I. Accessing Information and Submitting Comments A. Accessing Information

Please refer to Docket ID NRC-2012-0031 when contacting the NRC about the availability of information for this notice. You may access information related to this draft regulatory basis, which the NRC possesses and is publicly available, by the following methods:

•Federal Rulemaking Web Site:Go tohttp://www.regulations.govand search for Docket ID NRC-2012-0031.

•NRC's Agencywide Documents Access and Management System (ADAMS):You may access publicly available documents online in the NRC Library athttp://www.nrc.gov/reading-rm/adams.html.To begin the search, select “ADAMS Public Documents” and then select “Begin Web-based ADAMS Search.”For problems with ADAMS, please contact the NRC's Public Document Room (PDR) reference staff at 1-800-397-4209, 301-415-4737, or by email toPDR.Resource@nrc.gov.The ADAMS Accession No. for each document referenced in this notice (if that document is available in ADAMS) is provided the first time that a document is referenced. A table listing documents that provide additional background and supporting information is in Appendix F of the draft regulatory basis.

•NRC's PDR:You may examine and purchase copies of public documents at the NRC's PDR, Room O1-F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852.

Please include Docket ID NRC-2012-0031 in the subject line of your comment submission to ensure that the NRC is able to make your comment submission available to the public in this docket.

The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in comment submissions. The NRC posts all comment submissions athttp://www.regulations.govand enters the comment submissions into ADAMS. The NRC does not edit comment submissions to remove identifying or contact information.

If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submissions. Your request should state that the NRC will not edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment submissions into ADAMS.

As the NRC continues its ongoing proposed rulemaking effort to amend portions of Parts 50 and 52 of Title 10 of theCode of Federal Regulations(10 CFR) to strengthen and integrate onsite emergency response capabilities, the NRC is making preliminary documents publicly available on the Federal rulemaking Web site,www.regulations.gov,under Docket ID NRC-2012-0031. By making these documents publicly available, the NRC seeks to inform stakeholders of the current status of the NRC's rulemaking development activities and to provide preparatory material for future public meetings. The NRC is instituting a 45-day public comment period on these materials, and the public is encouraged to participate in any related public meetings.

The NRC has posted onwww.regulations.govfor public availability the draft regulatory basis to strengthen and integrate onsite emergency response capabilities. This regulatory basis documents the reasons why the NRC determined rulemaking was the appropriate course of action to remedy a regulatory shortcoming.

In addition, the NRC has posted preliminary proposed rule language related to this rulemaking as Appendix C of the draft regulatory basis. This preliminary proposed rule language contains one portion of the NRC's proposed changes. This language does not represent a final NRC staff position nor has it been reviewed by the Commission. Therefore, the preliminary proposed rule language may undergo significant revision during the rulemaking process.

The NRC is requesting formal public comments on the draft regulatory basis and the preliminary proposed rule language. The NRC may post additional materials, including other preliminary proposed rule language, to the Federal rulemaking Web site atwww.regulations.gov,under Docket ID NRC-2012-0031. The Federal rulemaking Web site allows you to receive alerts when changes or additions occur in a docket folder. To subscribe: (1) Navigate to the docket folder (NRC-2012-0031); (2) click the “Email Alert” link; and (3) enter your email address and select how frequently you would like to receive emails (daily, weekly, or monthly).

The Plain Writing Act of 2010 (Pub. L. 111-274) requires Federal agencies to write documents in a clear, concise, well-organized manner that also follows other best practices appropriate to the subject or field and the intended audience. Although regulations are exempt under the Act, the NRC is applying the same principles to its rulemaking documents. Therefore, the NRC has written this document, including the preliminary proposed rule language, to be consistent with the Plain Writing Act.

The NRC is correcting the accession number and title of the regulatory basis document that was referenced in a document the NRC published on December 7, 2012 (77 FR 72997). The regulatory basis document has been further corrected to remove a reference to an unavailable document.

On page 72997 ofFederal Registerdocument 2012-29527, published December 07, 2012 (77 FR 72997), in the third column, under the caption titledSUPPLEMENTARY INFORMATION,in the last paragraph of Section A,Accessing Information,under Section I,Accessing Information and Submitting Comments,“Regulatory Analysis forProposed Revisions to Low-Level Waste Disposal Requirement (10 CFR part 61)” is corrected to read “Regulatory Basis;” and “ML12306A480” is corrected to read “ML12356A242.”

Comments Invited

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under theADDRESSESsection. Include “Docket No. FAA-2012-18033; Directorate Identifier 2004-CE-16-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments.

We will post all comments we receive, without change, tohttp://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD.

On October 13, 2004, we issued AD 2004-21-08, amendment 39-13828 (69 FR 62396, October 26, 2004), for all Cessna Models 190, 195 (L-126A,B,C), 195A, and 195B airplanes that are equipped with certain inboard aileron hinge brackets. That AD requires you to repetitively inspect the affected inboard aileron hinge brackets for cracks or corrosion and replace them if cracks or corrosion is found. Replacement with aluminum brackets would terminate the need for the repetitive inspections.

AD 2004-21-08 (69 FR 62396, October 26, 2004) resulted from several reports of cracks and corrosion found on the magnesium aileron hinge brackets. Magnesium is known to be susceptible to corrosion. We issued AD 2004-21-08 (69 FR 62396, October 26, 2004) to detect and correct corrosion damage to the inboard aileron hinge brackets. Such damage could result in the brackets cracking across the bearing boss and could lead to the aileron separating from the airplane with consequent reduced or loss of control.

Since we issued AD 2004-21-08 (69 FR 62396, October 26, 2004), the FAA, in recent months, has received reports of confusion between the casting number on the aileron hinge bracket and the P/N called out in the AD. Due to this misunderstanding, proper inspections and/or replacement of the aileron hinge bracket may not be occurring following the AD. In one report, a service center provided an airworthiness compliance record stating “aileron hinge brackets are of a different part # than those specified in the note.” However, during a later inspection of the bracket, a crack was found through the bearing boss.

We reviewed Cessna Aircraft Company Single Engine Service Bulletin SEB04-1, dated April 26, 2004, and Single Engine Service Bulletin SEB04-01, Revision 1, dated October 3, 2012. The service information describes procedures for:

Revision 1 of the service information adds casting numbers for the parts to be inspected and clarifies the inspection.

We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

This proposed AD would retain all requirements of AD 2004-21-08 (69 FR 62396, October 26, 2004) while requiring future compliance following a revised service bulletin that clarifies the casting numbers and part numbers to be inspected.

This proposed AD would retain all requirements of AD 2004-21-08 (69 FR 62396, October 26, 2004). Since AD 2004-21-08 was issued, the AD format has been revised, and certain paragraphs have been rearranged. As a result, the corresponding paragraph identifiers have changed in this proposed AD, as listed in the following table:

We estimate that this proposed AD affects 643 airplanes of U.S. registry.

We estimate the following costs to comply with this proposed AD:

The new requirements of this proposed AD add no additional economic burden.

We estimate the following costs to do any necessary replacements that would be required based on the results of the proposed inspection. We have no way of determining the number of aircraft that might need these replacements:

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that the proposed regulation:

(1) Is not a “significant regulatory action” under Executive Order 12866,

(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),

(3) Will not affect intrastate aviation in Alaska, and

(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

I. Background—Regulatory Authorities

The FD&C Act, as amended by the Medical Device Amendments of 1976 (the 1976 amendments) (Pub. L. 94-295), the Safe Medical Devices Act of 1990 (Pub. L. 101-629), the Food and Drug Administration Modernization Act of 1997 (FDAMA) (Pub. L. 105-115), the Medical Device User Fee and Modernization Act of 2002 (Pub. L. 107-250), the Medical Devices Technical Corrections Act of 2004 (Pub. L. 108-214), the Food and Drug Administration Amendments Act of 2007 (Pub. L. 110-85), and Food and Drug Administration Safety and Innovation Act (FDASIA) (Pub. L. 112-144) established a comprehensive system for the regulation of medical devices intended for human use. Section 513 of the FD&C Act (21 U.S.C. 360c) established three categories (classes) of devices, reflecting the regulatory controls needed to provide reasonable assurance of their safety and effectiveness. The three categories of devices are class I (general controls), class II (special controls), and class III (premarket approval).

Under section 513 of the FD&C Act, devices that were in commercial distribution before the enactment of the 1976 amendments, May 28, 1976 (generally referred to as preamendments devices), are classified after FDA has: (1) Received a recommendation from a device classification panel (an FDA advisory committee); (2) published the panel's recommendation for comment, along with a proposed regulation classifying the device; and (3) published a final regulation classifying the device. FDA has classified most preamendments devices under these procedures.

Devices that were not in commercial distribution prior to May 28, 1976 (generally referred to as postamendments devices), are automatically classified by section 513(f) of the FD&C Act into class III without any FDA process. Those devices remain in class III and require premarket approval unless, and until, the device is reclassified into class I or II or FDA issues an order finding the device to be substantially equivalent, in accordance with section 513(i) of the FD&C Act, to a predicate device that does not require premarket approval. The Agency determines whether new devices are substantially equivalent to predicate devices by means of premarket notification procedures in section 510(k) of the FD&C Act (21 U.S.C. 360(k)) and part 807 (21 CFR part 807).

On July 9, 2012, FDASIA was enacted. Section 608(a) of FDASIA (126 Stat. 1056) amended section 513(e) of the FD&C Act, changing the process for reclassifying a device from rulemaking to an administrative order.

Section 513(e) of the FD&C Act governs reclassification of preamendments devices. This section provides that FDA may, by administrative order, reclassify a device (in a proceeding that parallels the initial classification proceeding) based upon “new information.” FDA can initiate a reclassification under section 513(e) of the FD&C Act or an interested person may petition FDA to reclassify a preamendments device. The term “new information,” as used in section 513(e) of the FD&C Act, includes information developed as a result of a reevaluation of the data before the Agency when the device was originally classified, as well as information not presented, not available, or not developed at that time. (See, e.g.,Holland Rantosv.United States Department of Health, Education, and Welfare,587 F.2d 1173, 1174 n.1 (D.C. Cir. 1978);Upjohnv.Finch,422 F.2d 944 (6th Cir. 1970);Bellv.Goddard,366 F.2d 177 (7th Cir. 1966).)

Reevaluation of the data previously before the Agency is an appropriate basis for subsequent regulatory action where the reevaluation is made in light of newly available regulatory authority (seeBellv.Goddard,supra, 366 F.2d at 181;Ethicon, Inc.v.FDA,762 F.Supp. 382, 389-391 (D.D.C. 1991)) or in light of changes in “medical science.” (SeeUpjohnv.Finch,supra, 422 F.2d at 951.) Whether data before the Agency are past or new data, the “new information” to support reclassification under section 513(e) must be “valid scientific evidence,” as defined in section 513(a)(3) of the FD&C Act and 21 CFR 860.7(c)(2). (See, e.g.,General Medical Co.v.FDA,770 F.2d 214 (D.C. Cir. 1985);Contact Lens Assoc.v.FDA,766 F.2d 592 (D.C. Cir.), cert. denied, 474 U.S. 1062 (1985).)

FDA relies upon “valid scientific evidence” in the classification process to determine the level of order for devices. To be considered in the reclassification process, the valid scientific evidence upon which the Agency relies must be publicly available. Publicly available information excludes trade secret and/or confidential commercial information, e.g., the contents of a pending premarket approval application (PMA). (See section 520(c) of the FD&C Act (21 U.S.C. 360j(c)).) Section 520(h)(4) of the FD&C Act, added by FDAMA, provides that FDA may use, for reclassification of a device, certain information in a PMA 6 years after the application has been approved. This includes information from clinical and preclinical tests or studies that demonstrate the safety or effectiveness of the device but does not include descriptions of methods of manufacture or product composition and other trade secrets.

Section 513(e)(1) of the FD&C Act sets forth the process for issuing a final order. Specifically, prior to the issuance of a final order reclassifying a device, the following must occur: (1) Publication of a proposed order in theFederal Register; (2) a meeting of a device classification panel described in section 513(b) of the FD&C Act; and (3) consideration of comments from all affected stakeholders, including patients, payors, and providers.

FDAMA added section 510(m) to the FD&C Act. Section 510(m) of the FD&C Act provides that a class II device may be exempted from the premarket notification requirements under section 510(k) of the FD&C Act, if the Agency determines that premarket notification is not necessary to assure the safety and effectiveness of the device.

On November 2, 1979 (44 FR 63387), FDA published a proposed rule for classification of membrane lungs for long-term pulmonary support as class III requiring premarket approval. The Anesthesiology Device Classification Panel recommended class III because the device is life sustaining and life supporting and sufficient information did not exist to determine the adequacy of general controls or to establish standards to provide a reasonable assurance of the safety and effectiveness of the device.

No comments were received on the proposed rule and on July 16, 1982 (47 FR 31130), a final rule was published for membrane lungs for long-term pulmonary support, classifying these devices as class III. In 1987, FDA published a final rule amending the codified language for this device to clarify that no effective date had been established for the requirement for premarket approval for membrane lungs for long-term pulmonary support devices (52 FR 17732 at 17735; May 11, 1987). In 2009, FDA published an order under sections 515(i) and 519 of the FD&C Act (21 U.S.C. 360e and 360i) for the submission of safety and effectiveness information on a membrane lung for long-term pulmonary support (74 FR 16214; April 9, 2009). In response to that order, FDA received information from one device manufacturer.

A membrane lung for long-term pulmonary support refers to the oxygenator component of an extracorporeal circuit used during long-term procedures, commonly referred to as an ECMO. An ECMO procedure provides assisted extracorporeal circulation and physiologic gas exchange of a patient's blood when an acute (reversible) condition prevents the patient's own body from providing the physiologic gas exchange needed to sustain life. The circuit is comprised of multiple device types, including, butnot limited to, an oxygenator, blood pump, cannulae, heat exchanger, tubing, filters, monitors/detectors, and other accessories; the circuit components and configuration (e.g., arteriovenous, veno-venous) may differ based on the needs of the individual patient or the condition being treated. ECMO is intended for patients with acute reversible respiratory or cardiac failure, unresponsive to optimal ventilation and/or pharmacologic management.

Because circuit components used with the oxygenator can be appropriately regulated using the same set of regulatory controls, all of the device components used in an ECMO procedure are being considered in the scope of this proposed order as an extracorporeal circuit and accessories for long-term pulmonary/cardiac support.

FDA is proposing that the device subject to this proposed order be reclassified from class III to class II. FDA is further proposing to revise the title and identification of the regulation to reflect all device components used in ECMO. In addition, FDA is proposing to remove this regulation from 21 CFR part 868, Anesthesiology Devices, and add the revised version to 21 CFR part 870, Cardiovascular Devices, to better align this device type with other similar types of cardiovascular devices and align the review responsibilities for this device type. FDA believes that these devices can be utilized to provide assisted extracorporeal circulation and physiologic gas exchange of a patient's blood when an acute (reversible) condition prevents the patient's own body from providing the physiologic gas exchange needed to sustain life in conditions where imminent death is threatened by cardiopulmonary failure in neonates and infants or where cardiopulmonary failure results in the inability to separate from cardiopulmonary bypass following cardiac surgery.

FDA believes that the identified special controls, in addition to general controls, are necessary to provide reasonable assurance of safety and effectiveness. Therefore, in accordance with sections 513(e) and 515(i) of the FD&C Act and 21 CFR 860.130, based on new information with respect to the devices, FDA, on its own initiative, is proposing to reclassify this preamendments class III device into class II. The Agency has identified special controls under section 513(a) of the FD&C Act that would provide reasonable assurance of their safety and effectiveness. The new information includes the history of use of the circuit components, publicly available safety and effectiveness information (as described in Section VII of this document) and the relatively low incidence of adverse events, as discussed in the recommendations for reclassification from the device industry (available in docket FDA-2009-M-0101 athttp://www.regulations.gov). FDA believes that this information is sufficient to demonstrate that the proposed special controls can effectively mitigate the risks to health identified in section V of this document and that these special controls, in addition to the general controls, will provide a reasonable assurance of safety and effectiveness for ECMO devices.

FDA has considered membrane lung devices for long-term pulmonary support in accordance with the reserved criteria and decided that the device does require premarket notification. The Agency does not intend to exempt this proposed class II device from premarket notification (510(k)) submission as provided for under section 510(m) of the FD&C Act.

After considering available information, including the recommendations of the advisory committee (panel) for the classification of these devices along with information submitted in response to the 515(i) order and any additional information that FDA has encountered, FDA has evaluated the risks to health associated with the use of extracorporeal circuits and accessories for long-term pulmonary/cardiac support and determined that the following risks to health are associated with its use:

•Thrombocytopenia.Blood platelets important to the clotting cascade may be damaged by use of the device, resulting in a tendency toward increased bleeding.

•Hemolysis.Red blood cells may be damaged by mechanical, material, or surface features of the extracorporeal circuit.

•Thrombosis/thromboembolism.Blood clots may form within the extracorporeal circuit due to inadequate blood flow.

•Hemorrhage.To keep blood from clotting in the extracorporeal circuit, anticoagulants are generally used and may cause increased bleeding during the procedure.

•Hemodilution.Dilution of the patient's blood may be caused by the priming of the ECMO circuit.

•Inadequate gas exchange.Mechanical failure of the circuit components may result in inadequate gas exchange.

•Loss of mechanical integrity.Weakness in the connections or construction of the circuit components could lead to leaks in the extracorporeal circuit.

•Gas embolism.Air may be introduced into the extracorporeal circuit and result in a gas embolism.

•Adverse tissue reaction.The patient-contacting materials of the device may cause an adverse immunological or allergic reaction in a patient if the materials are not biocompatible.

•Infection.Defects in the design or construction of the device preventing adequate cleaning and/or sterilization may allow pathogenic organisms to be introduced and may result in infection.

•Mechanical injury to access vessels.Mechanical injury to vessels may be caused acutely during access, or over time due to the long-term duration of use.

FDA believes that extracorporeal circuits and accessories for long-term pulmonary/cardiac support should be reclassified into class II because special controls, in addition to general controls, can be established to provide reasonable assurance of the safety and effectiveness of the device. In addition, there is now adequate effectiveness information sufficient to establish special controls to provide such assurance for conditions where imminent death is threatened by cardiopulmonary failure in neonates and infants or where cardiopulmonary failure results in the inability to separate from cardiopulmonary bypass following cardiac surgery.

FDA is proposing to rename this device to “Extracorporeal circuit and accessories for long-term pulmonary/cardiac support”; the current classification regulation for this device is referred to as “membrane lung for long-term pulmonary support.” For clarity, the new title for this proposed order will be removed from 21 CFR part 868 and redesignated to 21 CFR part 870. Section 870.4100 will be added to reflect all device components used in ECMO.

Since the time of the Panel recommendation, sufficient evidence has been developed to support a reclassification of extracorporeal circuits and accessories for long-term pulmonary/cardiac support to class II with special controls for conditionswhere imminent death is threatened by cardiopulmonary failure in neonates and infants or where cardiopulmonary failure results in the inability to separate from cardiopulmonary bypass following cardiac surgery. FDA is familiar with the risks associated with the use of the components of the extracorporeal circuit because the same components are used for short-term use (durations less than 6 hours) for cardiopulmonary bypass. In addition, the Extracorporeal Life Support Organization registry data (Ref. 1), which provides information on over 28,000 ECMO procedures performed since 1987, and reviews of institutional experience (Ref. 2) demonstrate a favorable benefit-risk profile for extracorporeal circuits and accessories when used for conditions where imminent death is threatened by cardiopulmonary failure in neonates and infants or where cardiopulmonary failure results in the inability to separate from cardiopulmonary bypass following cardiac surgery.

