectrum Enhancement Act and Modernization of the Commission’s 
Competitive Bidding Rules and Procedures, WT Docket No. 05-211, Report and Order, 21 FCC Rcd 891 (2006) 
(CSEA/Part 1 Report and Order), petitions for reconsideration pending; Implementation of the Commercial 
Spectrum Enhancement Act and Modernization of the Commission’s Competitive Bidding Rules and Procedures, 
WT Docket No. 05-211, Second Report and Order and Second Further Notice of Proposed Rulemaking, 21 FCC 
Rcd 4753 (2006) (Designated Entity Second Report and Order and Designated Entity Second FNPRM), petitions for 
reconsideration pending; Implementation of the Commercial Spectrum Enhancement Act and Modernization of the 
Commission’s Competitive Bidding Rules and Procedures, WT Docket No. 05-211, Order on Reconsideration of 
the Designated Entity Second Report and Order, 21 FCC Rcd 6703 (2006) (Designated Entity Order on 
Reconsideration of the Second Report and Order), petitions for reconsideration pending.
79 See Amendment of Part 1 of the Commission’s Rules - Competitive Bidding Procedures, Third Report and Order 
and Second Further Notice of Proposed Rule Making, 13 FCC Rcd 374, 448-49, 454-55 ถถ 125, 139 (directing the 
Bureau to seek comment on specific mechanisms relating to auction conduct pursuant to the Balanced Budget Act of 
1997) (Part 1 Third Report and Order).
80 In the event the license for an incumbent non-BTA station cancels or is forfeited, the right to operate in that area 
automatically reverts to the licensee that holds the license for the corresponding BTA.  47 C.F.R. ง 27.1206(b).
Federal Communications Commission FCC 08-83 
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C. Transition
1. Self-transitioning before January 21, 2009
29. Background. The primary means of transitioning BRS and EBS stations is the 
proponent-based transition.  The proponent-based transition process is a market-oriented process 
for relocating EBS licensees and BRS licensees from their current interleaved channel locations 
to their new contiguous spectrum blocks in the LBS, MBS, or UBS.  The transition occurs by 
BTAs and is undertaken by a proponent or multiple proponents.  The transition occurs in the 
following five phases:  (1) initiating the transition process by filing an Initiation Plan with the 
Commission; (2) planning the transition; (3) reimbursing the costs of the transition; (4) 
terminating existing operations in transitioned markets; and (5) filing the post-transition 
notification.81 A proponent must migrate an EBS licensee’s eligible video programming tracks 
to the MBS82 and provide an EBS licensee with downconverters at every eligible EBS receive 
site.83 The proponent may seek reimbursement for the migration and downconverters they 
provide from BRS licensees and lessees, EBS lessees, and commercial EBS licensees.84 BRS 
licensees and lessees, EBS lessees, and commercial EBS licensees must pay their own transition 
costs.85
30. In markets where no transition plan is filed by January 21, 2009, the date the 
proponent must file an Initiation Plan with the Commission or withdraw a filed Initiation Plan, 
the Commission permits BRS and EBS licensees to self-transition to their default channel 
locations.86 Consistent with the rules applying to proponent-based transitions, the Commission 
also permits self-transitioning EBS licensees to seek reimbursement from commercial operators 
in the 2.5 GHz band for the costs of transitioning to their default channel locations.87 The 
Commission decided to limit self-transitions to markets where no transition plan had been filed 
as of January 21, 2009 or where a transition plan had been withdrawn as of that date because 
allowing earlier self-transitions “would negatively affect the incentives for proponents to 
transition their BTAs.”88
31. Although Broward County asks the Commission to reconsider its decision 
regarding early self-transitions, it expresses different positions in its petition for reconsideration 
and its reply.  First, in its Petition for Reconsideration, Broward County asks the Commission to 
reconsider its decision and allow licensees to self-transition before January 21, 2009.89 Broward 
  
81 47 C.F.R. งง 27.1230-27.1239.
82 47 C.F.R. ง 27.1233(b).
83 47 C.F.R. ง 27.1233(a).
84 47 C.F.R. ง 27.1237(a).  47 C.F.R. ง 27.1238 identifies the costs that are eligible for reimbursement.
85 47 C.F.R. ง 27.1237(b).
86 BRS/EBS 3rd MO&O, 21 FCC Rcd at 5671 ถ 135.  January 21, 2009 is the first non-holiday 30 months after July 
19, 2006, the effective date of the amended rules. 
87 BRS/EBS 3rd MO&O, 21 FCC Rcd at 5685 ถ 175.
88 BRS/EBS 3rd MO&O, 21 FCC Rcd at 5671 ถ 135.
89 Broward County PFR at 4.  Broward County’s PFR does not distinguish between BRS and EBS licensees in 
advocating for early self-transitions.
Federal Communications Commission FCC 08-83 
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County further asks the Commission to permit early self-transitioning licensees to transition not 
only to their default channel locations, but also to an MBS channel belonging to another licensee, 
if certain conditions are met.  Specifically, that channel must be the self-transitioning licensee’s 
MBS channel following the transition of the licensee, or the self-transitioning licensee must have 
an agreement with the other licensee to allow the self-transitioning licensee to maintain its post-
transition programming on that MBS channel.90 Broward County asks that an early self-
transitioning licensee be permitted to “take its other channels dark” in anticipation of the arrival 
of the proponent and the completion of the transition process and to be reimbursed for its 
transition costs.91 Broward County argues that a self-transitioning licensee would cause less 
interruption to school curricula and programming availability, when compared with a proponent-
driven transition.92 In its Reply, however, Broward County asserts that licensees can self-
transition before January 21, 2009 and that the only question before the Commission is whether 
licensees who transition early may be reimbursed for the costs of transitioning.93 WCA, Sprint 
Nextel, and WiMAX oppose permitting licensees to self-transition before January 21, 2009.  
They argue that permitting early self-transitions would complicate the transition and be more 
costly.94  
32. Discussion.  As a preliminary matter, we disagree with Broward County’s 
assertion that a licensee may self-transition before January 21, 2009 and that the only question 
before the Commission is whether the costs incurred by the early self-transitioning licensees are 
reimbursable.  In the BRS/EBS 3rd MO&O, the Commission stated that a licensee may not self-
transition before January 21, 2009 because doing so would discourage proponents from 
transitioning the 2.5 GHz band.95 Thus, we now turn to Broward County's request that we 
reconsider this decision.
33. We reaffirm our decision that a licensee may not self-transition before January 21, 
2009 and reiterate that a proponent-driven transition is the most efficient method of transitioning 
a BTA.96 In particular, we find that early self-transitions would complicate the transition process 
for the proponent -- as discussed by WCA, Sprint Nextel, and WiMAX97 -- and would not 
provide sufficient benefits to the self-transitioning licensee to offset those additional 
complications.  
34. We disagree with Broward County's argument that permitting a licensee to self-
transition early would reduce the planning and technical burden on the proponent because the 
self-transitioning licensee, rather than a proponent, would make the necessary equipment 
  
90 Broward County PFR at 4.
91 Broward County PFR at 5.
92 Broward County PFR at 2.
93 Broward County Reply at 4.
94 WiMAX Comments at 12-13, WCA Opposition at 41-42, Sprint Nextel Opposition at 16-17.
95 BRS/EBS 3rd MO&O, 21 FCC Rcd at 5671 ถ 135, 47 C.F.R. ง 27.1236(a).
96 BRS/EBS 3rd MO&O, 21 FCC Rcd at 5671 ถ 135.
97 WiMAX Comments at 12-13, WCA Opposition at 41-42, Sprint Nextel Opposition at 16-17.
Federal Communications Commission FCC 08-83 
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changes for EBS stations.98 We believe that permitting a licensee to self-transition early would 
thwart the proponent’s ability to develop a BTA-wide transition plan in which some MBS 
channels are digitized, some licensees swap channels, and other licensees share digitized 
channels.  Under our rules, the proponent is responsible for transitioning all EBS licensees in the 
BTA through the development of a Transition Plan (to which every BRS and EBS licensee in the 
BTA must agree).  Moreover, if licensees are permitted to self-transition prior to January 21, 
2009, a proponent planning to transition a market after these self-transitions will have difficulty 
determining which licensees in the market already have transitioned.  
35. While we acknowledge that permitting licensees to self-transition early may result 
in a more rapid transition for these individual licensees, we find unpersuasive Broward County’s 
argument that a self-transitioning licensee would cause less interruption to school curricula and 
programming availability, when compared with a proponent-driven transition. The 
Commission’s Rules already require the proponent to coordinate with every EBS licensee to 
minimize the extent of any disruption and allow a proponent to interrupt EBS transmissions for 
only a short time (less than seven days) at any reception site.99 Moreover, allowing early self-
transitions may disrupt other EBS licensees that are participating in the proponent-driven 
transition process.
36. In addition, the existing proponent-driven transition process provides an 
opportunity for EBS licensees to make counterproposals to the proponent’s Transition Plan.100 In 
those circumstances, the proponent either must redraft the Transition Plan to account for the 
licensee’s concerns, or seek dispute resolution.  We believe that it is in the interest of the 
proponent to accommodate an EBS licensee because the transition for the entire BTA will be 
tolled pending resolution of the dispute.  In contrast, if we were to permit self-transitions prior to 
January 21, 2009, the proponent does not have a similar incentive to reach an agreement with the 
EBS licensee regarding reimbursement because the transition of the BTA will not be tolled 
pending dispute resolution (i.e., the EBS licensee has already self-transitioned, which by 
definition is not under the Transition Plan).  In addition, since the reimbursement of costs would 
not have been pre-negotiated under an early self-transition scenario, we note that the EBS 
licensee who opts for an early self-transition may not ultimately receive reimbursement for all of 
its costs under dispute resolution.  Furthermore, allowing early self-transitions may increase the 
possibility of disputes concerning cost reimbursement because EBS licensees who transition 
without the involvement of the proponent may be more likely to incur expenses that are not 
reimbursable (or that the proponent may view as not reimbursable).
37. We conclude that early self-transitioning would make the transition process more 
complicated, more difficult to administer, and unpredictable.  We therefore deny Broward 
County’s petition.  
  
98 See Broward County Reply at 3.
99 47 C.F.R. ง 27.1232(b)(2).
100 47 C.F.R. ง 27.1232(c).
Federal Communications Commission FCC 08-83 
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2. Proponent-driven transitions
38. Background.  On November 2, 2006, HITN filed a Request for Clarification of the 
BRS/EBS 3rd MO&O, more than three months after the July 19, 2006 deadline for filing 
Petitions for Reconsideration.  HITN asks the Commission to clarify four alleged inconsistencies 
between the text of the BRS/EBS 3rd MO&O and the text of the adopted rules concerning 
proponent-driven transitions.101 Specifically, HITN's Request focuses on the following issues:  
(1) the penalties imposed on licensees who do not timely respond to pre-transition data 
requests;102 (2) whether a proponent may implement its original transition plan after it seeks 
dispute resolution;103 (3) whether the rules should specify penalties imposed on the proponent 
for withdrawing the Initiation Plan;104 and (4) self-transitions.105 We discuss the first three issues 
below.  The fourth issue is discussed in the next section, in the context of WCA's Petition for 
Reconsideration.  
39. Discussion.  We agree with WCA that three of the four issues for which HITN 
requests clarification are substantive changes and not technical corrections.106 Thus, we conclude 
that HITN’s request for clarification, which was filed after the deadline for petitions for 
reconsideration of the BRS/EBS 3rd MO&O, is an untimely filed petition for reconsideration, 
which under Section 405(a) of the Act we are unable to address.107 Nonetheless, to the extent 
that there is any uncertainty about the obligations in a proponent-driven transition, we note that, 
in cases where the text of the rules is inconsistent with the text of an Order, the text of the rule 
controls.  We find that HITN’s fourth request is for a technical correction, rather than a 
substantive change, and can be addressed, notwithstanding the fact that it was raised after the 
deadline for petitions for reconsideration.  In any event, the fourth issue raised by HITN also was 
raised by WCA in its timely-filed petition for reconsideration, and is discussed in the next 
section.108  
3. Technical corrections
40. Background.  In the BRS/EBS 3rd MO&O, the Commission stated that it is 
necessary to coordinate the timing of self-transitions with proponent-driven transitions.109 WCA 
identifies an inconsistency between the text of paragraph 143 of the BRS/EBS 3rd MO&O and 
  
101 HITN Ex Parte Request for Clarification (filed Nov. 2, 2006).
102 HITN Ex Parte Request for Clarification at 2-3.
103 HITN Ex Parte Request for Clarification at 3-4.
104 HITN Ex Parte Request for Clarification at 4-5.
105 HITN Ex Parte Request for Clarification at 5-7.
106 Ex Parte Letter from Paul J. Sinderbrand, Counsel for WCA to Marlene H. Dortch, Federal Communications 
Commission (dated Nov. 21, 2006).
107 See Ex Parte Letter from Paul J. Sinderbrand, Counsel for WCA to Marlene H. Dortch, Federal Communications 
Commission (dated Nov. 21, 2006) at 2.
108 See infra ถ 40.
109 BRS/EBS 3rd MO&O, 21 FCC Rcd at 5673 ถ 141. 
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Section 27.1236(b)(6) of the Commission’s Rules.110 Specifically, paragraph 143 of the 
BRS/EBS 3rd MO&O, states that licensees who decide to self-transition must complete the self-
transition within 51 months of the effective date of the amended rules, July 19, 2006.111 Section 
27.1236(b)(6), however, states that self-transitions must be completed within 57 months of July 
19, 2006.112 WCA asks that the Commission amend Section 27.1236(b)(6) of the Rules by 
deleting “57” and inserting in its place “51.”113 HITN asks that the Commission clarify how long 
self-transitioning licensees have to transition.114 HITN insists that the BRS/EBS 3rd MO&O is 
ambiguous because paragraphs 141-143 of the BRS/EBS 3rd MO&O state that a self-
transitioning licensee must file a notification within 90 days of the date the Initiation Plan has 
been filed and must complete the self-transition 21 months after the Initiation Plan has been 
filed.115  
41. Discussion.  We agree that a change is appropriate.  We also will amend Sections 
27.1231(f) and 27.1236(a), 27.1236(b)(1), and 27.1236(b)(6) to specify dates certain.116 Thus, 
Sections 27.1231(f) and 27.1236(a) reference January 21, 2009, the date the Initiation Plan must 
be filed with the Commission; Section 27.1236(b)(1) references April 21, 2009, the date a self-
transitioning licensee must notify the Commission; and Section 27.1236(b)(6) references 
October 20, 2010, the date self-transitions must be completed.117 Because the time line for self-
transitions parallels the timeline for proponent-driven transitions, we note that proponent-driven 
transitions must also be completed on or before October 20, 2010, unless stayed pending 
alternative dispute resolution.  
D. Multichannel Video Programming Distributors (MVPD) Opt-Out
1. The Waiver Standard
42. Background.  In the BRS/EBS 3rd MO&O, the Commission reaffirmed the right 
of qualifying MVPD operators to seek a waiver to opt-out of the transition.118 HITN asks the 
Commission to clarify the minimum requirements related to the filing of an MVPD opt-out 
waiver request.  HITN contends that the current procedure is unfair to potentially affected 
parties, many of whom will be non-profit educational licensees, because they must expend large 
sums of money on legal and engineering counsel to defend themselves against poorly conceived 
opt-out waiver requests that fail to analyze properly their effect on the operations of neighboring 
  
110 WCA PFR at 9.
111 WCA PFR at 9.
112 WCA PFR at 9.
113 WCA PFR at 9-10.  WiMAX, CTN, and NIA also support this change.  WiMAX Comments at 11, CTN/NIA 
Opposition at 4.
114 HITN Ex Parte Request for Clarification at 5-7.
115 HITN Ex Parte Request for Clarification at 5-7.
116 Because these rule changes are not substantive and are non-controversial, there is good cause to adopt them 
without notice and comment.  See 5 U.S.C. ง 553(b)(B).
117 See Appendix A.
118 BRS/EBS 3rd MO&O, 21 FCC Rcd at 5645-5646 ถถ 72-74.
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GSA stations, or to provide sufficient discussions of mitigation techniques that might be 
employed to allow for the opt-out while not impairing the ability of neighbors to transition their 
channels to the new band plan.119  
43. HITN urges the Commission to clarify that any MVPD operator seeking an opt-
out waiver from the mandatory band plan transition must, at a minimum: (1) serve neighboring 
EBS and BRS stations and other potentially affected licensees with a copy of the waiver request, 
including an engineering analysis of the predicted impact of the opt-out request on such stations; 
(2) if interference is predicted, explain why the MVPD operator cannot provide its services while 
meeting the interference protection requirements contained within the new rules; (3) detail 
specific techniques and efforts the MVPD operator will undertake at its sole expense to mitigate 
any interference its special operating parameters would cause to affected parties; (4) provide 
sufficient information about its current operations in order to allow for an objective case-specific 
determination of its eligibility and need for a waiver; and (5) provide signed statements from all 
licensees that are proposed to participate in the opt-out, thus, making clear that such licensees 
wish to have their stations excluded from the band transition plan.120 The BRS Rural Advocacy 
Group opposes HITN’s petition.121
44. Discussion. We decline to adopt the requirements that HITN requests with 
respect to MVPD opt-out waiver requests because, at this point, such changes are unnecessary.  
The last date for filing requests to opt out of the transition plan was April 30, 2007, and that date 
has passed.122 To the extent HITN contends that a specific showing is defective, we will consider 
its arguments in the context of any oppositions or petitions filed against specific waiver requests.  
2. Misaligned channels in overlapping GSAs
45. Background.  HITN describes a set of issues that have arisen due to the 
overlapping application of several Commission decisions and asks the Commission to clarify 
how opt-out waiver requests should be handled under these circumstances.  The relevant 
Commission decisions are as follows:  first, the Commission established a station’s GSA based 
on the station’s PSA under the old rules; second, the Commission adopted a splitting the football 
methodology for determining a station’s GSA when its PSA overlapped another station’s PSA;123
and third, the Commission decided to permit qualified MVPDs to opt out of transitioning to the 
  
119 HITN PFR at 12-13.  On December 1, 2005, HITN filed a Petition to Deny WHTV Broadcasting Corporation’s 
(d/b/a/ Digital TV One) Waiver Request to opt out of the transition of the 2.5 GHz band in San Juan, Puerto Rico.  
On January 29, 2007, the Wireless Telecommunications Bureau granted Digital TV One’s waiver request.  WHTV 
Broadcasting Corp. d/b/a Digital TV One, Memorandum Opinion and Order, 22 FCC Rcd 1314 (WTB 2007).  
HITN filed a petition for reconsideration of the Memorandum Opinion and Order, which is pending.  Petition for 
Reconsideration of the Hispanic Information and Telecommunications Network, Inc. (filed Feb. 28, 2007).
120 HITN PFR at 13.  CTN and NIA state that they support these proposals.  CTN and NIA Opposition at 5-6.
121 BRS Rural Advocacy Group Opposition at 5-10.
122 47 C.F.R. ง 27.1231(g).
123 Accordingly, an A Group station’s GSA was defined by its overlaps with neighboring pre-transition co-channel 
stations, and, similarly, a B Group station’s GSA was defined by its overlaps with neighboring pre-transition co-
channel stations.  HITN PFR at 14.
Federal Communications Commission FCC 08-83 
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new band plan and technical rules.124 As a result of these three decisions, when one station 
transitions and its neighboring station (formerly overlapping PSA) does not, the channels 
become misaligned so that, for example, an untransitioned high-power high-site A3 channel in 
the opt-out market would be co-channel with a post-transition B2 channel in the neighboring 
market.125  
46. Because the GSAs of these two stations differ, and each would have a right under 
the rules126 to serve part of the same geographic area, HITN argues that the Commission must 
clarify: (1) whether an opt-out is possible; (2) whether one station’s opt-out would preclude its 
co-channel neighbor from transitioning; and (3) if it would not, what interference protection and 
service rights each station would have in such a situation with respect to the overlapping area 
within their GSAs.127 The BRS Rural Advocacy Group argues that the Commission should reject 
any suggestion from HITN that an opt-out is not possible in the case of overlapping GSAs.128  
47. Discussion.  We agree with the BRS Rural Advocacy Group that foreclosing an 
opt-out in the case of overlapping GSAs is unnecessary.  Instead, the transitioning operator and 
the non-transitioning operator may resolve this situation among themselves or the transitioning 
licensee may file comments for Commission consideration in response to the non-transitioning 
operator’s opt-out waiver request.  Because the deadline for filing opt-out waiver requests was 
April 30, 2007, we have received all of the opt-out waiver requests that will be filed.  We 
conclude that action by the Commission to resolve a situation that affects few operators is 
inappropriate and unwarranted when the Commission has established a process to individually 
review opt-out waiver requests. 
E. Technical Issues
1. Antenna height benchmarking
48. Background. In the BRS/EBS 2nd R&O, the Commission adopted antenna height 
benchmarking criteria in Section 27.1221, based on the concept proposed by WCA, the Catholic 
Television Network (CTN), and the National ITFS Association (NIA).  The rule affords 
licensees the flexibility to deploy Time Division Duplex (TDD) and Frequency Division Duplex 
(FDD) technologies in the 2.5 GHz band that present a risk of interference that is not present in 
other bands where only FDD is permitted upstream and downstream on designated channels.129  
  
124 HITN cites the following example:  If in a market in which licensees are seeking an opt-out waiver, the B Group 
station had a neighboring co-channel station to its east with a PSA reference point some 20 miles away, while the A 
Group station in the same market had no such co-channel neighbor to its east, then the GSA of the B Group would 
be truncated to the east to allow for the GSA of its neighbor while the A Group’s GSA would extend out to the east 
35 miles from its reference point.  HITN states that in this common scenario, it is clear that the GSA boundaries 
between the opt-out market and the market to its east would differ depending upon the channel group.  In the 
example above, HITN notes, an untransitioned high-power high-site A3 channel in the opt-out market would 
ultimately find itself co-channel with a post-transition B2 channel in the market to its east.  HITN PFR at 14.
125 HITN PFR at 14.
126 47 C.F.R. ง 27.1209(b).
127 HITN PFR at 14.
128 BRS Rural Advocacy Group Opposition at 9.
129 BRS/EBS R&O, 19 FCC Rcd at 14213 ถ123.
Federal Communications Commission FCC 08-83 
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The antenna height benchmarking concept is intended to mitigate that risk, by requiring 
interference protection in certain situations while posing no restrictions on the height of base 
station antennas.130 Accordingly, a base station receive antenna with a height above average 
terrain less than or equal to the threshold showing of the rule is accorded protection from a 
transmitting antenna that exceeds the threshold showing required by the rule.  A base station 
transmitting antenna with a height above average terrain equal to or less than the threshold 
showing of the rule is unlikely to cause interference.  Finally, a base station transmitting antenna 
greater than the threshold showing would not need to protect a base station receive antenna that 
also exceeds the threshold showing.131  
49. Several proposals to modify the antenna height benchmarking rule were 
considered by the Commission upon reconsideration of the BRS/EBS 2nd R&O but were not 
adopted in the BRS/EBS 3rd MO&O.  Thereafter, WCA convened discussions among those who 
had raised concerns about the benchmarking rule in the hope of reaching a consensus, and now 
offers a revised proposal to modify Section 27.1221 of the Rules.  The proposal would modify 
the rule by adding deadlines by which licensees must act where documented interference from a 
base station operating outside its height benchmarking threshold harms a base station operating 
within its height benchmark.132 Under WCA’s proposal, where the interferer is a new or 
modified facility, it must bring its operation into compliance, either by modifying its antenna 
height within the height benchmark, or by limiting its received signal at the other party’s base 
station to no more than -107 dBm/5.5 megahertz, within 24 hours of receiving a documented 
interference complaint.133 If the interferer is an existing base station that is causing interference 
to a new base station, however, the existing licensee would have 90 days to come into 
compliance.134 WCA states that its approach strikes a balance among the interests of all 
involved, particularly those consumers served by existing facilities who might be forced to suffer 
an extended impairment of service if remedial action was required immediately.135  WCA also 
asks that Section 27.1221 require licensees to provide information concerning their base station 
to any nearby licensee upon request.136
50. WiMAX supports WCA’s petition on this issue.137 WiMAX contends that 
providing specific deadlines will enhance deployments in the 2.5 GHz band by eliminating the 
present regulatory uncertainty and providing system operators with the assurance that service to 
consumers from BRS and EBS facilities will not be unreasonably impaired.138  
  
130 BRS/EBS R&O, 19 FCC Rcd at 14213 ถ123.
131 BRS/EBS R&O, 19 FCC Rcd at 14213 ถ123.
132 WCA PFR at 2.
133 WCA PFR at 2.
134 WCA PFR at 2-3.
135 WCA PFR at 2-3.
136 Ex Parte Letter from Paul Sinderbrand, Counsel for WCA, to Marlene H. Dortch, Federal Communications 
Commission (dated May 29, 2007) at 4 and Attachment A.
137 WiMAX Comments at 3.
138 WiMAX Comments at 3.
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51. WCA has also submitted an Ex Parte letter seeking to clarify the proper 
interpretation of Section 27.1221 of our rules with regard to the following issues.  First, WCA 
asks that Section 27.1221 specify that a base station would be within its height benchmark if its 
height in meters does not exceed the distance between the station’s location and the boundary of 
the GSA, in kilometers squared, divided by 17.139 Second, WCA asks that Section 27.1221 
clarify that when the GSAs of two neighboring licensees do not touch, the height benchmark is 
calculated according to the distance between the base station and the nearest boundary of the 
other station’s GSA along the radial between the two base stations.140 Third, WCA asks that 
Section 27.1221 require licensees to cooperate in good faith with each other to avoid 
interference.141  
52. Discussion.  After considering WCA’s proposal, we agree that in the event a 
facility operating outside of its height benchmarking threshold would cause interference to an 
existing licensee, specifying a timeline would expedite the coordination process between the 
licensees.  While we have some concern that requiring a new or modified base station to take 
corrective action 24 hours after receiving notification could prove challenging, we note that no 
party opposed this change.  We also believe that placing the burden on the interfering operator is 
appropriate to assure that noncompliant stations provide protection to existing services.  We 
further adopt WCA’s modified proposal regarding the formula used to calculate height 
benchmarking and clarifying how non-contiguous licensees calculate their height benchmark.  
We reject, however, WCA’s request to mandate good faith cooperation as inappropriate.  The 
Commission expects all licensees to cooperate in good faith at all times, and we see no purpose 
in establishing a special good faith rule for this situation.  Thus, we amend Section 27.1221 of 
the Rules as discussed above.
2. Out-of-band emissions
a. For user stations
53. Background.  In the BRS/EBS R&O, the Commission adopted the Coalition’s 
proposal to establish out-of-band emission requirements for mobile BRS and EBS stations.142  
For mobile digital stations, the Commission established that the attenuation factor shall be not 
less than 43 + 10 log (P) dB at the channel edge and 55 + 10 log (P) dB at 5.5 megahertz from 
the channel edges.143 WCA filed a petition for reconsideration arguing that these restrictions 
should apply to all user stations, not just mobile digital user stations.144 In the BRS/EBS 3rd 
MO&O, the Commission found that the rules adopted in the BRS/EBS R&O were adequate to 
protect a licensee from out-of-band emissions.145 The Commission explained that it will not 
  
139 Ex Parte Letter from Paul Sinderbrand, Counsel for WCA, to Marlene H. Dortch, Federal Communications 
Commission (dated May 29, 2007)  (WCA May 29 Ex Parte) at 3 and Attachment A.
140 WCA May 29 Ex Parte at 3 and Attachment A.
141 WCA May 29 Ex Parte at 4 and Attachment A.
142 BRS/EBS R&O, 19 FCC Rcd at 14215 ถ127.
143 47 C.F.R. ง 27.53(m)(4).
144 BRS/EBS 3rd MO&O, 21 FCC Rcd at 5692 ถ201.
145 BRS/EBS 3rd MO&O, 21 FCC Rcd at 5692 ถ201.
Federal Communications Commission FCC 08-83 
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modify the emission limits because it has not been demonstrated by any party that the emission 
limits adopted in the BRS/EBS R&O for these services are inadequate.146
54. WCA has requested that the Commission reconsider its decision on this issue and 
raises the same arguments it presented in its previous petition for reconsideration.147 WCA states 
that no party to this proceeding has presented a cogent argument against requiring all user 
stations, not just those that are mobile, to attenuate their emissions at least 55 + 10 log (P) dB 
measured 5.5 megahertz from the appropriate band edge.148 Thus, on reconsideration, WCA 
urges that the Commission adopt the modification proposed by WCA and require all stations to 
comply with the same spectral mask.149
55. Discussion.  We affirm our prior decision and decline to make the change 
proposed by WCA.  The Commission fully considered WCA’s arguments and concluded that the 
existing rules were adequate.  In the instant petition, WCA does not offer any new arguments 
beyond those previously considered and rejected by the Commission.  Accordingly, we will 
maintain our earlier decision regarding out-of-band emissions for mobile stations in this service.
b. Measuring out-of-band emissions for contiguous channels
56. Background. The band plan adopted in the BRS/EBS R&O provided for LBS and 
UBS segments comprised of 12 contiguous 5.5-megahertz channels.150 The Commission further 
indicated that these blocks would enable licensees to deploy any possible combination of the 
most current FDD and TDD standard channel sizes, which are based on five-megahertz 
channels.151
57. In the Coalition White Paper, WCA, CTN, and NIA suggested that the 
Commission retain the provisions of then-current Section 21.908(a) of the Rules and allow all of 
the various out-of-band emission requirements imposed on base stations and user stations to be 
measured at the outermost edges of the combined channels where two or more channels (licensed 
to one or more entities) are used as part of the same system.152 Although the BRS/EBS R&O did 
not discuss the issue of measuring across contiguous channels, the Commission adopted Section 
27.53(m) which applied out-of-band emission limits at the edge of each individual channel.153  In 
the BRS/EBS Modification Order, the Commission modified Section 27.53(m) to state that 
licensees should measure out-of-band emissions at three megahertz from their channel’s 
  
146 BRS/EBS 3rd MO&O, 21 FCC Rcd at 5692 ถ201.
147 WCA PFR at 4-5.
148 WCA PFR at 4.
149 WCA PFR at 4 and Appendix A.
150 BRS/EBS R&O, 19 FCC Rcd at 14184 ถ 38.
151 BRS/EBS R&O, 19 FCC Rcd at 14185 ถ 41.
152 WCA PFR at 6.
153 47 C.F.R. ง 27.53(m).
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edges.154 WCA filed a petition for reconsideration of the BRS/EBS R&O asserting that the 
Commission should have adopted the Coalition’s unopposed proposal on this issue.  The 
BRS/EBS 3rd MO&O did not address this issue.
58. On reconsideration, WCA again urges the Commission to adopt the Coalition’s 
approach.155 WCA contends that imposing the out-of-band emission limits at the edge of each 
channel within a system provides no identifiable public benefit, yet reduces spectrum capacity 
and increases the price to consumers of spectrum services in this band.156 WCA contends that 
applying the spectral masks proposed by the Coalition worked well for the BRS/EBS industry for 
years, and a similar approach is utilized with success for broadband Personal Communications 
Service (PCS).157  Accordingly, WCA urges the Commission to revise Section 27.53(m) to clarify 
that where two or more contiguous channels are utilized as part of a system, the out-of-band 
emission limits are to be measured at the outermost edges of those contiguous channels.158  
WiMAX supports each of WCA’s proposed changes to Section 27.53(m) of the Commission’s 
Rules for the reasons stated by WCA.159
59. Discussion.  We agree with WCA that it is appropriate to clarify that when two or 
more contiguous channels are combined to form a single channel, out-of-band emissions are to 
be measured at three megahertz from the outermost edges of the combined channel.  We believe 
that measuring out-of-band emissions at the outer limit of each individual channel, when these 
channels have been combined into one contiguous channel, unnecessarily restrains spectral 
efficiency without any countervailing benefit. Therefore, we will modify this rule to allow 
licensees to measure out-of-band emissions from the outermost edges of the combined channels.  
c. Interference complaint process
(i) Deadlines for compliance
60. Background.  As discussed above, Section 27.53(m) of the Commission’s Rules 
sets forth the out-of-band emission limits imposed on BRS and EBS licensees.160 The rule 
requires that for fixed and temporary fixed digital stations, the attenuation shall not be less than 
43 +10 log (P) dB, unless a documented interference compliant is received from an adjacent 
channel licensee.161 In the event that the complaint cannot be mutually resolved between the 
parties, both licensees of existing and new systems shall reduce their out-of-band emissions by at 
least 67 + 10 log (P) dB measured 3 megahertz from their channel’s edges for distances between 
  
