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Code · REGISTER · 2008-05-21 · Federal Highway Administration (FHWA), DOT · Notices

Notices. Notice of intent

89,212 words·~406 min read·/register/2008/05/21/08-1271

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

BILLING CODE 4910-13-C DEPARTMENT OF TRANSPORTATION Federal Highway Administration Environmental Impact Statement: Proposed Greeneville Bypass, From US-11E (SR-34), West of Greeneville to US-11E (SR-34) East of Greeneville; Greene County, TN AGENCY: Federal Highway Administration (FHWA), DOT. ACTION: Notice of intent. SUMMARY: The Federal Highway Administration
(FHWA)is issuing this notice to advise the public that an Environmental Impact Statement
(EIS)will be prepared for a proposed highway project in Greene County, Tennessee. FOR FURTHER INFORMATION CONTACT: Mr. Charles J. O'Neill, Planning and Program Management Team Leader, Federal Highway Administration—Tennessee Division Office, 640 Grassmere Park Road, Suite 112, Nashville, TN 37211; 615-781-5772. SUPPLEMENTARY INFORMATION: The FHWA in cooperation with the Tennessee Department of Transportation will prepare an Environmental Impact Statement
(EIS)on a proposal to construct a bypass around the City of Greeneville. Alternatives to be considered include:
(1)No-build,
(2)Transportation System Management
(TSM)alternative,
(3)Mass Transit,
(4)one or more build alternatives that could include constructing a roadway on a new location, upgrading existing US-11E (SR-34), or a combination of both, and
(5)other alternatives that may arise from public input. Public scoping meetings will be held for the project corridor. As part of the scoping process, federal, state, and local agencies and officials, private organizations, citizens, and interest groups will have an opportunity to identify issues of concern and provide input on the purpose and need for the project, range of alternatives, methodology, and the development of the Environmental Impact Statement. A Coordination Plan will be developed to include the public in the project development process. This plan will utilize the following outreach efforts to provide information and solicit input: Newsletters, an internet Web site, e-mail and direct mail, informational meetings and briefings, public hearings, and other efforts as necessary and appropriate. A public hearing will be held upon completion of the Draft Environmental Impact Statement and public notice will be given of the time and place of the hearing. The Draft EIS will be available for public and agency review and comment prior to the public hearings. To ensure that the full range of issues related to this proposed action are identified and taken into account, comments and suggestions are invited from all interested parties. Comments and questions concerning the proposed action should be directed to the FHWA contact person identified above at the address provided above. (Catalog of Federal Domestic Assistance Program Number 20.205, Highway Planning and Construction. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities apply to this proposed program). Charles J. O'Neill, Planning and Program Management Team Leader, Federal Highway Administration, Nashville, TN. [FR Doc. E8-11342 Filed 5-20-08; 8:45 am] BILLING CODE 4910-22-P DEPARTMENT OF TRANSPORTATION Federal Highway Administration Notice To Rescind a Notice of Intent To Prepare an Environmental Impact Statement (EIS): Appalachian Development Highway System Corridor K (Relocated U.S. 64), From West of the Ocoee River to State Route 68 Near Ducktown, Polk County, TN AGENCY: Federal Highway Administration (FHWA), DOT. ACTION: Notice of intent. SUMMARY: The Federal Highway Administration
(FHWA)is issuing this notice to advise the public that the Notice of Intent published on October 28, 1999 to prepare a Environmental Impact Statement
(EIS)for the proposed Appalachian Development Highway System Corridor K (Relocated U.S. 64), From West of the Ocoee River to State Route 68 Near Ducktown, Polk County, Tennessee, is being rescinded. FOR FURTHER INFORMATION CONTACT: Mr. Charles J. O'Neill, Planning and Program Management Team Leader, Federal Highway Administration—Tennessee Division Office, 640 Grassmere Park Road, Suite 112, Nashville, TN 37211. 615-781-5772. SUPPLEMENTARY INFORMATION: The FHWA, in cooperation with the Tennessee Department of Transportation, is rescinding the notice of intent to prepare a Draft Environmental Impact Statement
(DEIS)on the Appalachian Development Highway System Corridor K (Relocated U.S. 64) project, from West of the Ocoee River to State Route 68 near Ducktown, Polk County, Tennessee. The proposed project was proposed to construct a 20 mile segment of Corridor K of the Appalachian Highway System
(ADHS)in Polk County, Tennessee. The project as described in the September 15, 2003 Draft Environmental Impact Statement
(DEIS)was proposed to improve the transportation system linkages in southeastern Tennessee; provide a highway that satisfies the design standards appropriate to a roadway on the ADHS and the National Truck Network; improve safety for vehicles and pedestrians; reduce travel delays for through traffic; and promote the mission of the U.S. Department of Agriculture, Forest Service's Scenic Byway Program. Since the approval of the DEIS, a development and transportation study of the Corridor K Region was undertaken to further address the economic development need for this corridor. The study sponsored by the Appalachian Regional Commission, the Tennessee Department of Transportation and the Southeast Tennessee Development District was completed in February 2008 and concluded that there is a clear economic development need for an improved east-west transportation corridor to serve this region. A new Environmental Impact Statement will be prepared and will evaluate all reasonable alternatives, possibly including alignments not evaluated in the original DEIS. The original NOI is being rescinded and a new NOI will be published subsequent to this NOI. To ensure that the full range of issues related to this proposed action are identified and taken into account, comments and suggestions are invited from all interested parties. Comments and questions concerning the proposed action should be directed to the FHWA contact person identified above at the address provided above. (Catalog of Federal Domestic Assistance Program Number 20.205, Highway Planning and Construction. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities apply to this proposed program.) Charles J. O'Neill, Planning and Program Management Team Leader, Federal Highway Administration, Nashville, TN. [FR Doc. E8-11345 Filed 5-20-08; 8:45 am] BILLING CODE 4910-22-P DEPARTMENT OF TRANSPORTATION Federal Railroad Administration Petition for Waiver of Compliance In accordance with Part 211 of Title 49 Code of Federal Regulations (CFR), notice is hereby given that the Federal Railroad Administration
(FRA)received a request for a waiver of compliance with certain requirements of its safety standards. The individual petition is described below, including the party seeking relief, the regulatory provisions involved, the nature of the relief being requested, and the petitioner's arguments in favor of relief. Norfolk Southern Corporation (Docket Number FRA-2008-0029) The Norfolk Southern Corporation (NS), seeks a waiver of compliance from certain provisions of the Safety Appliance Standards, 49 CFR Part 231, that requires uncoupling levers on each end of freight cars. Specifically, this request to remove uncoupling levers on thirteen
(13)NS owned special equipment cars in rail train service while loading or unloading continuous welded rail throughout the NS system by NS. NS believes that these welded rail cars can be operated safely with the uncoupling levers removed and couplers immobilized. These welded rail trains are operated as units, and are not switched in yards as conventional freight cars. Due to the nature of moving welded rail, it is highly undesirable for cars to become uncoupled from a safety practice. Interested parties are invited to participate in these proceedings by submitting written views, data, or comments. FRA does not anticipate scheduling a public hearing in connection with these proceedings since the facts do not appear to warrant a hearing. If any interested party desires an opportunity for oral comment, they should notify FRA, in writing, before the end of the comment period and specify the basis for their request. All communications concerning these proceedings should identify the appropriate docket number (e.g., Waiver Petition Docket Number FRA-2008-0029) and may be submitted by any of the following methods: *Web site: http://www.regulations.gov* . Follow the online instructions for submitting comments. *Fax:* 202-493-2251. *Mail:* Docket Operations Facility, U.S. Department of Transportation, 1200 New Jersey Avenue, SE., W12-140, Washington, DC 20590. *Hand Delivery:* 1200 New Jersey Avenue, SE., Room W12-140, Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal Holidays. Communications received within 45 days of the date of this notice will be considered by FRA before final action is taken. Comments received after that date will be considered as far as practicable. All written communications concerning these proceedings are available for examination during regular business hours (9 a.m.-5 p.m.) at the above facility. All documents in the public docket are also available for inspection and copying on the Internet at the docket facility's Web site at *http://www.regulations.gov* . Anyone is able to search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the **Federal Register** published on April 11, 2000 (Volume 65, Number 70; Pages 19477-78). Issued in Washington, DC, on May 15, 2008. Grady C. Cothen, Jr., Deputy Associate Administrator for Safety Standards and Program Development. [FR Doc. E8-11360 Filed 5-20-08; 8:45 am] BILLING CODE 4910-06-P DEPARTMENT OF TRANSPORTATION Federal Railroad Administration Petition for Waiver of Compliance In accordance with Part 211 of Title 49 Code of Federal Regulations (CFR), notice is hereby given that the Federal Railroad Administration
(FRA)has received a request for a waiver of compliance from certain requirements of its safety standards. The individual petition is described below, including the party seeking relief, the regulatory provisions involved, the nature of the relief being requested, and the petitioner's arguments in favor of relief. Association of American Railroads (Modification To Waiver Petition Docket Number FRA-1999-5104) As a modification to the Association of American Railroads
(AAR)permanent waiver of compliance with 49 CFR 213.137, AAR is seeking permission from FRA to modify the terms and conditions of its decision letter dated June 27, 2000, pertaining to flange bearing frogs. AAR, on behalf of its member railroads, received permission from FRA to install flange bearing frogs in its June 27, 2000, decision letter. FRA granted this relief conditionally, with a requirement for Equipment Inspections at all installations. In a decision letter dated May 3, 2006, AAR received further permission for CSX Transportation to specifically install a flange bearing frog in Shelby, Ohio. With this petition, AAR is notifying FRA that it's Shelby, Ohio, flange bearing frog installation has been successful, and that the BNSF Railway Company
(BNSF)will install 2 additional flange bearing frogs in Moorhead, Minnesota. AAR states, “This inspection requirement is costly and significantly delays the transportation of rail cars undergoing the inspections. In fact, it is because of this inspection requirement that the industry has been slow to install flange bearing frog crossing diamonds under the waiver.” Therefore, AAR requests that FRA relieve BNSF of this condition requiring equipment inspections. Interested parties are invited to participate in these proceedings by submitting written views, data, or comments. FRA does not anticipate scheduling a public hearing in connection with these proceedings since the facts do not appear to warrant a hearing. If any interested party desires an opportunity for oral comment, they should notify FRA, in writing, before the end of the comment period and specify the basis for their request. All communications concerning these proceedings should identify the appropriate docket number ( *e.g.* , Waiver Petition Docket Number FRA-1999-5104) and may be submitted by any of the following methods: *Web site: http://www.regulations.gov.* Follow the online instructions for submitting comments. *Fax:* 202-493-2251. *Mail:* Docket Operations Facility, U.S. Department of Transportation, 1200 New Jersey Avenue, SE., W12-140, Washington, DC 20590. *Hand Delivery:* 1200 New Jersey Avenue, SE., Room W12-140, Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. Communications received within 45 days of the date of this notice will be considered by FRA before final action is taken. Comments received after that date will be considered as far as practicable. All written communications concerning these proceedings are available for examination during regular business hours (9 a.m.-5 p.m.) at the above facility. All documents in the public docket are also available for inspection and copying on the Internet at the docket facility's Web site at *http://www.regulations.gov.* Anyone is able to search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the **Federal Register** published on April 11, 2000 (Volume 65, Number 70; Pages 19477-78). Issued in Washington, DC, on May 15, 2005. Grady C. Cothen, Jr., Deputy Associate Administrator for Safety Standards and Program Development. [FR Doc. E8-11362 Filed 5-20-08; 8:45 am] BILLING CODE 4910-06-P DEPARTMENT OF TRANSPORTATION Federal Transit Administration Public Transportation on Indian Reservations Program; Tribal Transit Program AGENCY: Federal Transit Administration (FTA), DOT. ACTION: Notice of Funding Availability: Solicitation of Grant Applications for FY 2008 Tribal Transit Program Funds. SUMMARY: This notice announces the availability of Fiscal Year
(FY)2008 funds for the Public Transportation on Indian Reservations Program, a program authorized by the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), Section 3013 (c). This notice includes a national solicitation for Grant Applications for FY 2008 Tribal Transit Program
(TTP)funds to be selected on a competitive basis; the grant terms and conditions that apply to this program; and grant application procedures and selection criteria for FY 2008 projects. The Federal Transit Administration
(FTA)expects to have a total of $12 million for FY 2008. For more information on the program and a list of projects currently funded go to *http://www.fta.dot.gov/funding/grants/grants_financing_3553.html* ADDRESSES: This announcement is available on the FTA Web site at *http://www.fta.dot.gov.* FTA will post a synopsis of this announcement on the government-wide electronic grants Web site at: *http://www.grants.gov.* Applicants may submit applications in one of three ways: delivering five hard copies to Federal Transit Administration, 1200 New Jersey Avenue, SE., Washington, DC, 20590 Attention: Lorna R. Wilson; sending by e-mail to *fta.tribalprogram@dot.gov* , or filing electronically through the grants.gov Web site at *http://www.grants.gov.* Applicants applying by e-mail must fax signature documents to 202-366-7951, Attention: Lorna Wilson. FTA will announce final selections on the Web site and in the **Federal Register** . DATES: Applicants must submit completed applications by August 19, 2008. Anyone intending to apply electronically should initiate the process of registering on the grants.gov site immediately to ensure completion of registration before the deadline for submission. FTA will announce grant selections in the **Federal Register** when the competitive selection process is complete. Applicants should be aware that materials sent through the U.S. Postal Service are subject to significant delays in delivery due to the security screening process. Use of courier or express delivery services is recommended. FOR FURTHER INFORMATION CONTACT: Contact the appropriate FTA Regional Tribal Liaison (Appendix B) for application-specific information. For general program information, contact Lorna R. Wilson, Office of Transit Programs, at
(202)366-2053, e-mail: *Lorna.Wilson@dot.gov.* A TDD is available at 1-800-877-8339 (TDD/FIRS). SUPPLEMENTARY INFORMATION: Table of Contents I. Overview II. Background III. Funding Opportunity Description A. Authorized Funding For FY 2008 IV. Award Information V. Eligibility Information A. Eligible Applicants B. Eligible Projects VI. Cost Sharing or Matching VII. Terms and Conditions VIII. Guidelines for Preparing Grant Application IX. Application Content A. Application Information B. Technical, Legal, and Financial Capacity C. Project Information D. Application Evaluation Criteria E. Submission Dates and Times F. Intergovernmental Review G. Funding Restrictions H. Other Submission Requirements X. Application Review Process A. Competitive Selection Process B. Evaluation Criteria i. Criterion 1: Project Planning And Coordination ii. Criterion 2: Demonstration Of Need iii. Criterion 3: Benefits Of Project iv. Criterion 4: Financial Commitment And Operating Capacity C. Proposals for Planning Grants D. Review and Selection Process E. Continuation Projects XI. Award Administration Information XII. Other Information A. Technical Assistance B. Certifications and Assurances C. Reporting D. Agency Contact(s) Appendices Appendix A. Federal Fiscal Year 2008 Certifications and Assurances for the Federal Transit Administration Public Transportation on Indian Reservation Program Appendix B. FTA Regional Offices and Tribal Liaison Appendix C. Technical Assistance Contacts I. Overview Section 3013 of SAFETEA-LU, [Pub. L. 109-59 (August 10, 2005)] amended 49 U.S.C. 5311(c) by establishing the Public Transportation on Indian Reservations Program (Tribal Transit Program). This program authorizes direct grants “under such terms and conditions as may be established by the Secretary” to Indian tribes for any purpose eligible under FTA's Nonurbanized Area Formula Program, 49 U.S.C. 5311. The funding increases from $8 million in FY 2006 to $15 million in FY 2009. The Conference Report to SAFETEA-LU indicated that the funds set aside for Indian tribes in the TTP are not meant to replace or reduce funds that Indian tribes receive from States through FTA's Nonurbanized Area Formula Program. The Catalog of Federal Domestic Assistance
(CFDA)number for the program is 20.509. II. Background Prior to SAFETEA-LU, the Section 5311 program did not include a separate public transit program for tribes. Tribes were eligible under the Section 5311 program only as subrecipients. SAFETEA-LU authorized a TTP and authorized tribes to be direct recipients of Section 5311 Program funds. As expressed in the Conference Report for SAFETEA-LU Congress intended that the funds available for the TTP should not replace or reduce funds tribes receive from States under the Section 5311 program. FTA previously published Notices of Funding Availability for FY 2006 and FY 2007. For more information on the program and a list of projects currently funded go to *http://www.fta.dot.gov/funding/grants/grants_financing_3553.html.* III. Funding Opportunity Description A. Authorized Funding for FY 2008 Section 3013 of SAFETEA-LU established the TTP. The funds are to be apportioned for grants to Indian tribes for any purpose eligible under the Nonurbanized Area Formula Program (Section 5311 program). In FY 2008, $12 million is available for allocation to projects selected through the process announced in this notice. IV. Award Information The number and size of awards will be determined through a competitive process. Funding is available for start-up services, enhancements or expansion of existing transit services, and for planning studies and operational planning. Planning grants will be limited to $25,000 per applicant. Tribes may apply for FY 2008. Priority for FY 2008 funding will be given to continuation projects selected in FY 2006 and FY 2007 that are in an active status. All tribes seeking FY 2008 funds must submit grant applications to FTA by August 19, 2008. V. Eligibility Information A. Eligible Applicants Eligible applicants include Federally-recognized Indian tribes or Alaska Native villages, groups, or communities as identified by the Bureau of Indian Affairs
(BIA)in the Department of the Interior (DOI). To be an eligible recipient, a tribe must have the requisite legal, financial and technical capabilities to receive and administer Federal funds under this program. A tribe may submit a copy of the most up-to-date **Federal Register** Notice published by DOI, BIA: Entities Recognized and Eligible to Receive Service from the United States Bureau of Indian Affairs. B. Eligible Projects Eligible recipients may use TTP funds for any purpose authorized under the Section 5311 program. This means that grants can be awarded to recipients located in rural and small urban areas with populations under 50,000 not identified as an urbanized area by the Bureau of the Census. The grants may be used for public transportation capital projects, operating costs of equipment and facilities for use in public transportation, planning, and the acquisition of public transportation services, including service agreements with private providers of public transportation services. Under Department of Transportation
(DOT)Americans with Disabilities Act of 1990
(ADA)regulations, public fixed route operators are required to provide ADA complementary paratransit service to individuals who cannot use the fixed route due to their disability. Coordinated human service transportation that primarily serves elderly persons and persons with disabilities, but that is not restricted from carrying other members of the public, is considered available to the general public if it is marketed as public transportation. VI. Cost Sharing or Matching No cost sharing is required for this program. However, FTA encourages tribes to leverage the program funds and demonstrate commitment to the project through in-kind contributions and use of other funding sources that are available to support public transportation service. VII. Terms and Conditions Section 3013 of SAFETEA-LU amended 49 U.S.C. 5311(c) by authorizing funds for the TTP “under such terms and conditions as may be established by the Secretary.” Pursuant to this discretionary statutory authority in SAFETEA-LU, FTA published a **Federal Register** notice dated March 22, 2006 (71 FR 14618), “Public Transportation on Indian Reservations Program (49 U.S.C. 5311(c)(1)): Notice of Public Meetings, Proposed Grant Program Provisions,” and proposed certain statutory and regulatory terms and conditions that should apply to grants awarded under the TTP. FTA received a substantial number of comments from Indian tribes and other groups concerning certain proposed terms and conditions for the TTP. FTA addressed these comments in the **Federal Register** notice dated August 10, 2005, (71 FR 46878) and established appropriate grant requirements for the TTP. The following terms and conditions apply to the TTP: 1. Common Grant Rule (49 CFR part 18), “Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments.” This is a government-wide requirement that applies to all Federal assistance programs. 2. Civil Rights Act of 1964, as amended (42 U.S.C. 2000d). Unless Indian tribes are specifically exempted from civil rights statutes, compliance with civil rights statutes is required, including compliance with equity in service. However, Indian tribes will not be required to comply with FTA program-specific guidance for Title VI and Title VII 3. Section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 794), and the Americans with Disabilities Act
(ADA)requirements in 49 CFR parts 27, 37, and 38. These are government-wide requirements that apply to all Federal programs. 4. Drug and Alcohol Testing requirements (49 CFR part 655). FTA will apply this requirement because it addresses a national safety issue for operators of public transportation. 5. National Environmental Policy Act, as amended (42 U.S.C. 4321 et seq). This is a government-wide requirement that applies to all Federal programs. 6. Charter Service and School Bus transportation requirements in 49 CFR parts 604 and 605. The definition of “public transportation” in 49 U.S.C. 5302 specifically excludes school bus and charter service. 7. National Transit Database