FDA believes that the following special controls, in addition to general controls, are sufficient to mitigate the risks to health described in section V of this document:

• The design characteristics of the device must ensure that the geometry and design parameters are consistent with the intended use;

• The device must be demonstrated to be biocompatible;

• Sterility and shelf life testing must demonstrate the sterility of patient-contacting components and the shelf-life of these components;

• Nonclinical performance evaluation of the device must demonstrate a reasonable assurance of safety and effectiveness for mechanical integrity, durability, and reliability;

• In-vivo evaluation of the device must demonstrate device performance; and

• Labeling must include a detailed summary of the nonclinical and clinical evaluations pertinent to use of the device and adequate instructions with respect to anticoagulation, circuit set up, and maintenance during a procedure.

In addition, under 21 CFR 801.109, the sale, distribution, and use of this device are restricted to prescription use.

The Agency has determined under 21 CFR 25.34(b) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

This proposed order refers to previously approved collections of information found in FDA regulations. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The collections of information in 21 CFR part 812 are approved under OMB control number 0910-0078; the collections of information in part 807, subpart E, are approved under OMB control number 0910-0120; the collections of information in 21 CFR part 814, subpart B, are approved under OMB control number 0910-0231; and the collections of information under 21 CFR part 801 have are under OMB control number 0910-0485.

FDA is proposing that any final order based on this proposal become effective 30 days after date of publication of the final order in theFederal Register.

Interested persons may submit either electronic comments tohttp://www.regulations.govor written comments regarding this document to the Division of Dockets Management (seeADDRESSES). It is only necessary to send one set of comments. Identify comments with the docket number found in brackets in the heading of this document. Received comments may be seen in the Division of Dockets Management between 9 a.m. and 4 p.m., Monday through Friday, and will be posted to the docket athttp://www.regulations.gov.

The following references have been placed on display in the Division of Dockets Management (seeADDRESSES) and may be seen by interested persons between 9 a.m. and 4 p.m., Monday through Friday, and are available electronically athttp://www.regulations.gov.

Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, it is proposed that 21 CFR parts 868 and 870 be amended as follows:

I. Background—Regulatory Authorities

The FD&C Act, as amended by the Medical Device Amendments of 1976 (the 1976 amendments) (Pub. L. 94-295), the Safe Medical Devices Act of 1990 (Pub. L. 101-629), the Food and Drug Administration Modernization Act of 1997 (FDAMA) (Pub. L. 105-115), the Medical Device User Fee and Modernization Act of 2002 (Pub. L. 107-250), the Medical Devices Technical Corrections Act of 2004 (Pub. L. 108-214), the Food and Drug Administration Amendments Act of 2007 (Pub. L. 110-85), and the Food and Drug Administration Safety and Innovation Act (FDASIA) (Pub. L. 112-144), established a comprehensive system for the regulation of medical devices intended for human use. Section 513 of the FD&C Act (21 U.S.C. 360c) established three categories (classes) of devices, reflecting the regulatory controls needed to provide reasonable assurance of their safety and effectiveness. The three categories of devices are class I (general controls), class II (special controls), and class III (premarket approval).

Under section 513 of the FD&C Act, devices that were in commercial distribution before the enactment of the 1976 amendments, May 28, 1976 (generally referred to as preamendments devices), are classified after FDA has: (1) Received a recommendation from a device classification panel (an FDA advisory committee); (2) published the panel's recommendation for comment, along with a proposed regulation classifying the device; and (3) published a final regulation classifying the device. FDA has classified most preamendments devices under these procedures.

Devices that were not in commercial distribution prior to May 28, 1976 (generally referred to as postamendments devices), are automatically classified by section 513(f) of the FD&C Act into class III without any FDA process. Those devices remain in class III and require premarket approval unless, and until, the device is reclassified into class I or II or FDA issues an order finding the device to be substantially equivalent, in accordance with section 513(i) of the FD&C Act, to a predicate device that does not require premarket approval. The Agency determines whether new devices are substantially equivalent to predicate devices by means of premarket notification procedures in section 510(k) of the FD&C Act (21 U.S.C. 360(k)) and part 807 (21 CFR part 807).

On July 9, 2012, FDASIA was enacted. Section 608(a) of FDASIA (126 Stat. 1056) amended section 513(e) of the FD&C Act, changing the process for reclassifying a device from rulemaking to an administrative order.

Section 513(e) of the FD&C Act governs reclassification of preamendments devices. This section provides that FDA may, by administrative order, reclassify a device (in a proceeding that parallels the initial classification proceeding) based upon “new information.” FDA can initiate a reclassification under section 513(e) of the FD&C Act or an interested person may petition FDA to reclassify a preamendments device. The term “new information,” as used in section 513(e) of the FD&C Act, includes information developed as a result of a reevaluation of the data before the Agency when the device was originally classified, as well as information not presented, not available, or not developed at that time. (See, e.g.,Holland Rantosv.United States Department of Health, Education, and Welfare,587 F.2d 1173, 1174 n.1 (DC Cir. 1978);Upjohnv.Finch,422 F.2d 944 (6th Cir. 1970);Bellv.Goddard,366 F.2d 177 (7th Cir. 1966).)

Reevaluation of the data previously before the Agency is an appropriate basis for subsequent regulatory action where the reevaluation is made in light of newly available regulatory authority (seeBellv.Goddard,supra, 366 F.2d at 181;Ethicon, Inc.v.FDA,762 F.Supp. 382, 389-391 (D.D.C. 1991)) or in light of changes in “medical science.” (SeeUpjohnv.Finch,supra, 422 F.2d at 951.) Whether data before the Agency are past or new data, the “new information” to support reclassification under section 513(e) must be “valid scientific evidence,” as defined in section 513(a)(3) of the FD&C Act and 21 CFR 860.7(c)(2). (See, e.g.,General Medical Co.v.FDA,770 F.2d 214 (DC Cir. 1985);Contact Lens Assoc.v.FDA,766 F.2d 592 (DC Cir.), cert. denied, 474 U.S. 1062 (1985).)

FDA relies upon “valid scientific evidence” in the classification process to determine the level of regulation for devices. To be considered in the reclassification process, the valid scientific evidence upon which the Agency relies must be publicly available. Publicly available information excludes trade secret and/or confidential commercial information, e.g., the contents of a pending premarket approval application (PMA). (See section 520(c) of the FD&C Act (21 U.S.C. 360j(c)).) Section 520(h)(4) of the FD&C Act, added by FDAMA, provides that FDA may use, for reclassification of a device, certain information in a PMA 6 years after the application has been approved. This includes information from clinical and preclinical tests or studies that demonstrate the safety or effectiveness of the device, but does not include descriptions of methods of manufacture or product composition and other trade secrets.

Section 513(e)(1) of the FD&C Act sets forth the process for issuing a final order. Specifically, prior to the issuance of a final order reclassifying a device, the following must occur: (1) Publication of a proposed order in theFederal Register; (2) a meeting of a device classification panel described in section 513(b) of the FD&C Act; and (3) consideration of comments from all affected stakeholders, including patients, payors, and providers.

FDAMA added section 510(m) to the FD&C Act. Section 510(m) of the FD&C Act provides that a class II device may be exempted from the premarket notification requirements under section 510(k) of the FD&C Act, if the Agency determines that premarket notification is not necessary to assure the safety and effectiveness of the device.

On March 9, 1979 (44 FR 13424), FDA published a proposed rule for classification of external cardiac compressors as class III requiring premarket approval. The Cardiovascular Device Classification Panel and the Anesthesiology Device Classification Panel recommended class III because the device is life supporting and is potentially hazardous to life or health even when properly used, and the Panel believed that there was not sufficient information to develop a performance standard to provide a reasonable assurance of safety and effectiveness. No comments were received on the proposed rule and on February 5, 1980 (45 FR 7966), a final rule was published for external cardiac compressors, classifying these devices as class III. In 1987, FDA published a final rule amending the codified language for this device to clarify that no effective date had been established for the requirement for premarket approval for external cardiac compressor devices (52 FR 17732 at 17737; May 11, 1987). In 2009, FDA published an order under sections 515(i) and 519 of the FD&C Act (21 U.S.C. 360e and 360i) for the submission of safety and effectivness information on external cardiac compressors (74 FR 16214; April 9, 2009). In response to that order, FDA received information from four manufacturers of external cardiac compressor devices.

External cardiac compressors (ECCs), also known as chest compressors, assist in the act of CPR. The devices in this classification are divided into two types: (1) Devices that provide automatic chest compressions at a fixed compression rate and depth (automated external cardiac compressors), which are placed directly on the patient's chest and are powered manually, pneumatically, or electrically and (2) devices that aid the emergency medical professional in delivering manual compressions at a compression depth and rate that are consistent with current guidelines (CPR Aids). These devices are placed beneath the hands of the emergency medical professional or in the vicinity of the cardiac arrest victim and provide audio and/or visual feedback to assist emergency personnel in following the recommended steps for CPR and maintaining the recommended rate and depth of compressions for the duration of CPR.

FDA is proposing that the device subject to this proposed order be reclassified from class III to class II. FDA believes CPR Aid devices and automated external cardiac compressor devices when used as indicated can supplement the effective delivery of CPR.

FDA believes that the identified special controls, in addition to general controls, would provide reasonable assurance of safety and effectiveness. Therefore, in accordance with sections 513(e) and 515(i) of the FD&C Act and 21 CFR 860.130, based on new information with respect to the devices, FDA, on its own initiative, is proposing to reclassify this preamendments class III device into class II. FDA believes that this information is sufficient to demonstrate that the proposed special controls can effectively mitigate the risks to health identified in section V of this document, and that these special controls in addition to the general controls will provide a reasonable assurance of safety and effectiveness for ECCs.

FDA has considered automated external cardiac compressor devices in accordance with the reserved criteria and has determined that the device should be subject to the premarket notification (510(k) of the FD&C Act) requirements as provided for under section 510(m) of the FD&C Act. However, the Agency does intend to exempt a CPR Aid device when it is a prescription use device and when the feedback provided to the rescuer is consistent with the current version of the American Heart Association (AHA) guidelines for CPR (Ref. 1) from premarket notification (section 510(k) of the FD&C Act) submission as provided for under section 510(m) of the FD&C Act. The AHA guidelines recommend that chest compressions be the highest priority and the initial action when starting CPR in the adult victim of sudden cardiac arrest. Chest compressions are an especially critical component of CPR because perfusion during CPR depends on these compressions.

After considering available information, including the recommendations of the advisory committees (panels) for the classification of these devices, FDA has evaluated the risks to health associated with the use of external cardiac compressor devices and determined that the following risks to health areassociated with use of the automated external cardiac compressor devices:

•Tissue damage or bone breakage, or inadequate blood flow.Damage to the heart, other organs or tissues, can result from poor mechanical design, improper surface area of the plunger, improper vertical excursion of the plunger, improper force applied by the plunger, or improper energy transmission by the device.

•Cardiac arrhythmias or electrical shock.Excessive electrical leakage current can disturb the normal electrophysiology of the heart, leading to the onset of cardiac arrhythmias.

•Adverse skin reactions.Lack of biocompatibility in materials contacting skin may cause an adverse immunological or allergic reaction in a patient.

FDA has evaluated the risks to health associated with the use of CPR Aid devices and determined that the following risks to health are associated with use of CPR Aid devices:

•Suboptimal CPR delivery.Inaccurate rate or depth feedback from the device or inadequate labeling may result in suboptimal delivery of CPR.

•Adverse skin reactions.Lack of biocompatibility in materials contacting skin may cause an adverse immunological or allergic reaction in a patient.

FDA believes that automated external cardiac compressor devices indicated for adjunctive use with manual CPR (e.g., during transport—to assure more consistent and continuous therapy; or prolonged CPR—to avoid/replace rescuer fatigue) and CPR Aid devices should be reclassified into class II because special controls, in addition to general controls, can be established to provide reasonable assurance of the safety and effectiveness of the device. In addition, there is now adequate effectiveness information sufficient to establish special controls to provide such assurance.

Since the time of the Panel recommendation, sufficient evidence has been developed to support a reclassification of automated external cardiac compressors indicated for adjunctive use with manual CPR and CPR Aid devices into class II with special controls.

Automated external cardiac compressors are tools used by emergency medical personnel to automate chest compressions during CPR. These devices are typically used in situations where extended CPR is required, such as during patient transport or when there are an inadequate number of trained personnel during extended CPR. The review of the available literature on mechanical versus manual chest compressions both by AHA (Ref. 1) and in a recent systematic literature review (Ref. 2) provided mixed results on whether mechanical compressions are as effective as manual chest compressions. However, it is well established that chest compressions are crucial to maintaining perfusion and that compressions of adequate rate and depth are necessary to increase the probability of survival in victims of sudden cardiac arrest (Ref. 1). As such, FDA believes that these devices, when indicated for use as an adjunct to manual CPR during patient transport or for use in situations where fatigue of or inaccessibility to emergency medical personnel may otherwise prevent adequate chest compressions, can be regulated as class II devices. These devices should not be used as a replacement for manual CPR. FDA believes that the special controls, including adequate labeling of the device for the appropriate use population, use conditions, and use by appropriately trained personnel, and performance testing of the device to ensure adequate chest compression rate and depth, adequately mitigate the risks.

CPR Aid devices are used to remind emergency medical personnel of appropriate CPR steps and technique and to provide feedback on the rate and depth of compressions. AHA guidelines on CPR and emergency cardiovascular care (Ref. 1) conclude that “real-time CPR prompting and feedback technology such as visual and auditory prompting devices can improve the quality of CPR.” In addition, these devices have been reviewed by FDA for many years, and their risks are well-known. Between January 2000 and June 2012, FDA has not received any adverse event reports (medical device reports) associated with CPR Aid devices. FDA believes that the identified special controls, in addition to the general controls, provide reasonable assurance of safety and effectiveness.

FDA believes that the following special controls, in addition to general controls, are sufficient to mitigate the risks to health described in section V of this document for automated external cardiac compressor devices:

• Performance testing under simulated physiological conditions must demonstrate the reliability of the delivery of specific compression depth and rate over the intended duration and environment of use;

• Labeling must include the clinical training for the safe use of this device and information on the patient population for which the device has been demonstrated to be effective;

• For devices that incorporate electrical components, appropriate analysis and testing must validate electrical safety and electromagnetic compatibility;

• For devices containing software, software verification, validation, and hazard analysis must be performed; and

• Any elements of the device that may contact the patient must be demonstrated to be biocompatible;

In addition, under 21 CFR 801.109, the sale, distribution, and use of the automated external cardiac compressor device are restricted to prescription use.

FDA believes that the following special controls, in addition to general controls, are sufficient to mitigate the risks to health described in section V of this document for CPR Aid devices:

• Performance testing under simulated physiological or use conditions must demonstrate the accuracy and reliability of the feedback to the user on specific compression rate and/or depth over the intended duration of use;

• Labeling must include the clinical training, if needed, for the safe use of this device and information on the patient population for which the device has been demonstrated to be effective;

• For devices that incorporate electrical components, appropriate analysis and testing must validate electrical safety and electromagnetic compatibility;

• For devices containing software, software verification, validation, and hazard analysis must be performed;

• Any elements of the device that may contact the patient must be demonstrated to be biocompatible; and

• For over-the counter-devices, human factors testing and analysis must validate that the device design and labeling are sufficient for lay use.

FDA, on its own initiative, is also proposing to exempt CPR Aid devices that provide feedback consistent with the current AHA guidelines for CPR from premarket notification, subject to limitations. The AHA guidelines are intended to support emergency medical personnel with a series of sequential assessments and actions for resuscitation of the victim. The intent ofthe AHA guideline is to provide recommendations on the most effective CPR practices, rather than specific instructions for using CPR Aid or other devices on a victim of sudden cardiac arrest.

FDA may consider a number of factors in determining whether premarket notification is necessary to provide reasonable assurance of the safety and effectiveness of a class II device. These factors are discussed in the guidance the Agency issued on February 19, 1998, entitled “Procedures for Class II Device Exemptions From Premarket Notification, Guidance for Industry and CDRH Staff ” (Ref. 3).

FDA believes that a CPR Aid, when it is a prescription use device that provides feedback compliant with the current AHA guidelines for CPR, is appropriate for exemption from premarket notification, subject to the limitations of exemptions identified in 21 CFR 870.9, because the applicable special controls and general controls provide reasonable assurance of safety and effectiveness if device manufacturers follow the special controls requirements.

FDA advises that exemption from the requirement of premarket notification for prescription CPR Aids does not mean that these devices would be exempt from any other statutory or regulatory requirements, unless such exemption is explicitly provided by order or regulation. Indeed, FDA's proposal to exempt these devices from the requirement of premarket notification is based, in part, on the assurance of safety and effectiveness that other regulatory controls, such as current good manufacturing practice requirements (21 CFR part 820) and the identified special controls, provide.

The Agency has determined under 21 CFR 25.34(b) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

This proposed order refers to previously approved collections of information found in FDA regulations. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The collections of information in 21 CFR part 812 are approved under OMB control number 0910-0078; the collections of information in part 807, subpart E, are approved under OMB control number 0910-0120; the collections of information in 21 CFR part 814, subpart B, are approved under OMB control number 0910-0231; and the collections of information under 21 CFR part 801 are approved under OMB control number 0910-0485.

FDA is proposing that any final order based on this proposal become effective 30 days after date of publication of the final order in theFederal Register.

Interested persons may submit either electronic comments regarding this document tohttp://www.regulations.govor written comments to the Division of Dockets Management (seeADDRESSES). It is only necessary to send one set of comments. Identify comments with the docket number found in brackets in the heading of this document. Received comments may be seen in the Division of Dockets Management between 9 a.m. and 4 p.m., Monday through Friday, and will be posted to the docket athttp://www.regulations.gov.

The following references have been placed on display in the Division of Dockets Management (seeADDRESSES), and may be seen by interested persons between 9 a.m. and 4 p.m., Monday through Friday, and are available electronically athttp://www.regulations.gov.(FDA has verified all the Web site addresses in this reference section, but we are not responsible for any subsequent changes to the Web sites after this document publishes in theFederal Register.)

Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, it is proposed that 21 CFR part 870 be amended as follows:

On July 5, 2012, the Architectural and Transportation Barriers Compliance Board (Access Board) established an advisory committee to make recommendations to the Board on matters associated with comments received and responses to questions included in a previously published NPRM on Medical Diagnostic Equipment Accessibility Standards. See 77 FR 6916 (February 9, 2012). The NPRM and information related to the proposed standards are available on the Access Board's Web site at:http://www.access-board.gov/medical-equipment.htm.

The advisory committee will hold its third meeting on January 22 and 23, 2013. The agenda includes the following:

• Review of previous committee work;

• Presentations by medical practitioners and clinicians on the use of medical diagnostic equipment in relation to transfer surfaces;

• Continued discussion on subcommittees based on medical diagnostic equipment type;

• Continued discussion on transfer surface height and size;

• Review and discussion on transfer support location and configuration;

• Consideration of issues proposed by committee members; and

• Discussion of administrative issues.

The preliminary meeting agenda, along with information about the committee, is available at the Access Board's Web site (http://www.access-board.gov/medical-equipment.htm).

Committee meetings are open to the public and interested persons can attend the meetings and communicate their views. Members of the public will have opportunities to address the committee on issues of interest to them during public comment periods scheduled on each day of the meeting.