154 See Amendment of Parts 1, 21, 73, 74 and 101 of the Commission’s Rules to Facilitate the Provision of Fixed 
and Mobile Broadband Access, Educational and Other Advanced Services in the 2150-2162 and 2500-2690 MHz 
Bands, Order, WT Docket No. 03-66, 19 FCC Rcd 22284, 22290 (2004) (BRS/EBS Modification Order).
155 WCA PFR at 6.
156 WCA PFR at 6-7.
157 WCA PFR at 7.
158 WCA PFR at 7.
159 WiMAX Comments at 2-5.
160 BRS/EBS Modification Order, 19 FCC Rcd at 22290-22291.
161 47 C.F.R. ง 27.53(m)(2).
Federal Communications Commission FCC 08-83 
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stations exceeding 1.5 kilometers (km).162 In the BRS/EBS 3rd MO&O, the Commission 
required that the interfering licensee either resolve the interference situation or employ the more 
rigorous emission mask within 60 days after receiving a documented interference complaint.163
61. In its petition for reconsideration, WCA asserts that a new or modified base 
station causing out-of-band emission interference should meet the more restrictive spectral mask 
requirement within 24 hours of receipt of a documented interference complaint from the first 
adjacent channel licensee.164 However, an existing base station that causes out-of-band emission 
interference to a new base station would, consistent with the current rule, have 60 days to comply 
with the more restrictive spectral mask requirement.165
62. In addition, WCA states that Section 27.53(m) should include special provisions 
for fixed user stations that utilize a transmission antenna that is affixed to an outside structure.166
WCA asserts that those user stations will employ higher gain antennas and tend to be higher 
above ground level, thus posing a risk of interference that is not present with other user 
stations.167 Therefore, WCA proposes that Section 27.53(m) be revised to require a cure within 
24 hours where an existing base station suffers interference from a new or modified outdoor 
antenna user station, and within 14 days where a new or  modified base station suffers such 
interference from an existing outdoor antenna user station.168
63. WCA further proposes that Section 27.53(m) be amended to state that, in other 
cases of documented interference from a user station to a base station, both licensees have an 
obligation to cooperate in good faith to reasonably mitigate the interference.169 WCA states that 
adoption of its proposed revisions will provide licensees with greater certainty, reduce the length 
of time that service to consumers is disrupted due to out-of-band emission interference, and 
minimize the number of disputes that are presented to the Commission for resolution.170
64. Discussion.  As with the height benchmarking rule, we have some concern about 
requiring the licensee of a new or modified base station to curtail its out-of-band emissions 
within 24 hours of receipt of a documented interference complaint from an existing base station.  
We will adopt WCA’s proposal, however, because we are committed to insuring that existing 
facilities are able to provide continuous service, without impermissible interference.  We also 
note that the proposal is unopposed.  Therefore, any new or modified outdoor antenna user 
station, within 24 hours of receipt of a documented interference complaint from an existing base 
  
162 47 C.F.R. ง 27.53(m)(2).
163 BRS/EBS 3rd MO&O, 21 FCC Rcd at 5691 ถ197.
164 WCA PFR at 3.
165 WCA PFR at 4.
166 WCA PFR at 5.
167 WCA PFR at 5.
168 WCA PFR at 5.
169 WCA PFR at 5.
170 WCA PFR at 5.
Federal Communications Commission FCC 08-83 
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station regarding out-of-band emissions, must make adjustments to limit out-of-band emissions 
into that adjacent channel operation.
65. We conclude, however, that WCA has not established a need for special rules for 
outdoor fixed user stations.  Rather, we believe that applying the existing deadlines to disputes 
between base stations and outdoor user stations will be sufficient.  WCA has not demonstrated 
that outdoor fixed user stations are sufficiently different from other types of facilities to justify a 
unique 14-day deadline for compliance.  Furthermore, WCA has not explained why a special rule 
provision mandating good faith cooperation is needed.  Accordingly, we deny WCA’s petition 
on this issue. 
(ii) Limiting Right to File Documented Interference 
Complaints to First Adjacent Channel Licensees
66. Background. Section 27.53(m)(2) of the Commission’s Rules states that only 
adjacent channel licensees may file documented interference complaints.171 In its petition for 
reconsideration of the BRS/EBS R&O, WCA asserts that any LBS or UBS licensee should be 
able to invoke the more stringent dual mask set forth in Section 27.53(m)(2) so long as such 
licensee has a GSA overlapping the GSA of the recipient of the request, regardless of whether it 
is licensed to operate on a first adjacent channel.172 In the BRS/EBS 3rd MO&O, the 
Commission affirmed that the right to file a documented interference complaint should be 
limited to first adjacent channel licensees because the level of interference that would be most 
severe and most likely to affect a licensee would be from first adjacent channel operations.173
67. WCA again urges the Commission to adopt the proposal advanced by the 
Coalition to allow an out-of-band emission complaint to be filed by any LBS or UBS licensee 
that had an overlapping GSA, regardless of whether the interferer is licensed to operate on the 
first channel adjacent to the other party.174 While the Commission in the BRS/EBS 3rd MO&O
acknowledged the potential of interference, it reasoned that “the level of interference that would 
be most severe and most likely to affect a licensee would be from adjacent channel operations.175
68. While WCA recognizes that the potential for interference due to out-of-band 
emissions increases when the frequencies involved are immediately adjacent, it contends 
permitting all licensees with overlapping GSAs to submit documented interference complaints 
would help to avoid harmful interference in the band.176 According to WCA, because the rules
permit TDD and FDD in the band and do not require synchronization of TDD operations, 
interference due to out-of-band emissions is a greater threat than in bands like PCS and 1.7/2.1 
  
171 47 C.F.R. ง 27.53(m)(2).
172 BRS/EBS 3rd MO&O, 21 FCC Rcd at 5690 ถ194.
173 BRS/EBS 3rd MO&O, 21 FCC Rcd at 5690-5691 ถ195.
174 WCA PFR at 7.
175 BRS/EBS 3rd MO&O, 21 FCC Rcd at 5690-5691 ถ195.
176 WCA PFR at 8.
Federal Communications Commission FCC 08-83 
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GHz Advanced Wireless Services (AWS), where FDD is mandated and upstream and 
downstream channels are designated.177  
69. Discussion.  The Commission has twice affirmed a limitation on the right to file a 
documented interference complaint to first adjacent channel licensees because the level of 
interference that would be most severe and most likely to affect a licensee would be to first 
adjacent channel operations.  WCA’s petition repeats arguments previously considered and 
rejected.  We believe that the Commission's previous decisions strike the right balance between 
protecting against interference that is most likely to occur and avoiding unnecessary limitations 
on a licensee's ability to operate.  Accordingly, we deny WCA’s request to amend Section 
27.53(m)(2) to allow any licensee to file a documented interference complaint.
3. GSA Boundaries
a. Straight Line v. Great Ellipses
70. Background.  In the BRS/EBS R&O, the Commission established GSAs for all 
BRS and EBS stations.178 The Commission noted that in other bands where it contemplated the 
development of mobile or other wide-area services, it concluded that geographic licensing based 
on predefined service areas has significant advantages over site-based licensing because of the 
greater operational flexibility and reduced operating costs for licensees.179 In addition, the 
Commission concluded that geographic area licensing reduces administrative burdens for 
consumers, licensees, and regulators by allowing licensees to modify, move, and add to their 
facilities within specified geographic areas without prior Commission approval.180 Therefore, 
the Commission adopted geographic area licensing for all operations in all segments of the 
band.181 The Commission stated that the GSAs for BRS and EBS stations would be based on the 
licensee’s current protected service area, which would extend 56.3255 km (35 miles) from the 
transmitter site, as provided by former Sections 21.902(d) and 74.903(d) of the Commission 
Rules.182
71. The Commission also recognized that the rules defining protected service areas 
have changed or otherwise been modified in a manner that has resulted in overlapping PSAs 
being assigned to co-channel incumbent BRS and EBS licensees.183 Accordingly, in 
establishing GSAs, the Commission adopted a mechanism for resolving overlaps by drawing a 
boundary line or chord through a “football” shaped area where the PSAs intersect, with each 
licensee agreeing to limit the interference it generates across the boundary line.184  
  
177 WCA PFR at 8.
178 BRS/EBS R&O, 19 FCC Rcd at 14189 ถ54.
179 BRS/EBS R&O, 19 FCC Rcd at 14189 ถ53.
180 BRS/EBS R&O, 19 FCC Rcd at 14189 ถ53.
181 BRS/EBS R&O, 19 FCC Rcd at 14189 ถ54.
182 BRS/EBS R&O, 19 FCC Rcd at 14189 ถ55.
183 BRS/EBS R&O, 19 FCC Rcd at 14192 ถ59.
184 BRS/EBS R&O, 19 FCC Rcd at 14192 ถ59.
Federal Communications Commission FCC 08-83 
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72. In WCA’s Petition for Reconsideration of the BRS/EBS R&O, WCA requested 
that the Commission modify Section 27.1206 to clarify how GSA boundaries would be 
established under certain circumstances.185 To avoid conflicts regarding GSA boundaries, WCA 
proposed that the Commission modify this section of the rules to clarify that “great ellipses” 
should be used instead of straight lines or chords to “split the football.”186 WCA argued that if 
the ellipses were not employed, there would be areas, sometimes as wide as a kilometer, which 
would not be assigned to either GSA.187 In the BRS/EBS 3rd MO&O, the Commission rejected 
WCA’s proposal because it received minimal support and the Commission was not convinced 
that the proposal was “necessary or beneficial.”188
73. WCA now renews its request to use “great ellipses” in calculating GSA 
boundaries.189 WCA argues that the failure to use “great ellipses” will result in areas that will 
not be assigned to any licensee because licensees could use different methodologies for 
calculating a straight line.190 WCA also cites to support it received for its proposal from 
ComSpec Corp. and CelPlan Technologies, Inc. in comments to the BRS/EBS NPRM.191
74. Discussion.  In establishing GSAs, the Commission recognized that there would 
be overlap of geographical service area boundaries in certain areas and situations and adopted the 
industry's proposal to “split the football” to bifurcate overlapping GSA boundaries as a means to 
determine a licensee’s service area.  We disagree with WCA’s proposal that the “great ellipses” 
methodology should be standardized in the rules to establish GSA boundaries to preclude an area 
from being unserved.  Licensees have been using the splitting the football methodology since 
January 10, 2005, and it has worked well.  Accordingly, we affirm the Commission’s prior 
determination that WCA’s proposal to establish the “great ellipses” methodology to establish 
GSA boundaries is neither necessary nor beneficial.    
b. GSA Boundaries – Pending Applications
75. Background. In the BRS/EBS 3rd MO&O, the Commission addressed the issue of 
how to handle pending applications for new or modified stations in the newly established 
geographic area licensing framework.192 The Commission adopted WCA’s unopposed 
suggestions as to how to accommodate pending applications.193 One of the suggestions adopted 
by the Commission was: “Where there is pending as of January 10, 2005, an application for a 
new incumbent station with a PSA that overlaps that of a licensed incumbent station, the GSA of 
  
185 BRS/EBS 3rd MO&O, 21 FCC Rcd at 5694 ถ205.
186 BRS/EBS 3rd MO&O, 21 FCC Rcd at 5694 ถ 205.
187 BRS/EBS 3rd MO&O, 21 FCC Rcd at 5694 ถ205.
188 BRS/EBS 3rd MO&O, 21 FCC Rcd at 5694 ถ 205.
189 WCA PFR at 10-12.
190 WCA PFR at 11.
191 WCA PFR at 11-12, citing Comments of ComSpec Corp. (filed Sep. 8, 2003) at 2-3; Reply Comments of 
CelPlan Technologies, Inc. (filed Oct. 22, 2003) at 6.
192 BRS/EBS 3rd MO&O, 21 FCC Rcd at 5694 ถ 206.
193 BRS/EBS 3rd MO&O, 21 FCC Rcd at 5695 ถ 208.
Federal Communications Commission FCC 08-83 
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the incumbent station is created by splitting the football and, if the pending application is 
ultimately dismissed or denied, the territory covered by the GSA of the applied for station reverts 
to the BRS BTA holder (if a BRS application) or to EBS white space (if an EBS application).”194
76. Although HITN did not comment on this issue earlier, HITN now seeks 
reconsideration of that decision.195 HITN argues that the decision not to restore to an incumbent 
station the portion of a GSA split with a pending application is inconsistent with other decisions 
made by the Commission.196 Specifically, HITN contends that this decision is inconsistent with 
the treatment of pending modification applications, where the pending application does not affect 
the GSA until granted.197 HITN contends that the decision to take away a portion of an 
incumbent’s GSA because of the pendency of an application for a new station is arbitrary and 
capricious because it is inconsistent with the treatment of GSAs involving modification 
applications.198
77. WCA, Sprint Nextel, and WiMAX oppose HITN on this issue.199 Those parties 
contend that there is no inconsistency in the two scenarios because they involve different 
situations.200 WCA points out that in the situation involving modification applications, there is 
no territory to be forfeited, and the only question is where to draw the boundary of the GSA.201  
In contrast, when an application for a new station is involved, there are three interested parties:  
the incumbent licensee; the applicant for a new station; and the BRS BTA license holder or 
future EBS licensee.202 WCA and WiMAX contend that the Commission’s approach is 
reasonable and prevents the incumbent licensee from reaping a windfall.203 Sprint Nextel argues 
that the auction winners purchased the rights to acquire forfeited spectrum and that the 
Commission cannot award those same rights a second time to another party.204 Sprint Nextel 
also contends that the two situations are different because applicants for new stations had to 
“satisfy a more stringent threshold showing” than applicants for modifications.205
78. Discussion.  We disagree with HITN that the rules are inconsistent.  We agree 
with WCA, Sprint Nextel, and WiMAX that the two situations are distinct and that the rules the 
Commission adopted in the BRS/EBS 3rd MO&O strike the appropriate balance among the 
interests of incumbent licensees, parties with pending applications for new stations, BRS BTA 
  
194 BRS/EBS 3rd MO&O, 21 FCC Rcd at 5694 ถ 206.
195 HITN PFR at 7-9.
196 HITN PFR at 7-8.
197 HITN PFR at 8.
198 HITN PFR at 8-9.
199 WCA Opposition at 21-23, Sprint Nextel Opposition at 11-12, WiMAX Comments at 10-11.
200 WCA Opposition at 23, Sprint Nextel Opposition at 12, WiMAX Comments at 11.
201 WCA Opposition at 23.
202 WCA Opposition at 23.
203 WCA Opposition at 23, WiMAX Comments at 10-11.
204 Sprint Nextel Opposition at 12.
205 Sprint Nextel Opposition at 12.
Federal Communications Commission FCC 08-83 
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license holders, and possible future EBS licensees.  We therefore affirm the existing rules and 
deny HITN’s petition for reconsideration. 
4. Grandfathering of EBS facilities under Section 27.55 (a)(4)(iii)
79. Background. In the BRS/EBS R&O, the Commission established signal strength 
limits at the boundary of each licensee’s GSA.206 In the MBS, the Commission decided to retain 
the -73.0 dBW/m2 limit for post-transition operations “because it provides adequate service for 
high-power stations operating in the MBS.207 No party sought reconsideration of the BRS/EBS 
R&O on this point, and the rule was not modified in the BRS/EBS 3rd MO&O.  Now, however, 
WCA asks that we modify the rule and allow licensees in the MBS to exceed that limit if the 
facilities “otherwise comport with the Commission’s mandate that an EBS licensee be provided 
with facilities in the MBS that are substantially similar to the licensee’s pre-transition 
facilities.”208  WCA contends that the rule modification is needed to ensure that EBS licensees 
are provided with comparable facilities after the transition.209 WCA cites to the Commission’s 
statement in the BRS/EBS R&O that the transition plan “must provide for the MBS channels to 
be authorized to operate with the transmission parameters that are substantially similar to those 
of the [EBS] licensee’s current operation.”210
80. WiMAX supports WCA’s proposed rule change.211 CTN and NIA also support 
WCA’s proposal, but assert that the grandfathering of signal levels should only apply to the EBS 
licensee’s pre-transition operations (including modifications to those facilities).212 CTN and NIA 
point out that an EBS licensee should not be subject to interference from an adjacent licensee 
that has discontinued high-powered video operations and converted to cellularized, low-power 
operations.213 In response, WCA agrees that licensees should not be allowed to exceed the 
power limit in perpetuity and urges the adoption of CTN’s and NIA’s proposal with one 
modification (the underlined material represents WCA’s proposed modification):
Following transition, for stations in the MBS, the signal strength at any point 
along the licensee’s GSA boundary must not exceed the greater of (a) -73.0 + 10 
log(X/6) dBW/mฒ, where X is the bandwidth in megahertz of the channel, or (b) 
for facilities that are substantially similar to the licensee’s pre-transition facilities 
(including modifications that do not alter the fundamental nature or use of the 
transmissions), the signal strength at such point that resulted from the station’s 
  
206 BRS/EBS R&O, 19 FCC Rcd at 14208-14210 ถถ 105-110.
207 BRS/EBS R&O, 19 FCC Rcd at 14209 ถ 108.
208 WCA PFR at 19-20.
209 WCA PFR at 20.
210 WCA PFR at 20, citing BRS/EBS R&O, 19 FCC Rcd at 14206 ถ 96.
211 WiMAX Comments at 14-15.
212 CTN NIA Opposition at 5.
213 CTN NIA Opposition at 5.
Federal Communications Commission FCC 08-83 
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operations immediately prior to the transition, provided that such operations 
comported with ง 27.55(a)(4)(i).214
81. HITN supports WCA’s original proposal as striking the best possible balance 
under the circumstances between the competing interests of maintaining existing pre-transition 
service and allowing adjacent licensees to fully utilize their spectrum.215 HITN urges the 
Commission to require that a grandfathered facility transitioned pursuant to this provision inform 
the Commission of the transition and provide the Commission with a copy of its last site-based 
authorization.216 HITN also urges that the Commission note in the Universal Licensing System 
(ULS) that the station has been grandfathered and that the site-based license be placed in the 
ULS.217 WCA responds that such a requirement is unnecessary because the post-transition 
notification required by Section 27.1235(b) of the Commission’s Rules provides the information 
necessary to calculate a predicted signal strength.218 Finally, HITN asks that the Commission 
state that any grandfathering shall expire ten years after any new rules are adopted pursuant to 
WCA’s request, unless the EBS licensee requests an extension.219 WCA believes that such a 
requirement would be an unnecessary regulatory burden, although it does not object to a 
requirement that a licensee report when it is no longer eligible to be grandfathered because it 
discontinued or modified its pre-transition operations.220
82. Discussion.  We will amend our rules as suggested by WCA, CTN, and NIA and 
allow MBS licensees to exceed the authorized -73.0 dBW/mฒ limit at the border provided the 
facilities are needed to comply with the Commission’s mandate that an EBS licensee be provided 
with facilities in the MBS that are substantially similar to the licensee’s pre-transition facilities.  
We agree with the parties that the proposed modification is appropriate to ensure licensees are 
provided with substantially similar facilities after the transition. 
83. We also agree with CTN and NIA that licensees should not be subject to 
interference from an adjacent licensee and that grandfathering of signal levels should only apply 
to the licensee’s pre-transition operations (including modification to those facilities).  A facility 
in the MBS should not be subject to interference from an adjacent licensee that has discontinued 
high-powered operations and converted to cellularized, low-power operations.  Therefore, we are 
amending our rules and adopting CTN’s and NIA’s proposed modification, with WCA’s noted 
exception.  Accordingly, stations operating in the MBS, subsequent to transition, may not exceed 
the greater of (a) -73 + 10 logX/6 dBW/mฒ, where X is the bandwidth of the channel in 
megahertz, or (b) for facilities that are substantially similar to the licensee’s pre-transition 
facilities (including modifications that do not alter the fundamental nature or use of the 
transmissions), the signal prior to the transition, provided that such operations comport with 
Section 27.55(a)(4)(i).  We decline to adopt the additional filing requirements proposed by HITN 
  
214 WCA Reply at 5.
215 HITN Opposition at 5.
216 HITN Opposition at 6.
217 HITN Opposition at 6.
218 WCA Reply at 6.
219 HITN Opposition at 6.
220 WCA Reply at 6-7.
Federal Communications Commission FCC 08-83 
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because we believe the information contained in the post-transition notification will provide 
adequate information to all licensees.
5. Technical corrections
84. We make several rule corrections on our own motion.  Specifically, we correct an 
error in the channel plan for post-transition EBS Channel KG2.  Section 27.5(i)(2)(iii) of the 
Commission’s Rules mistakenly assigns EBS channel KG2 at 2615.33333–2616.66666 MHz.221  
The correct assignment for EBS Channel KG2 is 2615.33333–2615.66666 MHz.  We further 
correct an error in Section 27.5(i)(2)(iii), which mistakenly assigns Channels G1-G3 to the BRS.  
The correct assignment of channels G1-G3 is to the EBS.  We also correct an error in Sections 
27.55(a)(4)(i) and (ii), which reference 47 dB [mต]V/m. The correct reference is 47 dBตV/m.  
In addition, we correct a typographical error in Section 27.53(m)(4) of our Rules.  The second 
sentence states that “Mobile Service Satellite licensees. . .” when it should state “Mobile Satellite 
Service licensees . . . .”  Finally, we correct an omission and incorporate the existing license 
terms for BRS and EBS into Section 27.13 of the Commission’s Rules.222
F. Simultaneous Operation on Old and New BRS Channels 1 and 2/2A
85. Background.  In the BRS/EBS 3rd MO&O, the Commission discussed the 
relationship between the transition within the 2.5 GHz band and the relocation of the BRS 
Channels No. 1 and No. 2/2A incumbents currently operating within the 2150-2160/62 MHz 
band.223 In that regard, the Commission held that licensees on these channels may operate in 
either 2150-2156 or 2496-2500 MHz (for BRS Channel 1) or 2156-2160/62 or 2686-2690 MHz 
band (for BRS Channel 2/2A) pre-transition, but not in both bands.224
86. WCA seeks reconsideration of the Commission’s decision prohibiting BRS 
Channels No. 1 and No. 2 from simultaneously operating in their old channel locations in the 
2150-2160/62 MHz band and their temporary, pre-transition locations at 2496-2500 MHz (BRS 
Channel 1) and 2686-2690 MHz (BRS Channel 2) before they are transitioned to their new 
permanent channel locations at 2496-2502 MHz (BRS Channel 1) and 2618-2624 MHz (BRS 
Channel 2).225 WiMAX supports WCA's position.226
87. Discussion.  WCA argues persuasively that it will be impossible to make a “flash 
cut” of all subscribers from the old frequency band to their pre-transition locations in the 2.5 
  
221 47 C.F.R. ง 27.5(i)(2)(iii).
222 See 47 C.F.R. ง 21.45 (2004); 47 C.F.R. ง 21.929 (2004); 47 C.F.R. ง 74.15(e) (2004).  In 2006, the Wireless 
Telecommunications Bureau declined WCA’s request to initiate a proceeding to adopt a 15-year license term for 
BRS and EBS.  See Letter from Joel D. Taubenblatt, Chief, Broadband Division, Wireless Telecommunications 
Bureau to Paul J. Sinderbrand, Esq. and Robert D. Primosch, Esq. (Sep. 14, 2006).
223 BRS/EBS 3rd MO&O, 21 FCC Rcd at 5669-5670 ถถ 129-132.
224 BRS/EBS 3rd MO&O, 21 FCC Rcd at 5670 n.358.  As WCA notes, the footnote does not list the frequencies for 
BRS Channel 2, although BRS Channel 2 is mentioned.
225 WCA PFR at 21-22.  As discussed infra, the permanent channel location for BRS Channel 2 is intended to 
incorporate both BRS Channels 2 and 2A.  Thus, references to BRS Channel 2 should be read to include BRS 
Channel 2A, as appropriate.
226 WiMAX Comments at 14.
Federal Communications Commission FCC 08-83 
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GHz band and that it is therefore necessary to have simultaneous operation in order to ensure a 
seamless relocation.227 We also are concerned that attempting a “flash cut” will unnecessarily 
jeopardize service to existing customers.  Thus, we agree with WCA and conclude that BRS 
Channels 1 and 2/2A licensees may operate simultaneously in their old channel locations in the 
2150-2160/62 MHz band and their temporary, pre-transition locations at 2496-2500 MHz (BRS 
Channel 1) and 2686-2690 MHz (BRS Channel 2) until every subscriber is relocated to the 2.5 
GHz band, at which point the licensees must cease all operations in the 2150-2160/62 MHz 
band.  
G. 2496-2502 MHz Band Sharing Issues 
88. Background. The new BRS Channel 1 band at 2496-2502 MHz, relocated from 
the 2150-2156 MHz band, partly overlaps a number of services in the 2483.5-2500 MHz band, 
including Broadcast Auxiliary Service (BAS) Channel A10 operations at 2483.5-2500 MHz.  As 
an initial matter, we note that a pending petition for reconsideration filed by the Society of 
Broadcast Engineers asks us to adopt a revised band plan for BAS Channels A8-A10 that would 
remove BAS operations from the 2496-2502 MHz band.228 We defer consideration of this matter 
to a separate decision.  The 2496-2502 MHz band also partially overlaps the Big LEO MSS band 
at 2483.5-2500 MHz, with Code Division Multiple Access (CDMA) MSS downlink operations 
operating on an unprotected basis vis-เ-vis BRS licensees.229 In the Big LEO Order on 
Reconsideration and AWS 5th MO&O, to provide protection to BRS-1 operations, the 
Commission codified requirements for CDMA MSS operators in the 2483.5-2500 MHz band not 
to exceed the existing, world-wide, ITU power-flux density (pfd) coordination trigger limits 
established for the band.230 These pfd limits are set forth in the ITU Radio Regulations at 
Appendix 5, Annex 1 (ITU-RR App. 5, Annex 1).231 The Commission stated that these 
coordination trigger limits would permit BRS-1 licensees to construct and operate comparable 
facilities to those being relocated from the 2150-2156 MHz band.232 Although the Commission 
recognized that the pfd coordination threshold values in ITU-RR App. 5, Annex 1 do not address 
all potential interference cases between MSS and BRS, such as mobile terrestrial use, the lower 
gains of antennas associated with mobile handheld units make them less vulnerable to the 
  
227 WCA PFR at 21.
228 See SBE Petition for Reconsideration, IB Docket No. 02-364 (filed May 22, 2006) at 2-3.  See also Sprint Nextel 
Corporation and Society of Broadcast Engineers, Inc. Ex Parte, IB Docket No. 02-364, ET Docket No. 00-258 (filed 
June 4, 2007) supporting SBE’s petition.
229 See generally Big LEO Spectrum Sharing Order, 19 FCC Rcd at 13387-13388 ถถ 69-71.  Big LEO satellite 
systems provide voice and data communication to users with handheld mobile terminals via non-geostationary 
satellites in Low Earth Orbit (LEO).  For additional background about MSS in the Big LEO bands, see Amendment 
of the Commission’s Rules to Establish Rules and Policies Pertaining to a Mobile Satellite Service in the 1610-
1626.5/2483.5-2500 MHz Frequency Bands, CC Docket No. 92-166, Report and Order, FCC 94-261, 9 FCC Rcd 
5936 (1994), on reconsideration, Memorandum Opinion and Order, FCC 96-54, 11 FCC Rcd 12861 (1996).
230 See Big LEO Order on Reconsideration and AWS 5th MO&O, 21 FCC Rcd at 5624 ถ 31; 47 C.F.R. ง 25.208(v).
231 ITU-RR App. 5, Annex 1 includes coordination threshold values of pfd for non-geostationary satellite orbit 
(NGSO) space stations and degradation of performance values for terrestrial systems, and addresses both analog and 
digital fixed use in the 2496-2500 MHz band.
232 Big LEO Order on Reconsideration and AWS 5th MO&O, 21 FCC Rcd at 5624 ถ 31.
Federal Communications Commission FCC 08-83 
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emissions of satellite systems than antennas of fixed systems, and thus, the ITU-RR App. 5, 
Annex 1 pfd coordination threshold values should protect mobile terrestrial uses as well.233  
89. The Commission noted that Globalstar, the only currently operational MSS 
provider in the 2483.5-2500 MHz band, has the capability to control its pfd in the 2496-2500 
MHz band by limiting the number of users on a particular channel in a given geographical 
region.234 The Commission also noted that, since BRS-1 systems were not yet operational, BRS-
1 networks could be designed to accept interference-to-noise ratios higher than they might find in 
a non-shared environment, which should compensate for the effect of low-level, external noise 
sources, thereby yielding systems with the same throughput, availability and operating costs as 
currently exist in the 2150-2156 MHz band.235 To further protect BRS-1 operations, the 
Commission stated that if MSS operators intend to operate at power levels that exceed the 
codified pfd limits, or if actual operations routinely exceed the codified pfd limits, those 
operators are required to receive approval from each operational BRS-1 system in the region in 
which the pfd limits are exceeded.236 Furthermore, the Commission emphasized that, if the MSS 
footprint overlaps multiple BRS areas, later arriving BRS operators are not obligated to accept 
higher pfd limits previously approved by an adjacent BRS operator.237
90. BellSouth’s petition for reconsideration of the Big LEO Order on Reconsideration 
and AWS 5th MO&O requests that the Commission modify the adopted pfd limits in the 2496-
2500 MHz band to correspond to the more stringent pfd limits set forth in draft U.S. proposals to 
the WRC-07 regarding protection of terrestrial operations in the 2500-2690 MHz band from 
satellite downlink interference.238 BellSouth argues that the pfd limits codified by the 
Commission in the Big Leo Order on Reconsideration and AWS 5th MO&O will not be 
sufficient to provide BRS protection from MSS.239 According to BellSouth, the current pfd 
limits are approximately 10 dB less stringent than the draft U.S. proposal for the 2500-2690 
MHz band, and therefore, provide less interference protection than the draft proposal.240 WCA 
agrees with BellSouth, though WCA supports the WRC-07 proposed limits somewhat 
reluctantly, since it is still not convinced that even the proposed pfd limits can fully protect BRS 
  
233 Id. (citing ITU-RR App. 5, Annex 1, NOTE 7).
234 Id. (citing Application of L/Q Licensee, Inc. for Modification to Order and Authorization for Globalstar, File 
Nos. 88-SAT-WAIV-96 and 90-SAT-ML-96 (March 7, 1996) and Ex Parte Letter in IB Docket No. 01-185 from 
William Wallace, Counsel for Globalstar L.P., to Marlene H. Dortch, Federal Communications Commission (dated 
July 1, 2002), Attachment at 18, 22-23).
235 Id.
236 Id. See 47 C.F.R. ง 25.213(b).
237 Big LEO Order on Reconsideration and AWS 5th MO&O, 21 FCC Rcd at 5624-25 ถ 31.
238 BellSouth, et al. Petition at 7-8, 10.  The actual study was submitted to the ITU-R Joint Task Group 6-8-9 in 
preparation for developing text for the WRC-07 Conference Preparation Meeting (CPM07).  See ITU-R Document 
6-8-9/77.
239 BellSouth, et al. Petition at 6-10.
240 Id. at 8-9.
Federal Communications Commission FCC 08-83 
39
operations within the United States.241 WCA claims that the expectation that most MSS 
operations will take place below 2495 MHz does not afford BRS real protection against co-
channel interference.242 BellSouth’s position is also supported by Clearwire243 and WiMAX.244
91. Globalstar objects to modifying the pfd limits set for MSS licensees.245  
Specifically, Globalstar claims that MSS providers have been able to operate service downlinks 
in the 2483.5-2500 MHz band since the initial allocation was made at the 1992 World 
Administrative Radio Conference, and that the pfd levels for its operational band adopted 
initially at the 1995 World Radiocommunication Conference (WRC 95), and now codified in the 
Commission’s rules, were extensively studied and adopted at WRC-95.246 WCA refutes 
Globalstar’s characterization, claiming that the pfd limits Globalstar refers to relate to co-
frequency operations with fixed systems and not the types of mobile systems that BRS licensees 
are likely to deploy in the 2496-2502 MHz band.247 BellSouth says that maintaining the existing 
pfd rules for 2496-2500 MHz would “unfairly, unjustifiably and inexplicably result in one 
standard for domestic licensees and another standard for the international community.”248
92. Globalstar claims that while the Commission anticipated that both BRS and MSS 
entities would have to employ engineering solutions – such as network design that would permit 
BRS to operate with higher interference-to-noise ratios – BellSouth’s proposed changes to the 
pfd limits would render three of Globalstar’s channels largely unusable, undermining the shared 
nature of operations in the band.249 According to Globalstar, such an outcome is particularly 
unfair in light of the large amount of spectrum available in the larger BRS band.250 WCA claims 
that Globalstar’s rationale is flawed because it does not take into account MSS spectrum as a 
whole and does not consider BRS spectrum that it or any other party could potentially lease.251
93. Discussion. BellSouth accurately describes how U.S. commercial interests, 
operating through the U.S. International Telecommunication Union –Radiocommunication  
(ITU-R) process, submitted a study specifying the pfd limits they believe are necessary to protect 
terrestrial base stations and mobile stations from potential interference caused by selected 
  
241 WCA Opposition at 7-12; WCA Reply at 10-13.  In that regard, WCA points to the Commission’s decision to 
remove the unused FSS allocation from the 2500-2690 MHz band in setting it aside for BRS.  WCA Opposition at 
8-11; WCA Reply at 12-13.
242 WCA Opposition at 12.
243 Clearwire Opposition at 7.
244 WiMAX Comments at 8.
245 Globalstar Opposition at 10-14.
246 Id.
247 WCA Reply at 11.
248 BellSouth, et al. Petition at 7.
249 Globalstar Opposition at 12-14.
250 Id. at 14.
251 WCA Reply at 13.
Federal Communications Commission FCC 08-83 
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satellite systems in the 2500-2690 MHz band. 252 This study is one of several studies submitted 
to ITU-R Joint Task Group 6-8-9 (JTG 6-8-9) by a number of administrations to assist in the 
development of Conference Preparatory Meeting (CPM) text that was prepared for WRC-07 
within the ITU-R.  The U.S. study indicated that a pfd limit about 10 dB lower than the codified 
MSS/BRS-1 pfd limits for 2496-2500 MHz would be required to protect the terrestrial systems 
from the satellite systems that were studied.  This study, however, involves the adjacent band 
beginning at 2500 MHz, not Globalstar’s band below 2500 MHz; there is no international 
proposal to change the pfd limits in Globalstar’s band.  Furthermore, this study only addresses 
sharing with geostationary and highly elliptical satellites and does not consider a low-orbit 
satellite constellation such as Globalstar’s.  The study also assumes that the satellite system 
operates across the full terrestrial band instead of the situation at 2496-2500 MHz, which is a 
partial-band overlap.253 Additionally, the CPM text outlines a number of potential mitigation 
measures that terrestrial systems could use to compensate for possible increase in noise levels 
from satellite systems, if it should occur.254 Specific pfd limits or coordination thresholds were 
not determined at the CPM and were selected at the WRC-07.255 Finally, because the 
Commission rejected a request to allocate portions of the 2500-2690 MHz band for MSS,256 there 
is no reason for the United States to consider the impact of more stringent pfd limits on the 
operation of MSS systems in the 2500-2690 MHz band at the CPM or WRC.
94. The WRC-07 adopted pfd limits for MSS systems operating in the 2500-2535 
MHz that are close to those put forth in the U.S. CPM contribution, mentioned above, and in the 
U.S. proposals to the WRC-07.257 In doing so, the ITU stated that for MSS systems that were 
operational prior to the end of WRC-07, the existing coordination thresholds pfd values 
applied.258  These are the same pfd values that the Commission codified for the protection of 
terrestrial systems in 2495-2500 MHz in the Big LEO Order on Reconsideration and AWS 5th 
  