(NTD)Reporting requirement. Title 49 U.S.C. 5335 requires NTD reporting for recipients of Section 5311 funds. The TTP is a Section 5311 program that will provide funds directly to Indian tribes. Therefore, this reporting requirement applies. 8. Bus Testing requirements (49 CFR part 665). To ensure that vehicles acquired under this program will meet adequate safety and operational standards, this requirement will apply. A comprehensive list and description for all of the statutory and regulatory terms and conditions that apply to the TTP are set forth in FTA's Master Agreement for the TTP available on FTA's Web site at: *http://www.fta.dot.gov/17861_18441_ENG_HTML.htm* . Selected grantees are required to have a signed Certifications and Assurances for the FY in which they apply for a grant. The Certification and Assurances must be signed by a legal entity. FTA has provided information concerning Certifications and Assurances in Appendix A of this notice. Tribes are required to select categories 01 and 22 for the purpose of the Tribal Transit Program. VIII. Guidelines for Preparing Grant Application FTA will divide the applications into three categories for the purpose of reviewing and selecting projects to be funded: A. Start ups—applications for funding of new transit service; B. Existing transit services—applications for funding of enhancements or expansion of existing transit services (including continuation of funding for start-ups selected for FY 2008 funding); and C. Planning—applications for funding of planning studies and operational planning. The application should provide information on all items for which tribes are requesting funding in FY 2008, and indicate the specific category in which the tribe is applying. IX. Application Content A. Applicant Information 1. Name of Federally recognized tribe and, if appropriate, the specific tribal agency submitting the application. 2. Dun and Bradstreet (D&B) Data Universal Numbering System
(DUNS)number if available. (Note: If selected, applicant will be required to provide DUNS number prior to grant award, and DUNS number is required for submitting through grants.gov). 3. Contact information including: Contact name, title, address, fax and phone number, and e-mail address if available. 4. Description of public transportation services including areas currently served by tribe, if any. 5. Name of person
(s)authorized to apply on behalf of tribe (signed transmittal letter should accompany application if the application is submitted in hard copy or e-mail). B. Technical, Legal, and Financial Capacity to Implement the Proposed Project Tribes that cannot demonstrate adequate capacity in technical, legal and financial areas will not be considered for funding. Every application must describe the tribe's technical, legal, and financial capacity to implement the proposed project. 1. *Legal Capacity:* Provide documentation or other evidence to show that the applicant is a Federally recognized tribe. Also, who is the authorized representative to execute legal agreements with FTA on behalf of the tribe? If currently operating transit service, does the tribe have appropriate Federal or State operating authority? 2. *Technical Capacity:* Give examples of the tribe's management of other Federal projects. What resources does the tribe have to implement a transit project? 3. *Financial Capacity:* Does the tribe have adequate financial systems in place to receive and manage a Federal grant? Describe the tribe's financial systems and controls. C. Project Information 1. *Budget:* Provide the Federal amount requested for each purpose for which funds are sought and any funding from other sources that will be provided. If applying for a multi-year project (not to exceed 2 years), show annual request for each year by budget line item. 2. *Project Description:* Indicate the category for which funding is requested; i.e., start-ups, enhancements or replacements of existing transit services or planning studies or operational planning grants. Provide a summary description of the proposed project and how it will be implemented (e.g., number and type of vehicles, service area, schedules, type of services, fixed route or demand responsive), route miles (if fixed route), major origins and destinations, population served, and whether the tribe provides the service directly or contracts for services and how will vehicles be maintained. 3. *Project Timeline:* Include significant milestones such as date of contract for purchase of vehicle(s), actual or expected delivery date of vehicles, and service start up dates. D. Application Evaluation Criteria Applications for funding of transit services should address the application criteria based on project to be funded (for more detail see section X). 1. *Criterion 1:* Project Planning and Coordination. 2. *Criterion 2:* Demonstration of Need. 3. *Criterion 3:* Benefits of Project. 4. *Criterion 4:* Financial Commitment and Operating Capacity. Applications for planning grants should address the criteria in section X, C of this notice. E. Intergovernmental Review This program is not subject to Executive Order 12372, “Intergovernmental Review of Federal Programs.” F. Funding Restrictions FTA will consider applications for funding only from eligible recipients for eligible activities (see section V). Due to funding limitations, applicants that are selected for funding may receive less than the amount requested. The application process will allow an Indian tribe to apply for multiple years of funding not to exceed two years. No more than $25,000 in funding will be awarded per planning grant. The remaining funds will be made available for applications for funding of start-up or new systems, and enhancements or expansion of existing transit service. Current TTP grantees applying for FY 2008 projects must be in an active status to receive additional funding. X. Application Review Process A. Competitive Selection Process FTA will divide applications into three categories. The three evaluation categories are as follows: • Start-ups—Applications for funding of new transit service. • Existing transit services—Applications for funding of enhancements or expansion of existing transit services. • Planning—Applications for funding of transit planning studies and/or operational planning. Applications will be grouped into their respective category for review and scoring purposes. Applications for planning will be evaluated using a pass/fail system, whereas start-up and existing transit services applications will be scored based on the evaluation criteria to determine rank for funding award determination purposes. An applicant can receive up to 25 points for each evaluation criterion, up to a total score of 100. FTA intends to award the full amount of funding available in FY 2008 for the TTP. FTA encourages applicants to review the evaluation criteria and all other related application information prior to preparation of an application. Applicants may receive technical assistance for application development by contacting their FTA regional Tribal liaison, Tribal Transportation Assistance Program
(TTAP)center, or the National Rural Transportation Assistance Program
(RTAP)office. Contact information for technical assistance can be found in Appendix C. B. Evaluation Criteria 1. Project Planning and Coordination (25 Points) In this section, the applicant should describe how the proposed project was developed and demonstrate that there is a sound basis for the project and that it is ready to implement if funded. Information may vary depending upon whether the tribe has a formal plan that includes transit. a. Applicants without a formal plan that includes transit are advised to consider and address the following areas: i. Provide a detailed project description including the proposed service, vehicle and facility needs, and other pertinent characteristics of the proposed service implementation. ii. Identify existing transportation services available to the tribe and discuss whether the proposed project will provide opportunities to coordinate service with existing transit services, including human service agencies, intercity bus services, or other public transit providers. iii. Discuss the level of support either by the community and/or tribal government for the proposed project. iv. Describe the implementation schedule for the proposed project, such as time frame, staffing, and procurement. b. Applicants with a formal transit plan are advised to consider and address the following areas: i. Describe the planning document and/or the planning process conducted to identify the proposed project. ii. Describe how the mobility and client-access needs of tribal human service agencies were considered in the planning process. iii. Describe what opportunities for public participation were provided in the planning process and how the proposed transit service or existing service has been coordinated with transportation provided for the clients of human service agencies, with intercity bus transportation in the area, or with any other rural public transit providers. iv. Describe how the proposed service complements rather than duplicates any currently available services. v. Describe the implementation schedule for the proposed project, including time frame, staffing, procurement, etc. vi. Describe any other planning or coordination efforts that were not mentioned above. c. Based on the information provided as discussed in the above section, proposals will be rated on the following: i. Is there a sound basis for the proposed project? ii. Is the project ready to implement? 2. Demonstration of Need (25 Points) In this section, the application should demonstrate the transit needs of the tribe and discuss how the proposed transit improvements will address the identified transit needs of the tribe. Applications may include information such as destinations and services not currently accessible by transit, need for access to jobs or health care, special needs of the elderly and individuals with disabilities, income-based community needs, or other mobility needs. Based on the information provided, the proposals will be rated on the following: a. Is there a demonstrated need for the project? b. How well does the project fulfill the need? 3. Benefits of Project (25 Points) In this section, applications should identify expected project benefits. Possible examples include increased ridership and daily trips, improved service, improved operations and coordination, and economic benefits to the community. Benefits can be demonstrated by identifying the population of tribal members and non-tribal members in the proposed project service area and estimating the number of daily one-way trips the transit service will provide and or the number of individual riders. There may be many other, less quantifiable, benefits to the tribe and surrounding community from this project. Please document, explain or show the benefits in whatever format is reasonable to present them. Based on the information provided proposals will be rated based on: a. Will the project improve transit efficiency or increase ridership? b. Will the project improve mobility for the tribe? c. Will the project improve access to important destinations and services? d. Are there other qualitative benefits? 4. Financial Commitment and Operating Capacity (25 Points) In this section, the application should identify any other funding sources used by the tribe to support existing or proposed transit services, including human service transportation funding, Indian Reservation Roads, or other FTA programs such as Job Access and Reverse Commute (JARC), New Freedom, section 5311, section 5310, or section 5309 bus and bus facilities funding. For existing services, the application should show how TTP funding will supplement (not duplicate or replace) current funding sources. If the transit system was previously funded under section 5311 through the State's apportionment, describe how requested TTP funding will expand available services. Describe any other resources the tribe will contribute to the project, including in-kind contributions, commitments of support from local businesses, donations of land or equipment, and human resources, and describe to what extent the new project or funding for existing service leverages other funding. The tribe should show its ability to manage programs by demonstrating the existing programs it administers in any area of expertise such as human services. Based upon the information provided, the proposals will be rated on the extent to which the proposal demonstrates that: a. This project provides new services or complements existing service; b. TTP funding does not replace existing funding; c. The tribe has or will provide non-financial support to project; d. The tribe has demonstrated ability to provide other services or manage other programs; and e. Project funds are used in coordination with other services for efficient utilization of funds. C. Proposals for Planning Grants For planning grants, the application should describe, in no more than three pages, the need for and a general scope of the proposed study. 1. Criteria: Need for Planning Study Based on the information provided, proposals will be rated pass/fail based on the following: a. Is the tribe committed to planning for transit? b. Is the scope of the proposed study for tribal transit? D. Review and Selection Process Each application will be screened by a panel of members, including FTA Headquarters and regional staff. Incomplete or non-responsive applications will be disqualified. FTA will make an effort to award grants to as many qualified applicants as possible. E. Continuation Projects If an applicant is proposing a continuation project, using FY 2008 funding, tribes must demonstrate that their project(s) are in an active status to receive additional funding. Along with the criteria listed in Section B, proposals should state that the applicant is a current TTP grantee and provide information on their transit project(s) status including services now being provided and how the new funding will complement the existing service. Please provide any extenuating data that would be helpful to project evaluators; i.e., ridership, increased service hours, extended service routes, stops, etc. If you received a planning grant in FY 2006 or in FY 2007, please indicate the status of your planning study and how this project relates to that study. XI. Award Administration Information FTA will award grants directly to federally recognized Indian tribes for the projects selected through this competition. Following publication of the selected recipients, projects, and amounts, FTA regional staff will assist the successful applicants in preparing electronic applications for grant awards. At that time, the tribe will be required to sign the Certification and Assurances contained in Appendix A. The Master Agreement is available on FTA's Web site at *http://www.fta.dot.gov/17861_18441_ENG_HTML.htm.* Applicants that are selected for grant awards under the TTP will be required to formally designate, by resolution or other formal tribal action, an authorized representative who will have the authority to execute grant agreements on behalf of the Indian tribe with FTA and who will also have the authority on behalf of the Indian tribe to execute FTA's Annual List of Certifications and Assurances. FTA will notify all applicants, both those selected for funding and those not selected, when the competitive selection process is complete. Projects selected for funding will be published in a **Federal Register** notice. XII. Other Information A. Technical Assistance Technical assistance regarding these requirements is available from each FTA regional office. The regional offices will contact those applicants selected for funding regarding procedures for making the required certifications and assurances to FTA before grants are made and will provide assistance in preparing the documentation necessary for the grant award. B. Certifications and Assurances Applicants that are selected for grant awards under the TTP will be required to formally designate, by resolution or other formal tribal action, an authorized representative who will have the authority to execute grant agreements on behalf of the Indian tribe with FTA and who will also have the authority on behalf of the Indian tribe to execute FTA's Annual List of Certifications and Assurances. The Annual List of Certifications and Assurances is attached in Appendix A for informational purposes only. C. Reporting Title 49 U.S.C. 5335 requires recipients, including tribes, of Section 5311 program funds to report data, as specified in 49 U.S.C. 5311(b)(4), to the National Transit Database (NTD). Specific procedures and data requirements for tribes are being developed and will be available on the NTD Web site. For technical assistance, contact Lauren Tuzikow at 703-462-5233, e-mail: *Lauren.tuzikow@TSPUSA.com.* For NTD program information, contact Gary DeLorme at 202-366-1652. Annual progress reports and financial status reports will be required of all recipients. D. Agency Contact(s) Contact the appropriate FTA regional Tribal Liaison (Appendix B) for application specific information and issues For general program information, contact Lorna R. Wilson, Office of Transit Programs, at
(202)366-2053, e-mail: *Lorna.Wilson@dot.gov.* A TDD is available at 1-800-877-8339 (TDD/FIRS). Issued in Washington, DC, this 15th day of May, 2008. James S. Simpson, Administrator. Appendix A. Federal Fiscal Year 2008 Certifications and Assurances for the Federal Transit Administration Public Transportation on Indian Reservation Program Federal Fiscal Year 2008 Certifications and Assurances for Federal Transit Administration Assistance Programs Preface In accordance with 49 U.S.C. 5323(n), the following certifications and assurances have been compiled for Federal Transit Administration
(FTA)assistance programs. FTA requests each Applicant to provide as many certifications and assurances as needed for all programs for which the Applicant intends to seek FTA assistance during Federal Fiscal Year 2008. Twenty-four
(24)Categories of certifications and assurances are listed by numbers 01 through 24 in the TEAM-Web “Recipients” option at the “Cert's & Assurances” tab of “View/Modify Recipients.” Category 01 applies to all Applicants. Category 02 applies to all applications for Federal assistance in excess of $100,000. Categories 03 through 24 will apply to and be required for some, but not all, Applicants and projects. FTA's annual certifications and assurances permit the Applicant to select a single certification which can cover all the programs for which it anticipates submitting an application. FTA requests the Applicant to read each certification and assurance carefully and select all certifications and assurances that may apply to the programs for which it expects to seek Federal assistance. FTA and the Applicant understand and agree that not every provision of these certifications and assurances will apply to every Applicant or every project for which FTA provides Federal financial assistance through a Grant Agreement or Cooperative Agreement. The type of project and the section of the statute authorizing Federal financial assistance for the project will determine which provisions apply. The terms of these certifications and assurances reflect applicable requirements of FTA's enabling legislation currently in effect. The Applicant also understands and agrees that these certifications and assurances are special pre-award requirements specifically prescribed by Federal law or regulation and do not encompass all Federal laws, regulations, and directives that may apply to the Applicant or its project. A comprehensive list of those Federal laws, regulations, and directives is contained in the current FTA Master Agreement MA(14) for Federal Fiscal Year 2008 at the FTA Web site *http://www.fta.dot.gov/documents/14-Master.pdf.* The certifications and assurances in this document have been streamlined to remove most provisions not covered by statutory or regulatory certification or assurance requirements. Because many requirements of these certifications and assurances will require the compliance of the subrecipient of an Applicant, we strongly recommend that each Applicant, including a State, that will be implementing projects through one or more subrecipients, secure sufficient documentation from each subrecipient to ensure compliance, not only with these certifications and assurances, but also with the terms of the Grant Agreement or Cooperative Agreement for the project, and the Master Agreement or an alternative Master Agreement for its project, if applicable, incorporated therein by reference. Each Applicant is ultimately responsible for compliance with the provisions of the certifications and assurances applicable to itself or its project irrespective of participation in the project by any subrecipient. 01. Assurances Required for Each Applicant Each Applicant for FTA assistance must provide all assurances in this Category “01.” Except to the extent that FTA expressly determines otherwise in writing, FTA may not award any Federal assistance until the Applicant provides the following assurances by selecting Category “01.” A. Assurance of Authority of the Applicant and Its Representative The authorized representative of the Applicant and the attorney who sign these certifications, assurances, and agreements affirm that both the Applicant and its authorized representative have adequate authority under applicable State, local, or Indian tribal law and regulations, and the Applicant's by-laws or internal rules to:
(1)Execute and file the application for Federal assistance on behalf of the Applicant;
(2)Execute and file the required certifications, assurances, and agreements on behalf of the Applicant binding the Applicant; and
(3)Execute grant agreements and cooperative agreements with FTA on behalf of the Applicant. B. Standard Assurances The Applicant ensures that it will comply with all applicable Federal statutes and regulations in carrying out any project supported by an FTA grant or cooperative agreement. The Applicant agrees that it is under a continuing obligation to comply with the terms and conditions of the grant agreement or cooperative agreement issued for its project with FTA. The Applicant recognizes that Federal laws and regulations may be modified from time to time and those modifications may affect project implementation. The Applicant understands that Presidential executive orders and Federal directives, including Federal policies and program guidance may be issued concerning matters affecting the Applicant or its project. The Applicant agrees that the most recent Federal laws, regulations, and directives will apply to the project, unless FTA issues a written determination otherwise. C. Intergovernmental Review Assurance Except if the Applicant is an Indian tribal government seeking assistance authorized by 49 U.S.C. 5311(c)(1), the Applicant ensures that each application for Federal assistance it submits to FTA has been submitted or will be submitted for intergovernmental review to the appropriate State and local agencies as determined by the State. Specifically, the Applicant ensures that it has fulfilled or will fulfill the obligations imposed on FTA by U.S. Department of Transportation (U.S. DOT) regulations, “Intergovernmental Review of Department of Transportation Programs and Activities,” 49 CFR part 17. This assurance does not apply to Applicants for Federal assistance derived from FTA's Tribal Transit Program, 49 U.S.C. 5311(c)(1). D. Nondiscrimination Assurance As required by 49 U.S.C. 5332 (which prohibits discrimination on the basis of race, color, creed, national origin, sex, or age, and prohibits discrimination in employment or business opportunity), by Title VI of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000d, and by U.S. DOT regulations, “Nondiscrimination in Federally-Assisted Programs of the Department of Transportation—Effectuation of Title VI of the Civil Rights Act,” 49 CFR Part 21 at 21.7, the Applicant ensures that it will comply with all requirements imposed by or issued pursuant to 49 U.S.C. 5332, 42 U.S.C. 2000d, and 49 CFR Part 21, so that no person in the United States, on the basis of race, color, national origin, creed, sex, or age will be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination in any program or activity (particularly in the level and quality of transportation services and transportation-related benefits) for which the Applicant receives Federal assistance awarded by the U.S. DOT or FTA. Specifically, during the period in which Federal assistance is extended to the project, or project property is used for a purpose for which the Federal assistance is extended or for another purpose involving the provision of similar services or benefits, or as long as the Applicant retains ownership or possession of the project property, whichever is longer, the Applicant ensures that:
(1)Each project will be conducted, property acquisitions will be undertaken, and project facilities will be operated in accordance with all applicable requirements imposed by or issued pursuant to 49 U.S.C. 5332, 42 U.S.C. 2000d, and 49 CFR part 21, and understands that this assurance extends to its entire facility and to facilities operated in connection with the project.