The meetings will be accessible to persons with disabilities. An assistive listening system, computer assisted real-time transcription (CART), and sign language interpreters will be provided. Persons attending the meetings are requested to refrain from using perfume, cologne, and other fragrances for the comfort of other participants (see www.access-board.gov/about/policies/fragrance.htmfor more information). Also, persons wishing to provide handouts or other written information to the committee are requested to provide electronic formats to Rex Pace via email prior to the meetings so that alternate formats can be distributed to committee members.

This is a summary of the Commission'sNotice of Proposed Rulemaking,FCC 12-152, adopted on December 11, 2012, and released on December 17, 2012. The full text of this document is available for inspection and copying during normal business hours in the FCC Reference Information Center, Room CY-A257, 445 12th Street, SW., Washington, DC 20554. The complete text may be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc. (BCPI), Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, (202) 488-5300, facsimile (202) 488-5563, or via email atfcc@bcpiweb.com.The complete text is also available on the Commission's Web site athttp://hraunfoss.fcc.gov/edocs_public/attachment/FCC-12-152A1doc.Alternative formats (computer diskette, large print, audio cassette, and Braille) are available by contacting Brian Millin at (202) 418-7426, TTY (202) 418-7365, or via email tobmillin@fcc.gov.

Pursuant to §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 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 the Commission's Electronic Comment Filing System (ECFS).See Electronic Filing of Documents in Rulemaking Proceedings,63 FR 24121 (1998). All filings should reference the docket numbers in this proceeding, FCC 12-152, or by WT Docket No. 12-357.

Electronic Filers:Comments may be filed electronically using the Internet by accessing the ECFS:http://fjallfoss.fcc.gov/ecfs2/.

Paper Filers:Parties who choose to file by paper must file an original and one copy 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. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.

All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St., SW., Room TW-A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes and boxes must be disposed ofbeforeentering 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.

People with Disabilities:To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an email tofcc504@fcc.govor call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).

DocumentFCC 12-152contains proposed information collection requirements subject to the PRA. It will be submitted to the Office of Management and Budget (OMB) for review under section 3507 of the PRA. OMB, the general public, and other Federal agencies are invited to comment on the proposed information collection requirements contained in this document. PRA comments should be submitted to Judith B. Herman at (202) 418-0214, or via the Internet atPRA@fcc.govand to Nicholas A. Fraser, Office of Management and Budget, via email toNicholas_A._Fraser@omb.eop.govor via fax at 202-395-5167.

To view a copy of this information collection request (ICR) submitted to OMB: (1) Go to the Web pagehttp://www.reginfo.gov/public/do/PRAMain, (2) look for the section of the Web page called “Currently Under Review,” (3) click on the downward-pointing arrow in the “Select Agency” box below the “Currently Under Review” heading, (4) select “Federal Communications Commission” from the list of agencies presented in the “Select Agency” box, (5) click the “Submit” button to the right of the “Select Agency” box, (6) when the list of FCC ICRs currently under review appears, look for the title of this ICR and then click on the ICR Reference Number. A copy of the FCC submission to OMB will be displayed.

Initial Paperwork Reduction Act Analysis

This document contains proposed new or modified information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and the Office of Management and Budget (OMB) to comment on the information collection requirements contained in this document, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198,see44 U.S.C. 3506(c)(4), we seek specific comment on how wemight further reduce the information collection burden for small business concerns with fewer than 25 employees.

OMB Control Number:3060-[XXXX].

Title:Sections 1.946, 1.949, 1.2105(a), etc.—Service Rules for Advanced Wireless Services (AWS) H Block.

Form Number:N/A.

Type of Review:New collection.

Respondents:Business or other for-profit entities, not-for-profit institutions, and state, local, or tribal government.

Number of Respondents:50 respondents; 50 responses.

Estimated Time per Response:.25 hours to .5 hours.

Frequency of Response:Annual, one time, and on occasion reporting requirements; recordkeeping requirement; and third party disclosure requirement.

Obligation to Respond:Required to obtain or retain benefits. Statutory authority for the information collection is contained in 15 U.S.C. 79et seq.;47 U.S.C. sections 151, 154(i), 154(j), 155, 157, 225, 227, 303(r), 309, 1404, and 1451.

Total Annual Burden:14 hours.

Total Annual Cost:N/A.

Privacy Impact Assessment:N/A.

Nature and Extent of Confidentiality:There is no need for confidentiality.

Needs and Uses:The Commission is submitting this information collection to the Office of Management and Budget as a new collection. TheNotice of Proposed Rulemaking (NPRM)proposes rules for the Advanced Wireless Services (AWS) H Block to make available ten megahertz of spectrum for flexible use, extending the current Personal Communications Services (PCS) band, which is used by the four national providers as well as regional and rural providers to offer mobile service across the Nation. TheNPRMbegins the Commission's implementation of the Congressional directive in the Middle Class Tax Relief and Job Creation Act of 2012 (Spectrum Act) to grant new initial licenses for the 1915-1920 MHz (Lower H Block) and 1995-2000 MHz (Upper H Block) bands through a system of competitive bidding—unless doing so would cause harmful interference to commercial mobile service licensees in the 1930-1995 MHz (PCS downlink) band.

1. We propose rules for the Advanced Wireless Services (AWS) H Block that would make available ten megahertz of spectrum for flexible use. The proposal would extend the widely-deployed Personal Communications Services (PCS) band, which is used by the four national providers as well as regional and rural providers to offer mobile service across the nation. The additional spectrum for mobile use will help ensure that the speed, capacity, and ubiquity of the nation's wireless networks keeps pace with the skyrocketing demand for mobile service.

2. The Commission's action is a first step in implementing the Congressional directive in the Middle Class Tax Relief and Job Creation Act of 2012 (Spectrum Act) that we grant new initial licenses for the 1915-1920 MHz and 1995-2000 MHz bands (the Lower H Block and Upper H Block, respectively) through a system of competitive bidding—unless doing so would cause harmful interference to commercial mobile service licensees in the 1930-1995 MHz (PCS downlink) band (collectively, the Lower H Block and Upper H Block are referred to as the “H Block”).

3. To implement the Spectrum Act provisions pertaining to the H Block, and in keeping with our goal of expanding the amount of spectrum available for wireless broadband services, we propose terrestrial service rules for the H Block that would generally follow the Commission's part 27 rules. In some instances, we propose rules that are modified from part 27 to account for issues unique to the H Block, particularly to protect PCS licensees from harmful interference. With thisNPRM,we seek comment on a number of proposals regarding the licensing, use, and assignment of the spectrum, including the costs and benefits of the proposals.

4. Although the Commission previously sought comment on many of these issues in theAWS-2 NPRM,Service Rules for Advanced Wireless Services in the 1915-1920 MHz, 1995-2000 MHz, 2020-2025 MHz and 2175-2180 MHz Bands, 69 FR 63489 (Nov. 2, 2004) (AWS-2 NPRM), and the2008 FNPRM,Service Rules for Advanced Wireless Services in the 2155-2175 MHz Band; Service Rules for Advanced Wireless Services in the 1915-1920 MHz, 1995-2000 MHz, 2020-2025 MHz and 2175-2180 MHz Bands, 73 FR 35995 (June 25, 2008) (2008 FNPRM),wireless broadband technologies and the wireless industry have evolved since the Commission last sought comment on these issues such that, in our assessment, the development of a fresh record is warranted. As a result, we will adopt H Block rules based on the record developed in response to thisNPRM(WT Docket No. 12-357). Parties may re-file in this docket earlier comments with any necessary updates.

5. For each of the issues identified below, we seek comment on the most efficient manner to address the issue. Commenters should also identify the various costs and benefits associated with a particular proposal. We ask that commenters take into account only those costs and benefits that directly result from the implementation of the particular rules that could be adopted, including any proposed requirement or potential alternative requirement. Further, to the extent possible, commenters should provide specific data and information, such as actual or estimated dollar figures for each specific cost or benefit addressed, along with a description of how the data or information was calculated or obtained, and any supporting documentation or other evidentiary support.

6. We discuss the Spectrum Act's four main statutory elements related to the H Block—allocation for commercial use, flexible use, assignment of licenses, and a determination regarding interference—in greater detail below.

7. Section 6401 of the Spectrum Act requires the Commission to allocate the 1915-1920 MHz and 1995-2000 MHz bands for commercial use. The Spectrum Act does not define the phrase “allocate [the H Block] for commercial use.” When this phrase is read in the context of the Spectrum Act as a whole, we conclude it requires the Commission to make any changes necessary to, or otherwise ensure that, the Non-Federal Table of Allocations reflects that the spectrum identified in section 6401 can be used commercially and licensed to non-federal entities under flexible use service rules through a system of competitive bidding. All of the H Block spectrum is within the 1850-2000 MHz band, which is allocated exclusively for non-federal, fixed and mobile use on a primary basis and designated for use in the commercial PCS/AWS bands. We believe the Commission's prior allocation of the H Block is fully consistent with section 6401's allocation language because the existing allocation is the broadest allocation possible consistent with international allocations. We further read section 6401 as directing the Commission to maintain this existing allocation. Given the requirement to license under flexible use service rules, we do not read the requirement to allocate the HBlock for commercial use to specifically limit eligible uses to commercial uses.

8. Therefore, we tentatively conclude that the existing allocation of the H Block for non-federal fixed and mobile use on a primary basis meets the allocation requirement of section 6401(b)(1)(A) for the H Block, and seek comment on this tentative conclusion. We seek comment on whether there are any additional actions the Commission should take to comply with the requirement to allocate the H Block for commercial use. We ask commenters that believe further action is needed to comply with Congress's mandate to detail what other action is necessary, including the costs and benefits of such action.

9. Consistent with the Spectrum Act's mandate that we license the H Block under flexible use service rules, we propose service rules for the H Block that permit a licensee to employ the spectrum for any non-Federal use permitted by the United States Table of Frequency Allocations, subject to the Commission's part 27 flexible use and other applicable rules (including service rules to avoid harmful interference). Congress recognized the potential benefits of flexible spectrum allocations and amended the Communications Act in 1997 to add section 303(y), which grants the Commission the authority to adopt flexible allocations if certain factors are met. Thus, we propose that the H Block may be used for any fixed or mobile service that is consistent with the allocations for the band. If commenters think any restrictions are warranted, they should describe why such restrictions are needed, quantify the costs and benefits of any such restrictions, and describe how such restrictions would comport with the statutory mandates of section 303(y) of the Communications Act and section 6401 of the Spectrum Act.

10. Section 6401(b) of the Spectrum Act requires the Commission to assign initial licenses for the 1915-1920 and 1995-2000 MHz bands through a system of competitive bidding pursuant to section 309(j) of the Communications Act. Accordingly, below, we seek comment on proposals regarding competitive bidding rules that would apply to resolve any mutually exclusive applications accepted for H Block licenses.

11. The Commission is prohibited from granting initial licenses under the Spectrum Act for the H Block if the Commission determines that the H Block “cannot be used without causing harmful interference” to commercial mobile licensees in the 1930-1995 MHz band (PCS downlink band). We note that the Spectrum Act does not define the term “harmful interference,” and we propose to use the existing definition of “harmful interference” in the Commission's rules. Under the Commission's rules harmful interference is “[i]nterference which endangers the functioning of a radionavigation service or of other safety services or seriously degrades, obstructs, or repeatedly interrupts a radiocommunication service operating in accordance with [the International Telecommunications Union] Radio Regulations.”

12.Upper H Block.As detailed in the Band Plan section below, the Commission allocated this spectrum for fixed and mobile use in 2003, and it designated it for PCS/AWS base station operations and proposed service rules to that effect in 2004. During the eight years that WT Docket No. 04-356 has been pending, no party has filed technical data and/or analysis indicating that base station operations in the Upper H Block would cause harmful interference to licensees in the PCS downlink band. Accordingly, we tentatively conclude that licensing the Upper H Block under flexible use service rules will not cause harmful interference to commercial mobile licensees in the 1930-1995 MHz band. We seek comment on this tentative conclusion.

13.Lower H Block.In 2004 the Commission designated this spectrum for PCS/AWS mobile operations; paired with Upper H Block, after concluding that harmful interference from Lower H Block to the PCS downlink band could be addressed through appropriate service rules. In WT Docket No. 04-356, commenters vigorously debated the power and out-of-band emission limits necessary to avoid interference to mobiles receiving in the PCS downlink band. Four PCS licensees proposed technical rules for Lower H Block to avoid interference to PCS and at least one PCS licensee continues to advocate for one of the earlier proposals. As discussed in detail below, we propose a band plan and are seeking comment on technical rules to avoid interference, including the earlier proposals by PCS licensees. Accordingly, we tentatively conclude that it will be possible to auction and license the Lower H Block under flexible use service rules without causing harmful interference to commercial mobile licensees in the PCS downlink (1930-1995 MHz) band. We seek comment on this tentative conclusion. Regarding the proposed band plan and technical issues discussed in the sections below, we ask that commenters proposing alternative band plans and/or technical rules—including any alternative proposals that have been previously submitted to the Commission—provide detailed analyses of how their proposal will avoid harmful interference to licensees in the PCS downlink band.

14.Alternatives, if Harmful Interference to PCS.If, contrary to our expectation, the record results in a determination that licensing the Upper H Block, the Lower H Block, or both, would cause harmful interference to licensees in the PCS downlink band, section 6401(b)(4) of the Spectrum Act nullifies the initial requirement in section 6401(b)(1)(a) that the Commission to allocate the interfering spectrum for commercial use. We do not, however, believe that Congress intended section 6401(b)(4)(a) to disturb allocations adopted prior to the Spectrum Act. Rather, Congress intended section 6401(b)(4) to avoid harmful interference to the millions of existing customers of PCS licensees that might otherwise result from Commission actions implementing the requirements in section 6401(b)(1) related to H Block. Therefore, if we determine that the Lower H Block, the Upper H Block, or both, cannot be used without causing harmful interference to PCS licensees, we tentatively conclude that we may not under the Spectrum Act auction and grant initial licenses, subject to flexible use service rules, for the interfering spectrum. If we determine that half of the H Block cannot be auctioned and licensed, we tentatively conclude that the statute requires us to auction and license the half of the H Block that would not cause harmful interference to PCS downlinks (i.e.,either the Upper or Lower H Block). Accordingly, we ask commenters to address what should be done in the alternative with the H Block or any portion of the H Block that we determine cannot be licensed under the Spectrum Act due to harmful interference to licensees in the PCS downlink band. In particular, should any such spectrum be designated for Unlicensed PCS (UPCS)?

15. In the following sections, we propose to license the H Block as paired 5 megahertz blocks, with the Upper H Block used for high-power base stations and the Lower H Block used for mobile and low power fixed operations. We further propose to license the H Block by Economic Areas. We invite commenters to propose other licensing areas including for the Gulf of Mexico.

16. In 2004, the Commission adopted theAWS Sixth Report and Order,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, 69 FR 62615 (Oct. 27, 2004), designating the H Block for licensed fixed and mobile services, including advanced wireless services, and pairing the 1915-1920 MHz band with the 1995-2000 MHz band. The Commission decided to pair the 1915-1920 MHz and 1995-2000 MHz bands because it found that pairing this spectrum would promote efficient use of the spectrum, would allow for the introduction of high-value services, and was otherwise preferable to the other options that had been put forth.

17. In addition, the Commission contemplated that mobile operations would be conducted in the Lower H Block. The Commission reasoned that using the Lower H Block for low power operations would be advantageous because the adjacent 1910-1915 MHz PCS band is used for mobile operations and using the Lower H Block for high power base station operations could result in harmful interference to the PCS band.

18. We see no reason to diverge from the reasoning in theAWS Sixth Report and Order.Accordingly, we tentatively conclude that the 1915-1920 MHz and 1995-2000 MHz bands should be paired as a single band. In addition, we propose that high power base station operations will be prohibited in the Lower H Block. We seek comments on the costs and benefits of licensing the 1915-1920 MHz and 1995-2000 MHz bands in this manner. We also seek comment on alternate configurations of the H Block. Commenters should address any technical issues implicated in an alternate band plan, and should discuss the costs and benefits of any alternative proposal.

19.Geographic Area Licensing:We propose to adopt a geographic area licensing scheme for the H Block because it is well-suited for the types of fixed and mobile services that would likely be deployed in these bands. Additionally, geographic-area licensing is consistent with the Commission's licensing approach for the AWS-1, Broadband PCS, Commercial 700 MHz bands, and AWS-4 bands. Based on the Commission's experience administering these services, geographic area licensing: (1) Provides licensees with substantial flexibility to respond to market demand, which results in significant improvements in spectrum utilization; (2) permits economies of scale because licensees can coordinate usage across an entire geographic area to maximize spectrum use; and, (3) reduces the regulatory burdens and transaction costs because wide-area licensing does not require site-by-site approval so a licensee can aggregate its service territories without incurring the administrative costs and delays associated with site-by-site licensing. We seek comment on this approach, including the costs and benefits of adopting a geographic area licensing scheme.

20. In the event that commenters do not support geographic-area licensing for the H Block, commenters should explain their position and identify any alternative licensing proposals that they support, including the costs and benefits associated with such alternative proposals. Commenters should also address how an alternative licensing approach would be consistent with the statutory requirement to assign licenses in the H Block through competitive bidding and the statutory objectives that the Commission is required to promote in establishing methodologies for competitive bidding.

21.Service Area Size.We seek to adopt a service area size for the H Block that meets several statutory goals. These include facilitating access to spectrum by both small and large providers, providing for the efficient use of the spectrum, encouraging deployment of wireless broadband services to consumers, especially those in rural areas, and promoting investment in and rapid deployment of new technologies and services consistent with our obligations under section 309(j) of the Communications Act.

22. To accomplish these goals, we propose to license the H Block on an Economic Area (EA) basis. The adjacent bands, both PCS and AWS-4, are licensed on an EA basis. EAs are small enough to provide spectrum access opportunities for smaller carriers but also may be aggregated up to larger license areas to achieve economies of scale. We seek comment on this approach and ask commenters to discuss and quantify the economic, technical, and other public interest considerations of any particular geographic scheme for this band, as well as the impact that any such scheme would have on rural service and competition.

23. We also seek comment on whether we should license the H Block on a nationwide basis. We seek comment on the extent to which nationwide licenses maximize or limit the opportunity for licensees to provide the widest array of services, and whether nationwide licenses provide the necessary incentives to foster the growth of existing technologies and the development of new technologies. We also ask commenters to compare the advantages and disadvantages of nationwide licensing to those of licensing by EAs, including economic and financial considerations.

24. In response to theAWS-2 NPRM,some commenters argued that licensing the H Block using smaller geographic areas than EAs would accommodate its possible use as complementary spectrum to existing PCS offerings. Other commenters agreed and also noted that small and rural wireless providers would benefit if the Commission licensed the H Block using smaller geographic areas than EAs. Would licensing the H Block by areas smaller than EAs (e.g.,Cellular Market Areas comprising Metropolitan Statistical Areas (MSAs) and Rural Service Areas (RSAs)) facilitate its use by smaller and rural operators? Would the benefits of smaller licenses outweigh any potential diseconomies of scale? We also seek comment on whether we should license the H Block by BTAs and the associated costs and benefits of this approach. Are there other geographic licensing methods that would better meet the stated goals for this band?

25. In addition, we seek comment on how to license the Gulf of Mexico. Should the Gulf of Mexico be part of another service area(s) or should we separately license a service area(s) to cover the Gulf of Mexico? Are there any public interest benefits that would be served by creating a Gulf of Mexico licensing area? Further, would the interests of the land based licensees be protected if we proceeded to license the Gulf of Mexico? Commenters that advocate a separate service area(s) to cover the Gulf of Mexico should discuss what boundaries should be used, and whether special interference protection criteria or performance requirements arenecessary due to the unique radio propagation characteristics and antenna siting challenges that exist for Gulf licensees.