252 See ITU-R Document 6-8-9/77, dated 27 January 2006, Entitled "Results of Interference Studies from Satellite 
Services on Fixed Services in the USA Using Methodology Developed by JTG 6-8-9."
253 The MSS allocation 2483.5-2500 MHz only overlaps 4 megahertz of the 6 megahertz 2496-2502 MHz BRS 
Channel 1.
254 See ITU-R CPM Report (Geneva 2007) Table 1.9-2.
255 See ITU-R CPM Report (Geneva 2007) Chapter 3, Agenda Item 1.9 Executive Summary: “For each of the [the 
three possible] methods above, it was not possible to agree within the ITU-R on one suitable PFD mask (limits or 
coordination thresholds) that would to [sic] be applied to space services in the band 2500-2690 MHz to facilitate 
sharing with current and future terrestrial services without placing undue constraints on the services to which the 
band is allocated on a co-primary basis.  However, a range of PFD values are provided in this section of the CPM 
text for further consideration by WRC-07.”
256 See Amendment of the U.S. Table of Frequency Allocations to Designate the 2500-2520/2670-2690 MHz 
Frequency Bands for the Mobile-Satellite Service, RM-9911, Order, 16 FCC Rcd 596 (2001), recon. denied, 
Memorandum Opinion and Order, 16 FCC Rcd 17222 (2001).
257 See ITU-R Document 5, 9 February 2007, United States of America Proposals for the Work of the Conference, 
Agendum Item 1.9 starting on page 37.  See also Ex Parte Letter from Paul J. Sinderbrand, Counsel WCA to 
Chairman Martin, Federal Communications Commission (filed Dec. 10, 2007).
258 See ITU-R Provisional Final Acts, Article 5, Footnote 5.4A01.  Specifically Footnote 5.A01 states, in part, that 
“the coordination thresholds in Table 5-2 of Annex 1 to Appendix 5 of the Radio Regulations (edition of 2004), in 
conjunction with the applicable provisions of Articles 9 and 11 associated with No. 9.11A, shall apply to [MSS] 
systems for which complete notification information has been received by the Radiocommunication Bureau by 
14 November 2007 and that have been brought into use by that date.”
Federal Communications Commission FCC 08-83 
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MO&O, in which the Commission anticipated that both BRS and MSS entities would be able to 
develop and operate systems on a shared basis using the specified pfd, and employ engineering 
solutions as necessary to accommodate sharing with the other service.  We believe that this is 
still the proper approach, and therefore, we deny BellSouth's Petition.  The use of a study that 
addresses different satellite systems operating in an adjacent band is an insufficient basis to make 
changes to the pfd limits, changes that would undermine the shared nature of operations in the 
band.  We continue to believe that the currently codified pfd limits will permit a shared solution 
if proper engineering techniques are applied to the MSS and BRS systems.
H. BRS 2/2A Channel Issues
95. Background.  In the BRS/EBS 3rd MO&O, the Commission affirmed that the 
splitting the football methodology it adopted in the BRS/EBS R&O should be applied to GSA 
overlaps of all BRS and EBS licensees, including BRS Channels 1 and 2/2A licensees.259 Ad 
Hoc MDS Alliance260 requests that the Commission modify its rules so that primary BRS 
Channel 2 licensees are not required to “split the football” with either BRS Channel 2A or 
secondary BRS Channel 2 incumbent licensees when they transition to the 2.5 GHz band.261  
96. Ad Hoc MDS Alliance argues that under the current rules, BRS Channel 2A 
licensees will uniquely and unilaterally benefit from a license upgrade, a significant part of 
which will be taken directly out of the BRS Channel 2 licensed areas at the expense of the BRS 
Channel 2 licensees.262 Specifically, Ad Hoc MDS Alliance claims that, in this situation, an 
incumbent BRS Channel 2A licensee receives a licensing increase of 50% during the 
transition/relocation process by being upgraded from a four-megahertz license at 2156-2160 
MHz to a six-megahertz license at 2618-2624 MHz, and that a secondary MDS Channel 2 
incumbent licensee is getting a similar windfall by being upgraded from a four-megahertz 
primary license at 2156-2160 MHz to a six-megahertz primary license at 2618-2624 MHz.263  
  
259 BRS/EBS 3rd MO&O, 21 FCC Rcd at 5695 ถ 208, 47 C.F.R. ง 27.1206(a)(1).
260 The Ad Hoc MDS Alliance describes itself as being comprised of minority and small business enterprises 
holding licenses for BRS Channels 1 and 2 in the following sixteen major markets:  Atlanta, GA; Chicago, IL; 
Columbus, OH; Detroit, MI; Houston, TX; Indianapolis, IN; Los Angeles, CA; Milwaukee, WI; Minneapolis, MN; 
New York, NY; Oklahoma City, OK; Phoenix, AZ; Sacramento, CA; San Francisco, CA; St. Louis, MO; and 
Washington, DC.  Ad Hoc MDS Alliance PFR at 2 and n.3.
261 Ad Hoc MDS Alliance Comments at 3.  In its Petition for Reconsideration, the Ad Hoc MDS Alliance requested 
that the Commission clarify or modify Section 27.1206 of the Rules to provide that provisions requiring adjacent 
licensees to split the football do not apply to either (a) overlapping areas between primary BRS Channel 2 licensees 
and secondary BRS Channel 2/2A licensees, or (b) in the 2622-2624 MHz band, where a primary BRS Channel 2 
licensee overlaps with a primary BRS Channel 2A licensee.  Ad Hoc MDS Alliance PFR at 3.  Sprint Nextel, 
WiMAX, and WCA Opposed Ad Hoc MDS Alliance’s request.  See Sprint Nextel Opposition at 10-11, WiMAX 
Opposition at 11, WCA Opposition at 20-21.  Ad Hoc MDS Alliance changed its request during the opposition stage 
of the proceeding.  See Ad Hoc MDS Alliance Comments.  Nevertheless, WCA filed a Reply in opposition to Ad 
Hoc MDS Alliance’s modified request.  See WCA Reply at 17-20.
262 Ad Hoc MDS Alliance Reply at 3.
263 Ad Hoc MDS Alliance Comments at 4.  Ad Hoc MDS Alliance believes that this feature of the Commission’s 
plan is of questionable legality because the Commission has never discussed why Channel 2A licensees should 
receive such an upgrade or made a determination that affording a windfall uniquely to Channel 2A licensees is in the 
public interest.  Ad Hoc MDS Alliance PFR at 3.
Federal Communications Commission FCC 08-83 
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97. Ad Hoc MDS Alliance recommends that this situation be corrected by not 
requiring primary BRS Channel 2 licensees to “split the football” with either BRS Channel 2A or 
secondary BRS Channel 2 incumbent licensees.264 Ad Hoc MDS Alliance notes that it knows of 
no situation – and believes there is none – in which an incumbent BRS Channel 2A licensee 
overlaps with a primary BRS Channel 2 incumbent licensee by as much as 50%.265 Therefore, 
Ad Hoc MDS Alliance argues that, even if the primary BRS Channel 2 incumbent licensee in an 
overlap situation is afforded the full 35-mile geographic service area normally contemplated by 
Section 27.1206(a)(1) of the Rules266 – that is, the licensee obtains the entire football rather than 
splitting it – the incumbent BRS Channel 2A will receive a substantial gain in the transition to 
2618-2624 MHz because the increase in channel capacity from 4 megahertz to 6 megahertz is 
greater than the relative loss of overlapped territory to the primary BRS Channel 2 incumbent.267  
Ad Hoc MDS Alliance explains that because the 2-megahertz increase in licensed area by itself 
is greater than the area the Channel 2A licensee would obtain by splitting the football, the 
Channel 2A licensee still would net a substantial increase in licensed area at 2.5 GHz even when 
the adjacent BRS Channel 2 (former Channel 2 primary licensee) is awarded all of the territory 
within the football.268  
98. WCA opposes Ad Hoc MDS Alliance’s proposal.269 WCA states that any 
material departure from the standard splitting the football rules at this late date will frustrate 
ongoing efforts to make productive use of the 2.5 GHz band.270 WCA notes that Sprint Nextel 
and other licensees are already in the midst of the network design implementation process, and 
argues that Ad Hoc MDS Alliance’s failure to raise its concerns in a timely manner is critical.271  
Ad Hoc MDS Alliance denies that it raised this issue too late.272  
99. WCA further argues that grant of Ad Hoc MDS Alliance’s approach will yield a 
windfall for Ad Hoc MDS Alliance’s members as it relates to the 4 megahertz that is shared 
between BRS Channels 2 and 2A licensees.273 WCA states that where there is an overlap 
between the PSA of a BRS Channel 2 licensee and the PSA of a BRS Channel 2A licensee, both 
stations had been co-primary, but the overlap area was effectively unused by either licensee 
because of the applicable interference protection rules.274 Thus, notes WCA, when that 4 
  
264 Ad Hoc MDS Alliance Comments at 3.
265 Ad Hoc MDS Alliance Comments at 4.
266 47 C.F.R. ง 27.1206(a)(1).
267 Ad Hoc MDS Alliance Opposition at 4.
268 Ad Hoc MDS Alliance Opposition at 4.
269 WCA Reply at 17-20.
270 WCA Reply at 18.
271 WCA Reply at 18-19, citing Sprint Nextel Opposition at 11.  
272 Ad Hoc MDS Alliance Reply at 3.
273 WCA Reply at 19.
274 WCA Reply at 19, citing BRS/EBS R&O, 19 FCC Rcd at 14194 ถ 65.
Federal Communications Commission FCC 08-83 
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megahertz is allocated to exclusive GSAs using the splitting the football approach, the effect is to 
give each party access to territory that it could not previously serve.275  
100. Discussion.   We agree with WCA that Ad Hoc MDS Alliance has not justified a 
change in Section 27.1206(a)(1) of the Rules that would exempt primary BRS Channel 2 
licensees from splitting the football with either BRS Channel 2A or secondary BRS Channel 2 
incumbent licensees.  Initially, we note that Ad Hoc MDS Alliance ignores the fact that 
secondary BRS Channel 2 and 2A licensees were secondary to AWS, not to other BRS licensees.  
Moreover, maintaining the rule as adopted will provide clarity to all licensees, and will not 
overturn any of the planning which has been ongoing over the years since Section 27.1206(a)(1) 
of the Rules was adopted.  The rule gives all Channel 2 licensees an area in which they have 
exclusive use of all 6 megahertz of Channel 2, and does not affect the rights of primary BRS 
Channel 2 licensees that are to be relocated by AWS auction winners.  Accordingly, we reject Ad 
Hoc MDS Alliance’s proposal and affirm the use of our regular splitting the football rule for 
BRS Channel 2 and 2A licensees.
I. Grandfathered E and F Group Channel EBS Stations
101. Background. In 1983, the Commission redesignated the E and F Group 
Instructional ITFS channels from the ITFS service to the MDS.276 The Commission took this 
action in an effort to spur the development of MDS to promote effective and intense utilization 
of the spectrum leading to its highest valued use.277 As part of its decision, the Commission 
grandfathered ITFS licensees operating on the E Group and F Group channels subject to the 
following limitations:
Grandfathered ITFS stations operating on the E and F channels will only be 
protected to the extent of their service that is either in the operation or the 
application stage as of May 26, 1983.  These licensees or applicants will not 
generally be permitted to change transmitter location or antenna height, or to 
change transmission power.  In addition, any new receive stations added after 
May 26, 1983 will not be protected against interference from MDS transmissions.  
In this fashion, all facets of grandfathered ITFS operations were frozen as of May 
26, 1983.278
  
275 WCA Reply at 19.
276See In the Matter of Amendment of Parts 2, 21, 74 and 94 of the Commission's Rules and Regulations in regard to 
frequency allocation to the Instructional Television Fixed Service, the Multipoint Distribution Service, and the 
Private Operational Fixed Microwave Service, GN Docket No. 80-112, CC Docket No. 80-116, Report and Order, 
94 FCC 2d 1203 (1983) (E and F Group Reallocation Order).  As stated previously, the Commission renamed the 
ITFS service as the “Educational Broadband Service” (EBS) and MDS service the “Broadband Radio Service” 
(BRS).  BRS/EBS R&O, 19 FCC Rcd at 14169 ถ 6.  
277 E and F Group Reallocation Order, 94 FCC 2d at 1228-29 ถถ 61-63.
278 See In the Matter of Amendment of Parts 2, 21, 74 and 94 of the Commission's Rules and Regulations in regard 
to frequency allocation to the Instructional Television Fixed Service, the Multipoint Distribution Service, and the 
Private Operational Fixed Microwave Service, GN Docket No. 80-112, CC Docket No. 80-116, Memorandum 
Opinion and Order on Reconsideration, 98 FCC 2d 129, 132-33 ถ 12 (1983) (E and F Group Reallocation 
Reconsideration Order).  See also 47 C.F.R. ง 74.902(c).
Federal Communications Commission FCC 08-83 
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The Commission stated that “there may be instances where the natural evolution of an ITFS 
station may reasonably require the addition of receive stations without changing the nature or the 
scope of the ITFS operation” that would justify the addition of additional receive sites.279 In 
those instances, the Commission stated that the grandfathered ITFS licensee could request a 
waiver of Section 74.902(c).280 The Commission’s Rules provided that “in those areas where 
Multipoint Distribution Service use of these channels is allowed, Instructional Television Fixed Service 
users of these channels will continue to be afforded protection from harmful co-channel and adjacent 
channel interference from Multipoint Distribution Service stations.”281
102. In the BRS/EBS FNPRM, the Commission sought comment on how to modify its 
rules concerning grandfathered E and F Group channel ITFS stations to equitably allow both 
MDS and ITFS stations to provide advanced broadband wireless services.282 The Commission 
envisaged three scenarios: (1) the PSA of the grandfathered E and F Group EBS licensee almost 
entirely overlaps the PSA of the co-channel MDS licensee; (2) the PSA of the grandfathered E 
and F Group EBS licensee overlaps to some extent, but not as much as in the first scenario, and 
(3) the grandfathered E and F Group EBS licensee remains frozen, unable to modify its system, 
and there is no co-channel MDS licensee.283
103. In the BRS/EBS 2nd R&O, the Commission concluded that where there is no 
overlap between the EBS and BRS licensees, the Commission would free up the grandfathered E 
and F Group channel EBS licensees, grant these licensees a GSA, and allow them to modify or 
assign their license.284 In cases where the GSAs of grandfathered EBS and BRS licensees 
overlap, but that overlap is less than 50%, the Commission would divide the GSAs by splitting 
the football, as is done with other overlapping GSAs.285 Both the BRS and EBS licensees would 
be free to add, modify, and remove facilities within their GSAs, consistent with the 
Commission’s new technical rules.  In addition, the grandfathered EBS facility would be free to 
assign its license.286 In cases where the GSAs overlap 50% or greater, the Commission 
concluded that different treatment was warranted because splitting the football might no longer 
be the best solution for accommodating the needs of both licensees.  In those cases, the 
Commission established a 90-day mandatory negotiation period during which both the BRS and 
EBS licensees would have an explicit duty to work to accommodate each other's 
communications requirements.  If, at the end of 90 days, the parties could not reach a mutual 
agreement, the Commission would then split the football on its own accord.287
  
279 E and F Group Reallocation Reconsideration Order, 98 FCC 2d 129, 132-33 ถ 12 n.8.
280 E and F Group Reallocation Reconsideration Order, 98 FCC 2d 129, 132-33 ถ 12 n.8.
281 47 C.F.R. ง 74.902(c) (2004).
282 BRS/EBS FNPRM, 19 FCC Rcd at 14290 ถ 337.
283 BRS/EBS 2nd R&O, 21 FCC Rcd at 5744-45 ถถ 336-338.
284 BRS/EBS 2nd R&O, 21 FCC Rcd at 5749 ถ 348.
285 47 C.F.R. ง 27.1206.
286 BRS/EBS 2nd R&O, 21 FCC Rcd at 5749 ถ 349.
287 BRS/EBS 2nd R&O, 21 FCC Rcd at 5750 ถ 350.
Federal Communications Commission FCC 08-83 
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104. In their petitions for reconsideration, NY3G, Line of Site, Inc. (LOSI), and 
BellSouth argue the Commission should address significant overlap situations by dividing 
channels rather than dividing the geographic overlap itself, which would ensure that each party 
involved could provide full coverage of its service area on at least some channels.288 They 
recommend that the EBS licensee receive the high-power channel (E4 or F4) and one low-power 
channel and the BRS licensee receive two low-power channels.289 Specifically, BellSouth 
recommends that BRS licensees be assigned the E1/F1 and E2/F2 channels and the EBS 
licensees assigned the E3/F3 and E4/F4 channels.290  
105. CTN, NIA, and Miami-Dade maintain that the Commission has already 
considered and rejected NY3G’s proposal to mandate a division of channels between the 
licensees.291 CTN and NIA contend that NY3G is still attempting to divide the channels for all 
grandfathered EBS and BRS licensees with GSA overlaps of more than 50% in a way that will 
benefit NY3G.292  
106. NextWave recommends that if the parties cannot reach an agreement within the 
mandatory 90-day negotiation period, the Commission should adopt a formula for splitting the 
football rather than the Commission randomly splitting the football on its own accord.293  
Specifically, NextWave recommends that the Commission require licensees to split the spectrum 
between them, within 30 days following the end of 90-day mandatory negotiation period 
according to the following procedure.294 First, the licensees would determine the total population 
in the overlap area based upon the most recent official United States Census numbers.295 Licensees 
can privately agree whether or not they will use population growth factors in this calculation.296  
Any discrepancy between the population numbers of the licensees will be averaged for purposes of 
all calculations.297 Then the overlap area would be split using the traditional splitting the football 
methodology.298 The population contained in each licensee's half or slice of the overlap area would 
then be calculated and each licensee's corresponding relative percentage of the total population 
would be calculated.299 This percentage would then be used to split the spectrum among the 
licensees in relative proportion to the percentage of population each licensee commands in the 
  
288 NY3G PFR at 3, BellSouth Reply at 6-7, LOSI Opposition at 2-5.
289 NY3G PFR at 3, BellSouth Reply at 7, LOSI Opposition at 4.
290 BellSouth Reply at 7.
291 CTN and NIA Reply at 3, citing BRS/EBS 3rd MO&O, 21 FCC Rcd at 5750-51 ถ 352, Miami-Dade Opposition 
at 2.
292 CTN and NIA Reply at 3.
293 NextWave PFR at 13.
294 NextWave PFR at 13.
295 NextWave PFR at 13.
296 NextWave PFR at 13.
297 NextWave PFR at 13.
298 NextWave PFR at 13.
299 NextWave PFR at 13-14.
Federal Communications Commission FCC 08-83 
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overlap area.300 The percentage would be rounded to the percentile closest to 0%, 25%, 50%, 75% 
or 100%.301 A licensee with a population ratio closest to 25%, for example, would retain one of the 
four channels.302 Finally, the licensees would decide among themselves, according to their 
individual educational or business needs, the channels each would retain and provide a joint notice 
to the Commission.303 The grandfathered EBS licensee would have a right of first refusal to access 
the MBS channel.304
107. By way of example, NextWave offers two scenarios.  First, where the geographic 
service areas of each licensee completely overlap, and thus the licensees have command of the 
same population number, each licensee would be accorded half of the channels to serve the entire 
overlapping area (for a four channel group, each licensee would receive two channels).305 In this 
scenario, the licensees would only need to determine which channels each will retain, and 
provide the Commission with joint notice.306 Second, where the overlapping geographic service 
area contains a population of 400,000, and where one licensee's sliver or half of the overlapping 
area includes a population of 100,000, and the other licensee's sliver or half of the overlapping 
area includes a population of 300,000, the licensee with the greatest population would receive 
three channels to serve the entire overlapping area (300,000 / 400,000 = 75% = 3 channels), and 
the other licensee would receive one channel (100,000 / 400,000=25% = 1 channel).307  
NextWave argues that this approach serves the public interest by avoiding the random 
partitioning of the geographic service area by the Commission under the presently adopted 
approach.308 The resolution would provide each licensee with the ability to preserve its entire 
geographic service area and the flexibility to serve the entire overlap area with a lesser amount of 
spectrum.309
108. LOSI, CTN, and NIA oppose NextWave’s methodology.310 LOSI states that 
under NextWave’s approach only the overlap is assessed, divided, and its spectrum 
apportioned.311 LOSI contends that, under this method, a licensee might have all four channels in 
its non-overlapping area but only a fractional channel within the overlap area.312 LOSI argues 
  
300 NextWave PFR at 14.
301 NextWave PFR at 14.
302 NextWave PFR at 14.
303 NextWave PFR at 14.
304 NextWave PFR at 14.
305 NextWave PFR at 14.
306 NextWave PFR at 14.
307 NextWave PFR at 14.
308 NextWave PFR at 14.
309 NextWave PFR at 14-15.
310 LOSI Opposition at 4, CTN NIA Opposition at 2-3.
311 LOSI Opposition at 4.
312 LOSI Opposition at 4-5.
Federal Communications Commission FCC 08-83 
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that such a solution would necessitate the licensing of apportioned overlap areas under new 
separate call signs, and could ultimately lead to confusion.313
109. If after considering the petitions on this matter, the Commission retains the 
mandatory 90-day negotiation period, LOSI requests that the Commission provide parties with 
some guidance as to what is expected from them during and following the negotiation period.314  
LOSI suggests that the Commission establish: (1) a reporting requirement on the results of such 
negotiations; (2) a mechanism for Commission approval of negotiated settlements; (3) a 
timeframe and mechanism for the filing of applications needed to implement a negotiated 
settlement; (4) a mechanism for Commission intervention should a party refuse to negotiate; (5) 
penalties for parties refusing to negotiate; and (6) dispute resolution procedures.315  
110. CTN, NIA, and BellSouth oppose LOSI on this matter.316 CTN and NIA state that 
certain of the proposed requirements, such as Commission intervention where a party refuses to 
negotiate and penalties for parties refusing to negotiate could lead to disputes as to when a party 
determines the other party is refusing to negotiate.317 With respect to proposals such as reporting 
on the negotiation results and mechanisms for filing applications, CTN and NIA describe these 
as unnecessary, as the parties reaching a negotiated solution will out of necessity file applications 
with the Commission if required to implement the solution.318 BellSouth states that it is not 
necessary for the Commission to police private negotiations, which will either succeed because 
the parties can achieve a better result than the Commission’s default solution, or will fail because 
at least one party believes that the Commission’s solution better suits the party’s 
communications requirements.319
111. Discussion.   We conclude that we should retain the existing Section 27.1206 of 
the Rules320 to eliminate overlaps of 50 percent or greater between grandfathered E and F Group 
channel EBS stations and co-channel incumbent BRS stations by splitting the football, as 
opposed to adopting the petitioners’ request to split the channels.  Splitting the football would 
permit grandfathered E and F Group EBS licensees, which have been providing service for 20 
years, to modernize their systems to better serve the public, including allowing EBS licensees to 
transition to low-power cellularized operations, which increases spectrum utilization.  Granting 
the flexibility that negotiations between affected parties allows is consistent with the BRS/EBS 
R&O’s approach of utilizing geographic area licensing and promoting greater flexibility, and 
encourages negotiations and market-based solutions to overlap problems.  In addition, this 
procedure tailors resolutions of overlap situations to the circumstances of each class of licensee.
  
313 LOSI Opposition at 5.
314 LOSI Opposition at 5.
315 LOSI Opposition at 5.
316 CTN and NIA Reply at 4, BellSouth Reply at 8.
317 CTN and NIA Reply at 4.
318 CTN and NIA Reply at 4.
319 BellSouth Reply at 8.
320 47 C.F.R. ง 27.1206.
Federal Communications Commission FCC 08-83 
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112. Resolving significant overlap situations by dividing channels rather than dividing 
the geographic overlap itself is an approach we have already considered and rejected.321 We note 
that under this approach, one licensee would receive only 5.5 megahertz of UBS spectrum,322
which may be insufficient to provide any service.  While certain commercial commenters 
support this approach, it has not received support from any educational commenter.  In addition, 
this approach assumes that educational licensees would not be interested in providing broadband-
type services.  We have seen no support for this assumption.  We also find that the record does 
not support NextWave’s population based proposal which is founded on the premise that 
population should be the primary basis for assessing a licensee’s channel requirements.  Under 
NextWave’s proposal, for example, in areas where there is a large discrepancy in population, a 
licensee may be relegated to one channel, which may be insufficient to meet its needs.  
Furthermore, NextWave’s proposal is complicated and difficult to administer, and no other 
commenter supports it.  Accordingly, we deny NY3G’s, NextWave’s, and BellSouth’s petitions 
on this issue.
113. We next address LOSI’s proposal that, having retained the mandatory 90-day 
negotiation period, we provide parties with some guidance as to what is expected from them 
during and following the negotiation period.  We find that LOSI has not shown that its proposed 
requirements, which are supported by no other commenter, are necessary or appropriate.
114. We note that NY3G filed a supplement to its petition for reconsideration,323 which 
was opposed by Sprint Nextel.324 Although this supplement was not timely filed, we will address 
the substance of the petition to clarify a misunderstanding. NY3G asks the Commission to adopt 
a rule to enable co-channel BRS and EBS licensees to exchange or transfer service area territory 
between one another to facilitate intersystem coordination of co-channel operations or to reduce 
or mitigate the harmful effects of interference.325 We do not adopt a rule because it is 
unnecessary to do so.  All BRS and EBS licensees, including grandfathered E and F Group 
channel EBS licensees and incumbent BRS licenses that “split the football” with such licensees, 
may partition, disaggregate, assign, or transfer their spectrum.326 The use of the splitting the 
football mechanism to divide overlapping service areas does not preclude subsequent agreements 
to partition, disaggregate, assign, or transfer spectrum.  NY3G argues that because of the 
eligibility restrictions on EBS spectrum, EBS licensees cannot partition their service areas or 
disaggregate their spectrum to reach a resolution with their co-channel BRS licensees.327 The E 
and F channels, however, are classified as both EBS and BRS spectrum.328 We have granted 
waivers to allow assignments or transfers of grandfathered EBS stations to BRS licensees upon a 
  
321 See BRS/EBS 3rd MO&O, 21 FCC Rcd at 5750-5751 ถ 352.
322 A single UBS post-transition channel in the E and F channel groups is 5.5 megahertz wide.  See 47 C.F.R. ง 
27.5(i)(2)(iii).
323 NY3G Supplement to Petition for Reconsideration (filed Dec. 11, 2006).
324 Ex Parte Letter from Trey Hanbury, Director, Government Affairs, Sprint Nextel Corporation to Marlene H. 
Dortch, Federal Communications Commission (filed Jan. 8, 2007).
325 NY3G Supplement to Petition for Reconsideration (filed Dec. 11, 2006).
326 See BRS/EBS R&O and FNPRM, 19 FCC Rcd at 14244-14246 ถถ 207-210.  See 47 C.F.R. ง 1.948(f).
327 NY3G Reply to Opposition to Supplement (filed Jan. 25, 2007).  
328 See 47 C.F.R. ง 27.5(i)(2)(ii), (iii).
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suitable public interest showing.329 Upon a similar showing, an EBS licensee could partition part 
of its service area or disaggregate its spectrum to its co-channel BRS licensee.
J. Gulf of Mexico Proceeding and Related Issues
115. Background.  On May 21, 1996, the Gulf Coast MDS Service Company (Gulf 
Coast) filed a Petition for Rulemaking requesting that the Commission amend its rules to permit 
licensing of MDS and ITFS spectrum in the Gulf of Mexico.330 On May 3, 2002, the 
Commission issued the Gulf NPRM seeking comments on whether to authorize two licenses in 
the Gulf of Mexico and whether to adopt eligibility restrictions to avoid excessive concentration 
of licenses.331 In the Gulf NPRM, the Commission proposed to establish a GSA in the Gulf of 
Mexico (“Gulf Service Area”), extending approximately 12 nautical miles from the United States 
coastline.332
116. On April 2, 2003, in the BRS/EBS NPRM, the Commission incorporated the Gulf 
of Mexico proceeding into the BRS/EBS proceeding and established a Gulf Service Area.333 The 
Commission noted that it did not receive any comments on its proposal to exclude ITFS 
channels, sought further comment on whether to reallocate ITFS channels in the Gulf Service 
area for other uses, and sought comment on whether it should consider unlicensed uses in the 
Gulf Service Area.334
117. In the BRS/EBS FNPRM, the Commission noted that WCA and PetroCom (the 
successor in interest to Gulf Coast MDS Service Company) disagreed on the boundary for the 
Gulf Service Area.335 PetroCom preferred establishing the boundary at the land water-line while 
WCA preferred a boundary twelve nautical miles from shore. 336 The Commission sought 
comment on the boundaries for the Gulf Service Area.337 The Commission expressed concern 
that the record was not sufficiently developed to resolve issues concerning the amount of 
spectrum to license in the Gulf Service Area, competitive bidding, partitioning and 
disaggregation, interference protection requirements, construction periods, and the length of the 
license term, and the Commission asked for additional comment on these issues.338
  
329 See, e.g., Alliance for Higher Education, Memorandum Opinion and Order, 19 FCC Rcd 23967 (WTB BD 
2004), Letter from John J. Schauble, Deputy Chief, Broadband Division, Wireless Telecommunications Bureau to 
Wayne D. Johnsen, Esq. and Robin J. Cohen (WTB BD Jan. 29, 2007).
330 Petition for Rulemaking of Gulf Coast MDS Service Company (Gulf Coast Petition) (May 21, 1996).
331 Amendment of Parts 21 and 74 of the Commission's Rules With Regard to Licensing in the Multipoint 
Distribution Service and in the Instructional Television Fixed Service for the Gulf of Mexico, Notice of Proposed 
Rulemaking, WT Docket No. 02-68, 17 FCC Rcd 8446 (2002) (Gulf NPRM).  
332 See Gulf NPRM, 17 FCC Rcd at 8447, 8453 ถถ 2, 18.  
333 BRS/EBS NPRM, 18 FCC Rcd at 6722, 6761 ถถ 5, 93.
334 BRS/EBS NPRM, 18 FCC Rcd at 6761 ถ 94.
335 BRS/EBS FNPRM, 19 FCC Rcd at 14298-14299 ถถ 364-365.
336 BRS/EBS FNPRM, 19 FCC Rcd at 14298-14299 ถถ 364-365.
337 BRS/EBS FNPRM, 19 FCC Rcd at 14299 ถ 365.
338 BRS/EBS FNPRM, 19 FCC Rcd at 14300 ถ 367.
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118. In the BRS/EBS 2nd R&O, the Commission found that the record did not 
demonstrate a demand for BRS or EBS operations in the Gulf of Mexico, that the record was not 
sufficiently developed to resolve issues concerning the amount of spectrum to license in the Gulf 
Service Area, and that no parties demonstrated an interest in providing BRS or EBS in the Gulf 
of Mexico.339 In light of these findings, the Commission decided to reverse its decision to create 
a Gulf Service Area for BRS or EBS.340 The Commission then terminated the Gulf Service 
proceeding, but reserved the right to revisit the Gulf Service Area issue for BRS and EBS should 
future circumstances warrant.341
119. Now, the American Petroleum Institute (API) asks the Commission to reconsider 
its decision to terminate the Gulf Service proceeding.342 To further the nation’s energy policies,
API states that its members require access to the 2.5 GHz spectrum either directly as private 
licensees or through customer relationships with Sprint Nextel or other carriers.343 API 
recommends that the Commission establish a Gulf Service Area,344 adopt essentially the same 
rules in the Gulf as are used for BTA licensees elsewhere,345 make available the full range of 
BRS spectrum to potential Gulf Service Area licensees,346 permit Gulf Service Area licensees to 
negotiate interference rights with other BTA authorization holders and incumbents,347 divide the 
Gulf Service Area into three zones for licensing purposes,348 and consider rules authorizing BRS 
service in the offshore areas of the Atlantic and Pacific Oceans.349  
  