(2)It will promptly take the necessary actions to effectuate this assurance, including notifying the public that complaints of discrimination in the provision of transportation-related services or benefits may be filed with U.S. DOT or FTA. Upon request by U.S. DOT or FTA, the Applicant ensures that it will submit the required information pertaining to its compliance with these provisions.
(3)It will include in each subagreement, property transfer agreement, third party contract, third party subcontract, or participation agreement adequate provisions to extend the requirements imposed by or issued pursuant to 49 U.S.C. 5332, 42 U.S.C. 2000d and 49 CFR Part 21 to other parties involved therein including any subrecipient, transferee, third party contractor, third party subcontractor at any level, successor in interest, or any other participant in the project.
(4)Should it transfer real property, structures, or improvements financed with Federal assistance provided by FTA to another party, any deeds and instruments recording the transfer of that property shall contain a covenant running with the land assuring nondiscrimination for the period during which the property is used for a purpose for which the Federal assistance is extended or for another purpose involving the provision of similar services or benefits.
(5)The United States has a right to seek judicial enforcement with regard to any matter arising under the Act, regulations, and this assurance.
(6)It will make any changes in its Title VI implementing procedures as U.S. DOT or FTA may request to achieve compliance with the requirements imposed by or issued pursuant to 49 U.S.C. 5332, 42 U.S.C. 2000d, and 49 CFR Part 21. E. Assurance of Nondiscrimination on the Basis of Disability As required by U.S. DOT regulations, “Nondiscrimination on the Basis of Handicap in Programs and Activities Receiving or Benefiting from Federal Financial Assistance,” at 49 CFR 27.9, the Applicant ensures that, as a condition to the approval or extension of any Federal assistance awarded by FTA to construct any facility, obtain any rolling stock or other equipment, undertake studies, conduct research, or to participate in or obtain any benefit from any program administered by FTA, no otherwise qualified person with a disability shall be, solely by reason of that disability, excluded from participation in, denied the benefits of, or otherwise subjected to discrimination in any program or activity receiving or benefiting from Federal assistance administered by the FTA or any entity within U.S. DOT. The Applicant ensures that project implementation and operations so assisted will comply with all applicable requirements of U.S. DOT regulations implementing the Rehabilitation Act of 1973, as amended, 29 U.S.C. 794, et. seq., and the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. 12101 et. seq., and implementing U.S. DOT regulations at 49 CFR Parts 27, 37, and 38, and any other applicable Federal laws that may be enacted or Federal regulations that may be promulgated. F. U.S. Office of Management and Budget
(OMB)Assurances Consistent with OMB assurances set forth in SF-424B and SF-424D, the Applicant ensures that, with respect to itself or its project, the Applicant:
(1)Has the legal authority to apply for Federal assistance and the institutional, managerial, and financial capability (including funds sufficient to pay the non-Federal share of project cost) to ensure proper planning, management, and completion of the project described in its application;
(2)Will give FTA, the Comptroller General of the United States, and, if appropriate, the State, through any authorized representative, access to and the right to examine all records, books, papers, or documents related to the award; and will establish a proper accounting system in accordance with generally accepted accounting standards or agency directives;
(3)Will establish safeguards to prohibit employees from using their positions for a purpose that constitutes or presents the appearance of personal or organizational conflict of interest or personal gain;
(4)Will initiate and complete the work within the applicable project time periods following receipt of FTA approval;
(5)Will comply with all applicable Federal statutes relating to nondiscrimination including, but not limited to:
(a)Title VI of the Civil Rights Act, 42 U.S.C. 2000d, which prohibits discrimination on the basis of race, color, or national origin;
(b)Title IX of the Education Amendments of 1972, as amended, 20 U.S.C. 1681 through 1683, and 1685 through 1687, and U.S. DOT regulations, “Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance,” 49 CFR part 25, which prohibit discrimination on the basis of sex;
(c)Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 794, which prohibits discrimination on the basis of disability;
(d)The Age Discrimination Act of 1975, as amended, 42 U.S.C. 6101 through 6107, which prohibits discrimination on the basis of age;
(e)The Drug Abuse Office and Treatment Act of 1972, as amended, 21 U.S.C. 1101 *et seq.* , relating to nondiscrimination on the basis of drug abuse;
(f)The Comprehensive Alcohol Abuse and Alcoholism Prevention Act of 1970, as amended, 42 U.S.C. 4541 *et seq.* relating to nondiscrimination on the basis of alcohol abuse or alcoholism;
(g)The Public Health Service Act of 1912, as amended, 42 U.S.C. 201 *et seq.* , relating to confidentiality of alcohol and drug abuse patient records;
(h)Title VIII of the Civil Rights Act, 42 U.S.C. 3601 *et seq.* , relating to nondiscrimination in the sale, rental, or financing of housing; and
(i)Any other nondiscrimination statute(s) that may apply to the project;
(6)To the extent applicable, will comply with, or has complied with, the requirements of Titles II and III of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended, (Uniform Relocation Act) 42 U.S.C. 4601 *et seq.* , which, among other things, provide for fair and equitable treatment of persons displaced or persons whose property is acquired as a result of Federal or federally assisted programs. These requirements apply to all interests in real property acquired for project purposes and displacement caused by the project regardless of Federal participation in any purchase. As required by sections 210 and 305 of the Uniform Relocation Act, 42 U.S.C. 4630 and 4655, and by U.S. DOT regulations, “Uniform Relocation Assistance and Real Property Acquisition for Federal and Federally Assisted Programs,” 49 CFR 24.4, the Applicant ensures that it has the requisite authority under applicable state and local law to comply with the requirements of the Uniform Relocation Act, 42 U.S.C. 4601 *et seq.* , and U.S. DOT regulations, “Uniform Relocation Assistance and Real Property Acquisition for Federal and Federally Assisted Programs,” 49 CFR part 24, and will comply with that Act or has complied with that Act and those implementing regulations, including but not limited to the following:
(a)The Applicant will adequately inform each affected person of the benefits, policies, and procedures provided for in 49 CFR part 24;
(b)The Applicant will provide fair and reasonable relocation payments and assistance as required by 42 U.S.C. 4622, 4623, and 4624; 49 CFR part 24; and any applicable FTA procedures, to or for families, individuals, partnerships, corporations, or associations displaced as a result of any project financed with FTA assistance;
(c)The Applicant will provide relocation assistance programs offering the services described in 42 U.S.C. 4625 to such displaced families, individuals, partnerships, corporations, or associations in the manner provided in 49 CFR part 24;
(d)Within a reasonable time before displacement, the Applicant will make available comparable replacement dwellings to displaced families and individuals as required by 42 U.S.C. 4625(c)(3);
(e)The Applicant will carry out the relocation process in such manner as to provide displaced persons with uniform and consistent services, and will make available replacement housing in the same range of choices with respect to such housing to all displaced persons regardless of race, color, religion, or national origin;
(f)In acquiring real property, the Applicant will be guided to the greatest extent practicable under state law, by the real property acquisition policies of 42 U.S.C. 4651 and 4652;
(g)The Applicant will pay or reimburse property owners for necessary expenses as specified in 42 U.S.C. 4653 and 4654, with the understanding that FTA will provide Federal financial assistance for the Applicant's eligible costs of providing payments for those expenses, as required by 42 U.S.C. 4631;
(h)The Applicant will execute such amendments to third party contracts and subagreements financed with FTA assistance and execute, furnish, and be bound by such additional documents as FTA may determine necessary to effectuate or implement the assurances provided herein; and
(i)The Applicant agrees to make these assurances part of or incorporate them by reference into any third party contract or subagreement, or any amendments thereto, relating to any project financed by FTA involving relocation or land acquisition and provide in any affected document that these relocation and land acquisition provisions shall supersede any conflicting provisions;
(7)To the extent applicable, will comply with the Davis-Bacon Act, as amended, 40 U.S.C. 3141 *et seq.* , the Copeland “Anti-Kickback” Act, as amended, 18 U.S.C. 874, and the Contract Work Hours and Safety Standards Act, as amended, 40 U.S.C. 3701 *et seq.* , regarding labor standards for federally assisted projects;
(8)To the extent applicable, will comply with the flood insurance purchase requirements of section 102(a) of the Flood Disaster Protection Act of 1973, as amended, 42 U.S.C. 4012a(a), requiring the Applicant and its subrecipients in a special flood hazard area to participate in the program and purchase flood insurance if the total cost of insurable construction and acquisition is $10,000 or more;
(9)To the extent applicable, will comply with the Lead-Based Paint Poisoning Prevention Act, 42 U.S.C. 4831(b), which prohibits the use of lead-based paint in the construction or rehabilitation of residence structures;
(10)To the extent applicable, will not dispose of, modify the use of, or change the terms of the real property title or other interest in the site and facilities on which a construction project supported with FTA assistance takes place without permission and instructions from FTA;
(11)To the extent required by FTA, will record the Federal interest in the title of real property, and will include a covenant in the title of real property acquired in whole or in part with Federal assistance funds to ensure nondiscrimination during the useful life of the project;
(12)To the extent applicable, will comply with FTA provisions concerning the drafting, review, and approval of construction plans and specifications of any construction project supported with FTA assistance. As required by U.S. DOT regulations, “Seismic Safety,” 49 CFR 41.117(d), before accepting delivery of any building financed with FTA assistance, it will obtain a certificate of compliance with the seismic design and construction requirements of 49 CFR part 41;
(13)To the extent applicable, will provide and maintain competent and adequate engineering supervision at the construction site of any project supported with FTA assistance to ensure that the complete work conforms with the approved plans and specifications, and will furnish progress reports and such other information as may be required by FTA or the state;
(14)To the extent applicable, will comply with any applicable environmental standards that may be prescribed to implement the following Federal laws and executive orders:
(a)Institution of environmental quality control measures under the National Environmental Policy Act of 1969, as amended, 42 U.S.C. 4321 through 4335 and Executive Order No. 11514, as amended, 42 U.S.C. 4321 note;
(b)Notification of violating facilities pursuant to Executive Order No. 11738, 42 U.S.C. 7606 note;
(c)Protection of wetlands pursuant to Executive Order No. 11990, 42 U.S.C. 4321 note;
(d)Evaluation of flood hazards in floodplains in accordance with Executive Order No. 11988, 42 U.S.C. 4321 note;
(e)Assurance of project consistency with the approved state management program developed pursuant to the requirements of the Coastal Zone Management Act of 1972, as amended, 16 U.S.C. 1451 through 1465;
(f)Conformity of Federal actions to State (Clean Air) Implementation Plans under section 176(c) of the Clean Air Act of 1955, as amended, 42 U.S.C. 7401 through 7671q;
(g)Protection of underground sources of drinking water under the Safe Drinking Water Act of 1974, as amended, 42 U.S.C. 300f through 300j-6;
(h)Protection of endangered species under the Endangered Species Act of 1973, as amended, 16 U.S.C. 1531 through 1544; and
(i)Environmental protections for Federal transportation programs, including, but not limited to, protections for parks, recreation areas, or wildlife or waterfowl refuges of national, state, or local significance or any land from a historic site of national, State, or local significance to be used in a transportation project as required by 49 U.S.C. 303(b) and 303(c);
(j)Protection of the components of the national wild and scenic rivers systems, as required under the Wild and Scenic Rivers Act of 1968, as amended, 16 U.S.C. 1271 through 1287; and
(k)Provision of assistance to FTA in complying with section 106 of the National Historic Preservation Act of 1966, as amended, 16 U.S.C. 470f; with the Archaeological and Historic Preservation Act of 1974, as amended, 16 U.S.C. 469 through 469c; and with Executive Order No. 11593 (identification and protection of historic properties), 16 U.S.C. 470 note;
(15)To the extent applicable, will comply with the requirements of the Hatch Act, 5 U.S.C. 1501 through 1508 and 7324 through 7326, which limit the political activities of State and local agencies and their officers and employees whose primary employment activities are financed in whole or part with Federal funds including a Federal loan, grant agreement, or cooperative agreement except, in accordance with 49 U.S.C. 5307(k)(2) and 23 U.S.C. 142(g), the Hatch Act does not apply to a nonsupervisory employee of a public transportation system (or of any other agency or entity performing related functions) receiving FTA assistance to whom that Act does not otherwise apply;
(16)To the extent applicable, will comply with the National Research Act, Public Law 93-348, July 12, 1974, as amended, 42 U.S.C. 289 *et seq.* , and U.S. DOT regulations, “Protection of Human Subjects,” 49 CFR Part 11, regarding the protection of human subjects involved in research, development, and related activities supported by Federal assistance;
(17)To the extent applicable, will comply with the Laboratory Animal Welfare Act of 1966, as amended, 7 U.S.C. 2131 *et seq.* , and U.S. Department of Agriculture regulations, “Animal Welfare,” 9 CFR subchapter A, parts 1, 2, 3, and 4, regarding the care, handling, and treatment of warm blooded animals held or used for research, teaching, or other activities supported by Federal assistance;
(18)Will have performed the financial and compliance audits as required by the Single Audit Act Amendments of 1996, 31 U.S.C. 7501 *et seq.* , OMB Circular A-133, “Audits of States, Local Governments, and Non-Profit Organizations,” Revised, and the most recent applicable OMB A-133 Compliance Supplement provisions for the U.S. DOT; and
(19)To the extent applicable, will comply with all applicable provisions of all other Federal laws, regulations, and directives governing the project, except to the extent that FTA has expressly approved otherwise in writing. 22. Tribal Transit Program Each Applicant for Tribal Transit Program assistance must provide all certifications and assurance set forth below. Except to the extent that FTA determines otherwise in writing, FTA may not award any Federal assistance under the Tribal Transit Program until the Applicant provides these certifications and assurances by selecting Category “22.” In accordance with 49 U.S.C. 5311(c)(1) that authorizes the Secretary of Transportation to establish terms and conditions for direct grants to Indian tribal governments, the Applicant certifies and ensures as follows: A. The Applicant ensures that:
(1)It has or will have the necessary legal, financial, and managerial capability to apply for, receive, and disburse Federal assistance authorized for 49 U.S.C. 5311; and to carry out each project, including the safety and security aspects of that project;
(2)It has or will have satisfactory continuing control over the use of project equipment and facilities;
(3)The project equipment and facilities will be adequately maintained; and
(4)Its project will achieve maximum feasible coordination with transportation service assisted by other Federal sources. B. In accordance with 49 CFR 18.36(g)(3)(ii), the Applicant certifies that its procurement system will comply with the requirements of 49 CFR 18.36, or will inform FTA promptly that its procurement system does not comply with 49 CFR 18.36. C. To the extent applicable to the Applicant or its Project, the Applicant certifies that it will comply with the certifications, assurances, and agreements in Category 08 (Bus Testing), Category 09 (Charter Bus Agreement), Category 10 (School Transportation Agreement), Category 11 (Demand Responsive Service), Category 12 (Alcohol Misuse and Prohibited Drug Use), and Category 14 (National Intelligent Transportation Systems Architecture and Standards) of this document. D. If its application exceeds $100,000, the Applicant agrees to comply with the certification in Category 02 (Lobbying) of this document. Selection and Signature Page(s) follow FEDERAL FISCAL YEAR 2008 CERTIFICATIONS AND ASSURANCES FOR FEDERAL TRANSIT ADMINISTRATION ASSISTANCE PROGRAMS (Signature page alternative to providing Certifications and Assurances in TEAM-Web) Name of Applicant: The Applicant agrees to comply with applicable provisions of Categories 01-24. OR The Applicant agrees to comply with applicable provisions of the Categories it has selected: Category Description 01 Assurances Required For Each Applicant 02 Lobbying 03 Procurement Compliance 04 Protections for Private Providers of Public Transportation 05 Public Hearing 06 Acquisition of Rolling Stock for Use in Revenue Service 07 Acquisition of Capital Assets by Lease 08 Bus Testing 09 Charter Service Agreement 10 School Transportation Agreement 11 Demand Responsive Service 12 Alcohol Misuse and Prohibited Drug Use 13 Interest and Other Financing Costs 14 Intelligent Transportation Systems 15 Urbanized Area Formula Program 16 Clean Fuels Grant Program 17 Elderly Individuals and Individuals with Disabilities Formula Program and Pilot Program 18 Nonurbanized Area Formula Program for States 19 Job Access and Reverse Commute Program 20 New Freedom Program 21 Alternative Transportation in Parks and Public Lands Program 22 Tribal Transit Program 23 Infrastructure Finance Projects 24 Deposits of Federal Financial Assistance to a State Infrastructure Banks FEDERAL FISCAL YEAR 2008 FTA CERTIFICATIONS AND ASSURANCES SIGNATURE PAGE (Required of all Applicants for FTA assistance and all FTA Grantees with an active capital or formula project) AFFIRMATION OF APPLICANT Name of Applicant: Name and Relationship of Authorized Representative: BY SIGNING BELOW, on behalf of the Applicant, I declare that the Applicant has duly authorized me to make these certifications and assurances and bind the Applicant's compliance. Thus, the Applicant agrees to comply with all Federal statutes, regulations, executive orders, and directives, and with the certifications and assurances as indicated on the foregoing page applicable to each application it makes to the Federal Transit Administration