26. As discussed above, we are proposing that the Upper H Block be used for base station (i.e.,high power) operations, and the Lower H Block for mobile and other low-power operations. In this section we consider whether technical standards generally applicable to AWS and PCS stations are appropriate for these bands, or whether different standards are necessary to provide interference protection to services operating in adjacent spectrum bands. In light of the Spectrum Act, and our assessment of the relevant public interest benefits, a key goal in this proceeding is to develop technical rules that will permit optimal use of the H Block without causing harmful interference to commercial mobile service licensees in the 1930-1995 MHz PCS band. In responding to our inquiries, we ask commenting parties to provide test data and specific technical analysis to support their positions.

27. Immediately below the Upper H Block is the 1930-1995 MHz PCS band, which is used for base station transmit/mobile receive (i.e.,downlink). The Commission has tentatively concluded that base stations operating in the Upper H Block would be compatible with similar use of the spectrum below 1995 MHz, and there would be no need to apply technical standards more restrictive than those established for other AWS stations. The record developed in WT Docket No. 04-356 does not demonstrate any disagreement with this approach.

28. Immediately above the Upper H Block is the 2000-2020 MHz band, which is allocated on a co-primary basis for Fixed, Mobile, and Mobile Satellite (Earth-to-space,i.e.,for uplink mobile transmit/satellite receive). In theAWS-4 Report and Order,we adopted service rules under which 2000-2020 MHz will be licensed terrestrially for mobile transmit/base station receive. Service Rules for Advanced Wireless Services in the 2000-2020 MHz and 2180-2200 MHz Bands, FCC 12-151. The Commission has previously concluded that there is potential for mutual interference between these two bands, and in WT Docket No. 04-356 MSS commenters raised concerns. In theAWS-4 Report and Order,we concluded that the public interest is best served by requiring AWS-4 uplinks to operate at lower power levels in 2000-2005 MHz and emit lower emissions below 2000 MHz. We further concluded that 2 GHz MSS operators and AWS-4 licensees must accept any harmful interference from future, lawful operations in the Upper H Block due to out of band emissions in the 2000-2005 MHz band or receiver overload from transmitters operating within the 1995-2000 MHz band.

29. We also propose to adopt the standard base station power limits that apply to AWS and PCS stations: 1640 watts peak equivalent isotropically radiated power (EIRP) in non-rural areas and 3280 watts peak EIRP in rural areas. We seek comment on this proposal.

30. Given the considerations addressed above, we propose an out-of band-emission (OOBE) limit for base stations of 43 + 10 log10(P) dB, where P is the transmit power in watts, outside of the 1995-2000 MHz band. To provide some interference mitigation to AWS-4 uplink operations above 2000 MHz while ensuring that all of the Upper H Block spectrum can be used for more valuable downlink operations, we propose a further OOBE limit of 70 + 10 log10(P) dB above 2005 MHz. We seek comment on our proposals and any alternative proposals, including comments on the associated costs and benefits of each proposal.

31. If we ultimately decide to license this band on the basis of geographic service areas that are less than nationwide (e.g.,EAs), we will have to ensure that such licensees do not cause interference to co-channel systems operating along their common geographic borders. In other services, the Commission has offered either a “boundary limit” or a “coordination” approach to provide interference protection between co-channel licensees operating in these bands. Both approaches have certain advantages and disadvantages. For example, coordination would likely minimize the potential for interference to coordinated stations, but could also impose unnecessary costs in coordinating facilities that have a low potential for interference. A boundary limit approach would establish an accepted standard, which would enable licensees to deploy facilities in boundary areas without the need for coordination; but could require some additional planning between licensees to ensure that potential interference does not occur.

32. In other bands where spectrum has been allocated for fixed and mobile services, we have uniformly adopted the boundary limit method to minimize co-channel interference. For example, for the PCS and AWS-1 bands, which are closest in frequency to the H Block, there is a field strength limit of 47 dBμV/m at the boundary of licensed geographic areas. We propose that the boundary limit approach should be adopted for the H Block as the means for protecting licensees from co-channel interference at their borders, and propose to specify a boundary field strength limit of 47 dBμV/m. We seek comment on these proposals. We also ask whether, if the boundary limit method is adopted, we should permit licensees operating in adjoining areas to employ alternative, agreed-upon signal limits at their common borders.

33. Immediately below the Lower H Block is the 1850-1915 MHz PCS band, which is used for mobile transmit/base receive. Use of the Lower H Block for mobile transmit/base receive, as we have proposed, would be compatible with this adjacent PCS band. Thus there would be no need to apply technical standards more restrictive than those established for AWS and PCS stations to protect PCS operations below 1915 MHz.

34. Above the Lower H Block is the 1920-1930 MHz unlicensed PCS (UPCS) band, which does not require protection, and the 1930-1995 PCS base transmit/mobile receive band. The latter presents protection challenges for use of the Lower H Block. The Commission has previously concluded that there is potential for mobile transmitters in the 1915-1920 MHz band to cause out-of-band and overload interference to mobile receivers in the 1930-1995 MHz band, but only when certain worst-case conditions are all present. Specifically, “[t]he worst case occurs when the mobile transmitter is operating at maximum power (near the edge of its service area) at the upper edge of the band (near 1920 MHz) and the mobile receiver is trying to receive a weak signal (near the edge of its service area) at the lower edge of the band (near 1930 MHz) and only free space loss is considered.” Additionally, both mobiles must be in close proximity to each other, less than a few meters, and in line-of-sight conditions. The Commission found that the confluence of these worst-case circumstances is very infrequent and the risk of actual interference is further mitigated bynormal network management practices such as handoff and power management. Nevertheless, the Commission concluded that technical standards more restrictive for Lower H Block than those established for PCS may be appropriate to avoid impairing incumbent PCS operations above 1930 MHz.

35. The Spectrum Act sharply focuses these concerns by requiring us to auction the H Block spectrum unless we determine that the frequencies cannot be used without causing harmful interference to commercial mobile service licensees in the frequencies between 1930 MHz and 1995 MHz (PCS downlink). We therefore wish to review previous proposals for Lower H Block power and emissions limits, evaluate how the interference environment may have changed since those earlier discussions, and determine what limits are appropriate for the current environment, and whether they may be increased in the future.

36. Several parties have expressed concern about the potential for intermodulation interference, which can result from receiver overload, impacting PCS user equipment (UEs) receiving in the PCS B Block (1950-1965 MHz). In the2008 FNPRM,the Commission proposed a limit on the EIRP from H Block mobile transmitters of +23 dBm/MHz. In response, Sprint and Verizon Wireless (both licensees of significant portions of PCS including B Block) and Nextel reiterated their 2005 proposal for gradated power limits to avoid interference to PCS as follows: A limit on mobile EIRP of +6 dBm/MHz in the 1917-1920 MHz band, and a limit of +30 dBm/MHz in the 1915-1917 MHz band. This proposal was supported by testing of a variety of mobiles commissioned by CTIA in 2004. Sprint has repeatedly and recently stated that the H Block can be auctioned and licensed without interfering with PCS operations by using these earlier-proposed, gradated power limits. AT&T, also a licensee of a significant portion of PCS spectrum, including the B Block, did not concur with the plan put forth by Sprint, Verizon and Nextel and submitted an alternative solution. AT&T proposed a uniform, “technologically neutral,” −13 dBm/MHz power limit on the Lower H Block to protect PCS, arguing that the split-band approach favored CDMA over GSM and wideband technologies, such as W-CDMA and UMTS/HSPA. In response to theAWS-4 NPRMAT&T favored leaving the H Block idle to serve as a guard band to protect AWS-4 and PCS. More recently, AT&T argues in the alternative that if the Commission proceeds with an auction of the entire H Block despite AT&T's concerns, we should adopt technical rules to protect PCS devices from harmful interference including appropriate power limits on H Block mobiles.

37. We seek to establish technical requirements that will support flexible use of this spectrum in accordance with the Spectrum Act without causing harmful interference to PCS licensees. The record in WT Docket No. 04-356 was largely developed between four and eight years ago. Since then, the mobile broadband industry, including the wireless network equipment sector, has undergone a rapid evolution. The marketplace has seen greater adoption of wideband technologies such as UMTS and LTE, as well as the authorization and launch of PCS services in the G Block. Advances in mobile device development have unleashed new designs and ushered in the advent of the smartphone. We seek comment on how changes in the industry may have affected the assumptions underlying previous analyses. How have filtering techniques and duplex design improved? Given that the Commission's intentions to authorize mobile service in the H Block have been known in the industry since at least 2004, have better duplexer filters been employed in user equipment? How has the population of mobile devices changed, what is the mix of technologies in use in the marketplace, and what is the performance of this new generation of devices?

38. We seek comment on the appropriate power limit for 1915-1920 MHz mobile devices in order to prevent interference to PCS operations. Commenters are asked to submit detailed technical analyses or studies in support of their recommendations and are encouraged to provide test data wherever possible. The assumptions that underpin the analyses should identify how harmful interference is defined. What probability of interference is deemed acceptable (what percentage of mobiles, what percentage of locations)? For example, the Commission's earlier proposal, 23 dBm/MHz, was based on a mobile separation of two meters between users, while others argued for a one-meter separation. Likewise, is defining harmful interference based on degradation to a receiver's noise floor appropriate for a system which is inherently interference-limited? If stricter limitations on mobile transmit power are deemed necessary to protect current legacy devices, should the power limits sunset after a period of time, allowing time for new, more resilient mobiles to comprise the bulk of the mobile population? How much time will licensees need to obtain and deploy UEs with the better filters, if better filters are still needed? How long will consumers' legacy UEs need to be protected? We also seek comment on the costs and benefits of alternative power limits.

39. The 1915-1920 MHz band is also allocated for fixed services, so fixed stations will be allowed to operate in the band. However, because fixed station antennas are generally located some distance above ground level, the possibility of interference from fixed stations to PCS mobiles will likely be less than the anticipated interference from 1915-1920 MHz mobiles to PCS mobiles. We therefore believe that 1915-1920 MHz fixed stations should be permitted to employ a higher power level than mobiles operating in that band. We seek comment as to what that power level should be.

40. The Commission has previously concluded that, in certain circumstances, attenuating transmitter OOBEs by 43 + 10 log10(P) dB is appropriate to minimize harmful electromagnetic interference between operators. This limit is generally applied in cases where adjacent services have similar characteristics, such as base-to-base or mobile-to-mobile and adhere to similar power limits. This limit has served well as a basis for development of industry standards which may impose tighter limits in some cases. An OOBE limit of 43 + 10 log10(P) dB applies to most of the services authorized under parts 24 and 27. In particular, this is the limit imposed on transmitters operating in both the 1930-1995 MHz PCS band and the 1920-1930 MHz UPCS band adjacent to the Lower H Block. As both of these services in adjacent bands provide for mobiles with similar power, the same OOBE limit appears appropriate for the Lower H Block. The Commission therefore proposes to require attenuation of 43 + 10 log10(P) to emissions from transmitters in the 1915-1920 MHz band.

41. The risk of mobile-to-mobile interference discussed below may require a further OOBE limitation to protect against the potential for interference from the out-of band emissions of Lower H Block transmitters into PCS mobiles receiving in the 1930-1995 MHz band. Currently, the Commission's rules require licenseesoperating in the 1850-1915 MHz PCS band to comply with the 43 + 10 log10P dB OOBE limit at the edge of their authorized spectrum block. This level of required attenuation of emissions with respect to the transmitter power can be translated into a power spectral density of −13 dBm/MHz for out-of-band emissions. We are aware that PCS-industry standards require equipment manufacturers to incorporate a stronger OOBE suppression capability in PCS mobiles. In the2008 FNPRM,the Commission proposed a stricter limit on out of band emissions from Lower H Block transmitters of −60 dBm/MHz in the frequency range of 1930-1990 MHz (PCS downlink band), equivalent to an attenuation of 90 + 10 log10(P) dB. The joint proposal of Sprint, Verizon and Nextel requested a limit of −76 dBm/MHz. Their analysis assumed a one-meter separation and mobile receivers operating in noise-limited faded signal conditions, and included test data commissioned by CTIA. Most of the mobiles tested met this limit. The −76 dBm/MHz specification is also the industry standard for CDMA devices under TIA-98F. Ericsson and Motorola submitted comments supporting the use of industry standards as the basis for OOBE limits and cited −61 dBm/MHz for the GSM Standard, with Motorola citing −76 dBm/MHz for the CDMA standard. Ericsson provided a later submission specifically supporting a limit of −66 dBm/MHz. Motorola, responding to CTIA's measurements, noted the failure of two GSM devices to meet the tighter CDMA-based OOBE limits of −76 dBm/MHz and thus advocated a limit of −71 dBm/100 kHz, which is equivalent to −61 dBm/MHz.

42. As discussed earlier, there has been considerable technological advancement in devices and technologies deployed in the mobile broadband industry since this issue was last under review. We note that many of the arguments for proposed OOBE limits were linked to industry standards at the time. The 3GPP standard for emerging 4G technology allows for a higher level of OOBE, generally −50 dBm/MHz in most bands, but has implemented a limit of −40 dBm/MHz in several bands. The current LTE standards for the use in PCS requires mobiles in 1850-1915 MHz to meet a limit of −50 dBm/MHz in 1930-1995 MHz. In this and the concurrent AWS-4 proceeding, Sprint has expressed support for an OOBE limit of −40 dBm/MHz from AWS-4 transmitters into the PCS downlink band at 1930-1995 MHz. In theAWS-4 Report and Orderwe apply the limit of 70 + 10 log10(P) dB, which is equivalent to −40 dBm/MHz, to all emissions below 2000 MHz. We believe that the current capabilities for mobile device manufacturers will support this level of tolerance for interference. Given that other operations may already be imposing out-of-band emissions at the −40 dBm/MHz level, should the Commission adopt this limit specifically for Lower H Block emissions in the 1930-1995 MHz range?

43. The consensus from the record developed in WT Docket No. 04-356 supports the creation of a specific OOBE limit for emissions from Lower H Block transmitters into the 1930-1995 MHz band, even though no other PCS mobiles are subject to such tighter limits in this band. We seek comment on the appropriate OOBE limit for the Lower H Block necessary to prevent interference to PCS operations. Commenters are asked to submit detailed technical analyses or studies in support of their recommendations and are encouraged to provide test data wherever possible. As with comments regarding power limits, the assumptions that underpin the analyses should identify how harmful interference is defined. What probability of interference is deemed acceptable (what percentage of mobiles, what percentage of locations)? For example, the Commission's earlier proposal was based on a mobile separation of two meters between users, while others argued for a one-meter separation. Commenters should also discuss if certain limits favor or prohibit certain technologies, and are therefore not technologically neutral. For example, would imposing a limit of −76 dBm/MHz favor CDMA2000 over LTE, because CDMA2000 specifies −76 dBm/MHz for this band, while LTE specifies only −50 dBm/MHz? If stricter limitations on OOBE are deemed necessary to protect current legacy devices, should these limits sunset after a period of time, allowing time for new, more resilient mobiles to comprise the bulk of the mobile population? How much time will licensees need to obtain and deploy UEs with the better filters? How long will consumers' legacy UEs need to be protected? We also seek comment on the costs and benefits of alternative OOBE limits.

44. To fully define an emissions limit, the Commission's rules generally specify details on how to measure the power of the emissions, such as the measurement bandwidth. For the Broadband PCS band, the measurement bandwidth used to determine compliance with this limit for mobile stations is one MHz or greater, with some modification in the one-MHz bands immediately outside and adjacent to the frequency block where a resolution bandwidth of at least one percent of the emission bandwidth of the fundamental emission of the transmitter may be employed. We believe that it is reasonable to apply this same procedure to transmissions in the 1915-1920 MHz band.

45. Section 27.57(c) of our rules provides that AWS-1 operations are subject to international agreements with Mexico and Canada. We propose to use this approach for the H Block. Until such time as any adjusted agreements between the United States, Mexico and/or Canada can be agreed to, operations must not cause harmful interference across the border, consistent with the terms of the agreements currently in force. We note that our proposed rules, and any rules that may ultimately become effective pursuant to the above-captioned proceeding, may need to be modified to comply with any future agreements with Canada and Mexico regarding the use of the H Block. We seek comment on this issue, including the costs and benefits, and on any alternative approaches to this issue.

46. Part 27 contains several additional technical rules applicable to all part 27 services, including § 27.51 (Equipment authorization), § 27.52 (RF safety), § 27.54 (Frequency stability), § 27.56 (Antennas structures; air navigation safety), and § 27.63 (Disturbance of AM broadcast station antenna patterns). As we are proposing to license the H Block as Advanced Wireless Services under part 27, we propose that all of these part 27 technical rules should apply to all H Block licenses and licensees, including licensees who acquire their licenses through partitioning or disaggregation. We seek comment on this approach including comments on the associated costs and benefits.

47. We recognize that H Block, governed under part 27 rules, is adjacent to Broadband PCS spectrum administered under part 24. The adjacent blocks are harmonized with the same uplink/downlink configuration. It is possible that the licensee of a PCS G Block geographic area may also acquire the authorization for the adjoining H Block through the competitive bidding process. In that event, the licensee may wish to deploy a wider channel bandwidth operating across both bands, and we believe that such flexibility is appropriate. For one thing, wider channel bandwidths may provide higher data rates and potentially more efficient use of the spectrum. The potential forthis situation raises questions about the possible effects of the combined blocks operating under different rule parts. Under the technical rules proposed herein, the limits on OOBE and power are similar, but not precisely the same. We anticipate that the licensee's combined operations should satisfy the more restrictive limit if a conflict arises. For example, an OOBE limit of 43 + 10 log10(P) dB applies to both the Upper G Block and the Upper H block. However, the Upper H Block has an additional requirement to meet an OOBE limit of 70 + 10 log10(P) dB above 2005 MHz. The combined operations of both blocks would still need to meet this tighter restriction above 2005 MHz. We further propose that to the extent a service provider establishes unified operations across the adjacent blocks, the operator may choose not to observe emission limits strictly between its adjacent block licenses in a geographic area, so long as it complies with other Commission rules and is not adversely affecting the operations of other parties by virtue of exceeding the emission limit. We seek comment on this observation. We also seek comment to identify potential conflicts between the two rule parts under this scenario and proposals on how they could be reconciled. Commenters should discuss and quantify any costs and benefits associated with such combined operations and any effects on competition, innovation and investment.

48. The 1915-1920 MHz band is a subset of a larger band at 1910-1930 MHz that is allocated for Fixed and Mobile services on a primary basis. In 1993, the Commission designated the 1910-1930 MHz band for use by Unlicensed Personal Communications Service (UPCS) devices. Prior to 1993, the 1910-1930 MHz band was allocated for Fixed services and used for fixed point to point microwave links. To facilitate the introduction of UPCS systems, the Commission designated the Unlicensed PCS Ad Hoc Committee for 2 GHz Microwave Transition and Management (now known as “UTAM, Inc.”) as the sole entity to coordinate and manage the transition. In accordance with the Commission's policies established in theEmerging Technologiesproceeding, UTAM subsequently relocated virtually all of the incumbent microwave links, thereby clearing the 1910-1930 MHz band for use by UPCS systems.