339 BRS/EBS 2nd R&O, 21 FCC Rcd at 5762 ถ 383.
340 BRS/EBS 2nd R&O, 21 FCC Rcd at 5762 ถ 383.
341 BRS/EBS 2nd R&O, 21 FCC Rcd at 5762 ถ 383.
342 API PFR at 2.  The American Petroleum Institute (API) is a national trade association representing more than 
400 companies involved in all phases of the petroleum and natural gas industries, including exploration, production, 
refining, marketing, and transportation of petroleum, petroleum products, and natural gas.  API PFR at 5.  API’s 
members utilize a wide variety of telecommunications systems, including point-to-point, point-to-multipoint 
microwave, and two-way mobile radio systems in the Gulf of Mexico to serve a variety of telecommunications 
requirements, including communications between remote oil and gas exploration and production sites, for 
supervisory control and data acquisition (SCADA) systems used to operate production facilities remotely, and to 
communicate with onshore operations.  API PFR at 6.  See also Ex Parte Letter from Jack Richards, Counsel for 
API, to Marlene H. Dortch, Secretary, Federal Communications Commission (dated Aug. 3, 2006).
343 API Reply at 5.
344 API PFR at 2.
345 API PFR at 9.
346 API PFR at 9.
347 API PFR at 14.
348 API PFR at 15.  These zones would be as follows:  Zone A: The boundaries of Zone A should be from the 
shoreline at high mean tide on Florida’s Gulf Coast on the east to longitude 91บ00? on the west;  Zone B: The 
boundaries of Zone B should be from longitude 91บ00? on the east to longitude 94บ00? on the west; and  Zone C: The 
boundaries of Zone C should be from longitude 94บ00? on the east, the shoreline at mean high tide on the north and 
west, a 280 km (175 mile) radius from the reference point at Linares, N.L., Mexico.  API PFR at 15-16.  
349 API PFR at 17.
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120. WCA and Sprint Nextel oppose API’s petition on procedural grounds.350 They 
argue that the petition is procedurally defective because API relied on information not previously 
presented to the Commission.351 In addition, WCA argues that because the Commission has 
never sought comment on whether to license BRS spectrum off the outer continental shelves in 
the Atlantic and Pacific Oceans, to do so here would be beyond the scope of this proceeding, and 
consequently, a violation of the Administrative Procedure Act.352 Aside from their procedural 
concerns, Sprint Nextel and WCA emphasize that they are concerned about interference between 
land-based facilities and Gulf facilities, caused, in part, by “ducting.” 353 WCA recommends that 
the Commission draw the innermost boundary of a new “Gulf Service Area” at the limit of the 
territorial waters of the United States in the Gulf, approximately twelve nautical miles from the 
coastline.354 Sprint Nextel recommends that any Gulf Service Area boundary should begin at the 
greater distance of either:  (1) the edge of the land-based BRS-EBS licensee’s GSA boundary; or 
(2) approximately 12 nautical miles from the shoreline at mean high tide.355  
121. In addition, WCA submits the following proposals if the Commission decides to 
establish a Gulf Service Area.  WCA asks that the Commission adopt the licensing and technical 
rules WCA proposed for the Gulf of Mexico in WCA’s earlier filings in this proceeding.356  
Second, WCA asks that any auction winner’s Gulf Service Area exclude the circular 35-mile 
radius GSAs of any incumbent BRS or EBS licensee, just as the service area awarded to any 
land-based BRS BTA auction winner excluded the protected service area of an incumbent 
pursuant to the Commission’s Rules.357 Third, WCA argues that the BRS BTA authorizations for 
areas bordering the Gulf should extend at least to the boundaries of the counties that comprise 
the BTA, including areas that are within counties but beyond the coastline.358 Fourth, WCA 
states that the Commission should follow the approach taken in its recent proceedings regulating 
cellular service in the Gulf and establish a “Gulf Coastal Zone” that would extend from the 
boundaries of the BTAs bordering the Gulf to the limit of the territorial waters of the United 
States.  Within the Gulf Coastal Zone, the holder of either the adjacent BTA authorization or the 
Gulf Service Area authorization could provide service, provided the one holder meets the new 
co-channel interference protection requirements at the other’s service area boundary.359 Fifth, 
  
350 WCA Opposition at 28, Sprint Nextel Opposition at 2-3.
351 WCA Opposition at 31, Sprint Nextel Opposition at 2-3.
352 Sprint Nextel Opposition at 6, citing 5 U.S.C. ง 553(b); WCA Opposition at 29.
353 WCA Opposition at 35-36, Sprint Nextel Opposition at 8.  See Gulf NPRM, 17 FCC Rcd at 8464 ถ 39.  
(“[D]ucting is a phenomenon whereby a radio signal is trapped within and between stratified layers of the 
atmosphere which have non-uniform refractivity indexes. This layering is caused by climatological processes such 
as subsidence, advection, surface heating and radiative cooling and the ducts created due to these factors can extend 
for distances of tens to hundreds of miles.”)  See also Letter from Paul J. Sindebrand, Esq., counsel for WCA, to 
Marlene H. Dortch, Secretary, Federal Communications Commission, WT Docket No. 06-136 (Apr. 9, 2007) (WCA 
April 9 Ex Parte).
354 WCA Opposition at 38, citing Gulf NPRM, 17 FCC Rcd at 8452-53 ถถ 17-18.
355 Sprint Nextel Opposition at 8.
356 WCA Opposition at 33, citing WCA FNPRM Comments at 39-43 and WCA FNPRM Reply Comments at 38-42.
357 WCA Opposition at 37, citing 47 C.F.R. ง 27.1206(a)(2), formerly 47 C.F.R. ง 21.933(a)(2003).
358 WCA Opposition at 37.
359 WCA Opposition at 39-40.
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subject to WCA’s proposals set forth above, operations in any new Gulf Service Area should 
generally be subject to the rules applicable to the LBS/UBS or MBS, as appropriate, and, 
specifically, Gulf operations should be required to comply with the signal strength limit at the 
boundary of the GSAs of incumbent BRS/EBS licensees and BTA authorization holders, and 
should not be excused even if non-compliance is caused by ducting.360  
122. Discussion. Although in the BRS/EBS 2nd R&O the Commission declined to 
create a Gulf Service Area for BRS or EBS and terminated the Gulf Service proceeding,361 it 
reserved the right to revisit the Gulf Service Area issue for BRS and EBS should future 
circumstances warrant.362 We now agree with API and PetroCom that we should re-establish 
service areas in the Gulf of Mexico for BRS.  It is clear that establishing BRS service areas in the 
Gulf could provide a means for meeting an important communications need in a critical area, as 
well as enhance emergency communications in the region.  Accordingly, we shall grant API’s 
petition and re-establish Gulf of Mexico Service Areas for BRS.
123. Over the course of the past two years, circumstances have significantly changed.  
In addition to the unprecedented devastation caused by Hurricanes Katrina and Rita in 2005,363
including the impact on the oil industry, we note the major Gulf of Mexico deepwater oil 
discovery in 2006.364  We further note the recent enactment of the Gulf of Mexico Energy 
Security Act of 2006,365 which has opened up 8.3 million acres of the Gulf of Mexico 125 miles 
or more from the Florida panhandle to offshore drilling. We believe that these circumstances 
warrant revisiting the issue of Gulf of Mexico Service Areas, as contemplated by the 
Commission’s decision in the BRS/EBS 2nd R&O.366 Thus, we reject the arguments of WCA and 
Sprint Nextel that API’s petition should be dismissed as procedurally defective, and, in light of 
the information presented by API, find under 1.429(b)(3) of our Rules that it is in the public 
interest to reconsider the Commission’s decision to terminate the Gulf Service proceeding.367  
124. Specifically, we are persuaded by API’s two interrelated reasons for seeking 
reconsideration of the Commission’s decision.  First, in light of the devastation caused by 
Hurricanes Rita and Katrina, API’s members have re-evaluated their communications needs in 
the Gulf of Mexico.  In particular, the oil and natural gas industry has placed increased 
importance on the use of rapidly deployable IP-enabled broadband services to support both 
permanent facilities and disaster recovery efforts.368 Although a number of commercial entities 
  
360 WCA Opposition at 40.  WCA states that for purposes of the co-channel height benchmarking rule, the distance 
to the border used in the formula D2/17 should be the distance to the border of the BTA in issue.
361 BRS/EBS 2nd R&O, 21 FCC Rcd at 5762 ถ 383.
362 BRS/EBS 2nd R&O, 21 FCC Rcd at 5762 ถ 383.
363 See, e.g., Senate Committee on Homeland Security and Governmental Affairs, Hurricane Katrina: A Nation Still 
Unprepared, 109th Cong., 2d Sess. (2006).
364 See, e.g., Chevron Announces Record Setting Well Test at Jack (Sep. 5, 2006), 
http://www.chevron.com/news/press/2006/2006-09-05.asp .
365 Gulf of Mexico Energy Security Act of 2006, Pub.L. No. 109-432, Division C, Title I.
366 BRS/EBS 2nd R&O, 21 FCC Rcd at 5762 ถ 383.
367 47 C.F.R. ง 1.429(b)(3).  See WCA Opposition at 32-33, Sprint Nextel Opposition at 2-3.
368 API Reply at 5.
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currently provide telecommunications service in the Gulf of Mexico through wireless, wireline, 
or satellite systems, we are concerned that currently the Gulf of Mexico may be an underserved 
area where spectrum licenses generally are not available.369 Moreover, some oil and gas facilities 
are too far from shore to receive wireless services from land-based providers.370 We agree with 
API that licensing BRS spectrum in the Gulf will encourage service providers to explore and 
offer new services in the underserved Gulf region.371  
125. Second, API persuasively argues that the 2495-2690 MHz band is one of the few 
bands available and adequate for operations in support of off-shore oil and gas facilities.372 With 
respect to Industrial/Business licensees, the 1850-1990 MHz band, the 2130-2150/2180-2200 
MHz band, and much of the spectrum previously available in the 2.4 GHz band, have been 
allocated for other purposes.373 Although spectrum in the 900 MHz band supports relatively 
short distance, narrow band point-to-point and point-to-multipoint systems, API notes that, above 
900 MHz, the next band with a substantial amount of available spectrum is found at 6 GHz, 
which API contends is not adequately suited for use in marine environments such as the Gulf.374  
Moreover, production platforms are often separated by too much distance to support use of 6 
GHz spectrum for point-to-point systems.375 While many energy companies and service 
providers have deployed systems in the Part 15 bands, according to API, these frequencies are 
quickly becoming saturated and unsuitable for critical applications.376 Because of the critical role 
  
369 API PFR at 8.
370 API PFR at 7.  API cites data from the Minerals Management Service of the United States Department of the 
Interior that indicates that there are approximately 4000 oil and natural gas platforms in the Gulf, 954 of which are 
manned.  About 152 companies conduct business in the Gulf related to oil and natural gas production, and 23% of 
U.S. natural gas production and approximately 30% of U.S. oil production occurs in the Federal portion of the Gulf 
of Mexico.  API states that this activity is expanding, especially in the deepwater regions of the Gulf; as of April 
2006, there were reportedly 94 wells being drilled in Gulf waters for exploration purposes, and several parties have 
sought to establish a regassification plant in the waters of the Gulf by which liquefied natural gas could be imported 
into the U.S.  Some 45 of these wells were located in areas with water depths upwards of 1000 feet, while 11 were in 
water depths of 5000 feet or greater, and exploration wells have been drilled in record water depths of over 11,000 
feet. API states that the distances these facilities are located from shore eliminate the possibility of receiving service 
from land-based providers.  Id.
371 API PFR at 8.
372 We note that the Commission has established service areas in the Gulf of Mexico in the AWS band (1710-1755 
and 2110-2155 MHz) which was auctioned in 2006, and the 700 MHz band (698-746, 747-762 and 777-792 MHz), 
auctioned in 2008.  See In re Advanced Wireless Services in the 1.7 GHz and 2.1 GHz Bands, Report and Order,
WT Docket No. 02-353, 18 FCC Rcd 25162, 25177 ถ 40  (2003) (AWS R&O); In the Matter of Service Rules for the
698-746, 747-762 and 777-792 MHz bands, Report and Order and Further Notice of Proposed Rulemaking, WT 
Docket No. 06-150, 22 FCC Rcd 8064, 8085 ถ 49  (2007) (700 MHz R&O & FNPRM).  Nonetheless, we believe 
that the potential availability of Gulf of Mexico service areas in these bands does not reduce the public interest 
benefit of establishing a Gulf of Mexico service area in this band.  
373 API PFR at 8.
374 API PFR at 8. 
375 API PFR at 7-8. 
376 API Reply at 5.
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that communications plays in ensuring the safe, effective production of oil and natural gas in the 
Gulf, we find granting API’s petition is in the public interest.377  
126. With respect to setting the boundary of the Gulf Service Area, we agree with 
WCA and establish the boundary at twelve nautical miles from the shoreline, as we proposed in 
the Gulf NPRM.378 Establishing the boundary of a Gulf Service Area at this point will ensure that 
land-based providers can provide service to land-based areas near the shore, which would not be 
the case were we to establish the boundary at the shoreline, as providers would need to limit their 
signal level at the boundary.  We believe that this approach is a balanced resolution of the matter 
and also is consistent with the rules for other Part 27 services.379 While API originally 
recommended that we establish the boundary at the shoreline, we note that API “no longer 
opposes establishing the boundary of the Gulf Service Area at 12 nautical miles from the 
shoreline to the extent that doing so would allow the Commission to move towards the greater 
objective of licensing the 2.5 GHz band in the Gulf.”380
127. We accept API’s proposal,381 unchallenged by other commenters, that the Gulf 
Service Area be divided into three zones for purposes of licensing.  In response to WCA’s 
concerns, we clarify that the Gulf Service areas will exclude any area currently occupied by an 
incumbent BRS station.  This approach is consistent with other areas, where BTA authorization 
holders may not operate in areas occupied by incumbent BRS stations.382 Finally, in light of our 
decision to set the boundary of the Gulf Service Areas twelve nautical miles from the shoreline, 
we find no basis for considering WCA’s proposal to establish a Gulf Coastal Zone where both 
the land-based BTA licensee and the Gulf of Mexico licensee may operate.  We note that when 
land-based licensees previously had overlapping service areas, such overlap often made it more 
difficult for both licensees to provide service.
128. We agree with API that the Commission’s existing technical rules should be 
applied to the Gulf Service Areas, and can easily be utilized to resolve any interference problems 
that may arise on a case-by-case basis.  Ducting is not a phenomenon that is limited to the Gulf 
of Mexico, and the record does not support separate or special rules only for the Gulf.  Using our 
existing rules has the benefit of treating all service providers equally: while land-based licensees 
will have to protect the service areas of Gulf-based licensees, Gulf-based licensees will still have 
to meet signal strength limits at the borders of their service areas, protecting land-based 
licensees.  WCA has not shown that Gulf licensees are incapable or unwilling to work out 
interference problems in the same manner as other licensees.  In addition, utilizing our existing 
rules will provide Gulf licensees with the flexibility necessary to provide service, which would 
not be the case were we to adopt WCA’s proposed rule provisions.  Gulf licensees will still have 
to meet signal strength limits at the borders of their service areas.
  
377 API Reply at 4-5.  
378 See Gulf NPRM, 17 FCC Rcd at 8453 ถ 18.
379 See 47 C.F.R. งง 27.6(a)(2), 27.6(c)(2)(i)-(ii), 27.6(h)(1)(i)-(ii).
380 Ex Parte Letter from Jack Richards, Counsel for API, to John J. Schauble, Federal Communications Commission 
(dated Jan. 10, 2007).
381 API PFR at 15.
382 See 47 C.F.R. ง 27.1206(a)(2).
Federal Communications Commission FCC 08-83 
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129. Finally, with respect to API’s proposal that we also consider whether rules 
authorizing BRS service in the offshore areas of the Atlantic and Pacific Oceans may be 
warranted,383 we see no reason to address this issue at this time.  API concedes that there is 
currently little need for licensing in these areas.384 Should circumstances change, API and other 
interested parties are welcome to return to the Commission with a more fully developed 
proposal.  
K. Leasing
1. Automatic Renewal Provisions in EBS leases executed before January 
10, 2005
130. Background. Clarendon and HITN ask the Commission to reconsider certain 
issues regarding EBS excess capacity leases.  Clarendon asks the Commission to clarify whether 
automatic renewal clauses in leases entered into before January 10, 2005 may be interpreted to 
extend the length of the lease indefinitely.385 This situation arises because of the effect of the 
Commission’s decision in the BRS/EBS R&O (applying the rules and policies of the Secondary 
Markets proceeding to EBS excess capacity leases entered into from January 10, 2005 until July 
18, 2006) on the interpretation of a boilerplate clause frequently used in EBS excess capacity 
leases.386 The boilerplate clause can be interpreted to permit automatic one-year extensions 
indefinitely, if the Commission revises its rules to permit leases to be longer than 15 years.387  
According to Clarendon, some lessees argue that because the length of leases entered into from 
January 10, 2005 to July 18, 2006 was unlimited, leases entered into before January 10, 2005 
may be extended indefinitely by operation of the boilerplate clause.388 Clarendon, however, 
states that it is unsure that this interpretation of the boilerplate clause is an accurate reflection of 
the Commission’s decision in the BRS/EBS R&O because of inconsistent statements made by the 
Commission in the BRS/EBS 3rd MO&O concerning the length of EBS leases entered into before 
January 10, 2005.389 Thus, to determine the lease term for EBS leases entered into before 
January 10, 2005, Clarendon asks that the Commission reconcile its statement in paragraph 266 
that “the length of the EBS leases entered into between January 10, 2005 and [July 18, 2006] was 
  
383 API PFR at 17.
384 API PFR at 17.
385 Clarendon PFR at 2-8.  Clarendon provides the following example of such a provision from an EBS excess 
capacity lease agreement:
Subject to the provisions for earlier termination contained in Section 10 hereof, this Amended Agreement will 
extend for: (a) an initial term of five (5) years from the Effective Date (the “Initial Term”); (b) two additional terms 
of five (5) years each (each a “Renewal Term” and collectively, the “Renewal Terms”) unless [lessee] notifies 
[lessor] at lease ninety (90) days before the end of the Initial Term or the First Renewal Term, as the case may be, 
that [lessee] elects not to extend this Amended Agreement for the upcoming Renewal Term; and (c) should the 
FCC during the Initial Term or any Renewal Term revise its rules and policies to allow the length of leases of 
ITFS excess capacity to extend beyond fifteen (15) years, such number of additional terms of one (1) year 
each as are permitted by the FCC…(emphasis in original).  Clarendon PFR at 3-4.
386 Clarendon PFR at 4-5. 
387 Clarendon PFR at 4-5. 
388 Clarendon PFR at 4-5.
389 Clarendon PFR at 4-5. 
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not limited under the Commission’s Rules” with its statement in paragraph 269 that leases 
entered into before January 10, 2005 “would be grandfathered under the then-existing EBS 
leasing framework, thus, such leases would be subject to the existing 15-year lease limitation.”390  
Clarendon notes that a state court has found that an EBS lease could not be interpreted to give a 
lessee a perpetual lease.391  
131. HITN asks the Commission to void EBS leases for one-way only video services 
entered into prior to the release of the Two-Way Order in 1998.392 In addition to the boilerplate 
clause described above, HITN contends that these leases also contain an unknown start date; 
thus, not only has the lease term been extended in perpetuity, it has not yet begun.393 As a result 
of the operation of these two clauses, HITN argues, many operators have warehoused spectrum 
for more than ten years without providing service to the public or lease payments to the 
licensees/lessors.394 And, HITN surmises, lessees intend to continue warehousing spectrum to 
pressure licensees/lessors who want to take advantage of the new rules into unfavorable lease 
negotiations or costly litigation.395 HITN further surmises that lessees are using the May 1, 2011 
substantial service deadline to further pressure licensee/lessors to renegotiate their leases within 
the next few years.396 HITN requests that, given the present inability of operators to launch and 
operate new wireless cable video systems on the majority of this spectrum band, the Commission 
should declare void all legacy video-only leases entered into under pre-1998 rules, the terms of 
which have never commenced.397  
132. Clearwire, CTN, NIA, and IMWED support the petitions of Clarendon and HITN 
and ask that the Commission clarify its position on whether EBS excess capacity leases entered 
into before January 10, 2005, can be interpreted to run in perpetuity.398 Clearwire states that 
although it believes that the Commission should not become involved in the interpretation of 
terms of commercial agreements such as EBS leases, it strongly agrees with Clarendon that the 
  
390 Clarendon PFR at 2-4.  See also BRS/EBS 3rd MO&O, 21 FCC Rcd at 5715-5716 ถถ 266, 269.  
391 See Nextwave Broadband, Inc. v. Saint Rose Church Schools, Order, Superior Court of New Jersey, Mercer 
County, Chancery Division, Docket No. C-53-06 (June 16, 2006); Clarendon PFR at 7 n.5; HITN PFR at 7 n.12.  
392 HITN PFR at 6 and 7 n.12.
393 HITN PFR at 7.  HITN states that as perhaps the largest licensee of EBS spectrum, it is duty-bound to bring this 
situation to the attention of the Commission.  Furthermore, HITN states that it is not asking the Commission to 
extricate it from spectrum leases that it executed.  HITN states that it has no leases for any of its 70 stations that 
contain these one-sided lease clauses.  HITN Reply at 8-9.
394 HITN PFR at 7 n.12.  HITN states that these leases have an unknown start date because the initiation of the term 
is triggered by commencement of wireless cable video services, construction of the wireless cable video system, or 
service provision of the first wireless cable video subscriber – none of which, in the vast majority of cases, ever 
occurred, and which now cannot occur.  HITN PFR at 7 n.12.
395 HITN Reply at 9.
396 HITN Reply at 9.
397 HITN PFR at 7 n.12.
398 Clearwire Opposition at 9, CTN/NIA Opposition at 5-6, IMWED Opposition at 6. 
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Commission should declare such an interpretation a violation of public policy.399 IMWED also 
supports Clarendon’s and HITN’s petitions concerning lease limitations.400  
133. WiMAX, WCA, Sprint Nextel, and BellSouth oppose the petitions and argue that 
the Commission should not become involved in the interpretation of private contractual 
agreements.401 They argue that individualized agreements need individualized scrutiny.402  
BellSouth further argues, as does Sprint Nextel, that one-way video leases may not be obsolete 
as HITN describes because if there is sufficient demand for these services, the Commission’s 
Rules provide BRS/EBS licensees with the flexibility to provide these applications.403  
134. Discussion. The Commission's policy regarding the length of EBS leases has 
evolved since it first permitted EBS licensees to lease excess capacity in 1983.  Originally, the 
Commission’s policy prohibited an EBS licensee from executing a lease agreement that extended 
beyond the 10-year license term because such provisions were viewed as inconsistent with the 
terms of the license.404 In 1995, however, the Commission changed its policy to permit an EBS 
licensee to enter into a 10-year lease agreement without regard to the duration of the licensee’s 
license term, but required the lease to note that such an extension was contingent on the renewal 
of the license.405 In 1998, in the Two-Way Order, the Commission again changed its policy and 
permitted an EBS licensee to enter into 15-year lease agreement, and again required that the 
lease specify that such an extension be subject to the renewal of the underlying license.406 The 
Commission also grandfathered existing EBS excess capacity leases entered into before March 
31, 1997.407 In 2000, in the Two-Way Order on Further Reconsideration, the Commission 
further grandfathered EBS excess capacity leases entered into before March 31, 1997 that 
  
399 Clearwire Opposition at 9.
400 IMWED Opposition at 6.
401 WiMAX Opposition at 6-7, WCA Opposition at 24-25, Sprint Nextel Opposition at 18, BellSouth Reply at 4-5.
402 WCA Opposition at 27, BellSouth Reply at 5, Sprint Nextel Reply at 4.  
403 BellSouth Reply at 5-6, citing Sprint Nextel Opposition at 19.
404 Amendment of Part 74 of the Commission’s Rules with Regard to the Instructional Television Fixed Service, 
MM Docket No. 93-24, Report and Order, 10 FCC Rcd. 2907,2914 ถ 38 (1995).
405 Amendment of Part 74 of the Commission’s Rules with Regard to the Instructional Television Fixed Service, 
MM Docket No. 93-24, Report and Order, 10 FCC Rcd. 2907,2914 ถ 38 (1995).
406 Amendment of Parts 21 and 74 to Enable Multipoint Distribution Service and Instructional Television Fixed 
Service Licensees to Engage in Two-Way Transmissions, MM Docket No. 97-217, Report and Order, 13 FCC Rcd 
19112, 19183-18184 ถถ 133-134 (1998) (Two-Way Order).
407 Two-Way Order, 13 FCC Rcd at 19181 ถ 130.  See also Amendment of Parts 1, 21 and 74 to Enable Multipoint 
Distribution Service and Instructional Television Fixed Service Licensees to Engage in Fixed Two-Way 
Transmissions, MM Docket 97-217, Report and Order on Reconsideration, 14 FCC Rcd. 12764, 12791 ถ 59 (2000) 
(Two-Way Order on Reconsideration).  The Commission originally declined to grandfather leases subject to 
automatic renewal after March 31, 1997 because grandfathering these leases could have permitted them to continue 
in perpetuity under the rules adopted prior to the Two-Way Order.  The Commission reversed this decision when the 
petitioners assured the Commission that the leases that would be grandfathered could have a total term of ten years.  
Amendment of Parts 1, 21 and 74 to Enable Multipoint Distribution Service and Instructional Television Fixed 
Service Licensees to Engage in Fixed Two-Way Transmissions, MM Docket 97-217, Report and Order on Further 
Reconsideration and Further Notice of Proposed Rulemaking, 15 FCC Rcd. 14566, 14569-14570 ถ 11 (2000) (Two-
Way Order Further Recon).
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contained an automatic renewal clause that would be effective after March 31, 1997, provided 
that the total term of the lease did not exceed 15 years.408
135. In 2004, in the BRS/EBS R&O, the Commission applied the Secondary Markets 
rules to EBS excess capacity leases executed between January 10, 2005 and July 18, 2006.  In 
2006, in the BRS/EBS 3rd MO&O, the Commission modified the application of the rules and 
policies of the Secondary Markets proceeding to EBS leases.409 With regard to EBS leases, the 
Commission stated that although the rules and policies of the Secondary Markets proceeding 
applied to EBS leases, EBS licensees may enter into an excess capacity lease agreement for 30 
years so long as the lease agreement ensures that EBS licensees retain the right to review their 
educational use requirements at year 15 and every 5 years thereafter.410 Moreover, the 
Commission permitted the use of “rights of first refusal” clauses, but prohibited the use of 
automatic renewal clauses.411 The Commission then clarified that the length of EBS excess 
capacity leases entered into between January 10, 2005 and July 18, 2006, was not limited 
because such EBS excess capacity leases were entered into under the Secondary Markets rules 
and policies.412 The Commission reaffirmed that EBS excess capacity leases entered into before 
January 10, 2005 are grandfathered under the “then-existing EBS leasing framework, thus, such 
leases would be subject to the existing 15-year lease limitation.”413
136. We first turn to the question of whether EBS excess capacity leases entered into 
before January 10, 2005 may be interpreted consistent with the Commission’s Rules to last 
indefinitely.  We agree with Sprint Nextel, WCA, BellSouth, and WiMAX that we should not 
resolve this issue by interpreting private contractual agreements.  The interpretation of private 
contractual agreements is best left to the individual state courts and, therefore, we reject the 
recommendations of Clearwire, IMWED, and Clarendon to find such an interpretation to be a 
violation of public policy.  The resolution of this issue, however, does not depend on the 
application of that particular principle of administrative law.  This issue is resolved by clarifying 
the rules and policies adopted by the Commission in the Two-Way Order, the BRS/EBS R&O, 
and the BRS/EBS 3rd MO&O.  The Commission stated in the BRS/EBS R&O, and reiterated in 
the BRS/EBS 3rd MO&O, that EBS leases executed before January 10, 2005 are limited to a term 
of 15 years from the date of execution.  To the extent that these leases contain an automatic 
renewal clause, such leases are grandfathered after January 10, 2005 if they have an automatic 
renewal clause effective after January 10, 2005, only to the extent that such leases do not exceed 
15 years in total length (including the automatic renewal period(s)).  This decision is consistent 
with the Commission’s decision in the Two-Way Order on Reconsideration.  Thus, these leases 
cannot be extended in perpetuity.  To further clarify, lease terms for EBS leases entered under 
the rules and policies of the BRS/EBS R&O (those entered into between January 10, 2005 and 
July 18, 2006) are not limited by the Commission’s rules (but are subject to relevant state laws 
limiting the length of contracts).  Leases entered into under the rules and policies of the BRS/EBS 
  
408 Two-Way Order Further Recon., 15 FCC Rcd at 14569-14570 ถ 11.
409 BRS/EBS 3rd MO&O, 21 FCC Rcd at 5715 ถ 266.  
410 BRS/EBS 3rd MO&O, 21 FCC Rcd at 5716 ถ 268.  
411 BRS/EBS 3rd MO&O, 21 FCC Rcd at 5716 ถ 270.  
412 BRS/EBS 3rd MO&O, 21 FCC Rcd at 5716 ถ 269.  
413 BRS/EBS 3rd MO&O, 21 FCC Rcd at 5715 ถ 266.  
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3rd MO&O (on or after July 19, 2006) may be up to 30 years in length, so long as the EBS 
licensee retains the right at year 15 and every 5 years thereafter to review its educational needs.  
137. We next turn to the question of whether the Commission should void EBS leases 
for one-way only video services entered into prior to the release of the Two-Way Order.  While 
we are concerned by the situation described by HITN, we do not have the authority to void 
contracts executed by two private parties under the laws of individual states.  We also agree with 
Sprint Nextel, WCA, WiMAX, and BellSouth, that even if we could void private contracts, such 
an action would deter private parties from entering into spectrum leasing agreements not only in 
the 2.5 GHz band (60 percent of which is licensed to EBS entities), but also in other bands as 
well, thus creating uncertainty among all parties that have entered into or are contemplating 
agreements under our Secondary Markets rules and policies.414 We find, however, that the 
alleged unknown start date is contrary to the rules and policies adopted by the Commission in the 
Two-Way Order, which limited the term of EBS leases to 15 years from the date they are 
executed between the parties.  Any other interpretation of the Two-Way Order would permit the 
warehousing of valuable spectrum for decades and is contrary to the underlying purpose of the 
rule.  Therefore, we conclude that video-only leases executed more than 15 years ago have 
expired under the terms of the Two-Way Order.  Aggrieved EBS licensees subject to these one-
way only video lease agreements that have not yet expired must renegotiate them or pursue 
contractual remedies through the State courts or through an alternative dispute resolution 
process.   
2. Equipment on Lease Termination
138. Background.  In the BRS/EBS 3rd MO&O, the Commission amended Section 
27.1214(c) to clarify that the EBS licensee/lessor could “purchase or lease dedicated common 
equipment used for educational purposes in the event that the spectrum leasing arrangement” 
was terminated by either the EBS licensee/lessor or the lessee.415 WCA asks that the 
Commission amend Section 27.1214(c) of the Rules to further clarify that a lessee of EBS 
spectrum has the option of offering the EBS licensee/lessor either the actual equipment used on 
its own channels or comparable equipment on termination of the lease.416 WCA maintains that it 
appears that the rules adopted in the BRS/EBS 3rd MO&O require the lessee to offer the EBS 
licensee/lessor the actual equipment deployed by the lessee, including equipment shared among 
multiple licensees within a single system, which is inconsistent with Commission policy.417  
WCA maintains that Commission policy has recognized that lessees of EBS spectrum, by 
necessity, must cobble together spectrum from multiple licensees and therefore the equipment 
used in the system will not be devoted to a single licensee.418 Therefore, WCA asks that the 
Commission amend Section 27.1214(c) to permit the lessee the option of offering the EBS 
licensee/lessor either the equipment actually used in the system or comparable equipment on 
  
414 WiMAX Opposition at 7, WCA Opposition at 27, Sprint Nextel Opposition at 22-23.
415 BRS/EBS 3rd MO&O, 21 FCC Rcd at 5717 ถ 272.
416 WCA PFR at 13-15.
417 WCA PFR at 13-14.
418 WCA PFR at 13-14.
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termination of the lease by the EBS licensee/lessor or the lessee.419 WiMAX, CTN, and NIA 
support WCA’s petition on this issue.420
139. Discussion.  We agree with WCA and the other parties that the proposed rule 
change is an appropriate modification that reflects the fact that equipment is often shared among 
multiple licensees.  We therefore amend Section 27.1214(c) of our Rules accordingly.
L. Substantial Service
1. Credit for Discontinued Service
140. Background. BellSouth asks the Commission to permit a licensee to demonstrate 
substantial service by showing that it met a safe harbor at anytime during the license term – that 
is, that licensees be permitted to use past-discontinued service to meet the substantial service 
standard.421 BellSouth argues that the Commission’s decision in the BRS/EBS 2nd R&O to 
permit past-discontinued service to be considered as just a factor in meeting the substantial 
service standard is inconsistent with the Commission’s decision in the BRS/EBS R&O to 
eliminate the discontinuance of service rules and permit licensees to go dark during the 
transition.422 BellSouth also argues that the record supports its position because commenters
favored a rule that would acknowledge past-discontinued service as substantial service rather 
than a rule that looked only at a snapshot taken at a particular point in the term.423 BellSouth also 
cites as support a WTB decision where a microwave licensee met the substantial service standard 
because it satisfied a safe harbor during its license term.424 BellSouth argues that it relied on the 
Commission’s decision in the BRS/EBS R&O by curtailing its legacy wireless cable video 
services and investing in pioneering technology testing and market trials.425 BellSouth argues 
that the Commission cannot achieve its goal of radically changing the services offered in the 2.5 
GHz band if licensees are forced to continue legacy operations solely to preserve their 
authorizations.426 In supporting BellSouth, Ad Hoc MDS Alliance explains that using prior 
service as just a factor in a substantial service showing particularly disadvantages BRS Channels 
1 and 2/2A licensees because those licensees were in limbo for more than a decade when the 
Commission announced plans to relocate them from the 2.1 GHz band in favor of AWS.427 In 
opposing BellSouth, Clearwire argues that the Commission struck the appropriate balance in the 
  