(FTA)in Federal Fiscal Year 2008. FTA intends that the certifications and assurances the Applicant selects on the other side of this document, as representative of the certifications and assurances in this document, should apply, as provided, to each project for which the Applicant seeks now, or may later, seek FTA assistance during Federal Fiscal Year 2008. The Applicant affirms the truthfulness and accuracy of the certifications and assurances it has made in the statements submitted herein with this document and any other submission made to FTA, and acknowledges that the Program Fraud Civil Remedies Act of 1986, 31 U.S.C. 3801 *et seq.,* and implementing U.S. DOT regulations, “Program Fraud Civil Remedies,” 49 CFR Part 31 apply to any certification, assurance or submission made to FTA. The criminal fraud provisions of 18 U.S.C. 1001 apply to any certification, assurance, or submission made in connection with a Federal public transportation program authorized in 49 U.S.C. chapter 53 or any other statute. In signing this document, I declare under penalties of perjury that the foregoing certifications and assurances, and any other statements made by me on behalf of the Applicant are true and correct. Signature Date: Name Authorized Representative of Applicant AFFIRMATION OF APPLICANT'S ATTORNEY For (Name of Applicant): As the undersigned Attorney for the above named Applicant, I hereby affirm to the Applicant that it has authority under State, local, or tribal government law, as applicable, to make and comply with the certifications and assurances as indicated on the foregoing pages. I further affirm that, in my opinion, the certifications and assurances have been legally made and constitute legal and binding obligations on the Applicant. I further affirm to the Applicant that, to the best of my knowledge, there is no legislation or litigation pending or imminent that might adversely affect the validity of these certifications and assurances, or of the performance of the project. Signature Date: Name Attorney for Applicant Each Applicant for FTA financial assistance and each FTA Grantee with an active capital or formula project must provide an Affirmation of Applicant's Attorney pertaining to the Applicant's legal capacity. The Applicant may enter its signature in lieu of the Attorney's signature, provided the Applicant has on file this Affirmation, signed by the attorney and dated this Federal fiscal year. Appendix B—FTA Regional Offices and Tribal Transit Liaisons Region I—Massachusetts, Rhode Island, Connecticut, New Hampshire, Vermont and Maine. Richard H. Doyle, FTA Regional Administrator, Volpe National Transportation Systems Center, Kendall Square, 55 Broadway, Suite 920, Cambridge, MA 02142-1093, Phone:
(617)494-2055, Fax:
(617)494-2865. Regional Tribal Liaison: Judi Molloy. Region II—New York, New Jersey. Brigid Hynes-Cherin, FTA Regional Administrator, One Bowling Green, Room 429, New York, NY 10004-1415, Phone:
(212)668-2170, Fax:
(212)668-2136. Regional Tribal Liaison: Rebecca Reyes-Alicea. Region III—Pennsylvania, Maryland, Virginia, West Virginia, Delaware, Washington, DC. Letitia Thompson, FTA Regional Administrator, 1760 Market Street, Suite 500, Philadelphia, PA 19103-4124, Phone:
(215)656-7100, Fax:
(215)656-7260. Region IV—Georgia, North Carolina, South Carolina, Florida, Mississippi, Tennessee, Kentucky, Alabama, Puerto Rico, Virgin Islands. Yvette G. Taylor, FTA Regional Administrator, 230 Peachtree St., NW., Suite 800, Atlanta, GA 30303, Tel.:
(404)865-5600, Fax:
(404)865-5605. Regional Tribal Liaisons: Jamie Pfister and James Garland. Region V—Illinois, Indiana, Ohio, Wisconsin, Minnesota, Michigan. Marisol R. Simon, FTA Regional Administrator, 200 West Adams Street, Suite 320, Chicago, IL 60606-5232, Phone:
(312)353-2789, Fax:
(312)886-0351. Regional Tribal Liaisons: William Wheeler, Joyce Taylor. Region VI—Texas, New Mexico, Louisiana, Arkansas, Oklahoma. Robert Patrick, FTA Regional Administrator, 819 Taylor Street, Room 8A36, Ft. Worth, TX 76102, Phone:
(817)978-0550, Fax:
(817)978-0575. Regional Tribal Liaison: Lynn Hayes. Region VII—Iowa, Nebraska, Kansas, Missouri. Mokhtee Ahmad, FTA Regional Administrator, 901 Locust Street, Suite 404, Kansas City, MO 64106, Phone:
(816)329-3920, Fax:
(816)329-3921. Regional Tribal Liaisons: Joni Roeseler and Cathy Monroe. Region VIII—Colorado, North Dakota, South Dakota, Montana, Wyoming, Utah. Terry Rosapep, FTA Regional Administrator, 12300 West Dakota Avenue, Suite 310, Lakewood, CO 80228-2583, Phone:
(720)963-3300, Fax:
(720)963-3333. Regional Tribal Liaisons: Jennifer Stewart and David Beckhouse. Region IX—California, Arizona, Nevada, Hawaii, American Samoa, Guam. Leslie Rogers, FTA Regional Administrator, 201 Mission Street, Suite 1650, San Francisco, CA 94105-1831, Phone:
(415)744-3133, Fax:
(415)744-2726. Regional Tribal Liaison: Lorraine Lerman. Region X—Washington, Oregon, Idaho, Alaska. Richard Krochalis, FTA Regional Administrator, Jackson Federal Building, 915 Second Avenue, Suite 3142, Seattle, WA 98174-1002, Phone:
(206)220-7954, Fax:
(206)220-7959. Regional Tribal Liaisons: Bill Ramos and Annette Clothier. Appendix C—Technical Assistance Contacts Tribal Technical Assistance Program
(TTAP)Centers TTAP-Alaska Alaska Tribal Technical Assistance Program, NW & AK TTAP, 329 Harbor Dr. #208, Sitka, AK 99835, Contact: Dan Moreno, Telephone:
(800)399-6376, Fax:
(907)747-5032, E-mail: *dmoreno@mail.ewu.edu.* Web: *http://www.ewu.edu/TTAP* . TTAP-California TTAP-California-Nevada, The National Center for American Indian Enterprise Development, 11138 Valley Mall, Suite 200, El Monte, CA 91731, Contact: Lee Bigwater, Telephone:
(626)350-4446, Fax:
(626)442-7115. TTAP-Colorado Tribal Technical Assistance Program at Colorado State University, Rockwell Hall, Rm. 321, Colorado State University, Fort Collins, CO 80523-1276, Contact: Ronald Hall, Telephone:
(800)262-7623, Fax:
(970)491-3502, E-mail: * ronald.hall@colostate.edu* . Web: *http://ttap.colostate.edu/* . TTAP-Michigan Tribal Technical Assistance Program, 301-E Dillman Hall, Michigan Technological University, 1400 Townsend Dr., Houghton, MI 49931-1295, Contact: Bernard D. Alkire, Telephone:
(888)230-0688, Fax:
(906)487-1834, E-mail: *balkire@mtu.edu.* Web: *http://www.ttap.mtu.edu* . TTAP-North Dakota Northern Plains Tribal Technical Assistance Program, United Tribes Technical College, 3315 University Drive, Bismarck, ND 58504, Contact: Dennis Trusty, Telephone:
(701)255-3285 ext. 1262, Fax:
(701)530-0635, E-mail: *nddennis@hotmail.com* or *dtrusty@uttc.edu* . Web: *http://www.uttc.edu/organizations/ttap/ttap.asp* . TTAP-NW Northwest Tribal Technical Assistance Program, Eastern Washington University Department of Urban Planning, Public & Health Administration, 216 Isle Hall, Cheney, WA 99004, Contact: David Frey, Telephone:
(800)583-3187, Fax:
(509)359-7485, E-mail: * rrolland@ewu.edu* . Web: *http://www.ewu.edu/TTAP* . TTAP-Oklahoma Tribal Technical Assistance Program at Oklahoma State University, Oklahoma State University, 5202 N. Richmond Hills Road, Stillwater, OK 74078-0001, Contact: James Self, Telephone:
(405)744-6049, Fax:
(405)744-7268, E-mail: *jim.self@okstate.edu* . Web: *http://ttap.okstate.edu* . Additional Technical Assistance Resources National RTAP (National Rural Transit Assistance Program), E-mail: *nationalrtap@apwa.net. http://www.nationalrtap.org/.* Dave Barr 202-218-6722. Community Transportation Association of America, The Resource Center—800-891-0590. *http://www.ctaa.org/.* [FR Doc. E8-11338 Filed 5-20-08; 8:45 am] BILLING CODE 4910-57-P DEPARTMENT OF THE TREASURY Fiscal Service Surety Companies Acceptable on Federal Bonds: American Service Insurance Company, Inc. AGENCY: Financial Management Service, Fiscal Service, Department of the Treasury. ACTION: Notice. SUMMARY: This is Supplement No. 14 to the Treasury Department Circular 570, 2007 Revision, published July 2, 2007, at 72 FR 36192. FOR FURTHER INFORMATION CONTACT: Surety Bond Branch at
(202)874-6850. SUPPLEMENTARY INFORMATION: A Certificate of Authority as an acceptable surety on Federal bonds is hereby issued under 31 U.S.C. 9305 to the following company: American Service Insurance Company, Inc. Business Address: 150 Northwest Point, Elk Grove Village, IL 60007-1018. Phone:
(847)472-6700. Underwriting limitation b/: $3,625,000. Surety licenses c/: HI, IL, IN, IA, MO, OH, TX. Incorporated in: Illinois. Federal bond-approving officers should annotate their reference copies of the Treasury Circular 570 (“Circular”), 2007 Revision, to reflect this addition. Certificates of Authority expire on June 30th each year, unless revoked prior to that date. The Certificates are subject to subsequent annual renewal as long as the companies remain qualified ( *see* 31 CFR part 223). A list of qualified companies is published annually as of July 1st in the Circular, which outlines details as to the underwriting limitations, areas in which companies are licensed to transact surety business, and other information. The Circular may be viewed and downloaded through the Internet at *http://www.fms.treas.gov/c570.* Questions concerning this Notice may be directed to the U.S. Department of the Treasury, Financial Management Service, Financial Accounting and Services Division, Surety Bond Branch, 3700 East-West Highway, Room 6F01, Hyattsville, MD 20782. Dated: May 9, 2008. Vivian L. Cooper, Director, Financial Accounting and Services Division. [FR Doc. E8-11218 Filed 5-20-08; 8:45 am] BILLING CODE 4810-35-M DEPARTMENT OF THE TREASURY Fiscal Service Surety Companies Acceptable on Federal Bonds—Termination: Global Surety & Insurance Co. AGENCY: Financial Management Service, Fiscal Service, Department of the Treasury. ACTION: Notice. SUMMARY: This is Supplement No. 7 to the Treasury Department Circular 570, 2007 Revision, published July 2, 2007, at 72 FR 36192. FOR FURTHER INFORMATION CONTACT: Surety Bond Branch at
(202)874-6850. SUPPLEMENTARY INFORMATION: Notice is hereby given that the Certificate of Authority issued by the Treasury to the above-named company under 31 U.S.C. 9305 to qualify as acceptable surety on Federal bonds was terminated effective February 25, 2008. Federal bond-approving officials should annotate their reference copies of the Treasury Department Circular 570 (“Circular”), 2007 Revision, to reflect this change. With respect to any bonds currently in force with this company, bond-approving officers may let such bonds run to expiration and need not secure new bonds. However, no new bonds should be accepted from this company, and bonds that are continuous in nature should not be renewed. The Circular may be viewed and downloaded through the Internet at *http://www.fms.treas.gov/c570.* Questions concerning this notice may be directed to the U.S. Department of the Treasury, Financial Management Service, Financial Accounting and Services Division, Surety Bond Branch. 3700 East-West Highway, Room 6F01, Hyattsville, MD 20782. Dated: March 25, 2008. Vivian L. Cooper, Director, Financial Accounting and Services Division. [FR Doc. E8-11215 Filed 5-20-08; 8:45 am] BILLING CODE 4810-35-M DEPARTMENT OF VETERANS AFFAIRS Advisory Committee on Structural Safety of Department of Veterans Affairs Facilities; Notice of Meeting The Department of Veterans Affairs
(VA)gives notice under Public Law 92-463 (Federal Advisory Committee Act) that a meeting of the Advisory Committee on Structural Safety of Department of Veterans Affairs Facilities will be held on June 26-27, 2008 in Room 442, Export-Import Bank, 811 Vermont Avenue, NW., Washington, DC. The June 26 session will be from 9 a.m. until 5 p.m., and the June 27 session will be from 8:30 a.m. until 12:30 p.m. The meeting is open to the pubic. The purpose of the Committee is to advise the Secretary of Veterans Affairs on matters of structural safety in the construction and remodeling of VA facilities and to recommend standards for use by VA in the construction and alteration of its facilities. On June 26, the Committee will review developments in the fields of fire safety issues and structural design as they relate to seismic and other natural hazards impact on the safety of buildings. On June 27, the Committee will receive appropriate briefings and presentations on current seismic, natural hazards and fire safety issues that are particularly relevant to facilities owned and leased by the Department. The Committee will also discuss appropriate structural and fire safety recommendations for inclusion in VA's standards. No time will be allocated for receiving oral presentations from the public. However, the Committee will accept written comments. Comments should be sent to Krishna K. Banga, Senior Structural Engineer, Facilities Quality Service, Office of Construction & Facilities Management (OOCFM1A), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420. Those wishing to attend should contact Mr. Banga at
(202)565-9370. Dated: May 14, 2008. By Direction of the Secretary: E. Philip Riggin, Committee Management Officer. [FR Doc. E8-11249 Filed 5-20-08; 8:45 am] BILLING CODE 8320-01-M 73 99 Wednesday, May 21, 2008 CORRECTIONS Aaron Siegel DEPARTMENT OF AGRICULTURE Forest Service 36 CFR Part 242 DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 100 [FWS-R7-EA-2007-0025; 70101-1335-0064L6] RIN 1018-AV72 Subsistence Management Regulations for Public Lands in Alaska—2009-2010 and 2010-2011 Subsistence Taking of Fish and Shellfish Regulations Correction In proposed rule document E8-7841 beginning on page 20887 in the issue of Thursday, April 17, 2008 make the following correction: On page 20887, in the third column, under the DATES heading, in the first and second lines, “comments and proposals received” should read “comments received”. [FR Doc. Z8-7841 Filed 5-20-08; 8:45 am] BILLING CODE 1505-01-D 73 99 Wednesday, May 21, 2008 Proposed Rules Part II Federal Communications Commission 47 CFR Parts 0, 1, 2, et al. Service Rules for the 698-746, 747-762 and 777-792 MHz Bands, Implementing a Nationwide, Broadband, Interoperable Public Safety Network in the 700 MHz Band; Proposed Rule FEDERAL COMMUNICATIONS COMMISSION 47 CFR Parts 0, 1, 2, 27, 90 [WT Docket No. 06-150; PS Docket No. 06-229; FCC 08-128] Service Rules for the 698-746, 747-762 and 777-792 MHz Bands, Implementing a Nationwide, Broadband, Interoperable Public Safety Network in the 700 MHz Band AGENCY: Federal Communications Commission. ACTION: Proposed rule. SUMMARY: In the *Second Further Notice of Proposed Rulemaking (Second FNPRM)* , the Commission seeks comment on clarifications or revisions to the rules governing the Public Safety Broadband Licensee and the Upper 700 MHz D Block licensee. The Commission seeks comment on whether to continue to require these licensees to enter into a 700 MHz Public/Private Partnership for the purpose of enabling the construction of a nationwide, interoperable broadband network, and if so, what clarifications or revisions to adopt to the rules governing the licensees and the 700 MHz Public/Private Partnership. Further, the Commission seeks comment on what rules to adopt if it determines that the public/private partnership obligation should not be retained. This *Second Further Notice* is another step in the Commission's ongoing efforts to develop a regulatory framework in which to meet current and future public safety communications needs. DATES: Written comments are due on or before June 20, 2008, and reply comments are due on or before July 7, 2008. ADDRESSES: You may submit comments, identified by WT Docket No. 06-150 and PS Docket No. 06-229, by any of the identified methods: • Federal eRulemaking Portal: *http:// www.regulations.gov* . Follow the instructions for submitting comments. • Federal Communications Commission's Web Site: *http:// www.fcc.gov/cgb/ecfs/* . Follow the instructions for submitting comments. • Mail: Follow the instructions for paper filers below. • People with Disabilities: Contact the Commission to request reasonable accommodations (accessible format documents, sign language interpreters, CART, etc.) by e-mail: *FCC504@fcc.gov* or phone: 202-418-0530 or TTY: 202-418-0432. For detailed instructions for submitting comments and additional information on the rulemaking process, see the SUPPLEMENTARY INFORMATION section of this document. FOR FURTHER INFORMATION CONTACT: Peter Trachtenberg at
(202)418-7369, at *peter.trachtenberg@fcc.gov* , Spectrum and Competition Policy Division, Wireless Telecommunications Bureau; Jeffrey S. Cohen at
(202)418-0799, *jeff.cohen@fcc.gov* , Public Safety and Homeland Security Bureau. SUPPLEMENTARY INFORMATION: This is a summary of the Commission's *Second Further Notice of Proposed Rulemaking* , WT Docket No. 06-150, PS Docket No. 06-229, adopted on May 14, 2008 and released May 14, 2008. The full text of *the Second Further Notice of Proposed Rulemaking* is available for public inspection on the Commission's Internet site at *http://www.fcc.gov* . It is also available for inspection and copying during regular business hours in the FCC Reference Center (Room CY-A257), 445 12th Street, SW., Washington, DC 20554. The full text of this document also may be purchased from the Commission's duplication contractor, Best Copy and Printing Inc., Portals II, 445 12th St., SW., Room CY-B402, Washington, DC 20554; telephone
(202)488-5300; fax
(202)488-5563; e-mail *FCC@BCPIWEB.COM* . Synopsis In the *Second Report and Order,* 72 FR 48814, August 24, 2007, the Commission adopted rules for the establishment of a mandatory public/private partnership (the 700 MHz Public/Private Partnership) in the upper portions of the 698-806 MHz band (700 MHz Band) as the means for promoting the rapid construction and deployment of a nationwide, interoperable broadband public safety network that would serve public safety and homeland security needs. Specifically, the Commission required that the winning bidder of the commercial license in the Upper 700 MHz D Block (758-763/788-793 MHz) (D Block) enter into the 700 MHz Public/Private Partnership with the nationwide licensee of the public safety broadband spectrum (763-768/793-798 MHz) (Public Safety Broadband Licensee) to enable construction of this interoperable broadband network, which would span both the commercial D Block and public safety spectrum. In the recently concluded auction of commercial 700 MHz licenses, bidding for the D Block license did not meet the applicable reserve price of $1.33 billion and, pursuant to the Commission's rules, there was no winning bid for that license. Accordingly, in this Second FNPRM, the Commission revisits its decisions concerning the 700 MHz Public/Private Partnership—considering revisions to this partnership as well as alternative rules the Commission should adopt in the event the D Block licensee is no longer required to enter into a mandatory public/private partnership. First, the Commission considers whether to adopt clarifications and revisions to the public safety component of the 700 MHz Public/Private Partnership to better promote its public interest goals. In particular, the Commission seeks comment regarding what entities are eligible under Section 337 of the Communications Act as amended and the Commission's rules to use the public safety spectrum in the shared wireless broadband network as public safety users rather than as commercial users, and whether such users should be required to use or subscribe to the shared network. The Commission also seeks comment on possible clarifications of or changes to the rules governing the structure and criteria of the Public Safety Broadband Licensee, whether to clarify further the requirement that the Public Safety Broadband Licensee must be a non-profit organization, what measures to adopt to provide adequate Commission oversight, whether providing a nationwide, interoperable broadband network might be more effectively and efficiently accomplished by allowing State governments to assume responsibility for coordinating the participation of the public safety providers in their jurisdictions, and whether the Commission should rescind the current Public Safety Broadband License and seek new applicants. In addition, the Commission seeks comment on whether it remains in the public interest to require a public/private partnership between the nationwide D Block licensee and the Public Safety Broadband Licensee for the purpose of creating a nationwide, interoperable broadband network for both commercial and public safety network services. To ensure a thorough consideration of the Commission's options in the event that it does continue to require a public/private partnership between these licensees, the Commission seeks comment broadly on possible revisions to the 700 MHz Public/Private Partnership, including revisions regarding the respective obligations of the D Block licensee and the Public Safety Broadband Licensee. In particular, it seeks comment on the following issues:
(1)The technical requirements of the shared wireless broadband network to be constructed by the D Block licensee,
(2)the rules governing public safety priority access to the D Block spectrum during emergencies, and whether the Commission should continue to require the D Block licensee to provide such access;
(3)the D Block performance requirements and license term;
(4)the respective roles and responsibilities of the D Block licensee and Public Safety Broadband Licensee in connection with the 700 MHz Public/Private Partnership and the shared wireless broadband network;
(5)the various fees associated with the shared network;
(6)the process for negotiating and establishing the Network Sharing Agreement, including the consequences of a failure to reach agreement;
(7)certain auction-related issues, including whether to restrict who may participate in the new auction of the D Block license, whether and how to set any reserve price for such an auction, whether to adopt an exception to the impermissible material relationship rule for the determination of designated entity eligibility with respect to arrangements for the lease or resale (including wholesale) of the spectrum capacity of the D Block license, and whether the Commission should modify the auction default payment rules with respect to the D Block winning bidder; and
(8)rules governing the relocation of the public safety narrowband operations. In this *Second FNPRM,* the Commission includes an appendix that serves as a possible framework for establishing the technical requirements for the 700 MHz Public/Private Partnership shared wireless broadband network. This appendix is intended to solicit detailed comment and result in a final set of technical requirements that will provide greater certainty for bidders for the D Block license while ensuring that the network meets public safety's needs; the appendix is not intended to prejudge any of the issues identified for comment in the *Second FNPRM.* Finally, the Commission seeks comment on any other revisions or clarifications that may be appropriate with regard to the 700 MHz Public/Private Partnership, including whether to license the D Block and public safety broadband spectrum on a nationwide or adopt a regional geographic service area basis such as Regional Economic Area Grouping (REAG). In addition to considering possible revisions to the 700 MHz Public/Private Partnership, the Commission considers its options if the D Block is licensed without this 700 MHz Public/Private Partnership condition. For any circumstances where the Commission determines that the 700 MHz Public/Private Partnership condition on the D Block should not be retained, it seeks comment on revisions to the rules that would be appropriate with respect to the D Block license as well as revisions with regard to the Public Safety Broadband License that would ensure the development and deployment of a nationwide interoperable broadband network for public safety users. With respect to the D Block, the Commission seeks comment in particular on the service rules that should apply in this event, including the appropriate geographic license area, performance requirements, technical limits, and whether to adopt alternate conditions, such as an open access or wholesale requirement. The Commission seeks comments on the appropriate revisions to the rules that would still enable the Commission to achieve the goal of a nationwide, interoperable public safety broadband network. For example, the Commission seeks comment on:
(1)Whether the Commission should adopt, possibly with modifications, the approach proposed in the *Public Safety Ninth Notice of Proposed Rulemaking,* 72 FR 1201, January 10, 2007, which, among other aspects, would allow commercial providers to enter into voluntary arrangements with the Public Safety Broadband Licensee to provide public safety services through access to their commercial network infrastructure and/or through new network build-out in exchange for preemptible access to public safety spectrum;
(2)whether to require the adoption of a common broadband standard, and permit regional, state and local entities to build public safety broadband networks built to that standard, either through a spectrum lease with the Public Safety Broadband Licensee or by reassigning the public safety broadband spectrum for regional, state, or local licensing;
(3)whether the Commission, in the absence of the public/private partnership, should continue to obligate the D Block winner to fund the relocation of those public safety narrowband systems operating in the lower portion of the public safety spectrum; and
(4)whether, in the absence of a public safety/private partnership, there are viable options for funding network construction. The Commission initiates this *Second FNPRM* with the following principles and goals:
(1)To identify concerns in the existing structure of the 700 MHz Public/Private Partnership to inform the Commission's decision making going forward;
(2)to promote wireless innovation and broadband network penetration while meeting the communications needs of the first responder community in a commercially viable manner;
(3)to facilitate public safety access to a nationwide, interoperable broadband network in a timely manner;
(4)to identify funding opportunities for the public safety community to realize the promise of a broadband communications infrastructure with a nationwide level of interoperability; and
(5)to maximize the commercial and public safety benefits of this unique piece of 700 MHz spectrum. The Commission invites comment broadly on these principles and goals, as well as the other subjects discussed. While this *Second FNPRM* raises a number of specific questions, it should not be seen as providing any limitation on the issues that the Commission seeks comment upon. The Commission is interested in any and all perspectives from interested parties on how it can develop rules and procedures that will achieve the multiple goals enumerated above. Discussion I. Introduction 1. In the *Second Report and Order,* we adopted rules for the establishment of a mandatory public/private partnership (“the 700 MHz Public/Private Partnership”) in the upper portions of the 698-806 MHz band (“700 MHz Band”) as the means for promoting the rapid construction and deployment of a nationwide, interoperable broadband public safety network that would serve public safety and homeland security needs. 1 Specifically, we required that the winning bidder of the commercial license in the Upper 700 MHz D Block (758-763/788-793 MHz) (“D Block”) enter into the 700 MHz Public/Private Partnership with the nationwide licensee of the public safety broadband spectrum (763-768/793-798 MHz) (“Public Safety Broadband Licensee”) to enable construction of this interoperable broadband network, which would span both the commercial D Block and public safety spectrum. As essential components of this partnership, the D Block licensee would be chiefly responsible for the construction and operation of a state-of-the-art shared wireless broadband network that would be used by public safety users as well as commercial users. In exchange for taking on these responsibilities, the D Block licensee would gain access to the public safety broadband spectrum for use by its commercial customers on a secondary preemptible basis. In turn, public safety users, through the Public Safety Broadband Licensee, would benefit from obtaining access to a state-of-the-art broadband network on their 700 MHz spectrum that would incorporate their unique requirements, which would not otherwise be possible given the limited availability of public funding. 2 In Auction 73, the recently concluded auction of commercial 700 MHz licenses, bidding for the D Block license did not meet the applicable reserve price of $1.33 billion and, pursuant to the Commission's rules, there was no winning bid for that license. 3 In the *D Block Post-Auction Order* released shortly after the close of Auction 73, we determined not to re-offer the D Block license immediately in order to “provide additional time to consider options with respect to the D Block spectrum.” 4 Accordingly, in this Second FNPRM of Proposed Rulemaking (“Second FNPRM”), we revisit our decisions concerning the 700 MHz Public/Private Partnership—considering revisions to this partnership as well as alternative rules we should adopt in the event the D Block licensee is no longer required to enter into a mandatory public/private partnership. 1 See Service Rules for the 698-746, 747-762 and 777-792 MHz Bands, WT Docket No. 06-150, Revision of the Commission's Rules to Ensure Compatibility with Enhanced 911 Emergency Calling Systems, CC Docket No. 94-102, Section 68.4(a) of the Commission's Rules Governing Hearing Aid-Compatible Telephones, WT Docket No. 01-309, Biennial Regulatory Review—Amendment of Parts 1, 22, 24, 27, and 90 to Streamline and Harmonize Various Rules Affecting Wireless Radio Services, WT Docket 03-264, Former Nextel Communications, Inc. Upper 700 MHz Guard Band Licenses and Revisions to Part 27 of the Commission's Rules, WT Docket No. 06-169, Implementing a Nationwide, Broadband, Interoperable Public Safety Network in the 700 MHz Band, PS Docket No. 06-229, Development of Operational, Technical and Spectrum Requirements for Meeting Federal, State and Local Public Safety Communications Requirements Through the Year 2010, WT Docket No. 96-86, Declaratory Ruling on Reporting Requirement under Commission's Part 1 Anti-Collusion Rule, WT Docket No. 07-166, *Second Report and Order,* 22 FCC Rcd 15289
(2007)( *Second Report and Order* ) *recon. pending.* 2 *Id.* at 15295 para. 13, 15431 para. 396. 3 The auction of these 700 MHz licenses, designated Auction 73, began on January 24, 2008, and concluded March 18, 2008. *See http://wireless.fcc.gov/auctions/default.htm?job=auction_summary&id=73.* 4 Auction of the D Block License in the 758-763 and 788-793 MHz Bands, AU Docket No. 07-157, *Order,* FCC 08-91, para. 3 (rel. Mar. 20, 2008) ( *D Block Post-Auction Order* ). In the *Second Report and Order,* the Commission decided that, if the reserve price for the D Block was not satisfied in the initial auction results, the Commission might either re-offer the license on the same terms in an immediate second auction, or re-evaluate the license conditions. *See Second Report and Order,* 22 FCC Rcd at 15404 para. 314. 2. First, we consider clarifications and revisions to the public safety component of the 700 MHz Public/Private Partnership that would better promote our public interest goals. 5 More specifically, we seek comment on whether, under Section 337 of the Communications Act of 1934, as amended (“Act”), 6 and Section 90.523 of the Commission's rules, 7 only entities that are providing public safety services, as defined in the Act, are eligible to use the public safety spectrum portion of the shared network established under the 700 MHz Public/Private Partnership, and whether such entities should be required to subscribe to the network. We also seek comment on whether to clarify the requirement that the Public Safety Broadband Licensee be a non-profit organization and specify that entities associated with the public safety component of the 700 MHz Public/Private Partnership, apart from outside advisors or counsel with no debt or equity relationship to the Public Safety Broadband Licensee, may not be for-profit entities. We seek comment on these and other clarifications or changes to the structure of the Public Safety Broadband Licensee and the criteria adopted in the *Second Report and Order.* 5 We use the term “700 MHz Public/Private Partnership” to refer specifically to a mandatory public/private partnership between the D Block licensee and the Public Safety Broadband Licensee, along the general lines initially set forth in the *Second Report and Order.* 6 47 U.S.C. 337. 7 47 CFR 90.523. 3. In addition, we seek comment on possible modifications to the various rules governing the D Block licensee and the Public Safety Broadband Licensee within the framework of the 700 MHz Public/Private Partnership (as revised or clarified). First, we seek comment on whether it remains in the public interest to require a public/private partnership between the nationwide D Block licensee and the Public Safety Broadband Licensee for the purpose of creating a nationwide, interoperable broadband network for both commercial and public safety network services. Next, to ensure a thorough consideration of the Commission's options in the event that we do continue to require a public/private partnership between these licensees, we seek comment on a broad set of possible revisions to the 700 MHz Public/Private Partnership, including revisions regarding the respective obligations of the D Block licensee and the Public Safety Broadband Licensee. In particular, we seek comment on the following issues:
(1)The technical requirements of the shared wireless broadband network to be constructed by the D Block licensee,
(2)the rules governing public safety priority access to the D Block spectrum during emergencies;
(3)the D Block performance requirements and license term;
(4)the respective roles and responsibilities of the D Block licensee and Public Safety Broadband Licensee in connection with the 700 MHz Public/Private Partnership and the shared wireless broadband network, including whether the Public Safety Broadband Licensee may assume responsibilities akin to a “mobile virtual network operator” 8 ;
(5)the various fees associated with the shared network;
(6)the process for negotiating and establishing the Network Sharing Agreement, including the consequences of a failure to reach agreement;
(7)certain auction-related issues, including whether to restrict who may participate in the new auction of the D Block license, how to determine any reserve price for such an auction, whether to adopt an exception to the impermissible material relationship rule for the determination of designated entity eligibility with respect to arrangements for the lease or resale (including wholesale) of the spectrum capacity of the D Block license, and whether we should modify the auction default payment rules with respect to the D Block winning bidder; and
(8)relocation of the public safety narrowband operations. Finally, we seek comment on other revisions or clarifications that may be appropriate with regard to the 700 MHz Public/Private Partnership, including whether to license the D Block and public safety broadband spectrum on a nationwide or adopt a regional geographic service area basis such as Regional Economic Area Grouping (REAG). 9 8 A mobile virtual network operator is a non-facility-based mobile service provider that resells service to the public for profit. *See* Implementation of Section 6002(B) of the Omnibus Budget Reconciliation Act of 1993, WT Docket No. 05-71, *Tenth Report,* 20 FCC Rcd 15908, 15920 para. 27 (2005). 9 As licensing the D Block on a REAG basis would result in issuing multiple D Block licenses, references herein to “the” D Block license and licensee should be understood to incorporate reference to any of multiple D Block licenses or licensees and vice versa, as appropriate. 4. In addition to considering possible revisions to the 700 MHz Public/Private Partnership, we consider our options if the D Block is licensed without this 700 MHz Public/Private Partnership condition. We note that there are several circumstances where such options might be relevant. First, we might determine that we should not re-auction the D Block with the 700 MHz Public/Private Partnership condition, and instead immediately conduct an auction to license the D Block without such a condition. In addition, we might conclude that, even if we should retain the 700 MHz Public/Private Partnership condition in the next D Block auction, the condition should be removed if the next D Block auction fails to produce a winning bidder, or the winning bidder defaults or fails to negotiate a successful Network Sharing Agreement with the Public Safety Broadband Licensee. Therefore, for any circumstances where we determine that the 700 MHz Public/Private Partnership condition on the D Block should not be retained, we seek comment on revisions to the rules that would be appropriate with respect to the D Block license as well as revisions with regard to the Public Safety Broadband License that would ensure the development and deployment of a nationwide interoperable broadband network for public safety users. 5. Finally, we note that, in adopting the *Second Report and Order,* we took an innovative approach to addressing a vitally important problem: Promoting interoperability, on a nationwide basis, for public safety communications. We intended that the mandatory public/private partnership model between two nationwide licensees—the commercial D Block licensee and the non-profit Public Safety Broadband Licensee—would facilitate access for public safety to a robust, advanced communications infrastructure and produce economies of scale inherent in a nationwide footprint. Importantly, we also found that this approach was the best means available to address the issue of funding for construction of a public safety communications infrastructure, which has proven a significant impediment to date. At the same time, however, we anticipated that the partnership would involve a balance between the commercial partner's obligation to construct a shared network infrastructure and the commercial partner's secondary access to the 700 MHz public safety broadband spectrum. By partnering these two spectrum assets, we intended to promote spectrum efficiency and innovation. Thus, we aimed to have the 700 MHz Public/Private Partnership between the D Block licensee and the Public Safety Broadband Licensee be complementary, and we designed this framework to strike the appropriate balance such that the maximum benefits accrued to both parties. 6. Although the initial sale of the D Block license did not result in a winning bidder, these goals remain. In reexamining our approach to the D Block following Auction 73, we continue to proceed with these objectives in mind. Accordingly, we initiate this Second FNPRM with the following principles and goals: • To identify concerns in the existing structure of the 700 MHz Public/Private Partnership to inform our decision making going forward; • To promote wireless innovation and broadband network penetration while meeting the communications needs of the first responder community in a commercially viable manner; • To facilitate public safety access to a nationwide, interoperable broadband network in a timely manner; • To identify funding opportunities for the public safety community to realize the promise of a broadband communications infrastructure with a nationwide level of interoperability; and • To maximize the commercial and public safety benefits of this unique piece of 700 MHz spectrum. 