49. In 2003, the Commission sought comment on re-designating all or a portion of the 1910-1920 MHz segment for AWS use. In 2004, the Commission re-designated the 1910-1915 MHz band from the UPCS to Fixed and Mobile services and assigned that spectrum to Sprint Nextel, Inc. (“Sprint”) as replacement spectrum for Sprint's operations being relocated from the 800 MHz band. Shortly thereafter, the Commission re-designated the 1915-1920 MHz band from UPCS for use by licensed AWS operations. In so doing, the Commission acknowledged that “UTAM must be fully and fairly reimbursed for relocating incumbent microwave users in this band” and agreed “that UTAM should be made whole for the investments it has made in clearing the UPCS bands.” Relative to the Lower H Block, the Commission specifically concluded that “UTAM is entitled to reimbursement of twenty-five percent—on apro-ratabasis—of the total costs it has incurred, including its future payment obligations for links it has relocated, as of the date that a new entrant gains access to the 1915-1920 MHz spectrum band.” The Commission also determined that AWS licensees would be required to pay their portion of the 25 percent of costs prior to commencement of their operations.

50. In theAWS-2 NPRM,the Commission requested comments on methods for apportioning the relocation costs among H Block licensees, including what method of allocating relocation costs would be most advantageous to reimbursing UTAM and for providing certainty for bidders. TheAWS-2 NPRMalso sought comment on what rules should govern the allocation of relocation costs among multiple AWS licensees in the 1915-1920 MHz band. Because UTAM requested that reimbursement payments from AWS licensees be due as a precondition to the granting of a license, the Commission sought comment on whether it would be advantageous to require AWS licensees to reimburse UTAM for its band clearing costs “earlier than the commencement of actual service.” To the extent that the Commission opted not to do so, the Commission also sought comment on whether it should specify when AWS entrants will be considered to have commenced operations.

51. In deciding how to apportion UTAM's reimbursement among H Block licensees in the 1915-1920 MHz band, we believe it is important to provide auction bidders with reasonable certainty as to the range of the reimbursement obligation associated with each license under various auction outcomes. We also believe it is important for UTAM to be fully reimbursed as soon as possible given that UTAM cleared the band over ten years ago. Accordingly, we propose to require H Block licensees to pay apro rataamount of the 25 percent owed to UTAM based on the gross winning bids of the initial H Block auction. Specifically, we propose that the reimbursement amount owed (“RN”) be determined by dividing the gross winning bid (“GWB”) for an H Block license (i.e.,an individual EA) by the sum of the gross winning bids for all H Block licenses won in the initial auction and then multiplying by $12,629,857. In other words, the cost-sharing formula would read as follows:

52. This formula would ensure that UTAM receives full reimbursement after the first auction by effectively apportioning the reimbursement costs associated with any unsold H Block licenses among the winning bidders of H Block licenses in the first auction—with an exception in the event a successful bidder's long-form application is not filed or granted, and a contingency to cover an unlikely scenario. We further propose that winning bidders of H Block licenses in the first auction of this spectrum would not have a right to seek reimbursement from other H Block licensees including for licenses awarded in subsequent auctions. We believe this approach would avoid recordkeeping burdens and potential disputes and that it is appropriate given that—in the event that most licenses are awarded—the reimbursement obligation for an individual license will represent but a fraction of overall reimbursement to UTAM. We seek comment on our proposals including the followingcontingency: in the unlikely event that licenses covering less than 40 percent of the population of the United States are awarded in the first auction, we propose that winning bidders—in the first auction of this spectrum as well as in subsequent auctions—will be required to timely pay UTAM theirpro ratashare calculated by dividing the population of the individual EA awarded at auction by the total U.S. population and then multiplying by $12,629,857. This contingent proposal would ensure that UTAM is reimbursed as soon as possible while also protecting winning bidders of H Block licenses from bearing an undue burden of the reimbursement obligation due to UTAM. We seek comment on our proposal.

53. Alternatively, we specifically seek comment on the relative costs and benefits of adopting a population based cost-sharing formula as the general rule for the H Block. We acknowledge that using a population based approach in all events would offer bidders certainty as to the obligation attached to each license but this approach could also defer UTAM's full reimbursement indefinitely if less than all of the licenses are awarded during the initial auction.

54. We further propose that winning bidders promptly pay UTAM the amount owed, as calculated pursuant to the formula that we adopt, within 30 days of grant of their long form applications for the licenses. For PCS and AWS-1, and AWS-4, cost sharing obligations are triggered when a licensee proposes to operate a base station in an area cleared of incumbents by another licensee. In this case, however, UTAM's members received no benefit for clearing the Lower H Block nationwide over ten years ago, and the Commission determined in 2003 that the new PCS/AWS licensees entering the band would reap the benefits of UTAM's efforts and that UTAM should be fully reimbursed. Moreover, as noted above, given the relative fraction of overall reimbursement to UTAM that will be owed by each winning bidder, we believe that it will not disincentivize parties from filing applications or impose a burden on winning bidders to reimburse UTAM within 30 days of the grant of their long-form applications. We seek comment on the above proposals, including the costs and benefits.

55. The 1995-2000 MHz band is part of the 1990-2025 MHz band that the Commission reallocated from the Broadcast Auxiliary Service (BAS) to emerging technologies such as PCS, AWS, and MSS. Consistent with the relocation principles established by the Commission, each new entrant had an independent responsibility to relocate incumbent BAS licensees. In addition, as a general rule, the Commission's traditional cost-sharing principles are applicable to the 1990-2025 MHz band. Sprint, which is the PCS licensee at 1990-1995 MHz, completed the BAS transition for the entire 35 megahertz in 2010. In 2011, Sprint notified the Commission that it entered in a private settlement with DISH to resolve the dispute with MSS licensees with respect to MSS licensees' obligation to reimburse Sprint for their share of the BAS relocation costs. Accordingly, the only remaining cost-sharing obligations in the 1990-2025 MHz band are attributable to the remaining, unassigned ten megahertz of spectrum in the 1990-2025 MHz band: 1995-2000 MHz and 2020-2025 MHz.

56. In theAWS Sixth Report and Order,the Commission determined that all new entrants to the 1990-2025 MHz band may be required to bear a proportional share of the costs incurred in the BAS clearance, on apro ratabasis according to the amount of spectrum each licensee is assigned. However, the Commission did not decide specifically how to allocate that share. In theAWS-2 NPRM,the Commission sought comment on how the reimbursement rights and obligations of each AWS licensee could be most efficiently and equitably allocated if the H Block were licensed on a geographic area basis other than as a nationwide license. To the extent that not all spectrum in the 1990-2025 MHz band would have been licensed, the Commission sought comment on whether to require those entrants who are licensed at that time to bear apro ratashare of the relocation costs based on the amount of spectrum they have been assigned relative to the amount of 1990-2025 MHz spectrum that has been licensed. In addition, the Commission also sought comment on whether to impose reimbursement obligations on later arriving new entrants, on the appropriate length of such an obligation, and on the mechanism for applying those obligations.

57. Consistent with the Commission's intent that all entrants to the 1990-2025 MHz band bear a proportional share of the costs incurred in the BAS clearance on apro ratabasis according to the amount of spectrum each entrant is assigned, H Block licensees will be responsible for reimbursing Sprint for one-seventh of the BAS relocation costs (i.e.,the proportional share of the costs associated with Sprint relocating 5 megahertz of BAS spectrum that will be used by H Block entrants). We believe it is important to provide auction bidders with reasonable certainty as to the range of the reimbursement obligation associated with each license under various auction outcomes. We also believe it is important for Sprint to be fully reimbursed as soon as possible given that Sprint cleared the H Block so H Block licensees will receive unencumbered spectrum. Accordingly, we propose to require H Block licensees to reimburse Sprint based on the gross winning bids of the initial H Block auction. Specifically, we propose that the reimbursement amount owed (“RN”) be determined by dividing the gross winning bid (“GWB”) for an H Block license (i.e.,an individual EA) by the sum of the gross winning bids for all H Block licenses won in the initial auction and then multiplying by $94,875,516. In other words, the cost-sharing formula would read as follows:

58. This formula would ensure that Sprint receives full reimbursement after the first auction by effectively apportioning the reimbursement costs associated with any unsold H Block licenses among the winning bidders ofH Block licenses in the first auction—with an exception in the event a successful bidder's long-form application is not filed or granted, and a contingency to cover an unlikely scenario. We further propose that winning bidders of H Block licenses in the first auction of this spectrum would not have a right to seek reimbursement from other H Block licensees including for licenses awarded in subsequent auctions. We believe this approach would avoid recordkeeping burdens and potential disputes and that it is appropriate given that—in the event that most licenses are awarded—the reimbursement obligation for an individual license will represent but a fraction of overall reimbursement to Sprint. We seek comment on our proposals including the following contingency: In the unlikely event that licenses covering less than 40 percent of the population of the United States are awarded in the first auction, we propose that winning bidders—in the first auction of this spectrum as well as in subsequent auctions—will be required to timely pay Sprint theirpro ratashare calculated by dividing the population of the individual EA awarded at auction by the total U.S. population and then multiplying by $94,875,516. This contingent proposal would ensure that Sprint is reimbursed as soon as possible while also protecting winning bidders of H Block licenses from bearing an undue burden of the reimbursement obligation due to Sprint. We seek comment on our proposal.

59. Alternatively, we specifically seek comment on the relative costs and benefits of adopting a population based cost-sharing formula as the general rule for the H Block. We acknowledge that using a population based approach in all events would offer bidders certainty as to the obligation attached to each license but this approach could also defer Sprint's full reimbursement indefinitely if less than all of the licenses are awarded during the initial auction.

60. We further propose that winning bidders promptly pay Sprint the amount owed, as calculated pursuant to the formula that we adopt, within 30 days of grant of their long form applications for the licenses. For PCS and AWS-1, and AWS-4, cost sharing obligations are triggered when a licensee proposes to operate a base station in an area cleared of incumbents by another licensee. In this case, rather than Sprint itself benefiting from its band clearing efforts, other entrants in the band will reap the benefits of Sprint's efforts. Accordingly, we find no significant reason to treat Sprint any differently than UTAM and propose that Sprint be fully reimbursed by AWS licensees that will benefit from Sprint's clearing of the H Block. Moreover, as noted above, given the relative fraction of overall reimbursement to Sprint that will be owed by each winning bidder, we believe that it will not disincentivize parties from filing applications or impose a burden on winning bidders to reimburse Sprint within 30 days of the grant of their long-form applications. We seek comment on the above proposals, including the costs and benefits.

61. Consistent with precedent, we propose a specific date on which the reimbursement obligation adopted above will terminate. In recent instances, the relocation and cost-sharing obligations sunset ten years after the first ET license is issued in the respective band. To the extent that Sprint had not completed the relocation of BAS from the 1990-2025 MHz band, BAS operations in the band would have become secondary after December 9, 2013. However, in this instance, we do not believe that the public interest would be served by adopting December 9, 2013 as the sunset date for terminating the requirement that H Block licensees collectively reimburse Sprint for one-seventh of the BAS relocation costs. Rather, we propose a sunset date for the cost-sharing obligations of H Block licensees to Sprint that is ten years after the first H Block license is issued in the band. We find that a number of factors support our proposal. As discussed above, Sprint relocated BAS incumbents from the 1995-2000 MHz band, even though H Block licensees and not Sprint itself will reap the benefits of Sprint's relocation of BAS. In addition, the integrated nature of BAS operations required relocations on a market-by-market basis, and such a requirement would have imposed significant costs on individual H Block entrants because isolated, link-by-link relocation was infeasible. It therefore served the public interest for Sprint to undertake the relocation on an integrated, nationwide basis. Because H Block licenses have yet to be auctioned and because interested applicants will be able to calculate their reimbursement obligation to Sprint in bidding on licenses, we do not believe that our proposal imposes a burden on the winning bidders of H Block licenses. We seek comment on our proposed sunset date, including the costs and benefits.

62. We are proposing licensing and operating rules that will provide H Block licensees with the flexibility to provide any fixed or mobile service that is consistent with the allocations for this spectrum. Specifically, we are seeking comment on the appropriate license term, criteria for renewal, and other licensing and operating rules pertaining to the H Block. In addition, we seek comment on the potential impact of all of our proposals on competition. In addressing these issues, commenters should discuss the costs and benefits associated with these proposals and any alternative that commenters propose.

63. We propose to apply the regulatory status provisions of § 27.10 of the Commission's rules to licensees in the H Block. The Commission's current mobile service license application requires an applicant for mobile services to identify the regulatory status of the service(s) it intends to provide because service offerings may bear on eligibility and other statutory and regulatory requirements. Under part 27, the Commission permits applicants who may wish to provide both common carrier and non-common carrier services (or to switch between them) under a single license to request status as both a common carrier and a non-common carrier. Thus, a part 27 applicant is not required to choose between providing common carrier and non-common carrier services. We propose to adopt this same approach here. Licensees in the H Block would be able to provide all allowable services anywhere within their licensed area at any time, consistent with their regulatory status. We believe that this approach is likely to achieve efficiencies in the licensing and administrative process, and provide flexibility to the marketplace. We seek comment on the appropriate licensing approach and ask that commenters discuss the costs and benefits of their proposed licensing approach.

64. We further propose that applicants and licensees in the H Block be required to indicate a regulatory status for any services they choose to provide. Apart from this designation of regulatory status, we do not propose to require applicants to describe the services they seek to provide. We caution potential applicants that an election to provide service on a common carrier basis typically requires that the elements of common carriage be present; otherwise the applicant must choose non-common carrier status. If potential applicants areunsure of the nature of their services and their classification as common carrier services, they may submit a petition with their applications, or at any time, requesting clarification and including service descriptions for that purpose. We propose to apply this framework to H Block licensees and seek comment on this proposal, including the costs and benefits of this proposal.

65. We also propose that if a licensee were to change the service or services it offers such that it would be inconsistent with its regulatory status, the licensee must notify the Commission. A change in a licensee's regulatory status would not require prior Commission authorization, provided the licensee was in compliance with the foreign ownership requirements of section 310(b) of the Communications Act that would apply as a result of the change, consistent with the Commission's rules for AWS-1 spectrum. Consistent with our part 27 rules, we propose to require licensees to file the notification within 30 days of a change made without the need for prior Commission approval, except that a different time period may apply where the change results in the discontinuance, reduction, or impairment of the existing service. We seek comment on this proposal, including the costs and benefits.

66. We propose to apply the provisions of § 27.12 of the Commission's rules to applicants for licenses in the H Block. Section 27.12 implements section 310 of the Communications Act, including foreign ownership and citizenship requirements that restrict the issuance of licenses to certain applicants. An applicant requesting authorization to provide services in this band other than broadcast, common carrier, aeronautical en route, and aeronautical fixed services would be subject to the restrictions in section 310(a), but not to the additional restrictions in section 310(b). An applicant requesting authorization for broadcast, common carrier, aeronautical en route, or aeronautical fixed services would be subject to both sections 310(a) and 310(b). We do not believe that applicants for this band should be subject to different obligations in reporting their foreign ownership based on the type of service authorization requested in the application. Consequently, we propose to require all applicants to provide the same foreign ownership information, which covers both sections 310(a) and 310(b), regardless of which service they propose to provide in the band. We note, however, that we would be unlikely to deny a license to an applicant requesting to provide exclusively services that are not subject to section 310(b), solely because its foreign ownership would disqualify it from receiving a license if the applicant had applied for authority to provide such services. However, if any such licensee later desires to provide any services that are subject to the restrictions in section 310(b) we would require the licensee to apply to the Commission for an amended license, and we would consider issues related to foreign ownership at that time. We request comment on this proposal, including any costs and benefits.

67. We propose to adopt an open eligibility standard for the H Block. We believe that adopting such a standard should encourage efforts to develop new technologies, products and services, while helping to ensure efficient use of this spectrum. An open eligibility standard is consistent with the Commission's past practice for mobile wireless spectrum allocations, as well as with section 6404 of the Spectrum Act. We seek comment on our open eligibility approach.

68. We note that an open eligibility approach would not affect citizenship, character, or other generally applicable qualifications that may apply under our rules. Additionally, section 6004 of the Spectrum Act restricts participation in auctions required under the Spectrum Act, which includes the H Block, by “person[s] who [have] been, for reasons of national security, barred by any agency of the Federal Government from bidding on a contract, participating in an auction, or receiving a grant.” We seek comment on our proposal to address this issue in the competitive bidding procedures section below. Further, as the Commission observed in theIncentive Auction NPRM,Expanding the Economic and Innovation Opportunities of Spectrum Through Incentive Auctions, 77 FR 69934 (Nov. 21, 2012) (Incentive Auction NPRM), section 6004 does not address eligibility to acquire licenses on the secondary market from the initial or subsequent licensee. We seek comment on whether section 6004 permits or requires the Commission to restrict eligibility of the persons described therein to acquire licenses in the secondary market, and whether and to what extent such restriction is consistent with other provisions of the Communications Act. If such restrictions should be implemented, should we do so by requiring certifications in applications similar to those required under our rules for enforcement of the Anti-Drug Abuse Act of 1988? Would it be permissible and appropriate to address such situations on a case-by-case basis in light of the specific facts and circumstances? Should we apply the same attribution rules in doing so, where the relevant person is not the sole owner of the proposed licensee?

69. We seek comment generally on whether and how to address any mobile spectrum holdings issues involving H Block spectrum in order to meet our statutory requirements and our goals for the H Block. Section 309(j)(3)(B) of the Communications Act provides that in designing systems of competitive bidding, the Commission shall “promot[e] economic opportunity and competition and ensur[e] that new and innovative technologies are readily accessible to the American people by avoiding excessive concentration of licenses.” More recently, section 6404 of the Spectrum Act recognizes the Commission's authority “to adopt and enforce rules of general applicability, including rules concerning spectrum aggregation that promote competition.” We note that we recently initiated a proceeding to revisit the mobile spectrum holdings policies that apply to both transactions and auctions. In the past, the Commission has sought comment on these issues with respect to particular spectrum bands prior to auctioning spectrum licenses.

70. We seek comment on whether the acquisition of H Block spectrum should be subject to the same general mobile spectrum holding policies applicable to frequency bands that the Commission has determined to be available and suitable for wireless services. Alternatively, depending on the specific rules and requirements that apply to H Block spectrum, should we distinguish H Block spectrum for purposes of evaluating mobile spectrum holdings? Commenters should discuss and quantify any costs and benefits associated with any proposals on the applicability of spectrum holdings policies to H Block spectrum.

71. We propose to establish a 10-year term for licenses for the H Block. The Communications Act does not specify a term limit for AWS band licenses. TheCommission has adopted 10-year license terms for most wireless radio services licenses. To maintain this consistency among wireless services, in theAWS-2 NPRM,the Commission proposed that H Block licenses have a term of 10 years. We continue to believe that a 10-year license term is appropriate, and consequently propose, a 10 year license term for the H Block spectrum. We seek comment on this proposal, including any costs and benefits of the proposal. In addition, we invite commenters to submit alternate proposals for the appropriate license term, which should similarly include a discussion on the costs and benefits.

72. Under our license term proposal, if a license in these bands is partitioned or disaggregated, any partitionee or disaggregatee would be authorized to hold its license for the remainder of the partitioner's or disaggregator's original license term. This approach is similar to the partitioning provisions the Commission adopted for BRS, for broadband PCS licensees, for the 700 MHz band licensees, and for AWS-1 licenses at 1710-1755 MHz and 2110-2155 MHz, and AWS-4. We emphasize that nothing in our proposal is intended to enable a licensee, by partitioning or disaggregating the license, to confer greater rights than it was awarded under the terms of its license grant. Similarly, nothing in our proposal is intended to enable any partitionee or disaggregatee to obtain rights in excess of those previously possessed by the underlying licensee. We seek comment on these proposals, including the cost and benefits thereof.