419 WCA PFR at 13-14.
420 WiMAX Opposition at 14, CTN/NIA Opposition at 4.
421 BellSouth PFR at 1-2.
422 BellSouth PFR at 3, 5.
423 BellSouth PFR at 5.
424 BellSouth Reply at 3, citing Biztel, Inc., Memorandum Opinion and Order, 18 FCC Rcd 3308 (WTB/PSPWD 
2003).
425 BellSouth PFR at 4.
426 BellSouth PFR at 3.
427 Ad Hoc MDS Alliance Opposition at 6.
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BRS/EBS 2nd R&O between spurring broadband deployment at 2.5 GHz and considering prior 
operations and other factors in adopting substantial service requirements.428
141. Discussion.  In the BRS/EBS 2nd R&O, the Commission adopted a substantial 
service standard, with safe harbors, as the performance requirement for BRS and EBS licensees 
in the 2495-2690 MHz band and required BRS and EBS licensees to demonstrate substantial 
service no later than May 1, 2011.429 In addition, the Commission stated that it would consider 
prior service, even if discontinued, as a factor in determining whether a licensee met the 
substantial service standard, but stressed that the most significant consideration in evaluating 
substantial service demonstrations is the licensee’s current service.430  
142. We decline to grant BellSouth’s request to permit past-discontinued service to be 
used as the sole factor to demonstrate substantial service.  The Commission adopted a substantial 
service standard to ensure the prompt delivery of service to rural areas, to prevent stockpiling or 
warehousing of spectrum by licensees or permittees, to promote investment in and rapid 
deployment of new technologies and services, and to facilitate the availability of broadband to all 
Americans.431 Permitting licensees to demonstrate substantial service by using past-discontinued 
service alone would not achieve any of these goals.  Nevertheless, the Commission, by 
permitting the use of past-discontinued service as a factor in the substantial service 
determination, struck the appropriate balance between encouraging broadband development in 
the 2.5 GHz band and recognizing that licensees were permitted to discontinue service in 
anticipation of the transition to the new band plan and technical rules.  If we were to adopt 
BellSouth’s recommendation, we would permit licensees to forego providing any service in the 
2.5 GHz band from January 10, 2005 (the date licensees were permitted to discontinue service) 
until beyond May 1, 2011 (the date licensees must demonstrate substantial service under the new 
rules).  Moreover, we note that the Commission gave licensees additional flexibility to meet the 
substantial service standard by adopting five safe harbors applicable to BRS and EBS licensees 
(one safe harbor applicable solely to EBS licensees) and a rule that a licensee would be deemed 
to be providing substantial service if its lessee was providing substantial service.432  
2. Safe Harbors -- heavily encumbered or highly truncated GSAs and 
BTAs
143. Background.  WCA asks that the Commission adopt a special safe harbor to 
address situations in which a licensee’s GSA is either heavily encumbered by incumbent 
licensees or truncated through the splitting the football process to the point that the licensee 
cannot be expected to meet current safe harbors and comply with the restrictions on signal level 
at the GSA border and the height benchmarking requirements.433 With regard to heavily 
encumbered BTAs, WCA recommends that the Commission consider deployments within the 
  
428 Clearwire Opposition at 8.
429 BRS/EBS 3rd MO&O, 21 FCC Rcd at 5720, 5733 ถถ 278, 304.  
430 BRS/EBS 3rd MO&O, 21 FCC Rcd at 5735 ถ 307.  
431 BRS/EBS 3rd MO&O, 21 FCC Rcd at 5720 ถ 278.  
432 BRS/EBS 3rd MO&O, 21 FCC Rcd at 5726-5729 ถถ 288, 292, 294.  
433 WCA PFR at ii.
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BTA on all spectrum owned or leased by the BTA authorization holder or its lessee.434  
Specifically, WCA recommends that where a BRS BTA authorization holder’s GSA is less than 
one-half the size of the BTA on every BRS channel included in its BTA license, it should be 
permitted to invoke a special safe harbor under which all of its lessee’s deployments on BRS 
channels within the BTA will be considered.435 With regard to highly truncated GSAs, WCA 
recommends that an incumbent BRS or EBS licensee be deemed to have provided substantial 
service when the GSA for all of its channels is less than 1924 square miles in size (i.e., is less 
than one-half of a 35-mile radius circle) and the licensee satisfies one of the safe harbors in 
Section 27.14(e) of the Commission’s Rules (adopted by the Commission in the BRS/EBS 2nd 
R&O)436 in its former PSA (including areas that are within overlapping co-channel incumbent 
GSAs licensed to or released by the licensee or its lessee).437 WiMAX supports WCA’s position, 
and CTN and NIA support WCA’s position with regard to EBS licensees.438
144. Discussion.  We agree with WCA that it is appropriate to give some relief to 
licensees whose GSAs are heavily truncated to remedy a situation created by several factors.  
First, for BRS BTA licensees, this situation arises because the Commission auctioned a 
substantial number of BTAs that were so heavily encumbered that it is difficult for the BRS BTA 
authorization holder to locate a station anywhere in the BTA and provide interference-free 
service and the necessary interference protection to incumbents' areas.439 Second, for BRS and 
EBS site-based licensees, this situation arises in a limited number of situations (particularly 
among EBS stations that tend to be more closely spaced than BRS stations) when splitting the 
football results in a GSA so highly truncated that a licensee cannot be reasonably expected to 
comply with the restrictions on signal level at the GSA boundary and the height benchmarking 
  
434 WCA PFR at 17.
435 WCA PFR at 17.
436 We note that subsequent to the adoption of the BRS/EBS substantial service rule, the rule was deleted in another 
proceeding unrelated to BRS/EBS.  See Service Rules for the 698-806 MHz Band, Revision of the Commission's 
Rules Regarding Public Safety Spectrum Requirements, and a Declaratory Ruling on Reporting Requirement under 
the Commission's Anti-Collusion Rule, 72 Fed. Reg. 48814-01 (Aug. 24, 2007).  This deletion was an error.  We 
conclude that the best means of correcting this error is to readopt the original rule, together with the changes we 
adopt today, as Section 27.14(o) of the Commission’s Rules.
437 WCA PFR at 18.
438 WiMAX Opposition at 14, CTN/NIA Opposition at 4-5.
439 WCA PFR at 15.  In auctioning the BRS frequencies the Commission stated:
[W]e realize that a number of BTA service areas may be so encumbered that the winning bidder for such a BTA 
may be unable to file a long-form application proposing another MDS station within the BTA while meeting the
Commission’s interference standards as to all previously authorized or proposed MDS and ITFS facilities.  The 
winning bidder’s objective in bidding on such a heavily encumbered BTA would likely be to purchase the 
previously authorized or proposed MDS stations within that BTA, and the bidder’s goal in obtaining the 
authorization for the BTA in which it already had MDS stations would similarly be to preserve full flexibility to 
make modifications.
Amendment of Parts 21 and 74 of the Commission’s Rules With Regard to Filing Procedures in the Multipoint 
Distribution Service and in the Instructional Television Fixed Service and Implementation of Section 309(j) of the 
Communications Act - Competitive Bidding, Report and Order, MM Docket No. 94-131, 10 FCC Rcd 9589, 9656 ถ 
152 (1995).  WCA PFR at 16.  
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rule, and still be able to meet a quantitative safe harbor.440 According to WCA, in most cases, the 
neighboring co-channel facilities are likely under common ownership or lease.441 Third, the 
Commission's decision in the BRS/EBS 2nd R&O to require a licensee to demonstrate substantial 
service on a per license basis, rather than on a per system basis, makes it impossible in the 
situations described above for these licensees to meet a substantial service standard without a 
special safe harbor applicable solely to them.
145. Under those circumstances, we will adopt a rule allowing licensees whose GSA is 
less than 1924 square miles in size to demonstrate substantial service by combining its GSA with 
an overlapping co-channel station licensed or leased by the licensee or its affiliate.  The licensees 
would need to demonstrate substantial service with respect to the combined GSAs of both 
stations.  As an example, assume that a licensee offering fixed service intended to meet the six 
links per million safe harbor, and that licensee had two overlapping co-channel licenses, one of 
which had a GSA less than 1924 square miles in size.  If the combined population within the 
GSAs was two million people, the licensee could meet the safe harbor by demonstrating that it 
had 12 active links within the combined GSAs of both stations.  For BRS BTA authorization 
holders, we will adopt a similar rule if the GSA of a BTA authorization holder is less than one-
half of the area within the BTA for every BRS channel.  While the rule text is different from 
what WCA proposed, we believe the adopted rule provides the relief that WCA seeks.  
M. EBS Eligibility
1. Nonprofit Educational Organizations
146. Background. HITN asks the Commission to make minor changes to conform 
Section 27.1201(a)(3) of the Commission’s Rules to the changes made by the Commission in the 
BRS/EBS 3rd MO&O.442 Section 27.1201(a)(3) permits the following entities to be eligible for 
EBS licenses: accredited educational institutions; governmental organizations engaged in the 
formal education of enrolled students; and nonprofit organizations whose purposes are 
educational and include providing educational and instructional television material to such 
accredited educational institutions or governmental organizations.443 Nonprofit organizations 
must establish eligibility through the provision of services to the enrolled students of another 
accredited educational institution or governmental entity.444 Section 27.1201(a)(3) requires these 
non-profit applicants to provide documentation from proposed receive sites demonstrating they 
will receive and use the non-profit applicants’ educational usage.445 Section 27.1201(a)(3) also 
  
440 WCA PFR at 18.
441 WCA PFR at 18.
442 On September 1, 2005, in a separate proceeding, Possible Revision or Elimination of Rules Under the Regulatory 
Flexibility Act, 5 U.S.C. ง 610 in response to Public Notice DA-05-1524, HITN submitted comments seeking the 
same revisions to the EBS eligibility requirements of Section 27.1201(a)(3).  HITN notes that these comments are 
directly related to changes recently made by the Commission in this WT Docket No. 03-66 and requests that the 
Commission address those comments here.  HITN PFR at 9-10.  See also Letter from Joel D. Taubenblatt, Chief, 
Broadband Division, WTB, to Rudolph J. Geist, Esquire, RJGLaw LLC (dated Aug. 21, 2006).
443 47 C.F.R. ง 27.1201(a).
444 47 C.F.R. ง 27.1201(a).
445 47 C.F.R. ง 27.1201(a)(3).
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states that “[n]o receive site more than 35 miles from the transmitter site shall be used to 
establish basic eligibility.”446  
147. HITN asks that the rule be modified in two respects.  First, HITN recommends 
that the Commission amend Section 27.1201(a)(3) of the Commission’s Rules to clarify that an 
educational institution may receive education-enhancing broadband services, which it intends to 
use in furtherance of its educational mission.447 HITN notes that Section 27.1201(a)(3) of the 
Commission’s Rules, as originally crafted, anticipated the provision of letters from accredited 
schools regarding their intent to receive and use educational video programming.448 HITN 
argues that many entities qualifying to operate EBS stations will be contemplating the provision 
of educational content or education facilitating services that may not include instructional video 
programming created by, or packaged for delivery by, the EBS licensee.449 HITN states that in 
the case of broadband services, an educational institution may be interested in receiving and 
using any of the following types of services at fixed, temporary fixed, or mobile sites: voice over 
IP; one or two-way streamed video content; teleconferencing and remote classroom hookups; 
high speed Internet or data services; and wireless local or wide area networks.450 Therefore, 
HITN notes that the requirement letter would recognize the reality that educational content 
available over the World Wide Web and downloaded at any specific site is essentially user-
directed.451 HITN argues that neither the service provider nor the site’s school administrator can 
preview or make specific advance statements regarding the content that will be accessed.452  
According to HITN, the most that can be said is that the services will be used in the furtherance 
of the receiving institution’s educational mission and will be made available to enrolled students, 
faculty and staff in a manner and in a setting conducive to such usage.453  
148. Second, HITN asks that Section 27.1201(a)(3) be changed to reflect the transition 
of the EBS service from a site-based to a geographic licensing structure.454 Thus, HITN asks that 
restrictive language in Section 27.1201(a)(3) regarding the absolute distance from the transmit 
site for qualified schools supplying letters should be based on distance from the proposed center 
reference point, and should be further qualified to ensure that such school will be within the 
proposed geographic service area.455 Clearwire, CTN, and NIA also support a re-examination 
and revision of those EBS eligibility and substantive use rules to better reflect the current 
permitted uses of this spectrum.456  
  
446 47 C.F.R. ง 27.1201(a)(3).
447 HITN PFR at 11.
448 HITN PFR at 10.
449 HITN PFR at 10.
450 HITN PFR at 10-11.
451 HITN PFR at 11.
452 HITN PFR at 11.
453 HITN PFR at 11.
454 HITN PFR at 11.
455 HITN PFR at 11.
456 Clearwire Opposition at 9, CTN/NIA Opposition at 5-6.
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149. Discussion.  We agree with HITN that it is appropriate to update the EBS 
eligibility rules to reflect the wider variety of services EBS licensees will use and offer.  In 
particular, as written, the rules contemplate video programming where the licensee will know the 
specific content being offered in advance.  With the provision of broadband services, HITN is 
correct that it will be impossible for the licensee to know in advance what content is being 
accessed.  We will adopt the rule changes proposed by HITN, and supported by commenters, in 
order to reflect the wider variety of services being used by EBS licensees.  Furthermore, we 
agree with HITN that it is appropriate to make its proposed changes to the rule to reflect the 
advent of geographic area licensing.  We will amend our rules accordingly.
2. Commercial EBS Licensees
150. Background.  WCA asks that the Commission amend paragraph (d) of Section 
27.1201 of the Commission’s Rules to clarify that commercial EBS licensees are not subject to 
the educational programming requirements in Section 27.1203(b)-(d) of the Commission’s Rules 
or the special EBS leasing requirement under Section 27.1214 of the Commission’s Rules.457  
WCA notes that these changes are necessary to clarify that, although the Commission continues 
to regulate commercial EBS licensees under the EBS rules, neither the instructional 
programming requirements nor the special EBS leasing rules apply to commercial EBS 
licensees.458
151. Discussion.  We agree with WCA that the proposed change accurately reflects our 
intentions and is consistent with the nature of commercial EBS stations.  We therefore amend our 
rules accordingly.
N. Mutually Exclusive Applications
152. Background. HITN asks the Commission to reconsider its decision dismissing six 
HITN applications to construct new stations as mutually exclusive with other pending new 
station applications.459 First, HITN argues that, although it previously sought reconsideration of 
the dismissal of these applications, the Commission failed to provide a reasoned decision in the 
BRS/EBS 3rd MO&O to HITN’s numerous arguments and thus, should again reconsider this 
issue.460 Second, HITN claims that the decision to dismiss the mutually exclusive applications 
was arbitrary and capricious because the Commission failed to give a reasoned explanation of 
how the dismissals would further the Commission’s stated goals, why the Commission is 
deviating from stated policy, and how the goal achieved justifies the effects of dismissing the 
applications.461 Third, HITN argues, the Commission made inconsistent statements regarding the 
dismissal of the applications, and argues that the Commission should auction these discrete 
geographic areas to resolve these mutually exclusive applications.462 HITN also states that it is 
  
457 WCA PFR at ii and 22-23.  See also WiMAX Opposition at 14 in support of WCA’s PFR.
458 WCA PFR at ii and 23.  
459 HITN PFR at ii and 3.
460 HITN PFR at 3.
461 HITN PFR at 5.
462 HITN PFR at 3-4.
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ready and willing to construct and transition stations in order to provide wireless broadband 
services immediately.463 Clearwire seconds HITN’s position that the proposed plan to auction 
the white space after the adoption of auction rules will limit the development of wireless 
broadband and educational services in the geographic areas where the pending mutually 
exclusive licenses were dismissed.464 Clearwire argues that reinstating the applications would 
facilitate the transition by identifying an operator that would serve as a proponent for that 
specific geographic area.465 Clearwire also suggests that if the mutually exclusive pending 
applications are granted, the licensees should be denied transition rights.466
153. Clearwire argues that the public interest would be better served if EBS licensees 
were given one more chance to demonstrate their intention to provide educational services and to 
facilitate broadband deployment.467 Clearwire states that the spectrum would be able to be 
utilized immediately by educators and commercial broadband operators.468 Finally, Clearwire 
argues that reinstating the dismissed mutually exclusive licenses would allow the Commission to 
fulfill its policy objectives in a more timely fashion.469
154. WCA argues that the decision to dismiss mutually exclusive applications 
“represents a reasonable determination that the most efficient mechanism for moving to EBS 
geographic licensing and the auctioning of unlicensed EBS white space is to wipe the slate as 
clean as possible.”470 WCA accuses HITN of ignoring the Commission’s discretion to manage 
the Commission’s processes through doctrines of general applicability.471
155. Discussion.  In the BRS/EBS 3rd MO&O, the Commission affirmed its decision 
not to reconsider the dismissal of pending mutually exclusive applications for new EBS 
stations.472 The Commission stated that its decision was supported by well-established 
Commission precedent (to dismiss pending mutually exclusive applications when converting 
from a site-based to a geographic area licensing scheme), was in the public interest (to facilitate 
the transition of the 2.5 GHz band), and resolved long-standing apparently intractable issues.473  
156. We deny WCA’s request that we dismiss HITN’s petition as repetitious under 
Section 1.429(i) of the Commission’s Rules.474 HITN argues that the Commission neither 
  
463 HITN PFR at 4.
464 Clearwire Opposition at 5.  See also Ex Parte Letter from Terri B. Natoli, Clearwire to Marlene H. Dortch, 
Federal Communications Commission (filed Nov. 7, 2006) at 1.
465 Clearwire Opposition at 6.
466 Clearwire Opposition at 6.
467 Clearwire Opposition at 6.  
468 Clearwire Opposition at 6.
469 Clearwire Opposition at 7.
470 WCA Opposition at 18.
471 WCA Opposition at 18.
472 BRS/EBS 3rd MO&O, 21 FCC Rcd at 5703-5704 ถ 236.
473 BRS/EBS 3rd MO&O, 21 FCC Rcd at 5703-5704 ถ 236.
474 47 C.F.R. ง 1.429(i).
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adequately explained why it dismissed the mutually exclusive applications nor responded to the 
numerous arguments HITN raised in its petition for reconsideration of the BRS/EBS R&O.475 We 
disagree with HITN’s contention and note that this issue has twice been discussed and resolved 
by the Commission.  In the interests of developing a full and complete record on this issue, 
however, we will not dismiss HITN’s petition on procedural grounds, but will instead address 
HITN’s arguments here.
157. We reject HITN’s argument that the Commission’s dismissal of the mutually 
exclusive applications was inconsistent with precedent.  Specifically, HITN argues that the 
Commission’s decision in the BRS/EBS 3rd MO&O was based on the Maritime Services 
Order,476 (where the Commission froze the acceptance of new applications while changing 
service rules from site-based licensing to geographic area licensing).477 HITN argues that the 
Maritime Services Order misconstrued the D.C. Circuit’s holding in Kessler v. FCC.478  
According to HITN, Kessler holds that while the Commission does have procedural rights under 
the APA to institute application filing freezes in the name of administrative efficiency and 
convenience, it may not take away substantive rights of which parties are entitled to have 
applications processed that have been accepted for filing.479  
158. We disagree with HITN’s analysis of Kessler and agree with WCA’s analysis.480  
In Kessler, the D.C. Circuit found that Ashbacker481 procedural rights apply to potential 
applicants whose applications would have been mutually exclusive but for an application filing 
freeze.482 Here, however, the implementation of the filing freeze on April 2, 2003 (the release
date of the BRS/EBS NPRM) had no effect on the mutual exclusivity of HITN’s applications.483  
Those applications had been pending for years, unable to be processed, because the parties could 
not privately reach a settlement to resolve mutual exclusivity.  When the Commission initiated a 
rulemaking to develop a new, more efficient licensing scheme, it dismissed all mutually 
exclusive applications that did not have a settlement agreement on file with the Commission by 
April 2, 2003.484 The Commission’s decision was not only consistent with past Commission 
decisions -- such as the dismissal of pending mutually exclusive applications when transitioning 
  
475 HITN PFR at 3.
476 Amendment of the Commission’s Rules Concerning Maritime Communications, Second Report and Order, PR 
Docket No. 97-257, 12 FCC Rcd 16949 (1997) (Maritime Services Order).
477 Ex Parte Letter from Rudolph J. Geist, Counsel, HITN to Marlene H. Dortch, Federal Communications 
Commission (filed Oct. 23, 2006) at 1.
478 Ex Parte Letter from Rudolph J. Geist, Counsel, HITN to Marlene H. Dortch, Federal Communications 
Commission (filed Oct. 23, 2006) at 1, citing Kessler v. FCC, 326 F.2d 673 (D.C. Cir. 1963).
479 Ex Parte Letter from Rudolph J. Geist, Counsel, HITN to Marlene H. Dortch, Federal Communications 
Commission (filed Oct. 23, 2006) at 2.
480 Ex Parte Letter from Paul J. Sinderbrand, Counsel, WCA to Marlene H. Dortch, Federal Communications 
Commission (filed Oct. 30, 2006) at 4-5.
481 Ashbacker Radio Corp. v. FCC, 326 U.S. 327 (1945).
482 Kessler v. FCC, 326 F.2d at 687-688.
483 BRS/EBS NPRM, 18 FCC Rcd at 6813 ถ 226.
484 BRS/EBS R&O, 19 FCC Rcd at 14264-14265 ถ 263.
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the paging industry, the maritime industry, and the 39 GHz band to geographic area licensing485 -
- but also was consistent with the D.C. Circuit’s decision to uphold the Commission’s decision to 
dismiss pending mutual exclusive applications when the Commission adopted a new licensing 
scheme for the 39 GHz band.486  
159. Second, we disagree with HITN’s assertion that the Commission’s decision was 
arbitrary and capricious.  As detailed above, the Commission’s decision was consistent with our 
policies and with case law.  The dismissal of the mutually exclusive applications was necessary 
because neither the Commission nor the parties could resolve this mutual exclusivity under the 
then applicable site-based licensing scheme.  The dismissal of those applications, therefore, 
furthers the Commission’s goal of developing a licensing scheme that not only resolves issues of 
mutual exclusivity, but also ensures the efficient use of EBS spectrum by educators.  The 
Commission’s decision to license EBS stations on a geographic basis is the first step toward 
achieving that goal.  Today, we take the second step, by releasing a Second Further Notice of 
Proposed Rulemaking in which we seek comment on various options to license EBS spectrum.  
Permitting mutually exclusive applications to stay in pending status for years does not advance 
our goal of promoting the efficient use of EBS spectrum by educators, and thus, the Commission 
dismissed them.  
160. Third, we disagree with HITN’s assertion that the Commission has made 
inconsistent statements with regard to dismissing the mutually exclusive applications.  
Specifically, HITN faults the Commission for concluding that dismissing mutually exclusive 
applications would allow for a more efficient transition while stating in the BRS/EBS 3rd MO&O
that, “it may be possible to make new licenses available in a way that does not interfere with 
potential transitions to the new band plan.”487 We disagree that any inconsistency exists.  One 
reason dismissal of mutually exclusive applications served the public interest is that allowing the 
mutually exclusive applications to remain on file would create considerable uncertainty for 
potential proponents who would be uncertain of the ultimate licensee in a market.  Resolving that 
uncertainty would have required the Commission to hold a special auction between applicants 
that filed their applications over ten years ago that did not reflect the radical changes in 
technology and rules that had occurred since the filings.  In contrast, the statement HITN refers 
to involves establishing a new process for future applications that could be granted pursuant to 
the new band plan.  The two situations are quite different, and there is no inconsistency.  We 
therefore deny HITN’s petition on this issue and affirm the Commission’s decision to dismiss the 
mutually exclusive applications.
V. DECLARATORY RULING – LATE-FILED APPLICATIONS
161. The Wireless Telecommunications Bureau has pending a number of late-filed 
EBS renewal applications and applications for extensions of construction deadlines.  Although 
  
485 See Maritime Services Order.  See also Amendment of Part 22 and Part 90 of the Commission’s Rules to 
Facilitate Future Development of Paging Systems, WT Docket No. 96-18, Second Report and Order and Further 
Notice of Proposed Rulemaking, 12 FCC Rcd 2732 (1997), Amendment of the Commission’s Rules Regarding the 
37.0-38.6 GHz and 38.6-40.0 GHz Bands, ET Docket No. 95-183, Memorandum Opinion and Order, 14 FCC Rcd 
12428 (1999). 
486 See Bachow Communications, Inc. v. FCC, 237 F.3d 683 (D.C. Cir. 2001).
487 HITN PFR at 3-4, citing BRS/EBS 3rd MO&O, 21 FCC Rcd at 5740 ถ 321.
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these matters have not been considered by the Commission in this proceeding, a number of 
pleadings before the agency indicate that there is considerable confusion concerning the splitting 
the football methodology used to divide overlapping protected service areas, as it related to late-
filed renewal applications.  In particular, Clearwire, CTN/NIA, WCA, NextWave, Sprint Nextel, 
and Xanadoo (the Joint Commenters) filed a letter proposing clarifications of our splitting the 
football treatment of reinstated licenses.488 In addition, four licensees -- Instructional 
Telecommunications Foundation, Inc. (ITF), New Trier Township, High School District 203 
(New Trier), Shekinah Network (Shekinah), Boston Catholic Television Center, Inc. (BCTC) –
have asked the Commission to issue a declaratory ruling that their Stations do not have to split 
the football with overlapping stations whose licenses have been reinstated nunc pro tunc.489  
Also, in Clearwire’s opposition to petitions for reconsideration in the instant proceeding, it asks 
the Commission to give leniency to late-filed EBS applicants.490 As discussed below, we believe 
the proper vehicle for considering these issues is to adopt a declaratory ruling clarifying our 
treatment of the splitting the football policy as applied to late-filed renewal applications.  
162. Background. Clearwire asks the Commission to give these applicants one last 
opportunity to demonstrate an intent to use their previously licensed spectrum and to cure any 
defects that may exist with respect to their licenses.491 Clearwire recommends that, if no such 
showing is made, those licenses should be cancelled and the resulting white space made 
available for auction.492 Clearwire argues that these applications demonstrate that many EBS 
licensees were left in a difficult situation because of the uncertainties of operating in the 2.5 GHz 
band, including the following:  operators/lessees that went bankrupt or breached their leases; 
leases that were bought and sold; the Commission’s consideration of reallocating the 2.5 GHz 
band for other uses; and the lengthy development and release of the final rules.493 If the 
Commission were to grant these applications, Clearwire argues, educators and commercial 
broadband operators would be able to immediately use this spectrum and the public interest 
would be served.494 Although Clearwire notes that it understands the need for the Commission 
to clean up its ULS database by resolving these applications so that the EBS white space can be 
  
488 Letter from Edwin N. Lavergne, Catholic Television Network, Todd D. Gray, National ITFS Association, Paul J. 
Sinderbrand, Wireless Communications Association, Inc., Terri B. Natoli, Vice President, Regulatory Affairs & 
Public Policy, Clearwire Corporation, Trey Hanbury, Director Government Affairs, Sprint Nextel Corporation, 
Cheryl Crate, Vice President, Government and Public Relations, Xanadoo, LLC, and Jennifer M. McCarthy, Vice 
President, Regulatory Affairs, NextWave Wireless, Inc. to Marlene H. Dortch, Federal Communications 
Commission (dated Sep. 28, 2007) (Ex Parte Letter).
489 Petition for Declaratory Ruling, filed by Instructional Telecommunications Foundation, Inc. (filed Mar. 13, 2007) 
(ITF Petition); Petition of New Trier Township, High School District 203 for an Expedited Declaratory Ruling 
(dated Jul. 26, 2007) (New Trier Petition); Request for Declaratory Ruling filed by Shekinah Network (filed Nov. 
27, 2007); Boston Catholic Television Center, Inc. Petition for Declaratory Ruling (filed Dec. 14, 2007) (BCTC 
Petition).
490 Clearwire Opposition at 6.
491 Clearwire Opposition at 6.
492 Clearwire Opposition at 6.
493 Clearwire Opposition at 6.
494 Clearwire Opposition at 6.
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auctioned, it argues that the public interest is better served by giving these EBS applicants this 
one last opportunity.495
163. WCA and Sprint Nextel oppose Clearwire’s request.496 WCA argues that the 
Commission’s adoption of Clearwire’s proposal would be counterproductive to the goal of 
expediting the EBS white space auction.497 Instead of granting Clearwire’s request, WCA 
recommends that the Commission quickly resolve the pending cases.498 Sprint Nextel argues 
that Clearwire has not explained how its proposed “one final opportunity” would be administered 
or how long the process would take (including resolution of any subsequent requests for 
reconsideration or what kind of showing former EBS licensees would be required to make in 
order to reinstate their authorizations).499 Sprint Nextel further argues that the Commission 
cannot clarify which EBS spectrum will be available at auction if the former EBS licenses are 
not removed from the ULS database.500
164. An issue related to Clearwire’s request involves overlaps between expired 
licenses and active licenses.  The Commission generally uses the splitting the football 
methodology to divide overlapping protected service areas.501  Upon the effective date of this 
new policy, January 10, 2005, all overlapping PSAs would be split, and new geographic service 
areas would be established for all EBS licensees who had previously experienced an overlap 
issue.  The Commission clarified its split the football policy in the BRS/EBS 3rd MO&O.  
Specifically, in response to an unopposed petition from WCA, the Commission ruled as follows:
Where an incumbent station license was in existence as of January 10, 2005 and 
caused a splitting of the football, and that incumbent station license is later 
forfeited, the reclaimed territory reverts to the BRS BTA holder (if BRS 
spectrum) or to EBS white space (if EBS spectrum) regardless of whether the 
action/inaction that caused the forfeiture occurred prior to January 10, 2005.502
No party sought reconsideration of this specific issue or otherwise opposed it.  
165. On January 25, 2007, the Broadband Division of the Wireless 
Telecommunications Bureau granted waivers nunc pro tunc to 41 late-filed EBS renewal 
applications.503 One of the licensees granted a waiver pursuant to that order was Eudora Unified 
School District (Eudora), licensee of EBS Station WLX327.  Instructional Telecommunications 
  
495 Clearwire Opposition at 6.
496 WCA Reply at 16, Sprint Nextel Reply at 9-10.
497 WCA Reply at 16.  
498 WCA Reply at 16.
499 Sprint Nextel Reply at 9.
500 Sprint Nextel Reply at 9.
501 See 47 C.F.R. ง 27.1206(a)(1); BRS/EBS R&O, 19 FCC Rcd 14192 at ถ 59.
502 3rd MO&O & 2nd R&O, 21 FCC Rcd at 5694-5 ถ 206.
503 Forty-one Late-Filed Applications for Renewal of Educational Broadband Service, Memorandum Opinion and 
Order, 22 FCC Rcd 879 (WTB 2007), recon. pending (Order of 41).
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Foundation, Inc. (ITF), licensee of EBS Station WHR511, whose PSA overlaps with Station 
WLX327, has requested that the Commission issue a declaratory ruling that Station WHR511 
does not have to split the football with Eudora.504 ITF did not challenge Eudora’s late-filed 
request for reinstatement of its EBS license, but nonetheless argues that it does not have to split 
the football with Eudora because Eudora’s license was expired on January 10, 2005, the date that 
the footballs were split, notwithstanding the Bureau’s later decision to reinstate such license nunc 
pro tunc.505 ITF argues that if it splits the football with Eudora, it would lose a significant 
portion of its GSA to Eudora.506 ITF has leased the excess capacity of WHR511 to a subsidiary 
of Clearwire which intends to use that capacity for educational purposes as well as for 
telecommunications services that will benefit the general public.507
166. New Trier, which held a license for Station KGZ66, has also filed a request for a 
declaratory ruling asking the Commission to declare that New Trier does not have to split the 
football with Station WHR850, licensed to Waubonsee Community College (Waubonsee).508  
New Trier asserts that it has operated on EBS channels since 1967, and now serves 
approximately 12,000 students.509 New Trier argues that because Waubonsee’s license expired 
in July, 1997, its license was not “in existence” on January 10, 2005 when the football was 
split.510 Therefore, New Trier urges that we declare that it does not have to split the football with 
Waubonsee in the event Waubonsee’s license for WHR850 is reinstated.511  
167. In a similar case, Shekinah has asked that we declare that EBS Stations WLX259 
(licensed to Western Nevada Community College), WMX642 (licensed to Spectrum Alliance 
Harrison F Partnership), and WLX260 (licensed to Chippewa Valley Technical College), all of 
which expired more than 6 years ago, have not and will not be considered in determining the 
GSAs of Shekinah’s EBS stations.512 Despite the fact that the Commission sent termination 
letters to WLX259, WMX642, and WLX260 on October 19, 2007, Shekinah feels that a broader 
  