7. We invite comment broadly on these principles and goals, as well as the specific subjects discussed herein. While today's item raises a number of specific questions, it should not be seen as providing any limitation on the public safety issues that we seek comment upon. We are interested in any and all perspectives from interested parties on how the Commission can develop rules and procedures that will achieve the multiple goals enumerated above. Finally, before ultimately adopting final rules in response to this Second FNPRM, we plan to present for public comment, in a subsequent FNPRM of Proposed Rulemaking, a detailed proposal regarding the specific proposed rules. 10 10 In this subsequent Further Notice of Proposed Rulemaking, we plan to seek comment on an expedited basis, with comments due fourteen days after publication in the **Federal Register** , and reply comments due twenty-one days after such publication. II. Background 8. In the *Second Report and Order,* released August 10, 2007, we adopted a band plan and service rules affecting the upper portions of the 700 MHz Band in order to promote the creation of a nationwide, interoperable broadband public safety network through the establishment of the 700 MHz Public/Private Partnership. Specifically, with regard to the public safety spectrum in the 700 MHz Band, we designated the lower half of this spectrum (the 763-768 MHz and 793-798 MHz bands) for public safety broadband communications, and we consolidated existing narrowband allocations to the upper half of the spectrum (the 769-775 MHz and 799-805 MHz bands). 11 We also created a single nationwide license for the public safety broadband spectrum, and we specified the criteria, selection process, and responsibilities of the licensee assigned this spectrum, the Public Safety Broadband Licensee. 12 We required, for example, that no commercial interest may be held in the Public Safety Broadband Licensee, that no commercial interest may participate in the management of the licensee, and that the licensee must be a non-profit organization. 13 With regard to the commercial spectrum in the 700 MHz Band, we designated one block—the D Block (the 758-763 MHz and 788-793 MHz bands) located adjacent to the public safety broadband spectrum block—for use as part of the 700 MHz Public/Private Partnership. As set forth in the *Second Report and Order,* we required the D Block licensee, working with the Public Safety Broadband Licensee in a public/private partnership, to construct and operate a nationwide network shared by both commercial and public safety users. 14 11 *See Second Report and Order,* 22 FCC Rcd at 15406. We also created an internal guard band in the 768-769 MHz and 798-799 MHz bands located between the broadband and narrowband allocations. *Id.* 12 *See id.* 13 *See id.* at 15421. 14 *Id.* at 15428. 9. *The 700 MHz Public/Private Partnership.* In the *Second Report and Order,* we determined that promoting commercial investment in the build-out of a shared network infrastructure for both commercial and public safety users through the 700 MHz Public/Private Partnership would address “the most significant obstacle to constructing a public safety network—the limited availability of public funding.” 15 We concluded that providing for a shared infrastructure using the D Block and the public safety broadband spectrum would help achieve significant cost efficiencies. We noted that this would allow public safety agencies “to take advantage of commercial, off-the-shelf technology and otherwise benefit from commercial carriers' investments in research and development of advanced wireless technologies.” 16 We also stated that this approach could benefit the public safety community by providing it with access to an additional 10 megahertz of broadband spectrum during emergencies, when it is needed most. Most importantly, it was our view that this particular public/private partnership approach would provide all of these benefits on a nationwide basis and thus provide the most practical means of speeding deployment of a nationwide, interoperable, broadband network for public safety service that is designed to meet their needs in times of crisis. At the same time, we pointed out that the 700 MHz Public/Private Partnership would provide the D Block licensee with rights to operate commercial services in the 10 megahertz of public safety broadband spectrum on a secondary, preemptible basis, which would both help to defray the costs of build-out and ensure that the spectrum is used efficiently. 17 15 *Id.* at 15431. 16 *Id.* (citing Sprint Nextel *700 MHz Further Notice* Comments at 7-8). 17 *Id.* 10. We established various features of the 700 MHz Public/Private Partnership. First, we set forth the essential components of this partnership. 18 In particular, we specified certain parameters for the shared wireless broadband network, including features relating to the technology platform, signal coverage, robustness and reliability, capacity, security, operational capabilities and control, and certain equipment specifications. 19 With regard to the spectrum shared by the common network, we required that the Public Safety Broadband Licensee lease the public safety broadband spectrum for commercial use by the D Block licensee on a secondary, preemptible basis and provided that the public safety entities would have priority access to the D Block spectrum during emergencies. 20 We also established certain minimal performance requirements relating to construction and build-out of the shared 700 MHz Public/Private Partnership network. 21 18 *Id.* at 15432. 19 *Id.* at 15432, 15433-44. 20 *Id.* at 15432, 15434-43. 21 *Id.* at 15432, 15443-46. 11. Next, we established that the terms of the 700 MHz Public/Private Partnership would be governed both by Commission rules and by a Network Sharing Agreement (“NSA”) to be negotiated by the winning bidder for the D Block license and the Public Safety Broadband Licensee. 22 Throughout the *Second Report and Order* we identified certain elements that the parties were required to address in the NSA. These included, for instance, the details of certain mandatory network specifications established in the order and a detailed build-out schedule as jointly agreed upon by the Public Safety Broadband Licensee and the D Block licensee. 23 We also determined that the NSA should include, among other things, specification of all service fees that public safety entities would pay with respect to access and use of the shared network, both in terms of fees applicable for normal network service and fees for priority access to the D Block spectrum in an emergency. 24 22 *Id.* at 15432, 15447-49. 23 *Id.* at 15448-49. 24 *Id.* at 15448-49. 12. We established rules governing the establishment of the NSA to ensure timely completion of the negotiations and to resolve any disputes that may arise. 25 Among other rules, we required the winning bidder of the D Block license and the Public Safety Broadband Licensee to negotiate in good faith, and we provided that the D Block license application would not be granted until the parties obtained Commission approval of the agreement, executed, and then filed the NSA with the Commission. 26 We also required the negotiations to begin by a date certain and conclude within six months. Further, we specified rules to govern in the event of a negotiation dispute. Specifically, we provided that if, at the end of the six month negotiation period, or on their own motion at any time, the Chiefs of the Public Safety and Homeland Security Bureau (“PSHSB”) and the Wireless Telecommunications Bureau (“WTB”) found that negotiations had reached an impasse, they could take a variety of actions to resolve any disputes, including but not limited to issuing a decision on the disputed issues and requiring the submission of a draft agreement consistent with their decision. 27 25 *Id.* at 15448. 26 *Id.* at 15448. 27 *Id.* at 15465. 13. *Narrowband Relocation.* In the *Second Report and Order,* we found that, in order to maximize the benefits of the 700 MHz Public/Private Partnership to deploy a nationwide, interoperable broadband communications network, the current 700 MHz narrowband public safety operations must be consolidated and cleared no later than the DTV transition date. 28 To effectuate the consolidation of the narrowband channels, we required the D Block licensee to pay the costs of relocating narrowband radios to the newly consolidated portion of the band and capped the disbursement amount for such relocation costs at $10 million. 29 We also cautioned that any narrowband equipment deployed in the 764-770 MHz and 794-800 MHz bands (channels 63 and 68), or in the 775-776 MHz and 805-806 MHz bands (the upper one megahertz of channels 64 and 69), more than 30 days following the adoption date of the *Second Report and Order* would be ineligible for relocation funding. 30 In addition, we prohibited authorization of any new narrowband operations in that spectrum, as of 30 days following the adoption date of the *Second Report and Order.* 31 28 *Id.* at 15410. 29 *Id.* at 15412. 30 *Id.* at 15412. 31 *Id.* 14. *Rules for an Auction to License the D Block.* In addition to adopting service rules for the 700 MHz commercial spectrum, including the D Block, we also made several determinations regarding the auction of the 700 MHz commercial licenses. In particular, we concluded that block-specific aggregate reserve prices should be established for each commercial license block—the A, B, C, D, and E Blocks—to be auctioned in Auction 73, and directed WTB to adopt and publicly disclose those reserve prices prior to the auction, pursuant to its existing delegated authority and consistent with our directions. 32 For the D Block, we concluded that WTB should consider certain factors in setting the D Block reserve price, including the 700 MHz Public/Private Partnership conditions, which might suggest a reserve price of $1.33 billion. We provided that, in the event that bids for the D Block license did not meet the reserve price, we would leave open the possibility of offering the license on the same terms or re-evaluating the D Block license conditions. 33 32 *See id.* at 15400. 33 *See id.* at 15404. 15. In an effort to encourage the widest range of potentially qualified applicants to participate in bidding for the D Block license, in the *Second Report and Order,* we enabled eligible applicants for this license to seek designated entity bidding credits for small businesses as a means to create incentives for investors to provide innovative small businesses with the capital necessary to compete for the D Block license at auction. 34 We subsequently decided to waive, on our own motion, the application of our “impermissible material relationship” rule 35 for purposes of determining an applicant's or licensee's designated entity eligibility solely with respect to arrangements for lease or resale (including wholesale) of the spectrum capacity of the D Block license. 36 Given the unique characteristics of the regulations governing the D Block license, we concluded that a waiver of the impermissible material relationship rule served the public interest. 37 34 47 CFR 27.502. 35 47 CFR 1.2110(b)(3)(iv)(A). 36 *See generally* Waiver of Section 1.2110(b)(3)(iv)(A) of the Commission's Rules for the Upper 700 MHz Band D Block License, *Order,* 22 FCC Rcd 20354
(2007)( *D Block Waiver Order* ) *recon. pending.* 37 *Id.* at 20354. 16. *Petitions for Reconsideration.* Ten parties filed petitions for reconsideration seeking review of various aspects of the *Second Report and Order.* 38 Three of the petitions sought reconsideration of the rules governing the 700 MHz Public/Private Partnership specifically, 39 and two petitioners sought reconsideration of the aggregate reserve prices set for the commercial license blocks, including the D Block. 40 These petitioners presented related arguments in the pre-auction process. 41 After considering the arguments, WTB established reserve prices consistent with the direction of the *Second Report and Order.* 42 Two other parties filed petitions seeking reconsideration of some or all of the requirements regarding public safety narrowband relocation, and also filed requests for waiver of some of these requirements. 43 All of the petitions remain pending. 38 AT&T Inc. Petition for Reconsideration and Clarification, WT Docket No. 06-150; PS Docket No. 06-229 (filed Sept. 24, 2007); Blooston Rural Carriers Petition for Partial Reconsideration and/or Clarification (filed Sept. 24, 2007); Petition for Reconsideration of the Ad Hoc Public Interest Spectrum Coalition (filed Sept. 24, 2007); Cyren Call Communications Corporation Petition for Reconsideration and for Clarification (filed Sept. 24, 2007); Frontline Wireless, LLC Petition for Reconsideration (filed Sept. 24, 2007); Pierce Transit Petition for Reconsideration (filed Sept. 24, 2007); Rural Telecommunications Group, Inc. Petition for Reconsideration (filed Sept. 24, 2007); Commonwealth of Virginia Petition for Reconsideration (filed Sept. 24, 2007); NTCH, Inc. Petition for Partial Reconsideration (filed Sept. 21, 2007); MetroPCS Communications, Inc. Petition for Clarification and Reconsideration (filed Sept. 20, 2007). 39 *See* AT&T Petition for Reconsideration; Cyren Call Petition for Reconsideration; Frontline Petition for Reconsideration. The Frontline September 20, 2007 Request also seeks changes to the rules governing the 700 MHz Public/Private Partnership. *See* Request to Further Safeguard Public Safety Service by Frontline Wireless, WT Docket No. 06-150 (filed Sept. 20, 2007) (Frontline September 20, 2007 Request). 40 *See* Frontline Petition for Reconsideration; MetroPCS Petition for Reconsideration. 41 *See* Auction of 700 MHz Band Licenses Scheduled for January 24, 2008; Notice and Filing Requirements, Minimum Opening Bids, and other Procedures for Auctions 73 and 76, *Public Notice,* 22 FCC Rcd 18141, 18194-95
(2007)( *Auction 73/76 Procedures Public Notice* ). 42 *See id.* at 18193-96. 43 *See* Commonwealth of Virginia Petitions for Reconsideration; Pierce Transit Petition for Reconsideration. Pierce Transit and Virginia have been granted limited waiver relief. *See* Implementation of a Nationwide, Broadband, Interoperable Public Safety Network in the 700 MHz Band; Development of Operational, Technical and Spectrum Requirements for Meeting Federal, State and Local Public Safety Communications Requirements Through the Year 2010, PS Docket No. 06-229, WT Docket No. 96-86, *Order,* 22 FCC Rcd 20290 (2007); Implementing a Nationwide, Broadband, Interoperable Public Safety Network in the 700 MHz Band; Development of Operational, Technical and Spectrum Requirements for Meeting Federal, State and Local Public Safety Communications Requirements Through the Year 2010; Request for Waiver of Pierce Transit, PS Docket No. 06-229, WT Docket No. 96-86, *Order,* 23 FCC Rcd 433 (PSHSB 2008). 17. *Auction 73.* The auction of 700 MHz Band licenses, designated Auction 73, commenced on January 24, 2008, and closed on March 18, 2008. 44 While the bids for licenses associated with the other 700 MHz Band blocks (the A, B, C, and E Blocks) exceeded the applicable reserve prices, bids for the D Block license did not meet the reserve price and there was no winning bid for that license. 45 44 *See* *http://wireless.fcc.gov/auctions/default.htm?job=auction_summary&id=73* . 45 *See id.* ; *see also* “Auction of 700 MHz Band Licenses Closes,” *Public Notice,* DA 08-595 (rel. Mar. 20, 2008) ( *700 MHz Auction Closing Public Notice* ). 18. *D Block Post-Auction Order.* On March 20, 2008, we determined that we would not proceed immediately to re-auction the D Block license. 46 We made this decision in order to provide additional time to consider our various options with respect to the D Block spectrum. 47 46 *See D Block Post-Auction Order* at para. 5. 47 *See id.* 19. *Inspector General's Report.* On April 25, 2008, the Office of Inspector General
(OIG)issued a report on its investigation relating to allegations relating to whether certain statements made by an advisor to the Public Safety Broadband Licensee to potential bidders for the D Block license in Auction 73, particularly those regarding the spectrum lease payments that the Public Safety Broadband Licensee would request from the D Block licensee for use of public safety spectrum, had the effect of deterring various companies from bidding on the D Block. 48 The OIG determined that the statements in question were “not the only factor in the companies' decision not to bid on the D Block.” Rather, it concluded that “the uncertainties and risks associated with the D Block, including, but not limited to, the negotiation framework with [the Public Safety Broadband Licensee], the potential for default payment if negotiations failed, and the costs of the build-out and the operations of the network, taken together, deterred each of the companies from bidding on the D Block.” 49 48 *See Office of Inspector General Report,* from Kent R. Nilsson, Inspector General, to Chairman Kevin J. Martin (OIG rel. Apr. 25, 2008) ( *OIG Report* ). 49 *OIG Report* at 2. III. Discussion 20. In this Second FNPRM, we revisit our decisions concerning the public safety broadband spectrum, the 700 MHz Public/Private Partnership, and the shared wireless broadband network it is intended to create, as we move toward a new auction to license the D Block spectrum in the near future. 50 50 As noted above, before ultimately adopting final rules in response to this Second FNPRM, we plan to present for public comment, in a subsequent FNPRM of Proposed Rulemaking, a detailed proposal regarding the specific proposed rules. 21. First, in reevaluating the 700 MHz Public/Private Partnership in light of the results of Auction 73, we find it appropriate to consider clarifications and revisions to the public safety component of the partnership that would better promote our public interest goals. More specifically, in section A, we seek comment on our proposed clarifications regarding the entities that are eligible to use the public safety spectrum in the shared wireless broadband network as public safety users rather than as commercial users. We also seek comment on possible clarifications of or changes to the rules governing the structure and criteria of the Public Safety Broadband Licensee, 51 including whether to clarify further the requirement that the Public Safety Broadband Licensee must be a non-profit organization. 51 *See* 47 U.S.C. 316 (permitting the Commission to modify any license if, in the judgment of the Commission, such action will promote the public interest, convenience, or necessity). 22. In section B, we seek comment on possible changes to the rules requiring and governing the 700 MHz Public/Private Partnership. As noted above, we seek comment on whether the 700 MHz Public/Private Partnership between the D Block licensee and the Public Safety Broadband Licensee, with appropriate revisions and clarifications, would best serve the public interest in ensuring the development of a nationwide, interoperable broadband network for public safety users. We therefore explore a variety of possible revisions to the 700 MHz Public/Private Partnership to provide greater assurance to potential bidders for the D Block license that the shared wireless broadband network will be commercially viable and to help ensure that this partnership will be successful in making a nationwide, interoperable, broadband network available to public safety users. We also seek comment on issues related to the negotiation of the Network Sharing Agreement. In addition, we request comment on select issues relating to auctioning the D Block license, including eligibility to participate in the auction, a reserve price, and potential default payments. Finally, we seek comment on issues relating to narrowband relocation and on whether to continue to license the D Block on a nationwide basis or adopt a regional geographic service area basis such as REAGs. 