73. The Commission establishes performance requirements to promote the efficient deployment of wireless services, including to rural areas, and ensure that spectrum is used. Over the years, the Commission has applied different performance and construction requirements to different spectrum bands. For example, within four (4) years, an AWS-4 licensee must provide reliable terrestrial signal coverage and offer terrestrial service to at least forty (40) percent of its total AWS-4 population. Within seven (7) years, an AWS-4 licensee must provide reliable terrestrial signal coverage and offer terrestrial service to at least seventy (70) percent of the population in each of its license areas. Similarly, for licensees operating in the 2.3 GHz Wireless Communications Services (WCS) band, the Commission adopted performance requirements that included a population-based construction requirements (40 percent of the license area's population within four (4) years and 75 percent within six-and-a-half (6.5) years) and reporting requirements. In theAWS-2 NPRM,the Commission broadly sought comment on whether it should establish any specific performance requirements in the H Block, including interim performance requirements.

74. Today, we continue to believe that performance requirements play a critical role in ensuring that licensed spectrum does not lie fallow, and now propose to establish the following performance requirements. We seek comment on the following buildout requirements for the H Block:

• H Block Interim Buildout Requirement: Within four (4) years, an H Block licensee shall provide signal coverage and offer service to at least forty (40) percent of the population in each of its license areas.

• H Block Final Buildout Requirement: By the end of the license term,i.e.,within ten (10) years, an H Block licensee shall provide signal coverage and offer service to at least seventy (70) percent of the population in each of its license areas.

75. We propose these performance requirements in an effort to foster deployment expeditiously in the H Block for the provision of wireless, terrestrial broadband service, and to enable the Commission to take appropriate corrective action should such deployment fail to occur. Specifically, the interim benchmark at four years would ensure that a licensee begins deploying facilities quickly, thereby evidencing meaningful utilization of the spectrum. At the same time, by proposing a relatively low population threshold in the interim benchmark, we acknowledge that large-scale network deployment may ramp up over time as equipment becomes available and a customer base is established. In addition, by proposing a final buildout requirement timeline of ten years, we believe we allow a reasonable amount of time for any H Block licensee to attain nationwide scale.

76. We seek comment on these proposed buildout requirements. We encourage comment on whether our proposals represent the appropriate balance between requirements that are too low as to not result in meaningful buildout and those that would be so high as to be unattainable. We also seek comment on whether other benchmarks represent more appropriate requirements? Commenters should discuss and quantify how any supported buildout requirements will affect investment and innovation as well as discuss and quantify other costs and benefits associated with the proposal.

77.Agreements between H Block and AWS-4 licensees.In theAWS-4 Report and Order,we permit AWS-4 licensees to enter into private operator-to-operator agreements with all 1995-2000 MHz licensees to so that AWS-4 operations above 2000 MHz may have an OOBE level in excess of 70 + 10 log10(P) dB into the 1995-2000 MHz band. In the event that an AWS-4 licensee reaches such an agreement with all 1995-2000 MHz licensees, should the H Block licensees' performance requirements be reduced or eliminated because accepting a higher OOBE level increases the use of the 2000-2005 MHz band? Implementing such an approach would enable a market-based solution for AWS-4 licensees who seek to remove technical rules designed to protect the H Block, by allowing them to acquire H Block licenses at auction (or, later, on the secondary market) and prioritize deployment of AWS-4 over H Block.

78.Penalties for Failure to Meet Construction Requirements.Along with construction benchmarks, we seek to adopt meaningful and enforceable consequences, or penalties, for failing to meet the benchmarks. Building on what we have learned from other bands and considering the unique characteristics of the H Block, we propose and seek comment, including on the costs and benefits, of the following penalties in the event an H Block licensee fails to satisfy its buildout requirements:

• In the event an H Block licensee fails to meet the H Block Interim Buildout Requirement in its license area, the term of the license shall be reduced by two years.

• In the event an H Block licensee fails to meet the H Block Final Buildout Requirement in its license area, the H Block license for each license area in which it fails to meet the buildout requirement shall terminate automatically without Commission action.

79. We further propose that, in the event a licensee's authority to operate terminates, the licensee's spectrum rights would become available for reassignment pursuant to the competitive bidding provisions of section 309(j). Further, consistent with the Commission's rules for other spectrum bands, including AWS-1 and the Broadband Radio Service, we propose that any H Block licensee who forfeits its license for failure to meet its performance requirements would be precluded from regaining the license.

80.Compliance Procedures.Consistent with § 1.946(d) of the Commission's rules, we propose torequire H Block licensees to demonstrate compliance with the performance requirements by filing a construction notification within 15 days of the relevant milestone certifying that they have met the applicable performance benchmark. Further, we propose that each construction notification include electronic coverage maps and supporting documentation, which must be truthful and accurate and must not omit material information that is necessary for the Commission to determine compliance with its performance requirements.

81. Electronic coverage maps must accurately depict the boundaries of each license area in the licensee's service territory. If a licensee does not provide reliable signal coverage to an entire license area, we propose that its map must accurately depict the boundaries of the area or areas within each license area not being served. Further, we propose that each licensee also must file supporting documentation certifying the type of service it is providing for each licensed area within its service territory and the type of technology used to provide such service. Supporting documentation must include the assumptions used to create the coverage maps, including the propagation model and the signal strength necessary to provide reliable service with the licensee's technology.

82. Pursuant to section 308(b) of the Communications Act, the Commission may require renewal applicants to “set forth such facts as the Commission by regulation may prescribe as to the citizenship, character, and financial, technical, and other qualifications of the applicant to operate the station” as well as “such other information as it may require.” We propose to adopt H Block license renewal requirements consistent with those adopted in the700 MHz First Report and Orderandthe AWS-4 Report and Order,which form the basis of the renewal paradigm proposed in ourWireless Radio Services Renewal NPRM. See Service Rules for the 698-746, 747-762 and 777-792 MHz Bands,72 FR 24238 (May 2, 2007) (700 MHz First Report and Order);AWS-4 Report and Order; Amendment of parts 1, 22, 24, 27, 74, 80, 90, 95, and 101 To Establish Uniform License Renewal, Discontinuance of Operation, and Geographic Partitioning and Spectrum Disaggregation Rules and Policies for Certain Wireless Radio Services,75 FR 38959 (July 7, 2010) (WRS Renewal NPRM and Order). We emphasize that, as the Commission made clear in these proceedings, a licensee's performance showing and its renewal showing are two distinct showings. A performance showing provides a snapshot in time of the level of a licensee's service, while a renewal showing provides information regarding the level and types of service provided over the entire license term.

83. We propose that applicants for renewal of H Block licenses file a “renewal showing,” in which they demonstrate that they have provided, and are continuing to provide, service to the public, and that they are compliant with the Communications Act and the Commission's rules and policies. In the700 MHz First Report and Order,the Commission explained that in the renewal context, the Commission considers “a variety of factors including the level and quality of service, whether service was ever interrupted or discontinued, whether service has been provided to rural areas, and any other factors associated with a licensee's level of service to the public.” As we adopted in theAWS-4 Report and Order,we also propose to consider the extent to which service is provided to qualifying tribal lands. We propose that these same factors should be considered when evaluating renewal showings for the H Block and seek comment on this approach. Commenters should discuss and quantify the costs and benefits of this approach.

84. As explained above, today we are proposing that H Block licensees meet four and ten-year performance obligations. We therefore seek comment on whether the public interest would be served by awarding H Block licensees renewal expectancies where they maintain the level of service demonstrated at the ten year performance benchmark through the end of their license term, provided that they have otherwise complied with the Communications Act and the Commission's rules and policies during their license term. We also seek comment on whether H Block licensees should obtain a renewal expectancy for subsequent license terms, if they continue to provide at least the level of service demonstrated at the ten year performance benchmark through the end of any subsequent license terms. Commenters should discuss and quantify the costs and benefits of this approach.

85. Finally, consistent with theAWS-4 Report and Order,the700 MHz First Report and Orderand theWRS Renewals NPRM and Order,we propose to prohibit the filing of mutually exclusive renewal applications, and that if a license is not renewed, the associated spectrum would be returned to the Commission for reassignment. We seek comment on these proposals, including on the associated costs and benefits.

86. We also request comment on the Commission's rules governing the permanent discontinuance of operations, which are intended to afford licensees operational flexibility to use their spectrum efficiently while ensuring that spectrum does not lay idle for extended periods. Under § 1.955(a)(3) of the Commission's rules, an authorization will automatically terminate, without specific Commission action, if service is “permanently discontinued.” For the H Block, we propose to define “permanently discontinued” as a period of 180 consecutive days during which a licensee does not operate and does not serve at least one subscriber that is not affiliated with, controlled by, or related to the provider. We believe this definition strikes an appropriate balance between our twin goals of providing licensees operational flexibility while ensuring that spectrum does not lie fallow. Licensees would not be subject to this requirement until the date of the first performance requirement benchmark, which is proposed as 4 years from the license grant, so they will have adequate time to construct their network. In addition, consistent with § 1.955(a)(3) of the Commission's rules, we propose that, if an H Block licensee permanently discontinues service, the licensee must notify the Commission of the discontinuance within 10 days by filing FCC Form 601 or 605 and requesting license cancellation. An authorization will automatically terminate without specific Commission action if service is permanently discontinued even if a licensee fails to file the required form. We seek comment on these proposals, including the associated costs and benefits.

87. The Commission's part 27 rules generally allow for geographic partitioning and spectrum disaggregation. Geographic partitioning refers to the assignment of geographic portions of a license to another licensee along geopolitical or other boundaries. Spectrum disaggregation refers to the assignment of discrete amounts of spectrum under the license to another entity. Disaggregation allows for multiple transmitters in the same geographic area operated by different companies on adjacent frequencies inthe same band. As the Commission noted when first establishing partitioning and disaggregation rules, allowing such flexibility could facilitate the efficient use of spectrum by enabling licensees to make offerings directly responsive to market demands for particular types of services, increasing competition by allowing market entry by new entrants, and expediting provision of services that might not otherwise be provided in the near term.

88. We propose to permit partitioning and disaggregation by licensees in the H Block. To ensure that the public interest would be served if partitioning or disaggregation is allowed, we propose requiring each H Block licensee that is a party to a partitioning, disaggregation or combination of both to independently meet the applicable performance and renewal requirements. We believe this approach would facilitate efficient spectrum use, while enabling service providers to configure geographic area licenses and spectrum blocks to meet their operational needs. We seek comment on these proposals. Commenters should discuss and quantify the costs and benefits of these proposals with respect to competition, innovation, and investment.

89. We also seek comment on whether the Commission should adopt additional or different mechanisms to encourage partitioning and/or disaggregation of H Block spectrum and the extent to which such policies ultimately may promote more service, especially in rural areas. Commenters should discuss and quantify the costs and benefits of promoting more service using mechanisms to encourage partitioning and disaggregation of H Block spectrum, including the effects of the proposal.

90. In 2003, in order to promote more efficient use of terrestrial wireless spectrum through secondary market transactions, while also eliminating regulatory uncertainty, the Commission adopted a comprehensive set of policies and rules to govern spectrum-leasing arrangements between terrestrial licensees and spectrum lessees. These policies and rules enable terrestrially-based Wireless Radio Service licensees holding “exclusive use” spectrum rights to lease some or all of the spectrum usage rights associated with their licenses to third party spectrum lessees, which then are permitted to provide wireless services consistent with the underlying license authorization. Through these actions, the Commission sought to promote more efficient, innovative, and dynamic use of the terrestrial spectrum, expand the scope of available wireless services and devices, enhance economic opportunities for accessing spectrum, and promote competition among terrestrial wireless service providers. In 2004, the Commission built upon this spectrum leasing framework by establishing immediate approval procedures for certain categories of terrestrial spectrum leasing arrangements and extending the spectrum leasing policies to additional Wireless Radio Services.

91. We propose that the spectrum leasing policies and rules established in those proceedings be applied to the H Block in the same manner that those policies apply to other part 27 services. We seek comment on this proposal. Commenters should discuss the effects on competition, innovation and investment, and on extending our secondary spectrum leasing policies and rules to the H Block.

92. Even though licenses in the H Block may be issued pursuant to one rule part, licensees in this band may be required to comply with rules contained in other parts of the Commission's rules by virtue of the particular services they provide. For example:

• Applicants and licensees would be subject to the application filing procedures for the Universal Licensing System, set forth in part 1 of our rules.

• Licensees would be required to comply with the practices and procedures listed in part 1 of our rules for license applications, adjudicatory proceedings, etc.

• Licensees would be required to comply with the Commission's environmental provisions, including § 1.1307.

• Licensees would be required to comply with the antenna structure provisions of part 17 of our rules.

• To the extent a licensee provides a Commercial Mobile Radio Service, such service would be subject to the provisions of part 20 of the Commission's rules, including 911/E911 and hearing aid-compatibility requirements, along with the provisions in the rule part under which the license was issued. Part 20 applies to all CMRS providers, even though the stations may be licensed under other parts of our rules.

• To the extent a licensee provides interconnected VoIP services, the licensee would be subject to the E911 service requirements set forth in part 9 of our rules.

• The application of general provisions of parts 22, 24, 27, or 101 would include rules related to equal employment opportunity,etc.

93. We seek comment on whether we need to modify any of these rules to ensure that H Block licensees are covered under the necessary provisions. We seek comment on applying these rules to the H Block spectrum and specifically on any rules that would be affected by our proposal to apply elements of the framework of these parts, whether separately or in conjunction with other requirements. What are the potential problems that may be associated with the Commission's adoption of any of these potential requirements, and how do they compare to the potential benefits?

94. The Commission currently has under consideration various provisions and policies intended to promote greater use of spectrum over Tribal lands. We propose to extend any rules and policies adopted in that proceeding to any licenses that may be issued through competitive bidding in this proceeding. We seek comment on this proposal, including any costs and benefits.

95. As discussed above, if we adopt a geographic area licensing scheme for the 1915-1920 MHz and 1995-2000 MHz bands, we will resolve mutually exclusive applications through competitive bidding, consistent with our statutory mandate.

96. We propose that the Commission would conduct any auction for H Block licenses in conformity with the general competitive bidding rules set forth in part 1, subpart Q, of the Commission's rules, and substantially consistent with the competitive bidding procedures that have been employed in previous auctions. Specifically, we propose to employ the part 1 rules governing competitive bidding design, designated entity preferences, unjust enrichment, application and payment procedures, reporting requirements, and the prohibition on certain communications between auction applicants. Under this proposal, such rules would be subject to any modifications that the Commission may adopt for its part 1 general competitive bidding rules in the future. In addition, consistent with our long-standing approach, auction-specific matters such as the competitive bidding design and mechanisms, as well asminimum opening bids and/or reserve prices, would be determined by the Wireless Telecommunications Bureau pursuant to its delegated authority. We seek comment on this approach, including the costs and benefits of this approach. We also seek comment on whether any of our part 1 rules would be inappropriate or should be modified for an auction of licenses in the H Block.

97. Section 6004 of the Spectrum Act prohibits “a person who has been, for reasons of national security, barred by any agency of the Federal Government from bidding on a contract, participating in an auction, or receiving a grant” from participating in a system of competitive bidding under section 309(j) required to be conducted under Title VI of the Spectrum Act. Accordingly, we propose to require that an auction applicant certify, under penalty of perjury, that it and all of the related individuals and entities required to be disclosed on the short-form application are not such persons. For purposes of this certification, we propose to define “person” as an individual, partnership, association, joint-stock company, trust, or corporation. We also propose to define “reasons of national security” to mean matters relating to the national defense and foreign relations of the United States. Our existing rules also include various certifications that a party must make in any application to participate in competitive bidding. As with other required certifications, failure to include the required certification by the applicable filing deadline would render the application unacceptable for filing, and the application would be dismissed with prejudice. We seek comment on this proposal.

98. In authorizing the Commission to use competitive bidding, Congress mandated that the Commission “ensure that small businesses, rural telephone companies, and businesses owned by members of minority groups and women are given the opportunity to participate in the provision of spectrum-based services.” In addition, section 309(j)(3)(B) of the Communications Act provides that, in establishing eligibility criteria and bidding methodologies, the Commission shall promote “economic opportunity and competition * * * by avoiding excessive concentration of licenses and by disseminating licenses among a wide variety of applicants, including small businesses, rural telephone companies, and businesses owned by members of minority groups and women.” One of the principal means by which the Commission fulfills this mandate is through the award of bidding credits to small businesses.

99. The Commission has previously stated that it would define eligibility requirements for small businesses on a service-specific basis, taking into account the capital requirements and other characteristics of each particular service in establishing the appropriate threshold. Further, the Commission, while standardizing many auction rules, has determined that it would continue a service-by-service approach to defining small businesses.

100. In the event that the Commission assigns exclusive geographic area licenses for the H Block, we believe that this spectrum would be employed for purposes similar to those for which the AWS-1 band is used. We therefore propose to establish the same small business size standards and associated bidding credits for the H Block as the Commission adopted for the AWS-1 band. We note that these small business size standards and associated bidding credits were proposed for the AWS-1 band because of the similarities between the AWS-1 service and the broadband PCS service and the Commission followed this approach when proposing small business size standards and associated bidding credits in theAWS 2 NPRM.Thus, we propose to define a small business as an entity with average gross revenues for the preceding three years not exceeding $40 million, and a very small business as an entity with average gross revenues for the preceding three years not exceeding $15 million. We seek comment on this proposal, including the costs and benefits of the proposal.

101. We propose to provide small businesses with a bidding credit of 15 percent and very small businesses with a bidding credit of 25 percent, as set forth in the standardized schedule in part 1 of our rules. We seek comment on the use of these standards and associated bidding credits, with particular focus on the appropriate definitions of small businesses and very small businesses as they may relate to the size of the geographic area to be served and the spectrum allocated to each license. Commenters should discuss and quantify any costs or benefits associated with these standards and associated bidding credits as they relate to the proposed geographic areas. In discussing these issues, commenters are requested to address and quantify the expected capital requirements for services in these bands and other characteristics of the service. Commenters are also invited to use comparisons with other services for which the Commission has already established auction procedures as a basis for their comments and any quantification of costs and benefits regarding the appropriate small business size standards.

102. In establishing the criteria for small business bidding credits, we acknowledge the difficulty in accurately predicting the market forces that will exist at the time these frequencies are licensed. Thus, our forecasts of types of services that will be offered over these bands may require adjustment depending upon ongoing technological developments and changes in market conditions.

103. We seek comment on whether the small business provisions we propose today are sufficient to promote participation by businesses owned by minorities and women, as well as rural telephone companies. To the extent that commenters propose additional provisions to ensure participation by minority-owned or women-owned businesses, they should address how such provisions should be crafted to meet the relevant standards of judicial review.

104. In addition, we note that under our part 1 rules, a winning bidder for a market will be eligible to receive a bidding credit for serving a qualifying tribal land within that market, provided that it complies with the applicable competitive bidding rules. The Commission currently has under consideration various provisions and policies intended to promote greater use of spectrum over tribal lands. We propose to extend any rules and policies adopted in that proceeding to any H Block licenses that may be assigned through competitive bidding. We seek comment on this proposal.