504 ITF Petition.
505 Id. at 3-4.
506 Id. at 2.
507 Id. at 2.
508 New Trier Petition.  At the time New Trier filed its request for declaratory ruling, the license for Station 
WHR850 was expired, and Waubonsee did not have a renewal application on file.  Subsequently, Waubonsee filed a 
late-filed renewal application with a request for waiver.  See File No. 0003186718 (filed Oct. 1, 2007).  Also, New 
Trier withdrew its application for renewal of Station KGZ66 after it failed to respond to a return letter and its license 
expired.  See File No. 0003065293 (filed Jun. 11, 2007).  New Trier was forced to file a late-filed renewal application 
with a waiver request.  See File No. 0003188417 (filed Oct. 3, 2007).
509 Id. at 1-2.
510 Id. at 3-4.
511 Id. at 6-7.
512 Shekinah Petition at 1-2.  Shekinah hold the licenses for EBS Stations WLX919, WLX950, WLX975, WLX978, 
WLX994, WNC373, WNC407, WNC426, WNC533, WNC552, WNC661, WNC732, WNC767, WNC773, 
WNC787, WNC798, WNC810, WNC868, WNC892, WNC893, WNC904, WNC956, WND210, WND321, 
WND329, WND348, WND401, WND465, WND476, WND515, WND581, WND627, and WQFG870.  Shekinah 
Petition at 2. 
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declaratory ruling is necessary to clarify the “significant uncertainty concerning the 
Commission’s GSA-formulation rules.”513
168. Finally, BCTC requests a declaratory ruling that it is not required to “split the 
football” with EBS Stations WHR888 and WLX771, formerly licensed to Connecticut Public 
Broadcasting, Inc. (CPB) and which expired in 1998.514 BCTC asserts that although the 
Commission sent termination letters to these licenses on October 19, 2007 and they are not the 
subject of reinstatement applications, it is nonetheless concerned about the uncertainty of the 
status of its GSA for its stations WND259 and KLC85.515  
169. On September 28, 2007, Clearwire, CTN/NIA, WCA, NextWave, Sprint Nextel, 
and Xanadoo (the Joint Commenters) filed a letter proposing clarifications that they believe 
represent a consensus position of a majority of the 2.5 GHz industry and that, on balance, most 
effectively and fairly advance the Commission’s 2.5 GHz band goals and objectives.516 The Joint 
Commenters ask that we clarify our splitting the football treatment of expired licenses to add the 
following new rules:
If an EBS license term expired before January 10, 2005, it was not considered “in 
existence” and thus was not accorded a protected service area (“PSA”) used to 
split overlapping footballs (i.e., other stations on the same channel(s) that had 
PSAs which would have overlapped the expired license would not take the 
expired license into account in determining their GSAs) unless it has been 
renewed nunc pro tunc to date.  
If the FCC grants additional late-filed EBS license-renewal applications that 
expired before January 10, 2005, the renewed license will be accorded a GSA that 
does not include any overlapping PSA areas (i.e., the license will be reinstated but 
not nunc pro tunc for purposes of making it “in existence” as of January 10, 2005) 
except in cases of manifest Commission error where reinstatement is in the public 
interest.517
170. West Central Illinois Educational Telecommunications Corp.518 and Waubonsee519
do not object to the Joint Commenters’ proposal.  Hempstead Independent School District argues 
that the Joint Commenters lack standing to request the relief they seek, that the “clarifications” 
  
513 Shekinah Petition at 3. 
514 BCTC Petition at 1.
515 BCTC Petition at 3.
516 Letter from Edwin N. Lavergne, Catholic Television Network, Todd D. Gray, National ITFS Association, Paul J. 
Sinderbrand, Wireless Communications Association, Inc., Terri B. Natoli, Vice President, Regulatory Affairs & 
Public Policy, Clearwire Corporation, Trey Hanbury, Director Government Affairs, Sprint Nextel Corporation, 
Cheryl Crate, Vice President, Government and Public Relations, Xanadoo, LLC, and Jennifer M. McCarthy, Vice 
President, Regulatory Affairs, NextWave Wireless, Inc. to Marlene H. Dortch, Federal Communications 
Commission (dated Sep. 28, 2007) (Ex Parte Letter).
517 Ex Parte Letter at 3-4.
518 See Motion for Extension of Time, File Nos. 0003014539 and 0003138474 (filed Oct. 4, 2007).
519 Response to Petition for Declaratory Ruling (filed Oct. 1, 2007).
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they seek are not consistent with Commission policy, and that it would be impermissible to 
reinstate licenses without reinstating them nunc pro tunc.520 Texas State Technical College 
objects to losing over half of its formerly anticipated service area and argues that the proposal is 
inconsistent with the relief granted to the 41 reinstated licensees.521 JRZ Associates, Liberty 
University, and Lois Hubbard argue that the Joint Commenters lack standing, that their request is 
an untimely petition for reconsideration of the BRS/EBS 3rd MO&O, and that adopting a policy 
under which a license would not exist for a period of time “would seriously and chaotically 
destabilize” the regulatory regime applicable to BRS and EBS.522 Burlington College, 
Champlain College, Norwich University, and Saint Michael’s College (collectively, the Vermont 
Licensees) assert that the proposal would redraw the GSAs of their licenses in a manner that 
would generally exclude each Vermont Licensee’s campus from the resulting license coverage 
areas.523  
171. Discussion. We deny Clearwire’s original request to establish a blanket leniency 
for late-filed renewal applications.  We believe it is appropriate to continue to consider such 
requests on a case-by-case basis based on all pertinent circumstances.  
172. It is apparent, however, that, further clarification and review of our policy of 
addressing overlaps between active licenses and expired licenses is appropriate.  The pleadings 
before us show that there is considerable confusion concerning our policies and how they apply 
to expired licenses that are subsequently reinstated nunc pro tunc.  We believe the proper vehicle 
for considering these issues is to issue a declaratory ruling clarifying our treatment of such 
licenses.  Section 1.2 of the Commission’s Rules allows us to issue a declaratory ruling, either by 
request or on our own motion, to terminate a controversy or remove uncertainty.524 We agree 
with the Joint Commenters that additional certainty surrounding GSAs is imperative, especially 
given the activity surrounding transition planning and implementation, and buildout of 
broadband services in this band.525 We note that several opponents of the Joint Commenters’ 
filing argue that the Joint Commenters have no legitimate interest in opposing their renewal 
applications.526 Although we do not decide today whether Sprint Nextel or any other party has 
standing to file a petition to deny a late-filed EBS renewal application, we do believe that the 
Joint Commenters have a legitimate interest in ensuring certainty in the rules for establishing 
  
520 Response of Hempstead Independent School District to Written Ex Parte Presentation (Oct. 5, 2007) (Hempstead 
Response).
521 Letter from Paul Woodfin, Vice President, Financial and Administrative Services, Texas State Technical College 
West Texas, to Marlene H. Dortch, Secretary, Federal Communications Commission (Oct. 19, 2007) (TSTC 
Opposition).
522 Opposition to Ex Parte Proposal (filed Oct. 5, 2007) (JRZ Opposition).
523 Letter from Dr. Jane O’Meara Sanders, President, Burlington College, Dr. David F. Finney, President, 
Champlain College, Dr. Richard W. Schneider, President, Norwich University, Dr. John J. Neuhauser, President, 
Saint Michael’s College, to Marlene H. Dortch, Secretary, Federal Communications Commission (Feb. 15, 2008) 
(Vermont Licensees’ Opposition).
524 47 C.F.R. ง 1.2.
525 Ex Parte Letter at 2.
526 See Hempstead Response at 2, TSTC Opposition at 1-2, JRZ Opposition at 5.
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geographic service areas.  Accordingly, we will consider their filings, as well as all other relevant 
filings, including the petitions for declaratory ruling filed by ITF and New Trier.
173. Initially, we agree with New Trier, Shekinah, and BCTC that there is no public 
interest benefit in requiring an active EBS licensee to “split the football” with a license that was 
expired as of January 10, 2005, especially where no attempt has been made to resurrect such 
license by filing a late-filed renewal application.527 Accordingly, we issue a ruling that an active 
licensee whose former PSA overlapped with a license that was expired as of January 10, 2005 
need not split the football with such expired license if the expired licensee has not had its license 
reinstated prior to adoption of this order.
174. Second, we deny ITF’s request for a declaratory ruling with respect to late-filed 
renewal applications granted prior to the adoption of this order.  While we are sympathetic to 
ITF’s policy arguments, the late-filed renewal applications that have been granted to this point 
have been granted nunc pro tunc.528 Consistent with established Commission policy,529 a nunc 
pro tunc reinstatement has the effect of reinstating the license such that there was no interruption 
in the existence of the license.530 Thus, when a license that expired prior to January 10, 2005 was 
subsequently reinstated nunc pro tunc, there would be no lapse in the authorization of the 
license, and such reinstated license was entitled to split the football with any neighboring 
authorizations with overlapping service areas.  We believe it would be inequitable to 
retroactively change the rules for renewal applications that have already been granted pursuant to 
an existing Commission policy, especially when most of the late-filed applications that were 
granted to date were unopposed at the time of grant.  We note that the Joint Commenters do not 
challenge the right of renewal applicants that have been previously granted to split the football.531  
Accordingly, ITF is required to split the football with Eudora because Eudora’s license must be 
considered in existence as of January 10, 2005.
175. With respect to future grants of late-filed renewal applications, however, we agree 
with ITF and the Joint Commenters that it is appropriate to modify our treatment of overlapping 
service areas involving licenses that are reinstated nunc pro tunc.  When a licensee allows its 
license to expire, the remaining active licensees may reasonably take action based on their 
expectation that their neighbors had no further interest in maintaining their expired licenses.  For 
this reason, we believe that, even in cases where it is appropriate to grant late-filed renewal 
applications, it is also appropriate to require licensees who allowed their licenses to lapse to 
forfeit their rights to areas that overlap with other licensees.  Although applicants seeking to 
  
527 We recognize that New Trier is not currently in this situation because its license has expired and Waubonsee has 
now filed a late-filed renewal application.  We believe it is appropriate to issue this ruling to provide certainty and 
relief to other licensees in this situation.
528 See, e.g., Order of 41.
529 See Biennial Regulatory Review – Amendment of Parts 0, 1, 13, 22, 24, 26, 27, 80, 87, 90, 95, and 101 of the 
Commission’s Rules to Facilitate Development and Use of the Universal Licensing System in the Wireless 
Telecommunications Service, Memorandum Opinion and Order on Reconsideration, WT Docket No. 98-20, 
14 FCC Rcd 11476, 11486 ถ 22 (1999) (ULS MO&O).
530 The term nunc pro tunc, meaning “now for then,” refers to acts allowed to be done after the time when they 
should be done, with a retroactive effect.  See BLACK'S LAW DICTIONARY 1069 (6th ed. 1990).
531 Ex Parte Letter at 3.
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reinstate their licenses nunc pro tunc have an interest in reacquiring their entire GSA, that 
interest should not outweigh the interest of licensees who maintained their licenses and may have 
made plans based on the availability of the entire overlap area.  In the future, absent agency error 
or other unique circumstances, applicants seeking to reinstate their licenses nunc pro tunc who 
receive a waiver will not be allowed to split the football with licensees whose licenses were 
active on January 10, 2005 and on the date the applicant’s late-filed renewal applications is 
granted.  
176. The Vermont Licensees argue that adoption of the Joint Commenters’ proposal 
will have strange and adverse consequences in Vermont as it will prevent these licensees from 
serving their campuses.532 As the Joint Commenters recognize, we agree (without evaluating the 
merits of the arguments made by the Vermont Licensees) that there may be unusual or unique 
circumstances where it would be unfair to hold that a licensee had forfeited its right to the 
overlap area.533 For example, there may be cases where a licensee timely filed a renewal 
application that was erroneously dismissed.  In cases of agency error or other unique 
circumstances, we direct the Wireless Telecommunications Bureau to rule that the reinstated 
licensee is entitled to split the football with other active licensees.  The Bureau will need to 
determine in each case whether such circumstances exist.  Therefore, notwithstanding our 
implementation of this proposal, the Vermont Licensees and other affected licensees who believe 
their circumstances are sufficiently unique to warrant a departure from this new policy will 
nonetheless retain the ability to have their circumstances evaluated on a case-by-case basis.     
177. We note that commenters opposing this approach argue that modifying the policy 
would be inconsistent with relief granted to previously granted renewal applications.534 While 
the opponents are correct that they would be treated differently from previously granted renewal 
applications, that difference is a result of our analysis and decision that a clarification and 
modification in policy is appropriate. For the reasons discussed above, we believe the difference 
in treatment is warranted.  
178. Lastly, we note that Hempstead and JRZ et al argue that that it would be unfair 
and contrary to precedent to grant their renewal applications in any way other than nunc pro 
tunc.  We agree with Hempstead535 and JRZ et al.536 that granting renewal applications on a non-
nunc pro tunc basis would be inconsistent with the policy established in the ULS MO&O537 and 
would be problematic with respect to any licensees that may have been operating.  We also agree 
that, to the extent we grant waivers in the future to when considering late-filed renewal 
applications, any future grants of late-filed renewal applications should continue to be on a nunc 
pro tunc basis, subject to our guidance in this order regarding their ability to split the football 
with other licensees.    
  
532 Vermont Licensees’ Opposition at 2.
533 Ex Parte Letter at 3.
534 See TSTC Opposition at 2, JRZ Opposition at 6.
535 Hempstead Response at 3.
536 JRZ Opposition at 8-9.
537 ULS MO&O, 14 FCC Rcd at 11486 ถ 22.
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179. Accordingly, in response to the petitions for declaratory ruling and other filings 
we have considered, we issue the following clarifications of our splitting the football policy:
ท An active BRS or EBS licensee whose former protected service area 
overlapped with a co-channel license that was expired on January 10, 2005 
need not split the football with such expired license if the licensee has not had 
its license reinstated.
ท If a BRS or EBS license was expired on January 10, 2005, and such license is 
later reinstated nunc pro tunc pursuant to a waiver granted for a late-filed 
renewal application granted after the adoption date of this Fourth 
Memorandum Opinion and Order, that licensee’s geographic service shall not 
include any portion of its former protected service area that overlapped with 
another licensee whose license was in active status on January 10, 2005 and 
on the date the expired licensee’s late-filed renewal application was granted, 
unless a finding is made that splitting the football is appropriate because of 
manifest Commission error or other unique circumstances.
VI. SECOND FURTHER NOTICE OF PROPOSED RULEMAKING
A. Licensing EBS spectrum in the Gulf of Mexico
180. In the BRS/EBS 4th MO&O, we created a Gulf of Mexico Service Area, in part, 
because API persuasively argued for BRS licensing in the Gulf of Mexico because the Gulf is an 
underserved area and that the 2496-2690 MHz band is one of the few bands available and 
adequate for operations in support of off-shore oil and gas facilities.  We note that of the 194 
megahertz of spectrum available in the 2496-2690 MHz band, 112.5 megahertz is assigned to the 
EBS, leaving 73.5 megahertz (excluding the 2-four-megahertz guard bands) for commercial 
licensing in the Gulf of Mexico.  Therefore, we seek comment on whether we should license 
EBS spectrum in the Gulf of Mexico.  Commenters should address the issue of whether there is a 
need in the Gulf of Mexico for the type of educational services that EBS is designed to meet.  
Because there are no schools or universities in the Gulf of Mexico, we seek comment on whether 
any changes to our educational use requirements are appropriate for the Gulf of Mexico.  In light 
of the questions we ask below on how to license vacant and available EBS spectrum generally, 
should we use the same assignment mechanism for EBS spectrum in the Gulf of Mexico?  
Alternatively, should we use a different assignment mechanism to account for the difference 
between EBS spectrum in the Gulf and EBS spectrum in the rest of the country?  We seek 
comment on these questions and any other questions relating to licensing EBS spectrum in the 
Gulf of Mexico.
B. Licensing available and unassigned EBS spectrum
1. Introduction
181. As explained in the BRS/EBS 4th MO&O, while the Commission had previously 
decided to wait for the transition of the 2.5 GHz band to develop rules to auction BRS spectrum, 
we now believe that the need for commercial spectrum is such that we should promptly auction 
Federal Communications Commission FCC 08-83 
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available and unassigned BRS spectrum.538 Hence, today we have adopted rules for competitive 
bidding, designated entities, and small business size standards to enable an auction of BRS 
spectrum.539  
182. As also noted in the BRS/EBS 4th MO&O, we are seeking further comment on the 
appropriate licensing scheme for new EBS licenses.  We note that the opportunities presented by 
the new technical rules and band plan create additional demand for EBS spectrum, and that EBS 
eligible entities have not been able to file applications for new stations since 1995.540 In 1993, 
the Commission suspended the processing of EBS applications,541 except for major change 
proposals for EBS applications to accommodate settlement agreements among mutually 
exclusive applicants.542 Since 1993, the Commission has twice opened filing windows for EBS 
applications but those windows have been of short duration and applicable only to certain types 
of applications.  For instance, in 1995, the Commission provided a five-day window for the filing 
of applications for new construction permits and for major changes to existing EBS facilities.543  
In 1996, the Mass Media Bureau announced a sixty-day filing window for a limited class of 
applications, permitting the filing of EBS modification applications and amendments to pending 
EBS applications proposing to co-locate with an authorized wireless cable facility, in order to 
facilitate market wide settlements.544  
183. The Balanced Budget Act of 1997 (Budget Act) expanded the Commission's 
competitive bidding authority under Section 309(j) of the Communications Act by adding, 
among other things, provisions governing auctions for broadcast and other previously exempt 
services.545 In a subsequent order, the Commission concluded that the legislation required that 
mutually exclusive applications for new ITFS stations be subject to auction.546 The Commission 
  
538 See supra ถ 14.  
539 See supra ถถ 26-28.
540 See Notice of Instructional Television Fixed Service Filing Window From October 16, 1995, through October 20, 
1995, Public Notice, Report No. 23565A (rel. Aug. 4, 1995).
541 Amendment of Part 74 of the Commission’s Rules with Regard to the Instructional Television Fixed Service, 
Notice of Proposed Rulemaking, MM Docket No. 93-24, 8 FCC Rcd 1275 (1993).
542 Id. at 1277 n.13.  See also Amendment of Part 74 of the Commission’s Rules with Regard to the Instructional 
Television Fixed Service, Order and Further Notice of Proposed Rulemaking, MM Docket No. 93-24, 9 FCC Rcd 
3348, 3354 (1994).  The Commission reiterated this policy in the Report and Order in MM Docket No. 93-24, 10 
FCC Rcd 2907, 2911 (1995).
543 See Notice of Instructional Television Fixed Service Filing Window From October 16, 1995, through October 20, 
1995, Public Notice, Report No. 23565A (rel. Aug. 4, 1995).
544 Mass Media Bureau Announces Commencement of Sixty (60) Day Period for Filing ITFS Modifications and 
Amendments Seeking to Co-Locate Facilities with Wireless Cable Operations, Public Notice, 11 FCC Rcd 22422 
(1996).
545 47 U.S.C. ง 309(j).
546 Implementation of Section 309(j) of the Communications Act—Competitive Bidding for Commercial Broadcast 
and Instructional Television Fixed Services Licenses, Reexaminiation of the Policy Statement on Comparative 
Broadcast Hearings, Proposals to Reform the Commission’s Comparative Hearing Process to Expedite the 
Resolution of Cases, First Report and Order, MM Docket No. 97-234, GC Docket No. 92-52, and GEN Docket No. 
90-264, 13 FCC Rcd 15920, 15999-16001 ถถ 197-204 (1998) (Balanced Budget Act Order), recon. denied, 14 FCC 
(continued....)
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concluded that ITFS did not fall within the exemption from competitive bidding for 
noncommercial educational broadcast stations.547 The Commission expressed concern that 
Section 309(j), as adopted, might not reflect Congress' intent with regard to the treatment of 
competing ITFS applications.548 Given the instructional nature of the service and the reservation 
of ITFS spectrum for noncommercial educational use, the Commission thought it possible that 
Congress did not intend its expansion of our auction authority in the Budget Act to include that 
service.  Accordingly, the Commission did not proceed immediately with an auction of ITFS 
applications549 but sought Congressional guidance with regard to assigning licenses for ITFS by
competitive bidding and proposed that Congress exempt ITFS applications from competitive 
bidding.550 In 2000, the Commission opened a settlement window to resolve mutual exclusivity 
between applications by allowing payments to applicants in return for dismissing their 
applications and permitting agreements providing for the authorization to be awarded to a non-
applicant third party.551
184. In 2003, the Commission reiterated its prior conclusion that mutually exclusive 
applications for new ITFS stations would be subject to competitive bidding and noted the 
Commission’s attempt to seek Congressional guidance on this issue.552 It also held that there 
would be no opportunity to file new ITFS applications, amendments, or modifications of any 
kind of station (except for applications that involved minor modifications, assignment of 
licenses, or transfer of control) while the Commission undertook a major restructuring of the 2.5 
GHz band plan and technical rules.553 The Commission also sought comment on potential 
options for assigning licenses for unassigned ITFS spectrum by competitive bidding.554 While 
the Commission later lifted the freeze on modification applications, the freeze on applications for 
new EBS stations remained in place.555
185. In the 2004 BRS FNPRM, the Commission proposed to assign new EBS spectrum 
licenses using competitive bidding.556 The Commission also sought comment on geographic 
areas for new licenses, frequency blocks for new licenses, rules for auctions, bidding credits for 
  
(...continued from previous page)
Rcd 8724, modified, 14 FCC Rcd 12,541 (1999), aff’d sub nom. Orion Communications, Ltd. v. FCC, 213 F.3d 761 
(D.C. Cir. 2000).
547 Balanced Budget Act Order, 13 FCC Rcd 16000-16001 ถถ 200-202.  See 47 U.S.C. งง 309(j)(2)(C), 397(6).
548Id., 13 FCC Rcd at 16002 ถ 204.
549 Id.
550 Section 257 Report to Congress, Report, 15 FCC Rcd 15376, 15445 ถ 183 (2000).
551 ITFS Mutually Exclusive Applications – Settlement Period, Public Notice, 15 FCC Rcd 5916 (2000).
552 BRS/EBS NPRM, 18 FCC Rcd at 6734 ถ 22.
553 BRS/EBS NPRM, 18 FCC Rcd at 6813 ถ 226.
554 BRS/EBS NPRM, 18 FCC Rcd at 6814-6816 ถถ 230-232.
555 Amendment of Parts 1, 21, 73, 74 and 101 of the Commission’s Rules to Facilitate the Provision of Fixed and 
Mobile Broadband Access, Educational and Other Advanced Services in the 2150-2162 and 2500-2690 MHz Bands, 
WT Docket No. 03-66, Second Memorandum Opinion and Order, 18 FCC Rcd 16848, 16852-16853 ถถ10-11 
(2003).
556 BRS/EBS FNPRM, 19 FCC Rcd at 14265 ถ 266.
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small businesses and designated entities, and auctioning spectrum as a means of transitioning 
areas where a proponent has not come forward within the deadline established by the 
Commission.557  
186. Although the Commission has attempted to develop an efficient licensing scheme 
in the BRS/EBS NPRM and BRS/EBS FNPRM, the record developed to date is insufficient for us 
to adequately weigh the various options for licensing EBS spectrum, including options that might 
avoid mutually exclusive applications.  In the BRS/EBS 3rd MO&O & 2nd R&O, the 
Commission decided not to adopt auction rules, and instead adopted rules to encourage the 
transition of the 2.5 GHz band by modifying the transition area size (changing the transition area 
size from Major Economic Area (MEA) to Basic Trading Area (BTA)) and permitting licensees 
to self-transition if a proponent had not filed an Initiation Plan for a particular BTA on or before 
January 21, 2009.558 The adoption of BTAs as the transition area has apparently been successful 
as 375 Initiation Plans have been filed with the Commission and 222 Post-transition 
Notifications have been filed to date.  In light of these decisions, we now seek to develop a 
record on a range of options to license EBS spectrum in the near future, including competitive 
bidding and other assignment mechanisms, as discussed in the two sections below.
187. Notwithstanding the Commission’s prior determinations that applications for 
initial EBS spectrum licenses are not exempt from competitive bidding under the 
Communications Act,559 today, we seek comment on a mechanism for assigning EBS licenses by 
competitive bidding among applicants, as well as through other means that would avoid mutual 
exclusivity among applications, obviating any need for competitive bidding.  In considering the 
range of options for licensing unassigned EBS spectrum, we note that many educators otherwise 
eligible for EBS licenses may not be able to participate in competitive bidding for licenses, 
which the Communications Act would require before the Commission could grant one of 
multiple pending mutually exclusive applications for an EBS license.  For example, public and 
educational institutions may be constrained from participating in competitive bidding by 
statutory or institutional constraints, such as mandates regarding budget processes.  Indeed, past 
debate regarding how to correctly assess the relative attributable revenues of potential EBS 
licensees reflects the fact that such resources may be difficult to quantify.560 Even if there is no 
absolute bar to an educational institution or non-profit educational organization participating in a 
spectrum license auction, educators may be reluctant or unable to devote time, personnel and 
money to such an auction.  Given the benefits that EBS can provide to educators, we believe it is 
appropriate to evaluate potential alternatives to a licensing scheme based upon competitive 
bidding. 
188. We find that our prior decisions to set aside this spectrum for educators and 
educational uses makes it appropriate to consider how to license this spectrum in a manner that 
provides all potential eligible licensees with a full opportunity to access the spectrum.  As noted 
above, given various characteristics of eligible EBS licensees that are unique among potential 
  
557 In the BRS/EBS FNPRM, the Commission sought further comment on auctioning available and unassigned EBS 
spectrum. See BRS/EBS FNPRM, 19 FCC Rcd at 14265-14280 ถถ 264-312.
558 BRS/EBS 2nd R&O, 21 FCC Rcd at 5737 ถ 313.
559 Balanced Budget Act Order, 13 FCC Rcd at 15999 ถ 197.
560 BRS/EBS 2d R&O, 21 FCC Rcd at 5740-41 ถ 325 and n.797 (citing comments).
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Commission licensees, a licensing mechanism that depends on competitive bidding to assign 
licenses may not provide many otherwise eligible EBS licensees with a full opportunity to 
participate.  Accordingly, we seek further comment on the appropriate licensing mechanism for 
new EBS licenses.  We do so without prejudging the appropriate time for issuing new EBS 
licenses, whether pursuant to competitive bidding or an alternative assignment mechanism.
2. Competitive Bidding
189. We seek comment on several threshold questions involving the possibility of 
adopting a licensing scheme that provides for mutually exclusive applications and competitive 
bidding.  First, do EBS eligible entities, in general, have the authority to bid for spectrum 
licenses?  Typically, institutions, whether public or private, are limited by charters, constitutions, 
by-laws, ordinances, or other laws, and we are concerned that large numbers of EBS eligible 
entities might not be able to effectively participate in a spectrum auction.  Second, if EBS 
eligible entities have the authority to bid for spectrum, do they have the authority to bid for 
spectrum outside of their respective jurisdictions?  Would they have the authority to bid for 
spectrum in the Gulf of Mexico?  In particular, we note that several commenters recommend that 
we license available and unassigned EBS spectrum by BTA,561 in order to correspond to the 
licensing areas for BRS spectrum.  We seek comment on whether educational institutions would 
be able to competitively bid for BTAs, given that school districts are usually smaller than 
counties, while BTAs can be very large and frequently bisect state boundaries.  If EBS eligible 
entities cannot bid for spectrum outside of their respective jurisdictions, but are otherwise 
authorized to bid for spectrum, we seek comment on whether educational institutions could form 
a consortium or some other joint entity to bid for spectrum in areas larger than their respective 
jurisdictions and as large as a BTA.  We note that small rural carriers formed consortia to 
successfully bid in the AWS-1 auction.  We further note that under this option, if viable, 
members of the consortium could not only pool their financial resources, but also could 
disaggregate and partition the spectrum to satisfy the spectrum needs of individual members.  
After the spectrum needs of its members are met, the consortium could also disaggregate and 
partition any unclaimed spectrum to other EBS eligible entities that are not participating in the 
consortium.  Finally, if the Secondary Markets leasing rules are adopted here, see discussion 
infra, the consortium might be able to lease any unused portions of their license to EBS eligible 
entities or to commercial entities.
190. Moreover, we seek comment on how we should structure the auction to ensure 
that licenses are disseminated among a wide variety of applicants.  EBS eligible entities are 
either public or private educational institutions or non-profit organizations that provide 
educational and instructional material to educational institutions.  Frequently, these non-profit 
organizations operate throughout the nation.  In this connection, we seek comment on whether 
we should prohibit non-profit educational organizations from participating in an auction and 
limiting eligible bidders to EBS eligible entities that are publicly supported or privately 
controlled educational institutions accredited by the appropriate State department of education or 
the recognized regional and national accrediting organization.  Should we permit national non-
profit organizations to bid for spectrum in the Gulf of Mexico?
  
561 CTN NIA Comments (filed Jan. 10, 2005) at 11, IMWED Comments (filed Jan. 10, 2005) at 9, WCA Comments 
(filed Jan. 10, 2005) at 24.
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191. In the event that we adopt a licensing framework that results in mutually 
exclusive applications for licenses, we note that in the BRS/EBS NPRM, the Commission 
proposed to use Part 1, Subpart Q rules to auction geographic area licenses to use spectrum in the 
2500-2690 MHz band.562 We further note that today we adopted the rules set forth in Part 1, 
Subpart Q to apply to the auction of the available and unassigned BRS spectrum.563 Therefore, 
we propose to conduct any auction of the EBS spectrum in conformity with the general 
competitive bidding rules set forth in Part 1, Subpart Q, of the Commission’s Rules, consistent 
with many of the bidding procedures that have been employed in previous auctions.564  
Specifically, we propose to employ the Part 1 rules governing, among other things, competitive 
bidding design, designated entities, application and payment procedures, collusion issues, and 
unjust enrichment.565 Under this proposal, such rules would be subject to any modifications that 
the Commission may adopt in our Part 1 proceeding.566 In addition, consistent with current 
practice, matters such as the appropriate competitive bidding design, as well as minimum 
opening bids and reserve prices, would be determined by the Wireless Telecommunications 
Bureau pursuant to its delegated authority.567 We seek comment on whether any of our Part 1 
rules or other auction procedures would be inappropriate or should be modified for an auction of 
new licenses in this band.
192. Additionally, we seek comment on whether we should adopt bidding credits and 
small business size standards in the auction of EBS spectrum.  Because entities eligible to hold 
EBS licenses must be schools, universities, and other non-profit organizations, we seek comment 
  
562 BRS/EBS NPRM, 18 FCC Rcd at 6816 ถ 233.
563 See supra ถ 26.  
564 See, e.g., Amendment of Part 1 of the Commission’s Rules—Competitive Bidding Procedures, WT Docket No. 
97-82, Order, Memorandum Opinion and Order and Notice of Proposed Rule Making, 12 FCC Rcd 5686 (1997); 
Third Report and Order and Second Further Notice of Proposed Rule Making, 13 FCC Rcd 374 (1997) (Part 1 
Third Report and Order); Order on Reconsideration of the Third Report and Order, Fifth Report and Order, and 
Fourth Further Notice of Proposed Rule Making, 15 FCC Rcd 15293 (2000) (recon. pending) (Part 1 Recon Order/ 
Fifth Report and Order and Fourth Further Notice of Proposed Rule Making);  Seventh Report and Order, 16 FCC 
Rcd 17546 (2001); Eighth Report and Order, 17 FCC Rcd 2962 (2002).
565 See 47 C.F.R. ง 1.2101 et seq.
566 See, e.g., Amendment of Part 1 of the Commission’s Rules — Competitive Bidding Procedures, Second Order 
on Reconsideration of the Fifth Report and Order, 20 FCC Rcd 1942 (2005) (Part 1 Competitive Bidding Second 
Order on Reconsideration of the Fifth Report and Order) (adopting modifications to the competitive bidding rules); 
Implementation of the Commercial Spectrum Enhancement Act and Modernization of the Commission’s 
Competitive Bidding Rules and Procedures, WT Docket No. 05-211, Report and Order, 21 FCC Rcd 891 (2006) 
(CSEA/Part 1 Report and Order), petitions for reconsideration pending; Implementation of the Commercial 
Spectrum Enhancement Act and Modernization of the Commission’s Competitive Bidding Rules and Procedures, 
WT Docket No. 05-211, Second Report and Order and Second Further Notice of Proposed Rulemaking, 21 FCC 
Rcd 4753 (2006) (Designated Entity Second Report and Order and Designated Entity Second FNPRM), petitions for 
reconsideration pending; Implementation of the Commercial Spectrum Enhancement Act and Modernization of the 
Commission’s Competitive Bidding Rules and Procedures, WT Docket No. 05-211, Order on Reconsideration of 
the Designated Entity Second Report and Order, 21 FCC Rcd 6703 (2006) (Designated Entity Order on 
Reconsideration of the Second Report and Order), petitions for reconsideration pending.
567 See Amendment of Part 1 of the Commission’s Rules - Competitive Bidding Procedures, Third Report and Order 
and Second Further Notice of Proposed Rule Making, 13 FCC Rcd 374, 448-49, 454-55 ถถ 125, 139 (directing the 
Bureau to seek comment on specific mechanisms relating to auction conduct pursuant to the Balanced Budget Act of 
1997) (Part 1 Third Report and Order).
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on whether the adoption of bidding credits and small business size standards is applicable.  We 
note, however, that in the BRS/EBS FNPRM the Commission proposed to define an entity with 
average annual gross revenues not exceeding $40 million for the preceding three years as a 
“small business;” an entity with average gross revenues not exceeding $15 million for the same 
period as a “very small business;” and an entity with average gross revenues not exceeding $3 
million for the same period as an “entrepreneur.”568 The Commission further proposed to 
provide qualifying “small businesses” with a bidding credit of 15%; qualifying “very small 
businesses” with a bidding credit of 25%; and qualifying “entrepreneurs” with a bidding credit of 
35%, consistent with Section 1.2110(f)(2).569 We seek comment on these proposals.  In addition, 
we seek comment on whether we should modify our rules on tribal lands bidding credits, as 
applied to EBS licenses.  
193. We also seek comment on the size of the spectrum blocks to be auctioned.  
Channels A, B, C, D, and G are assigned to the EBS service in a geographic area licensing 
scheme.  Channels A1-A3, B1-B3, C1-C3, and D1-D3 are assigned to the Lower Band Segment 
(LBS), and channels G1-G3 are assigned to the Upper Band Segment (UBS).  The LBS and the 
UBS are low-power segments of the 2.5 GHz band.  Channels A4, B4, C4, D4, and G4 are 
assigned to the Middle Band Segment (MBS), the high-power segment of the 2.5 GHz band.570  
Some commenters suggest that the EBS spectrum should be licensed by channel group so that 
the winning bidder would receive both the three low-power channels and the one high-power 
channel assigned to the group.571 Other commenters recommend that we auction the high-power 
channels in the group separately from the low-power channels in the group.572 Another 
alternative would be to license all of the available spectrum in the LBS and UBS as one 
frequency block and all of the available MBS spectrum as a separate frequency block.  We note 
that in auctioning the BRS spectrum, the Commission auctioned all of the available BRS 
spectrum in the BTA so that the winning bidder won all of the available BRS channel groups in 
the BTA.  Should we adopt the same policy here and license all of the available channel groups 
in the geographic area to be licensed?  We seek comment on these options.
194. With respect to a geographic area licensing scheme, we seek comment on the size 
of the area to be licensed.  As noted above, several commenters recommend that we license 
available and unassigned EBS spectrum by BTA to correspond to the BRS licensing area.  We 
could, however, assign licenses differently than we did for BRS.  For instance, we could assign 
licenses by State.  Because BTAs and States are large, they would overlay incumbent licenses.  If 
we were to license unassigned and available EBS spectrum by BTA or State, the overlay licenses 
would not provide any rights with respect to areas covered by other licenses, but would simply 
clarify that any area within the BTA or State not covered by other licensees was subject to the 
BTA or State license.  We also seek comment on whether we should license smaller areas such 
as cellular market areas.  For example, the Commission could divide the United States and its 
possessions, into cellular market areas ("CMAs"), including 305 Metropolitan Statistical Areas 
  