23. Finally, in section C, we examine our options in the event we decide not to condition the D Block on the establishment of the 700 MHz Public/Private Partnership with the Public Safety Broadband Licensee, either immediately in the next auction or if the next auction fails to produce a winning bidder. First, we seek comment on various revisions that might be appropriate with respect to the D Block spectrum. Then we invite comment on what additional revisions might be appropriate with regard to the Public Safety Broadband License in order to ensure the development and deployment of a nationwide interoperable broadband network for public safety users. A. The Public Safety Broadband License 1. Eligible Users of the Public Safety Spectrum in the Shared Network 24. *Background.* To meet anticipated public safety and homeland security needs, we proposed a comprehensive plan in the *Second Report and Order* to promote the rapid deployment of a nationwide, interoperable, broadband public safety network. This plan was based on taking “a centralized and national approach to maximize public safety access to interoperable, broadband spectrum in the 700 MHz Band.” 52 In particular, we required that a single, nationwide public safety broadband license be assigned to the Public Safety Broadband Licensee. That licensee would be responsible for negotiating a Network Sharing Agreement with the winning bidder of the D Block licensee, pursuant to which the D Block licensee would construct and operate a shared, nationwide 700 MHz interoperable broadband network that serves the public safety entities seeking access to the network, and the D Block licensee would, in turn, gain access to the 700 MHz public safety broadband spectrum for use by its commercial users on a secondary preemptible basis. 53 52 *See Second Report and Order,* 22 FCC Rcd at 15419. 53 *See id.* at 15419. 25. The eligibility rules for the 700 MHz public safety band, including both the narrowband and broadband segments, are contained in Section 90.523 of our rules. 54 By linking eligibility to the provision of statutorily-defined “public safety services,” Section 90.523 attempts to ensure compliance with the statutory mandate of Section 337(a)(1) of the Communications Act, which requires the Commission to allocate 24 megahertz of spectrum between 746 MHz and 806 MHz for “public safety services.” 55 The statutory definition of “public safety services,” which is set forth in Section 337(f) of the Act, provides as follows: 54 47 CFR 90.523. 55 47 U.S.C. 337(a)(1).
(f)Definitions For purposes of this section:
(1)Public safety services The term “public safety services” means services—
(A)The sole or principal purpose of which is to protect the safety of life, health, or property;
(B)That are provided—
(i)By State or local government entities; or
(ii)By nongovernmental organizations that are authorized by a governmental entity whose primary mission is the provision of such services; and
(C)That are not made commercially available to the public by the provider. 56 56 47 U.S.C. 337(f). 26. The eligibility rules of Section 90.523 that apply to the narrowband licensees of the 700 MHz public safety band limit operations to the provision of public safety services, as defined in Section 337(f)(1). Thus, all such licensees are either state or local governmental entities 57 or authorized non-governmental organizations (NGOs), 58 which provide services that are not made commercially available to the public and are for the sole or principal purpose of protecting the safety of life, health, or property. 59 57 *See* 47 CFR 90.523(a). 58 *See* 47 CFR 90.523(b). 59 *See* 47 CFR 90.523(a)-(d). 27. With respect to the broadband licensee— *i.e.* , the Public Safety Broadband Licensee—the Commission crafted eligibility requirements that were also intended to limit operations to the statutorily defined public safety services in order to ensure that the band remained allocated to such services, as required by Section 337(a)(1), and to focus the Public Safety Broadband Licensee exclusively upon the needs of public safety entities that stand to benefit from the interoperable broadband network. 60 Specifically, we required that the Public Safety Broadband Licensee satisfy the following eligibility criteria:
(1)No commercial interest may be held in this licensee, and no commercial interest may participate in the management of the licensee,
(2)the licensee must be a non-profit organization,
(3)the licensee must be as broadly representative of the public safety radio user community as possible, including the various levels ( *e.g.* , state, local, county) and types ( *e.g.* , police, fire, rescue) of public safety entities, and
(4)to ensure that the Public Safety Broadband Licensee is qualified to provide public safety services, an organization applying for the Public Safety Broadband License was required to submit written certifications from a total of at least ten geographically diverse state and local governmental entities, with at least one certification from a state government entity and one from a local government entity. 61 The written certifications from these state and local governmental entities were required to verify that:
(1)They have authorized the applicant to use spectrum at 763-768 MHz and 793-798 MHz to provide the authorizing entity with public safety services; and
(2)the authorizing entities' primary mission is the provision of public safety services. 62 60 *Second Report and Order,* 22 FCC Rcd at 15421. 61 *See* 47 CFR 90.523(e). 62 *See* 47 CFR 90.523(e)(i), (ii). 28. *Discussion.* As a preliminary matter, our review of the eligibility provisions that apply to the narrowband licensees and those that apply to the Public Safety Broadband Licensee have led us to identify two elements of the statutory definition of “public safety services” that the rules do not appear to apply explicitly enough to the Public Safety Broadband Licensee:
(a)The Section 337(f)(1)(A) element that requires the “sole or principal purpose [of the services to be for the] protect[ion of] the safety of life, health, or property,” and
(2)the Section 337(f)(1)C) element that bars such services from being “made commercially available to the public by the provider.” 63 In addition, there is some degree of ambiguity as to the applicability of the narrowband eligibility provisions in Sections 90.953(a)-(d) to the Public Safety Broadband Licensee. Accordingly, we seek comment on whether to make minor amendments to Section 90.523 to
(a)clarify that the services provided by the Public Safety Broadband Licensee must conform to all the elements of the Section 337(f)(1) definition of “public safety services,” and
(b)clearly delineate the differences and overlap in the respective eligibility requirements of the narrowband licensees and the Public Safety Broadband Licensee. 63 47 U.S.C. 337(f)(1)(A), (C). 29. As discussed in more detail below, it would appear that, under Section 337 of the Act and in furtherance of the policies that have led to the creation of the Public Safety Broadband Licensee, the eligible users of the public safety broadband network that are represented by the Public Safety Broadband Licensee should be restricted to entities that would be eligible to hold licenses under Section 90.523. Thus, only entities providing public safety services, as defined in the Act, would be eligible to use the public safety spectrum of the shared network of the 700 MHz Public/Private Partnership on a priority basis, pursuant to the representation of the Public Safety Broadband Licensee. Accordingly, we also seek comment on whether all other users of the shared network, including critical infrastructure users, should consequently be treated as commercial users who would obtain access to spectrum only through commercial services provided solely by the D Block licensee. 30. *Eligible Users of the Public Safety Broadband Network.* As the licensee of the broadband portion of spectrum within the 700 MHz public safety band, the Public Safety Broadband Licensee occupies a somewhat unique position insofar as it will not use its licensed spectrum to serve its own communications needs. Rather, the Public Safety Broadband Licensee will ensure the provision of public safety service by providing spectrum access to others via the nationwide shared public/private network. 64 Thus, the question of whether the Public Safety Broadband Licensee's service qualifies as a “public safety service” under Section 337(f)(1) will turn (in part) on the nature of the spectrum use by the entities that it permits to gain access to the network. To the extent that these entities are public safety entities that use this access to provide themselves with communications services in furtherance of their mission to protect the safety of life, health or property, the Public Safety Broadband Licensee's services related to the public safety broadband spectrum would fall well within the Section 337(f)(1) definition of “public safety services” and would comport with the Commission's obligation under Section 337(a)(1) to allocate a certain amount of spectrum to such services. 64 *See* Second Report and Order, 22 FCC Rcd at 15426. 31. We note that, pursuant to the statutory definition, a service can still be considered a “public safety service” even if its purpose is not solely for protecting the safety of life, health or property, so long as this remains its “principal” purpose. 65 Accordingly, the service provided by the Public Safety Broadband Licensee—providing public safety entities access to the spectrum for safety-of-life/health/property communications operations—could conceivably include the provision of spectrum access to public safety entities for uses that do not principally involve the protection of life, health or property, so long as it can be said that the principal purpose of the Public Safety Broadband Licensee's services is to protect the safety of life, health or property. 65 *See* 47 U.S.C. 337(f)(1)(A). 32. Taken to an extreme, this reasoning could even permit the Public Safety Broadband Licensee to provide spectrum access to small numbers of entities with no connection to public safety under the rationale that the bulk of the Public Safety Broadband Licensee's services would remain that of providing the public safety entities access to spectrum for use in safeguarding life, health or property. Moreover, the Public Safety Broadband Licensee could arguably leave entire pockets within its nationwide service area served only by such non-public safety entities, based on this same rationale that the small amount of non-public safety use—relative to the nature of the overall use across the country—does not alter the fact that the principal purpose of the service remains public safety. Such a result appears patently inconsistent with the spirit of Section 337(f)(1)(A), and we seek comment on whether, or to what degree, the Public Safety Broadband Licensee would be statutorily precluded by that subsection from representing and allowing any entity to use the network for services that are not principally for public safety purposes. We also seek comment on whether there are other grounds—specifically, the authorization requirement of Section 337(f)(1)(B)(ii) and policy reasons—for prohibiting the Public Safety Broadband Licensee from providing network access to non-public safety entities or from permitting public safety entities that it represents to use the network for services that do not have as their principal purpose the protection of the safety of life, heath or property. With respect to Section 337(f)(1)(B)(ii), we observe that, in order for the Public Safety Broadband Licensee's services to meet the public safety services definition, the Public Safety Broadband Licensee, as a nongovernmental organization, must receive authorization from “a governmental entity whose primary mission is the provision of [public safety] services.” We believe it unlikely that the intended scope of the authorization from such governmental entity or entities would include providing spectrum access, even on an occasional or limited basis, to entities that provide no public safety services. 66 On the policy front, the finite amount of spectrum available to the public safety community—particularly for interoperability purposes—strongly argues against any provision of spectrum access by the Public Safety Broadband Licensee to entities the sole or principal purpose of which is not the protection of the safety of life, health, or property. For these reasons, we seek comment on whether the public interest would be served by prohibiting the Public Safety Broadband Licensee from providing an entity with access to the network if that entity fails to meet the eligibility requirements of Section 90.523 of our rules. 66 47 U.S.C. 337(f)(1)(B)(ii). 33. We seek comment on which types of public safety users can be expected to use the national public safety broadband network (rather than legacy or new local networks) and on what timeframes. Which public safety communication functions (e.g., voice, remote data access, video upload, video download, photo download) are likely to migrate to the new broadband network (in the short- and- or long-term) and which will remain on existing networks? What factors will local jurisdictions weigh when making such decisions? 34. We seek comment on the extent to which the public safety broadband network will or should be interoperable with existing voice and data networks. How can the Commission encourage interoperability with legacy public safety systems and should interoperability with existing voice and data networks be a mandatory feature of the new broadband network? Can the use of multi-mode handsets (that support legacy networks and the new public safety broadband network) enhance interoperability? How can the Commission encourage or mandate the development and use of such handsets? How would any proposed policies in this regard affect the cost of handsets and network construction/operation? How does the use of 10 or 20 megahertz of shared spectrum affect the throughput of the broadband network and the functions it can support? What throughput can reasonably be expected on a network with this amount of spectrum? What functionalities can only be supported on a network with additional spectrum? 35. We also seek comment on issues arising from the possibility that in some areas a local jurisdiction may not elect to make use of the public safety broadband network. How extensive are such areas likely to be in the short- and long-term? Should the D Block licensee be permitted to use the entire 20 megahertz of shared spectrum for commercial service in such areas? Should the local jurisdiction receive compensation in these instances? Could such compensation discourage local jurisdictions to ever make use of the public safety broadband network? Would restriction of such compensation to use in purchasing public safety equipment such as radios for the public safety broadband network be an appropriate policy? What incentives can the Commission give the D Block licensee to encourage and facilitate use of the broadband network by local jurisdictions? 36. *Potential Pool of Users of the Public Safety Broadband Network.* We seek comment on the number of public safety providers in the country that have no interoperable broadband network. What is the size of the potential pool of public safety providers that may work with the Public Safety Broadband Licensee? We also seek comment on the extent to which some public safety providers already have established interoperable broadband networks. We especially encourage comment from parties that may have an inventory or database that collects this information. Where have such networks been established, and under what types of arrangements? To what extent are current interoperable public safety systems able to obtain lower prices and/or superior quality for commercially available, off-the-shelf technologies? Have public safety and commercial operations been developed on shared/parallel systems, and if so, how have they addressed network security issues? We further seek comment on how previously developed systems have addressed issues such as network reliability, including hardening of the network, provisions for back up power, etc. How do such developed networks envision connecting to an interoperable, nationwide network? Finally, to the extent some public safety providers already have established interoperable broadband networks, might these providers have less incentive to participate with the Public Safety Broadband Licensee? If this is the case, how might the rules established in this proceeding help provide a nationwide, interoperable network? 37. *Mandatory Usage of the Public Safety Broadband Network.* While we seek comment above regarding what users of the network are eligible to receive service from the public safety spectrum, we also seek comment on whether such eligible public safety users should be required to subscribe to the network for service, at reasonable rates or be subject to some alternative obligation or condition promoting public safety network usage in order to provide greater certainty to the D Block licensee. For example, should we require the purchase of a minimum number of minutes and, if so, on whom and in what way would this obligation be imposed? We seek comment on whether any such obligation should be conditioned on the availability of government funding for access, for example, through interoperability grant money from the United States Department of Homeland Security, and whether we should require public safety users to pay for access with such money. We ask further questions below regarding whether and how we should regulate the fees charged to public safety users for network access. Would it be possible to ensure that small public safety providers pay a “Most Favored Nation” rate for broadband services, or for equipment? How should the Commission ensure that smaller public safety entities can participate in the network? 38. We note that the State of Arizona used a grant from the Department of Homeland Security (“DHS”) to build a broadband network for both public safety and commercial purposes using WiFi technology. 67 This network serves a portion of the I-19 corridor running north of the Mexican border, a sparsely populated area that previously had little or no coverage for commercial or public safety communications. 68 We seek comment on this and similar programs, especially those instituted by State agencies, and by both large and small municipalities. What specifications ( *e.g.* , reliability of service, network hardening, etc.) have been required for this and similar projects to promote broadband communications for public safety providers 69 What lessons have been learned from these projects, and how might these lessons be applied to a variety of public safety providers, including those in very rural areas and those in urban areas? For example, do network congestion issues make sharing between commercial and public safety users more of a challenge in urban areas, and are such concerns lessened in rural areas? 