105. The proceedings thisNotice of Proposed Rulemakinginitiate shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission'sex parterules. Persons makingex partepresentations must file a copy of any written presentation or a memorandum summarizing any oral presentation within two business days after the presentation (unless a different deadline applicable to the Sunshine period applies). Persons making oralex partepresentations are reminded that memoranda summarizing the presentation must (1) list all persons attending or otherwise participating inthe meeting at which theex partepresentation was made, and (2) summarize all data presented and arguments made during the presentation. If the presentation consisted in whole or in part of the presentation of data or arguments already reflected in the presenter's written comments, memoranda or other filings in the proceeding, the presenter may provide citations to such data or arguments in his or her prior comments, memoranda, or other filings (specifying the relevant page and/or paragraph numbers where such data or arguments can be found) in lieu of summarizing them in the memorandum. Documents shown or given to Commission staff duringex partemeetings are deemed to be writtenex partepresentations and must be filed consistent with rule § 1.1206(b). In proceedings governed by rule § 1.49(f) or for which the Commission has made available a method of electronic filing, writtenex partepresentations and memoranda summarizing oralex partepresentations, and all attachments thereto, must be filed through the electronic comment filing system available for that proceeding, and must be filed in their native format (e.g.,.doc, .xml, .ppt, searchable .pdf). Participants in this proceeding should familiarize themselves with the Commission'sex parterules.

106. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), 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 thisNotice of Proposed Rulemaking (NPRM).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 theNPRMfor comments. The Commission will send a copy of theNPRM,including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA). In addition, theNPRMand IRFA (or summaries thereof) will be published in theFederal Register.

107. Wireless broadband is a key component of economic growth, job creation and global competitiveness because consumers are increasingly using wireless broadband services to assist them in their everyday lives. The explosive growth of wireless broadband services has created increased demand for wireless spectrum, which is expected to continue increasing, despite technological developments that allow for more efficient spectrum use. Unleashing more spectrum for broadband is essential to meeting this demand In thisNPRM,we seek to increase the nation's supply of spectrum for mobile broadband by proposing rules for licensed fixed and mobile services, including advanced wireless services (AWS), in the H Block. These service rules would make available 10 MHz of spectrum for flexible use in accordance with the Spectrum Act, without causing harmful interference to PCS licensees. In proposing terrestrial service rules for the band, which include technical rules to protect against harmful interference, licensing rules to establish geographic license areas and spectrum block sizes, and performance requirements to promote robust buildout, we advance toward enabling rapid and efficient deployment in the band. We do so by proposing service, technical, assignment, and licensing rules for this spectrum that generally follow the Commission's part 27 rules that generally govern flexible use terrestrial wireless service—except that in order to protect PCS licenses, our proposed rules are more stringent in certain respects. Overall, these proposals are designed to provide for flexible use of this spectrum by allowing licensees to choose their type of service offerings, to encourage innovation and investment in mobile broadband use in this spectrum, and to provide a stable regulatory environment in which broadband deployment would be able to develop through the application of standard terrestrial wireless rules. The market-oriented licensing framework for these bands would ensure that this spectrum is efficiently utilized and will foster the development of new and innovative technologies and services, as well as encourage the growth and development of broadband services, ultimately leading to greater benefits to consumers.

108. The proposed action is authorized pursuant to sections 1, 2, 4(i), 201, 301, 302, 303, 307, 308, 309, 310, 316, 319, 324, 332, 333, 1404, and 1451 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i), 201, 301, 302, 303, 307, 308, 309, 310, 316, 319, 324, 332, 333, 1404, and 1451.

109. 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 and policies, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. 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.

110.Small Businesses, Small Organizations, and Small Governmental Jurisdictions.Our action may, over time, affect small entities that are not easily categorized at present. We therefore describe here, at the outset, three comprehensive, statutory small entity size standards that encompass entities that could be directly affected by the proposals under consideration. As of 2009, small businesses represented 99.9% of the 27.5 million businesses in the United States, according to the SBA. Additionally, a “small organization” is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” Nationwide, as of 2007, there were approximately 1,621,315 small organizations. Finally, the term “small governmental jurisdiction” is defined generally as “governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” Census Bureau data for 2007 indicate that there were 89,527 governmental jurisdictions in the United States. We estimate that, of this total, as many as 88,761 entities may qualify as “small governmental jurisdictions.” Thus, we estimate that most governmental jurisdictions are small.

111.Wireless Telecommunications Carriers (except satellite).TheNPRMproposes to apply various Commission policies and rules to terrestrial service in the MSS bands. We cannot predict who may in the future become a licensee or lease spectrum for terrestrial use in these bands. In general, any wireless telecommunications provider would be eligible to become an Advanced Wireless Service licensee or lease spectrum from the MSS or AWSlicensees. This industry comprises establishments engaged in operating and maintaining switching and transmission facilities to provide communications via the airwaves. Establishments in this industry have spectrum licenses and provide services using that spectrum, such as cellular phone services, paging services, wireless Internet access, and wireless video services. The appropriate size standard under SBA rules is for the category Wireless Telecommunications Carriers. The size standard for that category is that a business is small if it has 1,500 or fewer employees. Under the present and prior categories, the SBA has deemed a wireless business to be small if it has 1,500 or fewer employees. For this category, census data for 2007 show that there were 1,383 firms that operated for the entire year. Of this total, 1,368 firms had employment of 999 or fewer employees and 15 had employment of 1000 employees or more. Similarly, according to Commission data, 413 carriers reported that they were engaged in the provision of wireless telephony, including cellular service, Personal Communications Service (PCS), and Specialized Mobile Radio (SMR) Telephony services. Of these, an estimated 261 have 1,500 or fewer employees and 152 have more than 1,500 employees. Consequently, the Commission estimates that approximately half or more of these firms can be considered small. Thus, using available data, we estimate that the majority of wireless firms can be considered small.

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

113. OMB, the general public, and other Federal agencies are invited to comment on the new or modified 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,see44 U.S.C. 3506(c)(4), we seek specific comment on how the Commission might further reduce the information collection burden for small business concerns with fewer than 25 employees.

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

115. The proposal to license the H Block under Economic Areas (EA) geographic size licenses will provide regulatory parity with other AWS bands that are licensed on an EA basis, such as AWS-1 licenses. Additionally, assigning H Block in EA geographic areas would allow H Block licensees to make adjustments to suit their individual needs. EA license areas are small enough to provide spectrum access opportunities for smaller carriers. EA license areas also nest within and may be aggregated up to larger license areas. Depending on the licensing mechanism we adopt, licensees may adjust their geographic coverage through auction or through secondary markets. This proposal should enable H Block providers, or any entities, whether large or small, providing service in other AWS bands to more easily adjust their spectrum to build their networks pursuant to individual business plans.

116. The technical rules of theNPRMwill protect entities operating in nearby spectrum bands from harmful interference, which may include small entities. These technical rules are based on the rules for AWS-1 spectrum, with specific additions or modifications designed to protect broadband PCS services operating in the 1930-1995 MHz band, as well as future services operating in the 2020-2025 MHz band.

117. TheNPRMproposal pertaining to how the H Block licenses will be assigned includes proposals to assist small entities in competitive bidding. Specifically, small entities will benefit from the proposal to provide small businesses with a bidding credit of 15 percent and very small businesses with a bidding credit of 25 percent. Providing small businesses and very small businesses with bidding credits will provide an economic benefit to small entities by making it easier for small entities to acquire spectrum or access to spectrum in these bands.

118. TheNPRMalso proposes to provide H Block licensees with the flexibility to provide any fixed or mobile service that is consistent with the allocations for this spectrum, which is consistent with other spectrum allocated or designated for licensed fixed and mobile services,e.g.,AWS-1. TheNPRMfurther proposes to generally license this spectrum under the Commission's market-oriented part 27 rules, except that certain restrictions would apply. These proposals include applying the Commission's secondary market policies and rules to all transactions involving the use of H Block bands for terrestrial services, which will provide greater predictability and regulatory parity with bands licensed for terrestrial mobile broadband service. This proposal should make it easier for H Block providers to enter secondary market arrangements involving terrestrial use of their spectrum. The secondary market rules apply equally to all entities, whether small or large. As a result, we believe that this proposal will provide an economic benefit to small entities by making it easier for entities, whether large or small, to enter into secondary market arrangements for H Block spectrum.

119. None.

120. Accordingly, it is ordered, pursuant to sections 1, 2, 4(i), 201, 301, 302, 303, 307, 308, 309, 310, 316, 319, 324, 332, 333, 1404, and 1451 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i), 201, 301, 302, 303, 307, 308, 309, 310, 316, 319, 324, 332, 333, 1404, and 1451, that thisNotice of Proposed Rulemakingis hereby adopted.

121. It is further ordered that notice is hereby given of the proposedregulatory changes described in this notice and that comment is sought on these proposals.

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

123. It is further ordered that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Notice, including the Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR parts 1 and 27 as follows:

This is a summary of the Commission'sNotice of Proposed Rulemaking and Order(NPRM), in GN Docket No. 12-354, FCC 12-148, adopted and released December 12, 2012. The full text of this document is available for inspection and copying during normal business hours in the FCC Reference Center, 445 12th Street SW., Washington, DC 20554. The complete text may be purchased from the Commission's copy contractor, Best Copy and Printing, Inc., 445 12th Street SW., Room CY-B402, Washington, DC 20554, (202)488-5300, facsimile (202) 488-5563, or via email atFcc@bcpiweb.com.The full text may also be downloaded at: www.fcc.gov. Alternative formats are available to persons with disabilities by sending an email tofcc504@fcc.govor by calling the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).

1. With thisNPRM,the Federal Communications Commission (Commission) propose to create a new Citizens Broadband Service in the 3550-3650 MHz band (3.5 GHz Band) currently utilized for military and satellite operations, which will promote two major advances that enable more efficient use of radio spectrum: small cells and spectrum sharing. The 3.5 GHz Band was identified by the National Telecommunications and Information Administration (NTIA) for shared federal and non-federal use in the 2010 Fast Track Report.See NTIA, An Assessment of the Near-Term Viability of Accommodating Wireless Broadband Systems et al,athttp://www.ntia.doc.gov/files/ntia/publications/fasttrackevaluation_11152010.pdf.Our proposal builds on our experience with spectrum sharing in the television white spaces (TVWS), proposes ideas teed up in our recent Notice of Inquiry on Dynamic Spectrum Access technologies, and broadly reflects recommendations made in a recent report by the President's Council of Advisors on Science and Technology (PCAST).See PCAST, Report to the President: Realizing the Full Potential of Government-Held Spectrum to Spur Economic Growthathttp://www.whitehouse.gov/sites/default/files/microsites/ostp/pcast_spectrum_report_final_july_20_2012.pdf.We also seek comment on whether to include under these proposed new, flexible rules the neighboring 3650-3700 MHz band,which is already used for commercial broadband services. Together, these proposals would make up to 150 megahertz of contiguous spectrum available for innovative mobile and fixed wireless broadband services without displacing mission-critical incumbent systems.

2. Demand for wireless broadband capacity is growing much faster than the availability of new spectrum. While the Commission and the President have outlined a path for nearly doubling the amount of available spectrum for fixed and wireless broadband uses, some experts forecast a need for a thousand-fold increase in wireless capacity by 2020. To meet this demand, future generations of wireless technology and services must continue to increase their yield of bits per hertz per second. Future wireless traffic demands also require new wireless network architectures and new approaches to spectrum management.

3. The PCAST Report identifies two technological advances as holding great promise for increasing our nation's wireless broadband capabilities. First, increased use of small cell network deployments can multiply wireless capacity within existing spectrum resources.See PCAST Report at vi, 17-20.Second, increased spectrum sharing can make large swaths of otherwise “stovepiped” spectrum—nationwide bands set aside for important, but localized, government and non-government uses—newly available for broadband use. The proposed Citizens Broadband Service would foster the widespread utilization of both of these technological advances and promote the efficient use of the 3.5 GHz Band.

4. Small cells are low-powered wireless base stations intended to cover targeted indoor or localized outdoor areas ranging in size from homes and offices to stadiums, shopping malls, hospitals, and metropolitan outdoor spaces. Typically, they provide wireless connectivity in areas that present capacity and coverage challenges to traditional wide-area macrocell networks. Small cells can be deployed relatively easily and inexpensively by consumers, enterprise users, and service providers. Networks that incorporate small cell technology can take advantage of greater “reuse” of scarce wireless frequencies, greatly increasing data capacity within the network footprint. For example, deploying ten small cells in a location in place of a single macro cell could result in a tenfold increase in capacity, using the same quantity of spectrum. Small cells can also be used to help fill in coverage gaps created by buildings, tower siting difficulties, and/or challenging terrain.

5. Spectrum sharing in this context refers to the use of automated techniques to facilitate the coexistence of disparate unaffiliated spectrum dependent systems that would conventionally require separate bands to avoid interference. Such coexistence may happen, for example, by authorizing targeted use of new commercial systems in specific geographical areas where interference into incumbent systems is not a problem. The need to minimize interference risks has caused, over time, much spectrum to be reserved for “high value” systems that protect national security, safety of life, etc. For example, the military may need spectrum for advanced radar systems or hospitals may deploy networks to enable real-time monitoring of patient vital signs. However, many of these uses are highly localized in nature. Therefore, more agile technologies and sharing mechanisms could potentially allow large quantities of special-purpose federal and non-federal spectrum to be used for more general purposes, such as commercial broadband services, on a shared basis.

6. The 3.5 GHz Band appears to be an ideal band in which to propose small cell deployments and shared spectrum use. The NTIA Fast Track Report identified the 3.5 GHz Band for potential shared federal and non-federal broadband use. Incumbent uses in the band include high powered Department of Defense (DoD) radars as well as non-federal Fixed Satellite Service (FSS) earth stations for receive-only, space-to-earth operations and feeder links. In the adjacent band below 3550 MHz there are high-powered ground and airborne military radars. The Fast Track Report recommended, based on the commercial wireless broadband technology that was assessed, that new commercial uses of the band occur outside of large “exclusion zones.” For this reason, and because of limited signal propagation at 3.5 GHz, the commercial wireless industry has expressed a viewpoint that the 3.5 GHz Band would not be particularly well-suited for macrocell deployment, with some suggesting that it might be more appropriate for fixed wireless or unlicensed use. We agree with the PCAST Report that the perceived disadvantages of the 3.5 GHz Band might be turned into advantages from the standpoint of promoting spectrum sharing and small cell innovation. Such a paradigm could vastly increase the usability of the band for wireless broadband.

7. We propose to structure the Citizens Broadband Service according to a multi-tiered shared access model that reflects the PCAST recommendation. We propose that the Citizens Broadband Service be managed by a spectrum access system (SAS) incorporating a dynamic database and, potentially, other interference mitigation techniques. The SAS would ensure that Citizens Broadband Service users operate only in areas where they would not cause harmful interference to incumbent users and could also help manage interference protection among different tiers of Citizens Broadband Service users. The three tiers of service would be: (1) Incumbent Access; (2) Priority Access; and (3) General Authorized Access (GAA). We seek comment on this approach. In addition, consistent with the Fast Track Report, we propose to protect existing federal systems operating in the 3.5 GHz Band and seek comment on appropriate allocation models to accomplish the goals set forth in this Notice.

8. We propose that the Incumbent Access tier would consist solely of authorized federal and grandfathered licensed FSS 3.5 GHz Band users. These Incumbent Access users would be protected from harmful interference from Citizens Broadband Service users through appropriate regulatory and technical means. Citizens Broadband Service users would not be permitted to operate within geographically designated Incumbent Use Zones, which would encompass the geographic area where low-powered small cells could cause harmful interference to incumbent operations. We seek comment on whether the use of small cell technology incorporating lower power levels and other distinguishing technical characteristics compared to higher power cellular architecture systems could significantly reduce the exclusion zones proposed in NTIA's Fast Track Report. Outside of these zones, the SAS would manage Citizens Broadband Service access and would ensure that lower tiered users would not operate in a manner that would cause harmful interference to federal and FSS users in the 3.5 GHz Band.

9. The Priority Access tier would consist of a portion of the 3.5 GHz Band designated for small cell use by certain critical, quality-of-service dependent users at specific, targeted locations. We seek comment on who these eligible users should be and suggest that they could include hospitals, utilities, state and local governments, and/or other users with a distinct need for reliable, prioritized access to broadband spectrum at specific, localized facilities.We expect that the availability of the Priority Access tier could bring the benefits of mass-market commercial scale to specialized uses and provide a new alternative to dedicated spectrum, which is in short supply. In order to prevent an expectation of quality of service in areas where such an expectation might not be warranted, Priority Access operations would only be permitted in geographic zones with no likelihood of harmful interference from Incumbent Access users and no expectation of harmful interference from Citizens Broadband Service users to Incumbent Access users. Priority Access users would be required to register in the SAS and accorded protection from interference from lower tier users and other Priority Access users within their local facilities.

10. The General Authorized Access (GAA) tier would be assigned for use by the general public on an opportunistic, non-interfering basis within designated geographic areas. GAA users could include a wide range of residential, business, and others, including wireless telephone and Internet service providers. We propose to authorize GAA use in zones where small cell use would not interfere with incumbent operations. Unlike the Priority Access tier, we propose to allow GAA use in areas where some interference from incumbent operations might be expected. We also propose that GAA users be required to register in the SAS and comply with all applicable technical, regulatory, and enforcement rules to ensure that GAA users avoid causing harmful interference to Incumbent Access and Priority Access users and always accept harmful interference from such users. We also seek comment on whether federal entities could be authorized GAA users. We seek comment on what technologies could be used to enable effective GAA use of the 3.5 GHz Band.

11. Under our main proposal, users in the Priority Access and GAA tiers would be licensed by rule as Citizens Broadband Service users under part 95 of the Commission's rules. A license-by-rule approach would provide individuals, organizations, and service providers with “automatic” authorization to deploy small cell systems, in much the same way that our Part 15 unlicensed rules have allowed widespread deployment of Wi-Fi access points. In the present context, we believe licensing by rule provides two advantages compared to unlicensed authorization. First, as a licensed service, 3.5 GHz Band operations would enjoy greater interference protection status in the Table of Frequency Allocations consistent with the proposed multi-tiered approach. Second, licensing by rule might allow for a more unified authorization framework for multiple tiers of users that otherwise might fall into different parts of the Commission's rules. We seek comment on whether the proposed framework could be implemented through other regulatory approaches, including through the part 15 unlicensed rules or through geographic area licensing. We also seek comment on the benefits that could accrue to federal users through use of the Citizens Broadband Service.

12. We also offer a supplemental proposal to integrate the 3650-3700 MHz band within the proposed Citizens Broadband Service, thereby encompassing an additional 50 megahertz of contiguous spectrum. The Commission currently licenses the 3650-3700 MHz band on a non-exclusive basis, with protections for incumbent FSS operations. The 3650-3700 MHz band is used extensively by wireless Internet service providers, among others, to provide commercial broadband service. Expanding the Citizens Broadband Service to include this band could bring benefits of greater spectrum availability and equipment scale economies to current 3650-3700 MHz licensees. Under our proposal, the SAS would authorize existing licensees as GAA users in the larger, combined band, and would authorize higher power levels in less congested areas, provided there is no risk of harmful interference to Incumbent Access or Priority Access operations. This proposal contemplates conversion of the existing non-exclusive licensing framework to the license-by-rule framework proposed herein. We also note that the 3650-3700 MHz band is currently allocated on a primary basis to the federal radiolocation service in three locations. We seek comment on the potential impact of these proposed changes in the use of the 3650-3700 MHz band on these and other incumbent operations.