568 BRS/EBS FNPRM, 19 FCC Rcd at 14271-14272 ถ 286.  See 47 C.F.R. ง 1.2110(f)(2).  
569 BRS/EBS FNPRM, 19 FCC Rcd at 14271-14272 ถ 286.  47 C.F.R. ง 1.2110(f)(2)(i)-(iii).
570 47 C.F.R. ง 27.5(i)(2).
571 CTN NIA Comments (filed Jan. 10, 2005) at 13, HITN Comments (filed Jan. 10, 2005) at 6.
572 WCA Comments (filed Jan. 10, 2005) at 24, Clearwire Comments (filed Jan. 10, 2005) at 11-12.
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("MSAs"), 428 Rural Statistical Areas ("RSAs"), and the three licensing areas that we have 
adopted for the Gulf of Mexico in these bands.  If we decide to license the low-power channels 
separately from the high-power channels, we seek comment on whether we should adopt a 
different geographic area for the MBS channels.  For instance, we could auction the MBS 
channels by GSA or by county.  We seek comment on this option.  
195. We also seek comment on whether special eligibility or spectrum aggregation 
limits would be appropriate or necessary to provide significant opportunities for public and 
private educational institutions to bid for spectrum.  For instance, we could limit the amount of 
spectrum for which a single licensee could bid in a given market in order to allow a variety of 
educational institutions to obtain spectrum.  We could also limit eligible bidders to EBS eligible 
entities physically located in the geographic area to be licensed.  We seek comment on these 
proposals and other possible eligibility or spectrum aggregation limits.
3. Other Assignment Mechanisms
196. If, as a result of the record developed in response to this BRS/EBS 2nd FNPRM, 
we learn that many EBS eligible entities would be precluded from bidding for spectrum, we may 
find that the public interest in making this spectrum available will lead us to adopt a licensing 
scheme that does not require competitive bidding.  In this connection, we seek comment on all 
available options for granting geographic area licenses without providing for mutually exclusive 
applications.  Commenters proposing such options should provide a detailed description of how 
their proposed option would work, describe what they believe the proper geographic area and 
channel blocks should be for proposed licenses, and explain why they believe their proposed 
licensing scheme would allow vacant EBS spectrum to be rapidly placed into use by EBS-
eligible licensees and meet the educational, spectrum policy, and broadband goals underlying 
EBS. 
197. One option would be to issue one license per state to a State agency designated by 
the Governor to be the spectrum manager for the entire State.573 These State licenses would have 
similarities to the 700 MHz public safety State license.574 We seek comment from the individual 
States on whether they would be willing to be an EBS licensee.  We note that if we were to apply 
our Secondary Markets rules and policies and Section 27.1214 of our rules to leases entered into 
by a State agency, the State could generate revenue by leasing up to 95 percent of its capacity to 
commercial entities.  Thus, we seek comment on whether this option would be an unfunded 
mandate under the Unfunded Mandate Reform Act of 1995.575  
198. In connection with this state licensing option, we seek comment on whether any 
modifications to our Secondary Markets leasing rules would be appropriate for these state 
licenses.  Our Secondary Markets leasing rules authorize two kinds of spectrum leasing 
arrangements, spectrum manager leasing arrangements576 and de facto transfer leasing 
  
573 See 47 C.F.R. งง 1.9001-1.980.
574 See 47 C.F.R. ง 90.529.
575 1995, Pub. L. No. 104-4, 109 Stat. 66.  That Act is designed “to end the imposition, in the absence of full 
consideration by Congress, of Federal mandates on State, local, and tribal governments without adequate funding.”  
Id.
576 47 C.F.R. ง 1.9020.
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arrangements.577 Under spectrum manager leasing arrangements, the licensee retains de jure
control of its license and de facto control of the leased spectrum that it leases to a spectrum 
lessee.578 Under de facto transfer leasing arrangements, the licensee retains de jure control of its 
license while transferring de facto control of the leased spectrum to a spectrum lessee.579  
199. Under spectrum manager leasing arrangements and de facto transfer leasing 
arrangements, the licensee must meet the eligibility requirements in the Commission’s Rules.580  
Thus, the State agency designated by the Governor would have to meet the eligibility 
requirements of Section 27.1201 of our Rules.  Under both spectrum manager leasing and de 
facto transfer leasing arrangements, the EBS spectrum lessee is not required to meet the 
eligibility requirements of Section 27.1201 of our Rules.581 Therefore, under both our existing 
spectrum manager leasing and de facto transfer leasing rules, the State agency could lease 
spectrum to EBS eligible entities or to commercial entities, so long as our minimum educational 
use requirements are met.  In turn, under both de facto transfer leasing arrangements and 
spectrum manager leasing arrangements, the EBS spectrum lessee could sublease to a 
commercial entity, so long as it meets our educational usage requirements.  Normally, a licensee 
has full discretion as to whether to lease its spectrum to a third party and to whom it should lease 
its spectrum.  We seek comment on whether any restrictions on a state’s leasing discretion would 
be necessary to ensure that the full range of educational entities have access to EBS spectrum.
200. We also seek comment on whether any modifications to our special leasing rules 
for EBS stations would be appropriate for state licenses. Under Section 27.1214 of our Rules, a 
licensee must comply with certain educational programming requirements and retain the 
opportunity to purchase or to lease dedicated or common EBS equipment used for educational 
purposes or comparable equipment if the lease terminates.  In addition, the lease term cannot 
exceed thirty years and must permit the EBS licensee to review, at year 15 and every 5 years 
thereafter, its educational use requirements in light of changes in educational needs, technology, 
and other relevant factors and to obtain access to such additional services, capacity, support, 
and/or equipment as the parties shall agree upon in the spectrum leasing arrangement to advance 
the EBS licensee’s educational mission.  
201. In seeking comment on a State license option, we ask commenters whether a State 
license could be designed to ensure that the full range of EBS-eligible entities, including 
educational institutions and non-profit educational organizations unaffiliated with a State, would 
have sufficient access to EBS spectrum.  We also ask whether any special rules would need to be 
applied to State licensees.  We ask whether the application procedures applicable to the 700 MHz 
public safety state license could be applied to an EBS State license.582 Finally, we seek comment 
on alternatives for licensing spectrum in any jurisdiction in which a State fails to apply for a 
  
577 47 C.F.R. ง 1.9030.
578 47 C.F.R. ง 1.9003.
579 47 C.F.R. ง 1.9003.
580 47 C.F.R. ง 1.9020(b)(2), 47 C.F.R. ง 1.9030(d)(2).  See 47 C.F.R. ง 27.1201 for EBS eligibility requirements.
581 47 C.F.R. ง 1.9020(d)(2), 1.9030(d)(2).  
582 See 47 C.F.R. 90.529(a)(1); Public Safety 700 MHz Band-State License Option to Apply Runs Through 
December 31, 2001, Public Notice, 16 FCC Rcd 3547 (2001).
Federal Communications Commission FCC 08-83 
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State license or for which the State loses the license by failing to demonstrate substantial 
service.583
202. Another option would adopt a licensing scheme similar to the one we use to 
license private land mobile radio spectrum.  Under this approach, applicants could submit 
applications for new EBS stations at any time to certified frequency coordinators.  The frequency 
coordinators would review the applications and, in case of conflict, certify the earlier filed 
application that complies with the Commission’s Rules for submission to the Commission.  
Although frequency coordinators typically coordinate site-based applications, we believe we 
could adopt rules adapting the use of frequency coordinators to 35-mile GSAs.  
203. Using frequency coordination to award licenses for new EBS stations raises a 
variety of issues.  First, we seek comment on whether there are entities that could be qualified to 
serve as an EBS frequency coordinator and the process by which the Commission should select 
one or more frequency coordinators.  Second, we seek comment on the processes that a 
frequency coordinator would use to handle requests for EBS frequencies and to determine 
whether an application complies with the Commission’s Rules.  One possibility would be for a 
potential applicant to request a specific channel group and service area.  Alternatively, a potential 
applicant could request a given number of channels in a specific area of operation, and the 
frequency coordinator could pick channels based on the available inventory.  We also seek 
comment on the appropriate geographic area for new licenses.  Specifically, we seek comment 
on whether new licenses should be issued using 35-mile radius geographic service areas of 
current, incumbent licensees, or whether some other size would be appropriate.  We also seek 
comment on the appropriate size of the frequency block for EBS licenses awarded through the 
frequency coordination process.  Available alternatives include:  (1) issuing a separate license for 
each channel group; (2) licensing MBS channels separately and licensing LBS and UBS 
channels together; (3) issuing one UBS license, one MBS license, and one LBS license in a given 
geographic area.  Finally, we ask whether it is appropriate or necessary to place limitations on 
the number of applications that a licensee or its affiliates could file for new EBS stations in a 
given time period in order to ensure that a wide variety of EBS licensees can access spectrum. 
We seek comment on these and any other issues relating to the use of frequency coordination to 
assign new EBS licenses.
204. Our discussion of specific proposals and questions is not meant to preclude 
commenters from offering other proposals or raising other questions relating to the assignment of 
new EBS licenses.  We seek comment on all questions and issues relating to the assignment of 
new EBS licenses.
VII. PROCEDURAL MATTERS
A. Ex Parte Rules – Permit-But-Disclose
205. This is a permit-but-disclose notice and comment rulemaking proceeding.  Ex 
parte presentations are permitted, except during the Sunshine Agenda period, provided they are 
disclosed pursuant to the Commission’s rules.584
  
583 47 C.F.R. ง 27.14(e) (all EBS licensees must demonstrate substantial service by May 1, 2011).
584 See generally 47 C.F.R. งง 1.1202, 1.1203, 1.1206.
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B. Comment Period and Procedures
206. Pursuant to sections 1.415 and 1.419 of the Commission’s rules, 47 CFR งง 
1.415, 1.419, interested parties may file comments and reply comments on or before the dates 
indicated on the first page of this document.  Comments may be filed using:  (1) the 
Commission’s Electronic Comment Filing System (ECFS), (2) the Federal Government’s 
eRulemaking Portal, or (3) by filing paper copies.  See Electronic Filing of Documents in 
Rulemaking Proceedings, 63 FR 24121 (1998).
207. Electronic Filers:  Comments may be filed electronically using the Internet by 
accessing the ECFS:  http://www.fcc.gov/cgb/ecfs/ or the Federal eRulemaking Portal:  
http://www.regulations.gov.  Filers should follow the instructions provided on the website for 
submitting comments.  For ECFS filers, if multiple docket or rulemaking numbers appear in the 
caption of this proceeding, filers must transmit one electronic copy of the comments for each 
docket or rulemaking number referenced in the caption.  In completing the transmittal screen, 
filers should include their full name, U.S. Postal Service mailing address, and the applicable 
docket or rulemaking number.  Parties may also submit an electronic comment by Internet e-
mail.  To get filing instructions, filers should send an e-mail to ecfs@fcc.gov, and include the 
following words in the body of the message, “get form.”  A sample form and directions will be 
sent in response.
208. Paper Filers:  Parties who choose to file by paper must file an original and four 
copies of each filing.  If more than one docket or rulemaking number appears in the caption of 
this proceeding, filers must submit two additional copies for each additional docket or 
rulemaking number.  Filings can be sent by hand or messenger delivery, by commercial 
overnight courier, or by first-class or overnight U.S. Postal Service mail (although we continue 
to experience delays in receiving U.S. Postal Service mail).  All filings must be addressed to the 
Commission’s Secretary, Office of the Secretary, Federal Communications Commission.  The 
Commission’s contractor will receive hand-delivered or messenger-delivered paper filings for 
the Commission’s Secretary at 236 Massachusetts Avenue, NE, Suite 110, Washington, DC  
20002.  The filing hours at this location are 8:00 a.m. to 7:00 p.m.  All hand deliveries must be 
held together with rubber bands or fasteners.  Any envelopes must be disposed of before entering 
the building.  Commercial overnight mail (other than U.S. Postal Service Express Mail and 
Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD  20743.  U.S. 
Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street, SW, 
Washington DC  20554.
209. People with Disabilities:  To request materials in accessible formats for people 
with disabilities (braille, large print, electronic files, audio format), send an e-mail to 
fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 
202-418-0432 (tty).
210. The public may view the documents filed in this proceeding during regular 
business hours in the FCC Reference Information Center, Federal Communications Commission, 
445 12th Street, S.W., Room CY-A257, Washington, D. C. 20554, and on the Commission’s 
Internet Home Page: <http://www.fcc.gov>.  Copies of comments and reply comments are also 
available through the Commission’s duplicating contractor:  Best Copy and Printing, Inc., 445 
12th Street, SW, Room CY-B402, Washington, DC, 20554, 1-800-378-3160.  
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C. Final Regulatory Flexibility Analysis of BRS/EBS 4th MO&O 
211. The Regulatory Flexibility Act (RFA)585 requires that an agency prepare a 
regulatory flexibility analysis for notice and comment rulemakings, unless the agency certifies 
that "the rule will not, if promulgated, have a significant economic impact on a substantial 
number of small entities."586 Accordingly, we have prepared a Final Regulatory Flexibility 
Analysis concerning the possible impact of the rule changes contained in this BRS/EBS 4th 
MO&O on small entities.  The Final Regulatory Flexibility Analysis is set forth in Appendix B.  
D. Initial Regulatory Flexibility Analysis
212. As required by the Regulatory Flexibility Act of 1980 (RFA),587 the Commission 
has prepared an Initial Regulatory Flexibility Analysis (IRFA) of the possible significant 
economic impact on small entities of the policies and rules proposed in the BRS/EBS 2nd 
FNPRM.  The analysis is found in Appendix C.  We request written public comment on the 
analysis.  Comments must be filed in accordance with the same deadlines as comments filed in 
response to the BRS/EBS 2nd FNRPM, and must have a separate and distinct heading designating 
them as responses to the IRFA.  The Commission’s Consumer and Governmental Affairs 
Bureau, Reference Information Center, will send a copy of this BRS/EBS 2nd FNPRM, including 
the IRFA, to the Chief Counsel for Advocacy of the Small Business Administration.
E. Paperwork Reduction Analysis
213. This document contains new information collection requirements subject to the 
Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. It will be submitted to the Office 
of Management and Budget (OMB) for review under Section 3507(d) of the PRA. OMB, the 
general public, and other Federal agencies are invited to comment on the new information 
collection requirements contained in this proceeding. In addition, we note that pursuant to the 
Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), 
we previously sought specific comment on how the Commission might “further reduce the 
information collection burden for small business concerns with fewer than 25 employees.”
214. In this present document, we have assessed the effects of requiring licensees to 
provide information concerning their base stations to any nearby licensee upon request, and find 
that this requirement will benefit companies with fewer than 25 employees because it will help 
them to enjoy interference-free operations.  We anticipate that the information exchange will 
consist of a limited number of technical parameters of a licensee’s operations that licensees will 
have already established and recorded for their own operational purposes.  Because licensees will 
already have such information at their disposal, it will not be burdensome to convey such 
information when requested.  Additionally, because licensees will only be required to submit 
such information upon request from a neighboring licensee, this significantly limits the amount 
of potential requests for information.  Therefore, we conclude that this information exchange will 
not burden companies with fewer than 25 employees.
  
585 See 5 U.S.C. ง 601–612.  The RFA has been amended by the Small Business Regulatory Enforcement Fairness 
Act of 1996 (SBREFA), Pub. L. No. 104-121, Title II, 110 Stat. 857 (1996).
586 5 U.S.C. ง 605(b).
587 See 5 U.S.C. ง 603.
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215. In addition to filing comments with the Secretary, a copy of any comments on the 
information collections contained herein should be submitted to Judith Boley Herman, Federal 
Communications Commission, 445 12th Street, S.W., Room 1-B441, Washington, D.C. 20554, or 
via the Internet to <Judith-B.Herman@fcc.gov>, and to Nicholas Fraser, Office of Management 
and Budget (OMB), via email to Nicholas_A._Fraser@ omb.eop.gov or via fax at 202-395-5167.
F. Further Information
216. For further information regarding the Big LEO Third Order on Reconsideration 
and Sixth Memorandum Opinion and Order, please contact Howard Griboff, Policy Division, 
International Bureau, Federal Communications Commission, 445 12th Street, S.W., Washington, 
DC 20554, at 202-418-0657 or via the Internet at Howard.Griboff@fcc.gov or Jamison Prime, 
Policy and Rules Division, Office of Engineering and Technology, Federal Communications 
Commission, 445 12th Street, S.W., Washington, DC 20554, at 202-418-7474 or via the Internet 
at Jamison.Prime@fcc.gov.  For further information concerning the BRS/EBS Fourth 
Memorandum Opinion and Order and Second Further Notice of Proposed Rulemaking, contact 
John Schauble, Broadband Division, Wireless Telecommunications Bureau, Federal 
Communications Commission, 445 12th Street, S.W., Washington, D.C. 20554, at (202) 418-
0797 or via the Internet to John.Schauble@fcc.gov.
VIII. ORDERING CLAUSES
217. Accordingly, IT IS ORDERED, pursuant to sections 1, 2, 4(i), 7, 10, 201, 214, 
301, 302, 303, 307, 308, 309, 310, 319, 324, 332, 333 and 706 of the Communications Act of 
1934, 47 U.S.C. งง 151, 152, 154(i), 157, 160, 201, 214, 301, 302, 303, 307, 308, 309, 310, 319, 
324, 332, 333, and 706, that this Third Order on Reconsideration, Sixth Memorandum Opinion 
and Order, and Fourth Memorandum Opinion and Order is hereby ADOPTED.
218. IT IS FURTHER ORDERED that the Petitions for Reconsideration filed in these 
proceedings ARE GRANTED to the extent indicated and are otherwise DENIED.
219. IT IS FURTHER ORDERED, pursuant to Section 4(i) of the Communications 
Act of 1934, 47 U.S.C. ง 154(i), and Section 1.2 of the Commission’s Rules, 47 C.F.R. ง 1.2, 
that the petitions for declaratory ruling filed by Instructional Telecommunications Foundation, 
Inc. on March 13, 2007, New Trier High School District #203 on July 26, 2007, Shekinah 
Network on November 27, 2007, and Boston Catholic Television Center, Inc. on December 14, 
2007 ARE GRANTED to the extent indicated herein and are otherwise DENIED.
220. IT IS FURTHER ORDERED that the proceeding entitled Amendment of Parts 21 
and 74 of the Commission's Rules with Regard to Licensing in the Multipoint Distribution 
Service and in the Instructional Television Fixed Service for the Gulf of Mexico, WT Docket No. 
02-68 IS REINSTATED.
221. IT IS FURTHER ORDERED that NOTICE IS HEREBY GIVEN of the proposed 
regulatory changes described in this Second Further Notice of Proposed Rulemaking, and that 
comment is sought on these proposals.
222. IT IS FURTHER ORDERED that the Final Regulatory Flexibility Analysis IS 
ADOPTED. 
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223. IT IS FURTHER ORDERED that the Commission’s Consumer and 
Governmental Affairs Bureau, Reference Information Center, SHALL SEND a copy of this 
Third Order on Reconsideration, Sixth Memorandum Opinion and Order, and Fourth 
Memorandum Opinion and Order and Second Further Notice of Proposed Rulemaking and 
Declaratory Ruling, including the Final Regulatory Flexibility Analysis and Initial Regulatory 
Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
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APPENDIX A
Final Rules
Part 27 of Title 47 of the Code of Federal Regulations is amended as follows:
I.  PART 27 – MISCELLANEOUS WIRELESS COMMUNICATIONS SERVICES
1. The authority citation for Part 27 continues to read as follows:
AUTHORITY:  47 U.S.C. 154, 301, 302, 303, 307, 309, 332, 336, and 337 unless 
otherwise noted.
2. Amend ง 27.5 by revising paragraphs (i)(2)(iii) to read as follows:
ง 27.5  Frequencies.
*****
(i)  ***
(2) ***
(iii)  Upper Band Segment (UBS):  The following channels shall constitute the Upper 
Band Segment:
BRS Channel KH1: 2614.00000–2614.33333 MHz 
BRS Channel KH2: 2614.33333–2614.66666 MHz 
BRS Channel KH3: 2614.66666–2615.00000 MHz 
EBS Channel KG1: 2615.00000–2615.33333 MHz 
EBS Channel KG2: 2615.33333–2615.66666 MHz 
EBS Channel KG3: 2615.66666–2616.00000 MHz 
BRS Channel KF1: 2616.00000–2616.33333 MHz 
BRS Channel KF2: 2616.33333–2616.66666 MHz 
BRS Channel KF3: 2616.66666–2617.00000 MHz 
BRS Channel KE1: 2617.00000–2617.33333 MHz 
BRS Channel KE2: 2617.33333–2617.66666 MHz 
BRS Channel KE3: 2617.66666–2618.00000 MHz 
BRS Channel 2: 2618–2624 MHz 
BRS/EBS Channel E1: 2624–2629.5 MHz 
BRS/EBS Channel E2: 2629.5–2635 MHz 
BRS/EBS Channel E3: 2635–2640.5 MHz 
BRS/EBS Channel F1: 2640.5–2646 MHz 
BRS/EBS Channel F2: 2646–2651.5 MHz 
BRS/EBS Channel F3: 2651.5–2657 MHz 
BRS Channel H1: 2657–2662.5 MHz 
BRS Channel H2: 2662.5–2668 MHz 
BRS Channel H3: 2668–2673.5 MHz 
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EBS Channel G1: 2673.5–2679 MHz 
EBS Channel G2: 2679–2684.5 MHz 
EBS Channel G3: 2684.5–2690 MHz
Note to paragraph (i)(2):  No 125 kHz channels are provided for channels in operation in 
this service.  The 125 kHz channels previously associated with these channels have been 
reallocated to Channel G3 in the upper band segment.
*****
3. Amend ง 27.13 by adding new paragraph (h) to read as follows:
ง 27.13  License Period.
*****
(h)  BRS and EBS. BRS and EBS authorizations shall have a term not to exceed ten years 
from the date of original issuance or renewal.  Unless otherwise specified by the Commission, 
incumbent BRS authorizations shall expire on May 1 in the year of expiration.
4. Amend ง 27.14 by adding new paragraph (o) to read as follows:
ง 27.14 Construction requirements; Criteria for renewal.
*****
(o) BRS and EBS licensees must make a showing of “substantial service” no later than 
May 1, 2011.  Incumbent BRS licensees must file their “substantial service” showing with their 
renewal application.  “Substantial service” is defined as service which is sound, favorable, and 
substantially above a level of mediocre service which just might minimally warrant renewal.  
Substantial service for BRS and EBS licensees is satisfied if a licensee meets the requirements of 
paragraph (o)(1) or (o)(2) of this section.  If a licensee has not met the requirements of paragraph 
(o)(1) or (o)(2) of this section, then demonstration of “substantial service” shall proceed on a 
case-by-case basis.  All substantial service determinations will be made on a license-by-license 
basis.  Except for BTA licenses, BRS licensees must file their “substantial service” showing with 
their renewal applications.  Failure by any licensee to meet this requirement will result in 
forfeiture of the license and the licensee will be ineligible to regain it.  
(1)  A BRS or EBS licensee has provided “substantial service” by:
(i)  Constructing six permanent links per one million people for licensees providing fixed 
point-to-point services;
(ii)  Providing coverage of at least 30 percent of the population of the licensed area for 
licensees providing mobile services or fixed point-to-multipoint services;
(iii)  Providing service to “rural areas” (a county (or equivalent) with a population density 
of 100 persons per square mile or less, based upon the most recently available Census data) and 
areas with limited access to telecommunications services:
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(A)  for mobile service, where coverage is provided to at least 75% of the geographic 
area of at least 30% of the rural areas within its service area; or
(B)  for fixed service, where the BRS or EBS licensee has constructed at least one end of 
a permanent link in at least 30% of the rural areas within its licensed area.  
(iv)  Providing specialized or technologically sophisticated service that does not require a 
high level of coverage to benefit consumers; or
(v)  Providing service to niche markets or areas outside the areas served by other 
licensees.
(2)  An EBS licensee has provided “substantial service” when: 
(i)  the EBS licensee is using its spectrum (or spectrum to which the EBS licensee’s 
educational services are shifted) to provide educational services within the EBS licensee’s GSA;
(ii)  the EBS licensee’s license is actually being used to serve the educational mission of 
one or more accredited public or private schools, colleges or universities providing formal 
educational and cultural development to enrolled students; or 
(iii)  the level of service provided by the EBS licensee meets or exceeds the minimum 
usage requirements specified in ง 27.1214.
(3)  An EBS or BRS licensee may be deemed to provide substantial service through a 
leasing arrangement if the lessee is providing substantial service under paragraph (o)(1) of this 
section.  The EBS licensee must also be otherwise in compliance with this Chapter (including the 
programming requirements in ง 27.1203 of this subpart).
(4)  If the GSA of a licensee is less than 1924 square miles in size, and there is an 
overlapping co-channel station licensed or leased by the licensee or its affiliate, substantial 
service may be demonstrated by meeting the requirements of paragraph (o)(1) or (o)(2) of this 
section with respect to the combined GSAs of both stations.
(5)  If the GSA of a BTA authorization holder, is less than one-half of the area within the 
BTA for every BRS channel, substantial service may be demonstrated for the licenses in 
question by meeting the requirements of paragraph (o)(1) or (o)(2) of this section with respect to 
the combined GSAs of the BTA authorization holder, together with any incumbent 
authorizations licensed or leased by the licensee or its affiliates.
5. Amend ง 27.53(m) by revising the introductory text and paragraphs (2) and paragraph (4) 
and adding a new paragraph (5) to read as follows:
ง 27.53  Emission limits.
*****
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(m)  For BRS and EBS stations, the power of any emissions outside the licensee's 
frequency bands of operation shall be attenuated below the transmitter power (P) measured in 
watts in accordance with the standards below.  If a licensee has multiple contiguous channels, 
out-of-band emissions shall be measured from the upper and lower edges of the contiguous 
channels.
*****
(2)  For digital base stations, the attenuation shall be not less than 43 + 10 log (P) dB, 
unless a documented interference complaint is received from an adjacent channel licensee with 
an overlapping Geographic Service Area.  Mobile Satellite Service licensees operating on 
frequencies below 2495 MHz may also submit a documented interference compliant against BRS 
licensees operating on channel BRS No. 1 on the same terms and conditions as adjacent channel 
BRS or EBS licensees.  Provided that a documented interference complaint cannot be mutually 
resolved between the parties prior to the applicable deadline, then the following additional 
attenuation requirements shall apply:
(i)  If a pre-existing base station suffers harmful interference from emissions caused by a 
new or modified base station located 1.5 km or more away, within 24 hours of the receipt of a 
documented interference complaint the licensee of the new or modified base station must 
attenuate its emissions by at least 67 + 10 log (P) dB measured at 3 megahertz, above or below, 
from the channel edge of its frequency block  and shall immediately notify the complaining 
licensee upon implementation of the additional attenuation.  No later than 60 days after the 
implementation of such additional attenuation, the licensee of the complaining base station must 
attenuate its base station emissions by at least 67 + 10 log (P) dB measured at 3 megahertz, 
above or below, from the channel edge of its frequency block of the new or modified base 
station. 
(ii)  If a pre-existing base station suffers harmful interference from emissions caused by a 
new or modified base station located less than 1.5 km away, within 24 hours of receipt of a 
documented interference complaint the licensee of the new or modified base station must 
attenuate its emissions by at least 67 + 10 log (P) – 20 log(Dkm/1.5) dB measured at 3 
megahertz, above or below, from the channel edge of its frequency block of the complaining 
licensee, or if both base stations are co-located, limit its undesired signal level at the pre-existing 
base station receiver(s) to no more than -107 dBm measured in a 5.5 megahertz bandwidth and 
shall immediately notify the complaining licensee upon such reduction in the undesired signal 
level.  No later than 60 days after such reduction in the undesired signal level, the complaining 
licensee must attenuate its base station emissions by at least 67 + 10 log (P) dB measured at 3 
megahertz, above or below, from the channel edge of its frequency block of the new or modified 
base station.
(iii)  If a new or modified base station suffers harmful interference from emissions caused 
by a pre-existing base station located 1.5 km or more away, within 60 days of receipt of a 
documented interference complaint the licensee of each base station must attenuate its base 
station emissions by at least 67 + 10 log (P) dB measured at 3 megahertz, above or below, from 
the channel edge of its frequency block of the other licensee.
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(iv)  If a new or modified base station suffers harmful interference from emissions caused 
by a pre-existing base station located less than 1.5 km away, within 60 days of receipt of a 
documented interference complaint: (a) the licensee of the new or modified base station must 
attenuate its OOBE by at least 67 + 10 log (P) – 20 log(Dkm/1.5) measured 3 megahertz above 
or below, from the channel edge of its frequency block of the other licensee, or if the base 
stations are co-located, limit its undesired signal level at the other base station receiver(s) to no 
more than -107 dBm measured in a 5.5-megahertz bandwidth; and (b) the licensee causing the 
interference must attenuate its emissions by at least 67 + 10 log (P) dB measured at 3 megahertz, 
above or below,  from the channel edge of its frequency block of the new or modified base 
station.
(v) For all fixed digital user stations, the attenuation factor shall not be less than 43 + 10 
log (P) dB at the channel edge.
*****
(4)  For mobile digital stations, the attenuation factor shall be not less than 43 + 10 log 
(P) dB at the channel edge and 55 + 10 log (P) dB at 5.5 megahertz from the channel edges.  
Mobile Satellite Service licensees operating on frequencies below 2495 MHz may also submit a 
documented interference complaint against BRS licensees operating on BRS Channel 1 on the 
same terms and conditions as adjacent channel BRS or EBS licensees.  
(5) For all fixed digital user stations, the attenuation factor shall be not less than 43 + 10 
log (P) dB at the channel edge.
*****
6. Amend ง 27.55(a)(4) by revising paragraphs (i), (ii), and (iii) to read as follows:
ง 27.55  Power strength limits.
(a) ***
(4) ***
(i)  Prior to transition, the signal strength at any point along the licensee's GSA boundary 
does not exceed the greater of that permitted under the licensee's Commission authorizations as 
of January 10, 2005 or 47 dBตV/m.
(ii) Following transition, for stations in the LBS and UBS, the signal strength at any point 
along the licensee's GSA boundary must not exceed 47 dBตV/m. This field strength is to be 
measured at 1.5 meters above the ground over the channel bandwidth (i.e., each 5.5 MHz 
channel for licensees that hold a full channel block, and for the 5.5 MHz channel for licensees 
that hold individual channels).
(iii)  Following transition, for stations in the MBS, the signal strength at any point along 
the licensee’s GSA boundary must not exceed the greater of -73.0 + 10 log(X/6) dBW/mฒ, where 
X is the bandwidth in megahertz of the channel, or for facilities that are substantially similar to 
the licensee’s pre-transition facilities (including modifications that do not alter the fundamental 
nature or use of the transmissions), the signal strength at such point that resulted from the 
Federal Communications Commission FCC 08-83 
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station’s operations immediately prior to the transition, provided that such operations complied 
with paragraph (a)(4)(i) of this section.
*****
7. Amend ง 27.1201 by revising paragraphs(a)(3) and (d) to read as follows: 
ง 27.1201  EBS eligibility.
(a)  ***
(3)  Those applicant organizations whose eligibility is established by service to accredited 
institutional or governmental organizations must submit documentation from proposed receive 
sites demonstrating that they will receive and use the applicant's educational usage.  In place of 
this documentation, a State educational television (ETV) commission may demonstrate that the 
public schools it proposes to serve are required to use its proposed educational usage.  
Documentation from proposed receive sites which are to establish the eligibility of an entity not 
serving its own enrolled students for credit should be in letter form, written and signed by an 
administrator or authority who is responsible for the receive site's curriculum planning.  No 
receive site more than 35 miles from the proposed station’s central reference point, or outside the 
applicants’ proposed GSA, shall be used to establish basic eligibility.  Where broadband or data 
services are proposed, the letter should indicate that the data services will be used in furtherance 
of the institution’s educational mission and will be provided to enrolled students, faculty and 
staff in a manner and in a setting conducive to educational usage.  Where traditional educational 
or instructional video services are proposed, the letter should indicate that the applicant's 
program offerings have been viewed and that such programming will be incorporated in the site's 
curriculum.  Where educational or instructional video services are proposed, the letter should 
discuss the types of programming and hours per week of formal and informal programming 
expected to be used and the site's involvement in the planning, scheduling and production of 
programming.  If other levels of authority must be obtained before a firm commitment to utilize 
the service can be made, the nature and extent of such additional authorization(s) must be 
provided.
*****
(d)  This paragraph applies to EBS licensees and applications licensed or filed pursuant to 
the provisions of ง27.1201(c) contained in the edition of 47 CFR parts 20 through 39, revised as 
of October 1, 2005, or งง74.990 through 74.992 contained in the edition of 47 CFR parts 70 to 
79, revised as of October 1, 2004, and that do not meet the eligibility requirements of paragraph 
(a) of this section.  Such licensees may continue to operate pursuant to the terms of their existing 
licenses, and their licenses may be renewed, assigned, or transferred, so long as the licensee is 
otherwise in compliance with this chapter.  Applications filed pursuant to the provisions of ง 
27.1201(c) contained in the edition of 47 CFR parts 20 through 39, revised as of October 1, 2005 
or งง 74.990 through 74.992 contained in the edition of 47 CFR parts 70 through 79, revised as 
of October 1, 2004 may be processed and granted, so long as such applications were filed prior 
to July 19, 2006.  The provisions of งง 27.1203(b)-(d) and 27.1214 of this subpart do not apply 
to licenses governed by this paragraph.
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8. Amend ง 27.1207 by revising paragraph (a) and the introductory text of paragraph (b) to 
read as follows: 
ง 27.1207 BTA license authorization.
(a) Winning bidders must file an application (FCC Form 601) for an initial authorization.
(b) Initial authorizations for BRS granted after January 1, 2008, shall be blanket licenses 
for all BRS frequencies identified in 27.5(i)(2) and based on the geographic areas 
identified in 27.1208. Blanket licenses cover all mobile and response stations.
*****
9. Amend ง 27.1208 by revising the section heading and the undesignated text to read as 
follows:
ง 27.1208  BTA Service areas.
Except for incumbent BRS licenses, BRS service areas are Basic Trading Areas (BTAs) 
or additional service areas similar to BTAs adopted by the Commission.  BTAs are based on the 
Rand McNally 1992 Commercial Atlas & Marketing Guide, 123rd Edition, at pages 38–39.  The 
following are additional BRS service areas in places where Rand McNally has not defined 
BTAs:  American Samoa; Guam; Gulf of Mexico Zone A; Gulf of Mexico Zone B; Gulf of 
Mexico Zone C; Northern Mariana Islands; Mayaguez/Aguadilla-Ponce, Puerto Rico; San Juan, 
Puerto Rico; and the United States Virgin Islands.  The boundaries of Gulf of Mexico Zone A are 
from an area twelve nautical miles from the shoreline at mean high tide on the north and east, to 
the limit of the Outer Continental Shelf to the south, and to longitude 91บ00’ to the west.  The 
boundaries of Gulf of Mexico Zone B are from an area twelve nautical miles from the shoreline 
at mean high tide on the north, to the limit of the Outer Continental Shelf to the south, to 
longitude 91บ00’ to the east, and to longitude 94บ00’ to the west.  The boundaries of Gulf of 
Mexico Zone C are from an area twelve nautical miles from the shoreline at mean high tide on 
the north and west, to longitude 94บ00’ to the east, and to a line 281 kilometers from the 
reference point at Linares, N.L., Mexico on the southwest.  The Mayaguez/Aguadilla-Ponce, PR, 
service area consists of the following municipios: Adjuntas, Aguada, Aguadilla, Anasco, Arroyo, 
Cabo Rojo, Coamo, Guanica, Guayama, Guayanilla, Hormigueros, Isabela, Jayuya, Juana Diaz, 
Lajas, Las Marias, Maricao, Maunabo, Mayaguez, Moca, Patillas, Penuelas, Ponce, Quebradillas, 
Rinc๓n, Sabana Grande, Salinas, San German, Santa Isabel, Villalba and Yauco. The San Juan 
service area consists of all other municipios in Puerto Rico.  
10. Amend ง 27.1214 by revising paragraph (c) to read as follows:
ง 27.1214  EBS spectrum leasing arrangements and grandfathered leases.
*****
(c)  All spectrum leasing arrangements involving EBS spectrum must afford the EBS 
licensee an opportunity to purchase or to lease the dedicated or common EBS equipment used for 
educational purposes, or comparable equipment in the event that the spectrum leasing 
arrangement is terminated.
Federal Communications Commission FCC 08-83 
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*****
11. Add ง 27.1217 to read as follows:  
ง 27.1217  Competitive Bidding Procedures for the Broadband Radio Service.
Mutually exclusive initial applications for BRS licenses in the 2500-2690 MHz band are 
subject to competitive bidding.  The general competitive bidding procedures set forth in part 1, 
subpart Q of this chapter will apply unless otherwise provided in this subpart.
12. Add ง 27.1218 to read as follows:
ง 27.1218  Designated Entities.
(a)  Eligibility for small business provisions. (1) A small business is an entity that, 
together with all attributed parties, has average gross revenues that are not more than $40 million 
for the preceding three years.
(2)  A very small business is an entity that, together with all attributed parties, has 
average gross revenues that are not more than $15 million for the preceding three years.
(3)  An entrepreneur is an entity that, together with all attributed parties, has average 
gross revenues that are not more than $3 million for the preceding three years.
(b)  Bidding credits. (1) A winning bidder that qualifies as a small business, as defined in 
this section, or a consortium of small businesses, may use a bidding credit of 15 percent, as 
specified in ง1.2110(f)(2)(iii) of this chapter, to lower the cost of its winning bid on any of the 
licenses in this subpart.
(2)  A winning bidder that qualifies as a very small business, as defined in this section, or 
a consortium of very small businesses, may use a bidding credit of 25 percent, as specified in 
ง1.2110(f)(2)(ii) of this chapter, to lower the cost of its winning bid on any of the licenses in this 
subpart.
(3)  A winning bidder that qualifies as an entrepreneur, as defined in this section, or a 
consortium of entrepreneurs, may use a bidding credit of 15 percent, as specified in 
ง1.2110(f)(2)(i) of this chapter, to lower the cost of its winning bid on any of the licenses in this 
subpart.
13. Amend ง 27.1221 by revising paragraphs (b) through (e) and adding a new paragraph (f) 
to read as follows:  
ง 27.1221  Interference protection.
*****
(b)  Height Benchmarking.  Height benchmarking is defined for pairs of base stations, one 
in each of two proximate geographic service areas (GSAs).  The height benchmark, which is defined 
Federal Communications Commission FCC 08-83 
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in meters (hbm) for a particular base station relative to a base station in another GSA, is equal to the 
distance, in kilometers, from the base station along a radial to the nearest point on the GSA boundary 
of the other base station squared (Dkm2) and then divided by 17.  That is, hb (m) = Dkm2/17.  A base 
station antenna will be considered to be within its applicable height benchmark relative to 
another base station if the height in meters of its centerline of radiation above average elevation 
(HAAE) calculated along the straight line between the two base stations in accordance with งง
24.53(b) and (c) of this chapter does not exceed the height benchmark (hbm).  A base station 
antenna will be considered to exceed its applicable height benchmark relative to another base 
station if the HAAE of its centerline of radiation calculated along the straight line between the 
two base stations in accordance with งง 24.53(b) and (c) of this chapter exceeds the height 
benchmark (hbm).
(c)  Protection for Receiving Antennas Not Exceeding the Height Benchmark.  Absent 
agreement between the two licensees to the contrary, if a transmitting antenna of one BRS/EBS 
licensee’s base station exceeds its applicable height benchmark and such licensee is notified by 
another BRS/EBS licensee that it is generating an undesired signal level in excess of -107 
dBm/5.5 megahertz at the receiver of a co-channel base station that is within its applicable height 
benchmark, then the licensee of the base station that exceeds its applicable height benchmark 
shall either limit the undesired signal at the receiver of the protected base station to -107dBm/5.5 
megahertz or less or reduce the height of its transmission antenna to no more than the height 
benchmark.  If the interfering base station has been modified to increase the EIRP transmitted in the 
direction of the protected base station, it shall be deemed to have commenced operations on the date 
of such modification.  Such corrective action shall be completed no later than:
(i)  24 hours after receiving such notification, if the base station that exceeds its height 
benchmark commenced operations after the station that is within its applicable height 
benchmark; or
(ii)  90 days after receiving such notification, if the base station that exceeds its height 
commenced operations prior to the station that is within its applicable height benchmark.  For 
purposes of this section, if the interfering base station has been modified to increase the EIRP 
transmitted in the direction of the victim base station, it shall be deemed to have commenced 
operations on the date of such modification.
(d)  No Protection from a Transmitting Antenna not Exceeding the Height Benchmark.  
The licensee of a base station transmitting antenna less than or equal to its applicable height 
benchmark shall not be required pursuant to paragraph (c) of this section to limit that antennas 
undesired signal level to -107dBm/5.5 megahertz or less at the receiver of any co-channel base 
station.
(e)  No Protection for a Receiving-Antenna Exceeding the Height Benchmark.  The 
licensee of a base station receive antenna that exceeds its applicable height benchmark shall not 
be entitled pursuant to paragraph (c) of this section  to insist that any co-channel base station 
limit its undesired signal level to -107dBm/5.5 megahertz or less at the receiver.
(f)  Information Exchange.  A BRS/EBS licensee shall provide the geographic 
coordinates, the height above ground level of the center of radiation for each transmit and receive 
antenna, and the date transmissions commenced for each of the base stations in its GSA within 
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30 days of receipt of a request from a co-channel BRS/EBS licensee with an operational base 
station located in a proximate GSA.  Information shared pursuant to this section shall not be 
disclosed to other parties except as required to ensure compliance with this section.
14. Amend ง 27.1231 by revising paragraph (f) introductory text to read as follows:
ง 27.1231  Initiating the transition.
*****
(f) Initiation Plan. To initiate a transition, a potential proponent(s) must submit an 
Initiation Plan to the Commission at the Office of the Secretary in Washington, DC on or before 
January 21, 2009.
*****
15. Amend ง 27.1236 by revising paragraphs (a), (b)(1), and (b)(6) to read as follows:
ง 27.1236  Self-transitions.
(a)  If an Initiation Plan is not filed on or before January 21, 2009 for a BTA, BRS and 
EBS licensees in that BTA may self-transition by relocating to their default channel locations 
specified in ง27.5(i)(2) and complying with งง27.50(h), 27.53, 27.55 and 27.1221.
*****
(b) ***
(1) Notify the Secretary of the Commission on or before April 21, 2009 that it will self-
transition (see paragraph (a) of this section);
*****
(6) Complete the self-transition on or before October 20, 2010.
*****
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APPENDIX B
Final Regulatory Flexibility Analysis
(For Fourth Memorandum Opinion and Order)
As required by the Regulatory Flexibility Act of 1980, as amended (RFA),1 we incorporated an 
Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on a 
substantial number of small entities by the policies and rules proposed in the Further Notice of 
Proposed Rule Making (FNPRM).  Because we amend the rules in this Fourth Memorandum 
Opinion and Order, we have included this Final Regulatory Flexibility Analysis (FRFA).  This 
present FRFA conforms to the RFA.2  
Need for, and Objectives of the Rules:
In the Fourth Memorandum Opinion and Order, we continue to modify our rules to enable the 
transition of the 2.5 GHz band and the provision of new and innovative wireless services.  
Today, we adopt Part I, Subpart Q as the competitive bidding rules for available and unassigned 
Broadband Radio Service (BRS) spectrum; designated entity rules to provide bidding credits for 
small businesses, very small businesses, and entrepreneurs; modify technical rules concerning
emission limits, signal strength limits, and height benchmarking; special safe harbors for 
licensees whose Geographic Service Area (GSA) is heavily encumbered or highly truncated; and 
create three Gulf of Mexico Service Area zones.  
We believe the rules we adopt today will both encourage the enhancement of existing services 
using this band and promote the development of new innovative services to the public, such as 
providing wireless broadband services, including high-speed Internet access and mobile services.  
We also believe that our new rules will allow licensees to adapt quickly to changing market 
conditions and the marketplace, rather than to government regulation, in determining how this 
band can best be used.
Summary of Significant Issues Raised by Public Comments in Response to the FRFA:
No comments were submitted specifically in response to the IRFA.  
Description and Estimate of the Number of Small Entities to Which the Rules Will Apply:
The RFA directs agencies to provide a description of and, where feasible, an estimate of the 
number of small entities that may be affected by the proposed rules.3 The RFA generally defines 
the term “small entity” as having the same meaning as the terms, “small business,” “small 
  
1 See 5 U.S.C. ง 603.  The RFA, see 5 U.S.C. ง 601-612, has been amended by the Small Business Regulatory 
Enforcement Fairness Act of 1996, (SBREFA) Pub. L. No. 104-121, Title II, 110 Stat. 857 (1996). 
2 See 5 U.S.C. ง 604.
3 5 U.S.C. ง 603(b)(3). 
Federal Communications Commission FCC 08-83 
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organization,” and “small governmental jurisdiction.”4 In addition, the term “small business” has 
the same meaning as the term 
“small business concern” under the Small Business Act.5 A small business concern is one 
which: (1) is independently owned and operated; (2) is not dominant in its field of operation; and 
(3) satisfies any additional criteria established by the SBA.6 A small organization is generally 
“any not-for-profit enterprise which is independently owned and operated and is not dominant in 
its field.”7 Nationwide, as of 2002, there were approximately 1.6 million small organizations.8  
The term "small governmental jurisdiction" is defined as “governments of cities, towns, 
townships, villages, school districts, or special districts, with a population of less than fifty 
thousand.”9 The term “small governmental jurisdiction” is defined generally as “governments of 
cities, towns, townships, villages, school districts, or special districts, with a population of less 
than fifty thousand.”10 Census Bureau data for 2002 indicate that there were 87,525 local 
governmental jurisdictions in the United States.11 We estimate that, of this total, 84,377 entities 
were “small governmental jurisdictions.”12 Thus, we estimate that most governmental 
jurisdictions are small.  Below, we discuss the total estimated numbers of small businesses that 
might be affected by our actions.
Broadband Radio Service systems, previously referred to as Multipoint Distribution Service 
(MDS) and Multichannel Multipoint Distribution Service (MMDS) systems, and “wireless 
cable,” transmit video programming to subscribers and provide two-way high speed data 
operations using the microwave frequencies of the Broadband Radio Service (BRS) and 
Educational Broadband Service (EBS) (previously referred to as the Instructional Television 
Fixed Service (ITFS)).13 In connection with the 1996 BRS auction, the Commission established 
a small business size standard as an entity that had annual average gross revenues of no more 
  
4 5 U.S.C. ง 601(6).
5 5 U.S.C. ง 601(3) (incorporating by reference the definition of “small business concern” in the Small Business Act 
15 U.S.C. ง 632.  Pursuant to 5 U.S.C. ง 601(3), the statutory definition of a small business applies “unless an 
agency, after consultation with the Office of Advocacy of the Small Business Administration and after opportunity 
for public comment, establishes one or more definitions of such term which are appropriate to the activities of the 
agency and publishes such definition(s) in the Federal Register.” 5 U.S.C. ง 601(3).
6 15 U.S.C. ง 632.
7 5 U.S.C. ง 601(4).
8 Independent Sector, The New Nonprofit Almanac & Desk Reference (2002). 
9 5 U.S.C. ง 601(5). 
10 5 U.S.C. ง 601(5). 
11  U.S. Census Bureau, Statistical Abstract of the United States: 2006, Section 8, page 272, Table 415. 
12 We assume that the villages, school districts, and special districts are small, and total 48,558.  See U.S. Census 
Bureau, Statistical Abstract of the United States:  2006, section 8, page 273, Table 417.  For 2002, Census Bureau 
data indicate that the total number of county, municipal, and township governments nationwide was 38,967, of 
which 35,819 were small.  Id.
13 Amendment of Parts 21 and 74 of the Commission’s Rules with Regard to Filing Procedures in the Multipoint 
Distribution Service and in the Instructional Television Fixed Service and Implementation of Section 309(j) of the 
Communications Act – Competitive Bidding, MM Docket No. 94-131 and PP Docket No. 93-253, Report and 
Order, 10 FCC Rcd 9589, 9593 ถ 7 (1995) (MDS Auction R&O).  
Federal Communications Commission FCC 08-83 
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than $40 million in the previous three calendar years.14 The BRS auctions resulted in 67 
successful bidders obtaining licensing opportunities for 493 Basic Trading Areas (BTAs).  Of the 
67 auction winners, 61 met the definition of a small business.  BRS also includes licensees of 
stations authorized prior to the auction.  At this time, we estimate that of the 61 small business 
BRS auction winners, 48 remain small business licensees.  In addition to the 48 small businesses 
that hold BTA authorizations, there are approximately 392 incumbent BRS licensees that are 
considered small entities.15 After adding the number of small business auction licensees to the 
number of incumbent licensees not already counted, we find that there are currently 
approximately 440 BRS licensees that are defined as small businesses under either the SBA or 
the Commission’s Rules.  Some of those 440 small business licensees may be affected by the 
decisions in this Fourth Memorandum Opinion and Order.
In addition, the SBA has developed a small business size standard for Cable and Other Program 
Distribution, which includes all such companies generating $13.5 million or less in annual 
receipts.16 According to Census Bureau data for 2002, there were a total of 1,191 firms in this 
category that operated for the entire year.17 Of this total, 1,087 firms had annual receipts of 
under $10 million, and 43 firms had receipts of $10 million or more but less than $25 million.18  
Consequently, we estimate that the majority of providers in this service category are small 
businesses that may be affected by the rules and policies adopted herein.  This SBA small 
business size standard is applicable to EBS.  There are presently 2,032 EBS licensees.  All but 
100 of these licenses are held by educational institutions.  Educational institutions are included in 
this analysis as small entities.19 Thus, we estimate that at least 1,932 licensees are small 
businesses.
There are presently 2,032 EBS licensees.  All but 100 of these licenses are held by educational 
institutions.  Educational institutions may be included in the definition of a small entity.20 EBS 
is a non-profit non-broadcast service.  We do not collect, nor are we aware of other collections 
of, annual revenue data for EBS licensees.  We find that up to 1,932 of these educational 
institutions are small entities that may take advantage of our amended rules to provide additional 
flexibility to EBS.  
Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements:
  
14 47 C.F.R. ง 21.961(b)(1).
15 47 U.S.C. ง 309(j). Hundreds of stations were licensed to incumbent MDS licensees prior to implementation of 
Section 309(j) of the Communications Act of 1934, 47 U.S.C. ง 309(j).  For these pre-auction licenses, the 
applicable standard is SBA's small business size standard.
16 13 C.F.R. ง 121.201, NAICS code 517510.
17 U.S. Census Bureau, 2002 Economic Census, Subject Series: Information, Table 4, Receipts Size of Firms for the 
United States:  2002, NAICS code 517510 (issued November 2005).
18  Id.  An additional 61 firms had annual receipts of $25 million or more.
19 The term “small entity” within SBREFA applies to small organizations (nonprofits) and to small governmental 
jurisdictions (cities, counties, towns, townships, villages, school districts, and special districts with populations of 
less than 50,000).  5 U.S.C. งง 601(4)-(6).  We do not collect annual revenue data on EBS licensees.
20 See 5 U.S.C. งง 601 (3)-(5).
Federal Communications Commission FCC 08-83 
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This Fourth Memorandum Opinion and Order modifies the reporting, recordkeeping, or other 
compliance requirements previously adopted in this proceeding.  We are adopting competitive 
bidding procedures for available and unassigned BRS spectrum, including small business size 
standards and bidding credits for a “small business” (an entity with attributed average annual 
gross revenues not exceeding $40 million for the preceding three years), a “very small 
business”(an entity with attributed average gross revenues not exceeding $15 million for the 
preceding three years), and an “entrepreneur”(an entity with attributed average gross revenues 
not exceeding $3 million the preceding three years ).21 We are also adopting two new safe 
harbors to enable BRS and EBS licensees whose GSA is heavily encumbered or highly truncated 
to meet the performance requirements for the 2.5 GHz band.22 We are also creating three new 
Gulf of Mexico GSAs, which will enable the provision of 2.5 GHz band wireless services in the 
Gulf of Mexico in the future.23 We are changing the technical rules concerning emission limits, 
signal strength limits, and antenna height benchmarking, including requiring licensees to 
exchange information.24
Steps Taken to Minimize Significant Economic Impact on Small Entities, and Significant 
Alternatives Considered:
The RFA requires an agency to describe any significant alternatives that it has considered in 
reaching its proposed approach, which may include the following four alternatives (among 
others): “(1) the establishment of differing compliance or reporting requirements or timetables 
that take into account the resources available to small entities; (2) the clarification, consolidation, 
or simplification of compliance or reporting requirements under the rule for such small entities; 
(3) the use of performance, rather than design standards; and (4) an exemption from coverage of 
the rule, or any part thereof, for small entities.”25
Regarding our decision to adopt competitive bidding rules, we anticipate that our decision to 
adopt small business size standards and bidding credits for entities that meet the definition of 
small business, very small business, or entrepreneur will not have a significant economic impact 
on small entities.  Because the BRS spectrum in the 2.5 GHz band was auctioned in 1996, only 
70 BTA licenses (of the 493 licenses originally available in 1996) are available for reassignment 
by competitive bidding.
Regarding our decision to adopt two new safe harbors for the demonstration of substantial 
service compliance, we do not anticipate any significant economic impact on small entities.  
These two safe harbors apply only to licensees that have heavily encumbered or highly truncated 
GSAs.  Although the applicability of these two safe harbors is limited, they will enable licensees 
to meet both our performance requirements and our interference protection rules.  
  
21 See supra ถถ 26-28.
22 See supra ถถ 144-145.
23 See supra ถถ 122-129.
24 See supra ถถ 48-84.
25 See 5 U.S.C. ง 603(c).  
Federal Communications Commission FCC 08-83 
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Regarding our decision to adopt three new Gulf of Mexico Service Area Zones, we do not 
anticipate any significant impact on small entities.  We anticipate that spectrum in these GSAs 
will be used on oil platforms in the Gulf of Mexico.
Regarding our decision to modify various technical rules, we do not anticipate any significant 
impact on small entities.  These modifications are minor.
The rules set forth in the Fourth Memorandum Opinion Order will affect all entities that intend 
to provide BRS or EBS service in the 2.5 GHz band. 
Federal Communications Commission FCC 08-83 
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Report to Congress:
The Commission will send a copy of this Fourth Memorandum Opinion Order, including this 
FRFA, in a report to be sent to Congress and the Government Accountability Office pursuant to 
the Congressional Review Act.26 In addition, the Commission will send a copy of this Fourth 
Memorandum Opinion Order, including this FRFA, to the Chief Counsel for Advocacy of the 
Small Business Administration.  A copy of this Fourth Memorandum Opinion Order and FRFA 
(or summaries thereof) will also be published in the Federal Register.27
  
26 See generally, 5 U.S.C. ง 801 (a)(1)(A).
27 See 5 U.S.C. ง 604(b).
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APPENDIX C
Initial Regulatory Flexibility Analysis
(For Second Further Notice of Proposed Rulemaking)
As required by the Regulatory Flexibility Act of 1980, as amended (RFA),1 the Commission has 
prepared this present Initial Regulatory Flexibility Analysis (IRFA) of the possible significant 
economic impact on a substantial number of small entities by the policies and rules proposed in 
this Second Further Notice of Proposed Rule Making (2nd FNPRM).  Written public comments 
are requested on this IRFA.  Comments must be identified as responses to the IRFA and must be 
filed by the deadlines specified in the 2nd FNPRM for comments.  The Commission will send a 
copy of this 2nd FNPRM, including this IRFA, to the Chief Counsel for Advocacy of the Small 
Business Administration (SBA).2 In addition, the 2nd FNPRM and IRFA (or summaries thereof) 
will be published in the Federal Register.3  
Need for, and Objectives of, the Proposed Rules:
The 2nd FNPRM seeks comment on various alternatives to license unassigned and available EBS 
spectrum throughout the United States and the Gulf of Mexico.  Specifically, the 2nd FNPRM
seeks comments on the following options:
1)  Using competitive bidding to license unassigned and available spectrum.4 If this option is 
adopted the Commission proposes to use the competitive bidding rules in Part 1, Subpart Q of 
the Commission’s Rules.  The Commission also seeks comment on whether to adopt bidding 
credits and small business size standard, the size of the spectrum blocks to be auctioned, and the 
size of geographic areas to be licensed. 
2)  Issuing one license per State to a State agency designated by the Governor to act as a 
spectrum manager for the State.5 The State agency would be required to meet the eligibility 
restrictions in Section 27.1201 of the Commission’s Rules.  The State agency would be able use 
spectrum manager leasing arrangements or de facto transfer leasing arrangements.  
3)  Using a leasing scheme similar to the one used to license private land mobile radio spectrum.6  
Under this approach, applicants could submit applications for new EBS stations at any time to 
frequency coordinators.  
  
1 See 5 U.S.C. ง 603.  The RFA, see 5 U.S.C. ง 601-612, has been amended by the Small Business Regulatory 
Enforcement Fairness Act of 1996, (SBREFA) Pub. L. No. 104-121, Title II, 110 Stat. 857 (1996). 
2 See 5 U.S.C. ง 603(a).
3 See 5 U.S.C. ง 603(a).
4 See supra ถถ 191-196.
5 See supra ถถ 197-201.
6 See supra ถ 203.
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We believe our proposals will encourage utilization of this band and the development of new 
innovative services to the public such as providing wireless broadband services, including high-
speed Internet access and mobile services while encouraging educators to use the band for 
educational services.  
Legal Basis:
The proposed action is authorized under Sections 1, 2, 4(i), 7, 10, 201, 214, 301, 302, 303, 307, 
308, 309, 310, 319, 324, 332, 333 and 706 of the Communications Act of 1934, as amended, 47 
U.S.C. งง 151, 152, 154(i), 157, 160, 201, 214, 301, 302, 303, 307, 308, 309, 310, 319, 324, 332, 
333, and 706. 
Description and Estimate of the Number of Small Entities to Which the Proposed Rules Will 
Apply:
The RFA directs agencies to provide a description of and, where feasible, an estimate of the 
number of small entities that may be affected by the proposed rules.7 The RFA generally defines 
the term “small entity” as having the same meaning as the terms, “small business,” “small 
organization,” and “small governmental jurisdiction.”8 In addition, the term “small business” has 
the same meaning as the term “small business concern” under the Small Business Act.9 A small 
business concern is one which: (1) is independently owned and operated; (2) is not dominant in 
its field of operation; and (3) satisfies any additional criteria established by the SBA.10 A small 
organization is generally “any not-for-profit enterprise which is independently owned and 
operated and is not dominant in its field.”11 Nationwide, as of 2002, there were approximately 
1.6 million small organizations.12 The term "small governmental jurisdiction" is defined as 
“governments of cities, towns, townships, villages, school districts, or special districts, with a 
population of less than fifty thousand.”13 The term “small governmental jurisdiction” is defined 
generally as “governments of cities, towns, townships, villages, school districts, or special 
districts, with a population of less than fifty thousand.”14 Census Bureau data for 2002 indicate 
that there were 87,525 local governmental jurisdictions in the United States.15 We estimate that, 
  
7 5 U.S.C. ง 603(b)(3). 
8 5 U.S.C. ง 601(6).
9 5 U.S.C. ง 601(3) (incorporating by reference the definition of “small business concern” in the Small Business Act 
15 U.S.C. ง 632.  Pursuant to 5 U.S.C. ง 601(3), the statutory definition of a small business applies “unless an 
agency, after consultation with the Office of Advocacy of the Small Business Administration and after opportunity 
for public comment, establishes one or more definitions of such term which are appropriate to the activities of the 
agency and publishes such definition(s) in the Federal Register.” 5 U.S.C. ง 601(3).
10 15 U.S.C. ง 632.
11 5 U.S.C. ง 601(4).
12 Independent Sector, The New Nonprofit Almanac & Desk Reference (2002). 
13 5 U.S.C. ง 601(5). 
14 5 U.S.C. ง 601(5). 
15 U.S. Census Bureau, Statistical Abstract of the United States: 2006, Section 8, page 272, Table 415. 
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of this total, 84,377 entities were “small governmental jurisdictions.”16 Thus, we estimate that 
most governmental jurisdictions are small.  Below, we discuss the total estimated numbers of 
small businesses that might be affected by our actions.
The Educational Broadband Service (EBS) (previously referred to as the Instructional Television 
Fixed Service (ITFS)) is used to provide educational services to students.17 The SBA has 
developed a small business size standard for Cable and Other Program Distribution, which 
includes all such companies generating $13.5 million or less in annual receipts.18 According to 
Census Bureau data for 2002, there were a total of 1,191 firms in this category that operated for 
the entire year.19 Of this total, 1,087 firms had annual receipts of under $10 million, and 43 firms 
had receipts of $10 million or more but less than $25 million.20 Consequently, we estimate that 
the majority of providers in this service category are small businesses that may be affected by the 
rules and policies adopted herein.  This SBA small business size standard is applicable to EBS.  
There are presently 2,032 EBS licensees.  All but 100 of these licenses are held by educational 
institutions.  Educational institutions are included in this analysis as small entities.21 Thus, we 
estimate that at least 1,932 licensees are small businesses.
There are presently 2,032 EBS licensees.  All but 100 of these licenses are held by educational 
institutions.  Educational institutions may be included in the definition of a small entity.22 EBS 
is a non-profit non-broadcast service.  We do not collect, nor are we aware of other collections 
of, annual revenue data for EBS licensees.  We find that up to 1,932 of these educational 
institutions are small entities that may take advantage of our amended rules to provide additional 
flexibility to EBS.  
Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements:
There are no new reporting, recordkeeping or other compliance requirements proposed in the 2nd
FNPRM.
  
16 We assume that the villages, school districts, and special districts are small, and total 48,558.  See U.S. Census 
Bureau, Statistical Abstract of the United States:  2006, section 8, page 273, Table 417.  For 2002, Census Bureau 
data indicate that the total number of county, municipal, and township governments nationwide was 38,967, of 
which 35,819 were small.  Id.
17 Amendment of Parts 21 and 74 of the Commission’s Rules with Regard to Filing Procedures in the Multipoint 
Distribution Service and in the Instructional Television Fixed Service and Implementation of Section 309(j) of the 
Communications Act – Competitive Bidding, MM Docket No. 94-131 and PP Docket No. 93-253, Report and 
Order, 10 FCC Rcd 9589, 9593 ถ 7 (1995) (MDS Auction R&O).  
18 13 C.F.R. ง 121.201, NAICS code 517510.
19 U.S. Census Bureau, 2002 Economic Census, Subject Series: Information, Table 4, Receipts Size of Firms for the 
United States:  2002, NAICS code 517510 (issued November 2005).
20  Id.  An additional 61 firms had annual receipts of $25 million or more.
21 The term “small entity” within SBREFA applies to small organizations (nonprofits) and to small governmental 
jurisdictions (cities, counties, towns, townships, villages, school districts, and special districts with populations of 
less than 50,000).  5 U.S.C. งง 601(4)-(6).  We do not collect annual revenue data on EBS licensees.
22 See 5 U.S.C. งง 601 (3)-(5).
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Steps Taken to Minimize Significant Economic Impact on Small Entities, and Significant 
Alternatives Considered:
The RFA requires an agency to describe any significant alternatives that it has considered in 
reaching its proposed approach, which may include the following four alternatives (among 
others): “(1) the establishment of differing compliance or reporting requirements or timetables 
that take into account the resources available to small entities; (2) the clarification, consolidation, 
or simplification of compliance or reporting requirements under the rule for such small entities; 
(3) the use of performance, rather than design standards; and (4) an exemption from coverage of 
the rule, or any part thereof, for small entities.”23
The Commission has not proposed an approach for licensing EBS spectrum.  Instead, the 
Commission seeks comment on three distinct approaches for licensing EBS spectrum to 
determine which approach would best suit the needs of schools and universities and other non-
profit educational institutions. 
Federal Rules that May Duplicate, Overlap, or Conflict with the Proposed Rule
None.
  
23 See 5 U.S.C. ง 603(c).  
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APPENDIX D
List of Petitioners to BRS/EBS 3rd MO&O
Petitions for Reconsideration
Ad Hoc MDS Alliance
American Petroleum Institute (API)
BellSouth Corporation, BellSouth Wireless Cable, Inc., and South Florida Television, Inc. (joint) 
(Bell South)
Clarendon Foundation (Clarendon)
Hispanic Information and Telecommunications Network (HITN)
NextWave Broadband Inc. (NextWave)
NY3G Partnership (NY3G)
School Board of Broward County, Florida (Broward County)
Society of Broadcast Engineers (SBE)
Wireless Communications Association International, Inc. (WCA)
Oppositions to Petitions for Reconsideration
Ad Hoc MDS Alliance
BRS Rural Advocacy Group
Catholic Television Network/National ITFS Association (joint) (CTN NIA)
Clearwire Corporation (Clearwire)
Globalstar, Inc. (Globalstar)
Hispanic Information and Telecommunications Network
ITFS/2.5 GHz Mobile Wireless Engineering & Development Alliance, Inc. (IMWED)
Line of Site, Inc. (LOSI)
School Board of Miami-Dade County, Florida (Miami-Dade)
Sprint Nextel Corporation (Sprint Nextel)
WiMAX Forum (WiMAX)
Wireless Communications Association International, Inc.
Reply to Oppositions to Petitions for Reconsideration
Ad Hoc MDS Alliance
American Petroleum Institute
BellSouth Corporation, BellSouth Wireless Cable, Inc., and South Florida Television, Inc. (joint)
Catholic Television Network/National ITFS Association (joint)
Hispanic Information and Telecommunications Network
ITFS/2.5 GHz Mobile Wireless Engineering & Development Alliance, Inc.
NextWave Broadband Inc.
PetroCom License Corporation (PetroCom)
School Board of Broward County, Florida
Sprint Nextel Corporation
Wireless Communications Association International, Inc.
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Ex Parte
American Petroleum Institute
Cantor Fitzgerald/eSpeed Inc.
Clearwire
CTN/NIA
Globalstar, Inc.
Hispanic Information and Telecommunications Network
Sprint Nextel
T-Mobile USA
Wireless Communications Association International, Inc.