13. If implemented, the new Citizens Broadband Service could help address the ongoing capacity shortage and promote new innovations in broadband technology, deployment, and spectrum management while protecting incumbent authorized federal and grandfathered FSS users. In order to develop a comprehensive record on this proposal, we seek comment on a wide range of technical, licensing, and other related issues. To that end, we seek comment on: (1) Appropriate licensing schemes; (2) specific flexible and resilient interference mitigation technologies and techniques that could be implemented by Citizens Broadband Service users; (3) appropriate deployment strategies for Citizens Broadband Service devices; and (4) the SAS dynamic database that is envisioned to manage access to and use of the 3.5 GHz Band. To ensure the development of a comprehensive record, we may release additional notices, analyses, or white papers for comment during the course of this proceeding. Moreover, because this proceeding raises significant novel technical issues with respect to sharing with federal users, we expect to work closely with NTIA and relevant federal agencies to perform necessary further analysis, and we encourage commenters to provide relevant technical input to inform this analysis, where appropriate.

14.Freeze on New Earth Stations.To preserve the stability of the spectral environment in the 3.5 GHz Band and ensure that opportunities continue to exist for wireless broadband services as proposed in the foregoing Notice, we direct the International Bureau to stop accepting applications in the 3600-3650 MHz band for new earth stations in the fixed-satellite service that are more than 10 statute miles from a licensed earth station's coordinates for the duration of this proceeding. This application freeze is narrowly tailored to ensure a stable spectral ecosystem for the proposed Citizens Broadband Service, while providing reasonable opportunities to obtain suitable real estate for the placement of new FSS earth station facilities near grandfathered earth stations. In light of the limited number of such grandfathered stations, such a freeze is expected to meet the immediate needs of earth station operators without significantly reducing the availability of spectrum for wireless broadband services by prohibiting expansion of new FSS earth stations in the 3600-3650 MHz band segment.

15. The decision to impose this freeze is procedural in nature, and therefore the freeze is not subject to the notice and comment requirements of the Administrative Procedure Act. Moreover, for the reasons set forth above, in these circumstances there is good cause to find that notice and comment are impractical, unnecessary, and contrary to the public interest because it would undercut the purposes of the freeze. For the same reasons, and in order to avoid undercutting the purposes of the freeze, we find that there is good cause for making the freeze effective as of the release date of thisNPRM.

16. The proceeding thisNPRMinitiates shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's ex parte rules. Persons making ex parte presentations must file a copy of any written presentation or a memorandum summarizing any oral presentation within two business days after the presentation (unless a different deadline applicable to the Sunshine period applies). Persons making oral ex parte presentations are reminded that memoranda summarizing the presentation must (1) list all persons attending or otherwise participating in the meeting at which the ex parte presentation was made, and (2) summarize all data presented and arguments made during the presentation. If the presentation consisted in whole or in part of the presentation of data or arguments already reflected in the presenter's written comments, memoranda or other filings in the proceeding, the presenter may provide citations to such data or arguments in his or her prior comments, memoranda, or other filings (specifying the relevant page and/or paragraph numbers where such data or arguments can be found) in lieu of summarizing them in the memorandum. Documents shown or given to Commission staff during ex parte meetings are deemed to be written ex parte presentations and must be filed consistent with § 1.1206(b). In proceedings governed by § 1.49(f) or for which the Commission has made available a method of electronic filing, written ex parte presentations and memoranda summarizing oral ex parte presentations, and all attachments thereto, must be filed through the electronic comment filing system available for that proceeding, and must be filed in their native format (e.g.,.doc, .xml, .ppt, searchable .pdf). Participants in this proceeding should familiarize themselves with the Commission's ex parte rules.

17. We exempt from the disclosure requirement under our ex parte rules all ex parte presentations made by NTIA or Department of Defense representatives. ThisNPRMraises significant technical issues implicating federal and non-federal spectrum allocations and users. Staff from NTIA, DoD, and the FCC have engaged in technical discussions in the development of this Notice, and we anticipate these discussions will continue after thisNPRMis released. We believe that these discussions will benefit from an open exchange of information between agencies, and may involve sensitive information regarding the strategic federal use of the 3.5 GHz Band. Recognizing the value of federal agency collaboration on the technical issues raised in this Notice, NTIA's shared jurisdiction over the 3.5 GHz Band, the importance of protecting federal users in the 3.5 GHz Band from interference, and the goal of enabling spectrum sharing to help address the ongoing spectrum capacity crunch, we find that this exemption serves the public interest.

18. Pursuant to §§ 1.415 and 1.419 of the Commission's rules, 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.

•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.

•Paper Filers:Parties who choose to file by paper must file an original and one copy 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. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.

• All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St. SW., Room TW-A325, Washington, DC 20554. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of before entering the building. The filing hours are 8:00 a.m. to 7:00 p.m.

• 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.

19. Comments, reply comments, and ex parte submissions will be available for public inspection during regular business hours in the FCC Reference Center, Federal Communications Commission, 445 12th Street SW., CY-A257, Washington, DC 20554. These documents will also be available via ECFS. Documents will be available electronically in ASCII, Microsoft Word, and/or Adobe Acrobat.

20. To request information in accessible formats (Braille, large print, electronic files, audio format), send an email tofcc504@fcc.govor call the FCC's Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY). This document can also be downloaded in Word and Portable Document Format (PDF) at:http://www.fcc.gov.

21. For additional information on this proceeding, please contact Paul Powell of the Wireless Telecommunications Bureau at (202) 418-1613 orPaul.Powell@fcc.gov.

22. This document contains proposed information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and the Office of Management and Budget (OMB) to comment on the information collection requirements contained in this document, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. Public and agency comments are due March 11, 2013. Comments should address: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimates; (c) ways to enhance the quality, utility, and clarity of the information collected; (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and (e) way to further reduce the information collection burden on small business concerns with fewer than 25 employees. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198,see44 U.S.C. 3506(c)(4), we seek specific comment on how we might further reduce the information collection burden for small business concerns with fewer than 25 employees.

23. In addition to filing comments with the Secretary, a copy of any comments on the Paperwork Reduction Act information collection requirements contained herein should be submitted tothe Federal Communications Commission via email toPRA@fcc.govand to Nicholas A. Fraser, Office of Management and Budget, via email toNicholas_A._Fraser@omb.eop.govor via fax at 202-395-5167.

24. As required by the Regulatory Flexibility Act of 1980 (RFA), the Commission has prepared an Initial Regulatory Flexibility Analysis (IRFA) relating to the foregoing Notice. Written public comments are requested on the IRFA. These comments must be filed in accordance with the same filing deadlines as comments filed in response to thisNPRMas set forth on the first page of this document and have a separate and distinct heading designating them as responses to the IRFA.

25. The RFA directs agencies to provide a description of, and where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted.See5 U.S.C. 603(b)(3). The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.”See5 U.S.C. 601(6). In addition, the term “small business” has the same meaning as the term “small-business concern” under the Small Business Act.See5 U.S.C. 601(3). 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.See15 U.S.C. 632.

26. In the following paragraphs, the Commission further describes and estimates the number and type of small entities that may be affected by the proposals set forth in the Notice. However, since the 3.5 GHz Band is not currently used by small businesses for terrestrial broadband, the proposed new service is unlikely to impose significant new burdens on small businesses. However, if our proposals were adopted, small businesses that choose to use the Citizens Broadband Service on a Priority Access or GAA basis would most likely be required to comply with new registration and compliance requirements, including registration in the SAS. In addition, any device manufacturers that choose to manufacture devices for use in the 3.5 GHz Band will have to ensure that such devices comply with any rules adopted in this proceeding. Finally, if our supplemental proposal to incorporate the 3650-3700 MHz band into the proposed Citizens Broadband Service is adopted, these new rules will apply to any small businesses currently licensed to operate in the 3650-3700 MHz band.

27.Small Businesses, Small Organizations, and Small Governmental Jurisdictions.The proposals set forth in the Notice, may, over time, affect small entities that are not easily categorized at present. We therefore describe here, at the outset, three comprehensive, statutory small entity size standards that encompass entities that could be directly affected by the proposals under consideration. As of 2009, small businesses represented 99.9% of the 27.5 million businesses in the United States, according to the SBA. Additionally, a “small organization” is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” Nationwide, as of 2007, there were approximately 1,621,315 small organizations. Finally, the term “small governmental jurisdiction” is defined generally as “governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” Census Bureau data for 2007 indicate that there were 89,527 governmental jurisdictions in the United States. We estimate that, of this total, as many as 88,761 entities may qualify as “small governmental jurisdictions.” Thus, we estimate that most governmental jurisdictions are small.

28.Wireless Telecommunications Carriers (except Satellite).This industry comprises establishments engaged in operating and maintaining switching and transmission facilities to provide communications via the airwaves. Establishments in this industry have spectrum licenses and provide services using that spectrum, such as cellular phone services, paging services, wireless Internet access, and wireless video services. The appropriate size standard under SBA rules is for the category Wireless Telecommunications Carriers (except satellite). The size standard for that category is that a business is small if it has 1,500 or fewer employees. For this category, census data for 2007 show that there were 1,383 firms that operated for the entire year. Of this total, 1,368 firms had 999 or fewer employees and 15 had 1000 employees or more. Thus, under this category and the associated small business size standard, the Commission estimates that the majority of wireless telecommunications carriers (except satellite) are small entities that may be affected by our proposed action.

29.Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing.The Census Bureau defines this category as follows: “This industry comprises establishments primarily engaged in manufacturing radio and television broadcast and wireless communications equipment. Examples of products made by these establishments are: transmitting and receiving antennas, cable television equipment, GPS equipment, pagers, cellular phones, mobile communications equipment, and radio and television studio and broadcasting equipment.” The SBA has developed a small business size standard for firms in this category, which is: all such firms having 750 or fewer employees. According to Census Bureau data for 2002, there were a total of 1,041 establishments in this category that operated for the entire year. Of this total, 1,010 had employment of under 500, and an additional 13 had employment of 500 to 999. Thus, under this size standard, the majority of firms can be considered small.

30.3650-3700 MHz Band Licensees.In March 2005, the Commission released an order providing for the nationwide, non-exclusive licensing of terrestrial operations, utilizing contention-based technologies, in the 3650 MHz band (i.e., 3650-3700 MHz). As of April 2010, more than 1270 licenses have been granted and more than 7433 sites have been registered. The Commission has not developed a definition of small entities applicable to 3650-3700 MHz band nationwide, non-exclusive licensees. However, we estimate that the majority of these licensees are Internet Access Service Providers (ISPs) and that most of those licensees are small businesses.

31. Under the Commission's proposal, all Citizens Broadband Service devices must comply with technical and operational requirements aimed at preventing interference to Incumbent Access and Priority Access users, including: complying with technical parameters (e.g.,power and unwanted emission limits) as well as RF exposure requirements for the type of device; and incorporation of geo-location capabilities. Citizens Broadband Service users would be required to register such devices in the SAS.

32. In addition, if our supplemental proposal to incorporate the 3650-3700MHz band into the proposed Citizens Broadband Service is adopted, small businesses operating in this band will be required to transition from the current non-exclusive nationwide licensing approach to the Citizens Broadband Service license-by-rule approach. This will likely entail additional costs and administrative burdens. In theNPRM,we seek comment on the extent of any such potential burdens.

33. While our proposals would require small businesses to register in the SAS and comply with the rules established for the Citizens Broadband Service, they would receive the ability to access spectrum that is currently unavailable to them. On balance, this would constitute a significant benefit for small business.

34. The RFA requires an agency to describe any significant, specifically small business, alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): “(1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities; (3) the use of performance, rather than design standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.”See5 U.S.C. 603(c)(1)-(c)(4).

35. In theNPRM,the Commission proposes that all Citizens Broadband Service users register in the SAS which will manage interference between different tiers of users. TheNPRMspecifically invites comments on a range of potential technical, legal, and policy aspects of its proposal, including equipment authorization requirements and the specific mechanics of the SAS. At this time, the Commission has not excluded any alternative proposal concerning the operation of the Citizens Broadband Service from its consideration, but it would do so in this proceeding if the record indicates that a particular proposal would have a significant and unjustifiable adverse economic impact on small entities. The Commission also solicits alternative licensing proposals, especially those that would not incur significant and unjustifiable adverse impacts on small entities.

36. With regard to the supplemental proposal to include the 3650-3700 MHz band, we seek comment on the costs and benefits of extending the Citizens Broadband Service to this band. We also specifically seek comment on the projected cost to existing 3650-3700 MHz licensees and the amount of time it would take such licensees to transition to the new proposed licensing regime.

37. None.

38. The Commission will not send a copy of the foregoing Order pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A), because the application freeze implemented in suchOrderis a rule of agency organization, procedure, or practice that does not substantially affect the rights or obligations of non-agency parties.Id.at 804(3)(C).

39. Pursuant to sections 1, 2, 4(i), 4(j), 7, 301, 302(a), 303, 307(e), and 316 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i), 154(j), 157, 301, 302(a), 303, 307(e), and 316, thisNPRM and Orderin GN Docket No. 12-148 is adopted.

40. License applications for new earth stations in the fixed satellite service, which would receive on frequencies in the 3600-3650 MHz band on a primary basis, filed on or after December 12, 2012, shall not be accepted unless frequencies in this same band are currently licensed to an earth station within 10 miles of the requested coordinates.

I. Requirement To Review Regulations

In accordance with Executive Order 13579, the NTSB published a request for information stating it would undertake a comprehensive review of its regulations. Executive Order 13579 requests independent agencies issue public plans for periodic retrospective analysis of their existing “significant regulations.” The executive order states such analyses should identify any significant regulations that may be outmoded, ineffective, insufficient, or excessively burdensome. Then, the agency's plan should describe how it will modify, streamline, expand, or repeal those regulations in order to achieve the agency's regulatory objective. The President ordered agencies to allow for public participation in retrospective reviews; prioritize their reviews by first addressing the regulations that will provide the most significant monetary savings or in reductions in paperwork burdens; and regularly report the status of retrospective reviews to OIRA. The NTSB is committed to fulfilling therequirements set forth in this follow-up order.

As described in the NTSB's June 25, 2012 request for information, Executive Order 13579 encourages independent agencies to review “significant regulations”; however, the executive order does not define what agencies should consider to be “significant regulations.” The NTSB decided to utilize the definition of a “significant regulatory action” provided in Executive Order 12866, “Regulatory Planning and Review,” which is the executive order that established the modern regulatory review structure.1 The NTSB then determined that a very limited number of its regulatory actions are “major rules,” because they do not have a “significant economic impact upon a substantial number of small entities.” The NTSB's request for information, therefore, described only the NTSB regulations that could, when viewed in the broadest sense, have a significant economic impact upon a substantial number of small entities.

The NTSB's request for information set forth a 6-month timeframe in which the NTSB indicated it would specifically review all provisions within part 831. In particular, the request for information states the NTSB would:

As explained more fully below, the NTSB has reviewed part 831 and anticipates publishing a notice of proposed rulemaking (NPRM) to suggest various changes to part 831.

Since publishing its June 25, 2012 request for information, the NTSB has reviewed all parts of its regulations: 49 CFR Parts 800-850. The NTSB has determined to update certain parts in the near future, in accordance with the standard informal rulemaking procedure of soliciting comments from the public (Phase I). The NTSB then plans to publish a document indicating its changes to rules applicable only to internal agency matters (Phase II). Finally, the NTSB also plans to update other parts at a later date, as these parts require coordination with other agencies, and therefore should appear on a different timeline (Phase III).

The NTSB has carefully reviewed the following regulatory parts, and plans to publish a notice of proposed rulemaking updating these parts within three months of the date of this notification: Parts 801, 802, 803, 804, 806, 807, 825, 830, 831, 835, 837, 840, and 845. The NTSB has also drafted an additional part, to set forth requirements of notification applicable to certain highway accidents.

As discussed in the June 25, 2012 request for information, the NTSB identified one part of its regulations that may contain “significant regulations” pursuant to the definition contemplated above: 49 CFR part 831. This part, entitled “Accident/Incident Investigation Procedures,” contains a set of 14 sections describing the NTSB's “party process,” which involves the NTSB's invitation to outside entities to assist with an investigation as a “party.” The NTSB typically extends party status to those organizations that can provide the necessary technical assistance to the investigation. The role of party representatives is to support the NTSB's investigation at the direction of the NTSB, all with the ultimate goal of improving transportation safety. These parties could be small entities, which the NTSB may request be available for the on-scene portion of an investigation, as well as follow-up meetings and/or tasks. The NTSB does not reimburse investigation participants for the amount of time expended for an NTSB investigation, nor does the NTSB pay for any travel costs that arise out of such participation. As a result, it is remotely possible that a combination of NTSB investigations could result in costs that exceed $100 million.

The NTSB has undertaken a comprehensive review of part 831, and carefully considered the five comments the NTSB received as a result of its June 25, 2012 announcement indicating the plan to update NTSB regulations. The NTSB posted these comments in the public rulemaking docket, available atwww.regulations.gov,Docket No. NTSB-GC-2012-0002. The NTSB plans to publish an NPRM that responds to all comments and sets forth proposed changes to part 831.

In addition, the NTSB has undertaken a review of its other regulatory parts, and also plans to issue an NPRM proposing changes to the other parts listed above. Within this NPRM, the NTSB will most likely propose a new part to address notification of certain highway accidents.

The NTSB may publish its proposed changes to part 831 in the same NPRM as its changes to the other parts. In this regard, Phase I of the NTSB's comprehensive review of its regulations may consist of two tiers.

In Phase II, the NTSB will issue changes to 49 CFR part 800. The NTSB has identified several sections of part 800 that are outdated. In addition, the NTSB recognizes several additional duties should be included in certain sections within part 800. Part 800 solely consists of internal agency procedures that are not relevant to the NTSB's work with the public, its parties, or any other agency. As a result, the NTSB does not plan to seek comments from the public concerning changes to part 800. 5 U.S.C. 553(b)(3)(A) (exempting from the public comment requirement “rules of agency organization, procedure, or practice”). The NTSB plans to publish its changes to part 800 in conjunction with, or shortly after, its publication of the final NPRM described in the plan for Phase I.

The NTSB, at this time, is not prepared to alter part 850 of its regulations, which set forth procedures applicable to marine accident investigations. The NTSB maintains a close working relationship with the United States Coast Guard in accordance with 49 U.S.C. 1131, part 850 and a Memorandum of Understanding. The NTSB plans to address with the Coast Guard any changes to part 850, and prepare such changes on a distinct timeline, rather than contemporaneously with all other updates from Phases I and II of this project.

In the event the NTSB identifies the need for additional regulatory changes or additions it believes would benefit the agency, but require collaborating with other Federal agencies, the NTSB will also attempt to include such changes in Phase III of this project.

As stated in its June 25, 2012 request for information, the NTSB has not overseen any investigations that come within the definition of “significant regulatory actions.” Nevertheless, the NTSB indicated it is committed to reviewing its regulations within 49 CFR part 831, in the interest of ensuring none are “outmoded, ineffective, insufficient, or excessively burdensome” under Executive Orders 13563,”Regulation and Independent Regulatory Agencies,” issued January 18, 2011 (76 FR 3821, January 21, 2011) and 13579. As a result, following the comprehensive review and publication of the NPRM and final rule documents discussed in this notification, the NTSB will undertake a biennial review of part 831 to ensure no regulations are outmoded, ineffective, insufficient, or excessively burdensome. Following each biennial review, the NTSB will make its findings available for public comment.

The NTSB's June 25, 2012 request for information also stated it was committed to encouraging and fostering a culture at the NTSB that ensures agency employees are aware NTSB regulations must remain up-to-date. The NTSB believes it has begun to achieve this goal, as almost all offices at the NTSB have been involved in the comprehensive review of regulations the NTSB recently concluded. Offices are aware of the importance of ensuring regulations are not outdated or difficult to comprehend.