67 *See* *http://www.dhs.gov/xnews/releases/press_release_0515.shtm* (last visited May 12, 2008). 68 *See* *http://gita.state.az.us/tech_news/2006/7_19_06.htm* (last visited May 12, 2008). 69 We note, however, that use of Part 15 devices may not be appropriate for mission-critical public safety communications, in light of the requirement for Part 15 devices to accept interference from other Part 15 devices and from licensed operations. *See,* *e.g.* , Continental Airlines Petition for Declaratory Ruling Regarding the Over-the-Air Reception Devices (OTARD) Rules, ET Docket No. 05-247, *Memorandum Opinion and Order,* 21 FCC Rcd 13201, 13214 (2006). 2. Provisions Regarding the Public Safety Broadband Licensee a. Non-Profit Status 39. *Background.* Among other criteria for eligibility to hold the Public Safety Broadband License that we established in the *Second Report and Order* , we provided that no commercial interest may be held in the Public Safety Broadband Licensee, that no commercial interest may participate in the management of the licensee, and that the licensee must be a non-profit organization. 70 We indicated, however, that, as part of its administration of public safety access to the shared wireless broadband network, the Public Safety Broadband Licensee might assess “usage fees to recoup its expenses and related frequency coordination duties.” 71 70 *See Second Report and Order,* 22 FCC Rcd at 15421. 71 *Id.* at 15426. 40. *Discussion.* With respect to the requirements that the Public Safety Broadband Licensee must be a non-profit organization, we seek comment on whether to clarify this non-profit requirement by specifying that the Public Safety Broadband Licensee and all of its members (in whatever form they may hold their legal or beneficial interests in the Public Safety Broadband Licensee) must be non-profit entities. We further seek comment on whether to clarify that the Public Safety Broadband Licensee may not obtain debt or equity financing from any source, whether debt or equity, unless such source is also a non-profit entity. We also seek comment more generally on whether the Commission should restrict the Public Safety Broadband Licensee's business relationships pre- and post-auction with commercial entities, and if so, what relationships should and should not be permitted. 41. We do anticipate that the Public Safety Broadband Licensee may contract with attorneys, engineers, accountants, and other similar advisors or service providers to fulfill its responsibilities to represent the interests of the public safety community, as required by the Commission. Under the approach on which we seek comment above, capital or operational funding mechanisms for the Public Safety Broadband Licensee involving private equity firms or other commercial or financial entities would not be permitted, unless they are non-profit entities and are controlled, if at all, by non-profit entities, in order to ensure that the financial considerations of the Public Safety Broadband Licensee remain aligned with serving the public safety community, and that no “for-profit” incentives inadvertently influence the Public Safety Broadband Licensee's priorities. We seek comment on these restrictions. In particular, are the restrictions on financing warranted to ensure that the Public Safety Broadband Licensee is not unduly influenced by for-profit motives or outside commercial influences in carrying out its official functions within the 700 MHz Public/Private Partnership? If so, in what ways might we allow necessary financing while still ensuring the independence of the Public Safety Broadband Licensee? Specifically, should we allow working capital financing from commercial banks and, if so, should we restrict the assets of the Public Safety Broadband Licensee that can be pledged as security for such a loan? Are there other types of loans or alternative funding sources that we should allow the Public Safety Broadband Licensee to employ? How can the Commission establish incentive-compatible rules for the Public Safety Broadband Licensee and parties with which it may have a relationship, such as advisors, contractors, and investors? 42. More generally, we seek comment on the best way to fund Public Safety Broadband Licensee operations. For example, should the D Block licensee or license winner be required to pay the Public Safety Broadband Licensee's administrative costs? If so, should we limit the D Block licensee's maximum obligations in this regard, and what would be a reasonable cap or limitation on expenses? Assuming government-allocated funding were available, would this be the best solution for funding the Public Safety Broadband Licensee? In addition, we seek comment on the extent to which we can adopt incentive-compatible rules for the Public Safety Broadband Licensee and the public safety providers it represents. What set of rules would encourage most or all public safety providers to collaborate with the Public Safety Broadband Licensee to establish a nationwide, interoperable broadband network? Under what circumstances might some public safety providers choose not to participate in a relationship with the Public Safety Broadband Licensee? 72 72 *See Second Report and Order* , 22 FCC Rcd at 15454. 43. We seek comment on whether the Commission has legal authority to use the Universal Service Fund to support the Public Safety Broadband Licensee's operational expenses. 73 If the Commission has legal authority to do so, should it exercise this authority? What degree of support would be appropriate? Similarly, can the Commission facilitate funding of the Public Safety Broadband Licensee's operational expenses through entities such as the Telecommunications Development Fund? 74 73 *See,* *e.g.* , 47 U.S.C. 254(c)(1), (h). 74 *See,* *e.g.* , 47 U.S.C. 614. 44. We also seek comment on how any excess revenue generated by the fees or other sources of financing obtained by the Public Safety Broadband Licensee from non-profit entities should be used. First, we seek comment on whether any excess revenues should be permitted at all. If we do allow any excess revenue generation, should we limit this amount? How should we determine what that amount should be? Should we allow the Public Safety Broadband Licensee to hold a certain amount of excess income as a reserve against possible future budget shortfalls or should we require that excess income be used for the direct benefit of the public safety users of the network, such as for the purchase of handheld devices? Should we further specify what would be a “direct benefit” or permissible use of such funds? In this regard, we note that the quarterly financial accounting we required in the *Second Report and Order* will enable the Commission to continually monitor the finances of the Public Safety Broadband Licensee. 75 75 *Second Report and Order,* 22 FCC Rcd at 15425. 45. Finally, we seek comment on whether the Public Safety Broadband Licensee may legitimately incur certain reasonable and customary expenses incurred by a business, consistent with the constitution of the Public Safety Broadband Licensee and the nature of its obligations as established by the Commission. b. Other Essential Components 46. *Background.* In the *Second Report and Order,* we instituted certain minimum criteria that the Public Safety Broadband Licensee must meet in order to ensure that it “focuses exclusively on the needs of public safety entities that stand to benefit from the interoperable broadband network.” 76 To that end, we established certain criteria for the Public Safety Broadband Licensee eligibility, including a requirement that the Public Safety Broadband Licensee must be broadly representative of the public safety community. 77 Further, we required that the Public Safety Broadband Licensee be governed by a voting board consisting of eleven members, one each from the nine organizations representative of public safety, and two at-large members selected by the Public Safety and Homeland Security Bureau and the Wireless Telecommunications Bureau, jointly on delegated authority. 78 On reconsideration, we revised and expanded the voting board, and increased the at-large membership to four. 79 76 *Id.* at 15421-22. 77 *Id.* at 15421-25. 78 The nine organizations included: the Association of Public Safety Communications Officials (APCO); the National Emergency Number Association (NENA); the International Association of Chiefs of Police (IACP); the International Association of Fire Chiefs (IAFC); the National Sheriffs' Association; the International City/County Management Association (ICMA); the National Governor's Association (NGA); the National Public Safety Telecommunications Council (NPSTC); and the National Association of State Emergency Medical Services Officials (NASEMSO). *Second Report and Order,* 22 FCC Rcd at 15422-23. 79 On reconsideration, we removed NPSTC and included the Forestry Conservation Communications Association (FCCA), the American Association of State Highway and Transportation Officials (AASHTO), and the International Municipal Signal Association (IMSA), and added two additional at-large positions. Service Rules for the 698-746, 747-762 and 777-792 MHz Bands, WT Docket No. 96-86, *Order on Reconsideration,* 22 FCC Rcd 19935 (2007). The Chiefs of the Public Safety and Homeland Security Bureau and Wireless Telecommunications Bureau jointly appointed to the voting board the American Hospital Association (AHA), the National Fraternal Order of Police (NFOP), the National Association of State 9-1-1 Administrators (NASNA), and the National Emergency Management Association (NEMA). *See* “Public Safety and Homeland Security Bureau and Wireless Telecommunications Bureau Announce the Four At-Large Members of the Public Safety Broadband Licensee's Board of Directors,” *Public Notice,* 22 FCC Rcd 19475 (2007). 47. In the *Second Report and Order,* we further required that certain procedural safeguards be incorporated into the articles of incorporation and bylaws of the Public Safety Broadband Licensee. 80 For example, in the *Second Report and Order* we specified that the term of the Public Safety Broadband Licensee officers would be two years, and that election would be by a two-thirds majority vote. A two-thirds majority was also required for certain other Public Safety Broadband Licensee decisions, including amending the articles of incorporation or bylaws. In addition, we recognized that Commission oversight in the affairs of the Public Safety Broadband Licensee would be necessary and appropriate in light of the nature of the public safety broadband spectrum licensed to the Public Safety Broadband Licensee as a national asset, and in furtherance of the Commission's role in ensuring the protection and efficient use of such asset for the benefit of the safety of the public. 81 Meaningful oversight in this respect requires a level of transparency, and to that end we required the Public Safety Broadband Licensee to submit certain reports to the Commission, including quarterly financial disclosures. 82 80 *Second Report and Order,* 22 FCC Rcd at 15423-26. 81 *Id.* at 15426. 82 *Id.* at 15426. 48. *Discussion.* In light of the scope of the subjects discussed elsewhere herein addressing a number of aspects of the 700 MHz Public/Private Partnership between the D Block licensee and the Public Safety Broadband Licensee, we believe it appropriate to reexamine the structure of the Public Safety Broadband Licensee and the criteria adopted in the *Second Report and Order* to ensure they are most optimal for establishing and sustaining a partnership with a commercial entity, as well as efficiently and equitably conducting the business of the Public Safety Broadband Licensee. We seek comment on whether we should reevaluate any of these criteria, whether we should clarify or increase the Commission's oversight of the Public Safety Broadband Licensee, and, aside from retaining its nationwide scope, whether we should make other changes to the license or license eligibility criteria. We further seek comment on how the Commission can ensure an oversight role for Congress, both in the operations of the Public Safety Broadband Licensee and the 700 MHz Public/Private Partnership. Should Congress designate some of the Public Safety Broadband Licensee's board members? 49. *Articles of Incorporation and By-laws.* Specifically, with respect to the articles of incorporation and bylaws, we seek comment on the adequacy of the provisions specified. Should we require additional provisions, and if so, what should they be? Should we amend or eliminate any of the current requirements? Should we require a unanimous vote in certain instances? For example, should a unanimous vote be required for a major undertaking of the Public Safety Broadband Licensee? What would such an undertaking include? In the alternative, should we require a supermajority vote in such instances instead of a unanimous vote? In addition, should we provide for Commission review of decisions requiring a unanimous or supermajority vote, or should the Commission make certain decisions for the Public Safety Broadband Licensee if unanimity or supermajority is not achieved? 50. With respect to the voting board, we seek comment on the composition of the board, and its size. Should we include additional or fewer entities? If so, what qualifications should we require of such entities? We also seek comment on whether we should eliminate altogether the requirement of inclusion of specific voting board members. If we eliminate this requirement, how should we ensure that broad representation of the public safety community is adequately addressed? With respect to the leadership of the board, should we revise the terms of the officers? Should we require a unanimous vote for appointment of officers? Should we require a rotating chairmanship among the voting board members? Should the Commission appoint a chairperson if unanimous consent cannot be attained? 51. *Commission oversight.* We also seek comment on how the Commission can better exercise oversight over the activities of the Public Safety Broadband Licensee and the commercial partner. Is quarterly financial reporting adequate, or are additional disclosures by the Public Safety Broadband Licensee or commercial partner necessary? What additional measures, if any, should the Commission take to ensure the appropriate level of oversight? For example, should Commission approval of certain activities be required before the Public Safety Broadband Licensee may undertake them? For example, should Commission approval be required before the Public Safety Broadband Licensee enters into contracts of a particular duration or cumulative dollar amount? Should we require or reserve the right to have Commission staff attend meetings of the voting board? 52. *Role of State Governments.* We seek comment on whether providing a nationwide, interoperable broadband network might be more effectively and efficiently accomplished by allowing State governments (or other entities that have or plan interoperable networks for the benefit of public safety) to assume responsibility for coordinating the participation of the public safety providers in their jurisdictions. To the extent commenters believe the State governments should assume such a role, we seek comment on the proper relationship between the State governments and the Public Safety Broadband Licensee and on our authority to establish such a role for State governments. Should the Public Safety Broadband Licensee be authorized to choose a minimum standard for any public safety broadband operation, with the State governments given the responsibility to work with public safety providers to implement operations in their jurisdictions? Would such an approach allow State governments wanting higher-grade networks to implement separately these more-advanced systems, while those wanting networks at the minimum standard avoid what they may consider unnecessary expenses? Are State governments better situated to address implementation challenges that cross public safety jurisdictions ( *e.g.* , coordinating use by sheriffs departments in neighboring counties) as well as intra-jurisdictional challenges ( *e.g.* , coordinating use by the police versus fire departments)? On the other hand, if different jurisdictions chose different grades of networks, would there be a lack of economies of scale and thus higher equipment costs for all public safety users? 53. *Reissuance of the Public Safety Broadband License and selection process.* In light of the changes contemplated above and the corresponding changes contemplated with respect to the D Block, we seek comment on whether we should rescind the current 700 MHz Public Safety Broadband License and seek new applicants. If so, should we use the same procedures as before, *i.e.* , delegating authority to the Chief, Public Safety and Homeland Security Bureau to solicit applications, specifying any changed criteria that may be adopted following this Second FNPRM, and having the Commission select the licensee? Are there considerations other than those above or previously considered that should be taken into account in selecting the licensee? Recognizing the need to identify the licensee quickly to enable the effective development of the 700 MHz Public/Private Partnership, what mechanism should the Commission use to assign the license if there is more than one qualified applicant? B. Possible Revisions/Clarifications Relating to the 700 MHz Public/Private Partnership 54. As a preliminary matter, we seek comment on whether the public interest would best be served by the development of a nationwide, interoperable wireless broadband network for both commercial and public safety services through the 700 MHz Public/Private Partnership between the D Block licensee and the Public Safety Broadband Licensee, and whether we should therefore continue to require that the D Block licensee and Public Safety Broadband Licensee enter into the 700 MHz Public/Private Partnership. Below, we consider in detail the Commission's options in the event that we continue this requirement. We seek comment on a broad set of possible revisions to the 700 MHz Public/Private Partnership, including revisions and/or clarifications with regard to the respective obligations of the D Block licensee and the Public Safety Broadband Licensee. 55. First, we address the terms of the 700 MHz Public/Private Partnership, including
(1)what the D Block licensee is required to construct; and
(2)the operational roles of the D Block licensee and Public Safety Broadband Licensee once the network is constructed. With regard to network construction requirements, we seek comment on
(1)the technical specifications of the network;
(2)whether to provide public safety users with access to D Block spectrum during emergencies and, if so, under what terms; and
(3)the build-out obligations of the D Block licensee, and whether such obligations should be revised in conjunction with a modification to the D Block license term. Regarding operational roles, we seek comment on the respective roles and responsibilities of the D Block licensee and Public Safety Broadband Licensee with regard to the operation of the network, including the management of users on the network, and we seek comment regarding service or spectrum usage fees. 56. Next, we address the procedures by which the winning bidder of the D Block license will enter into a Network Sharing Agreement
(NSA)with the Public Safety Broadband Licensee that will further define and govern the 700 MHz Public/Private Partnership. Specifically, we seek comment on possible revisions to the rules relating to both the negotiation of the NSA and the dispute resolution procedures applicable in the event the parties are unable to reach agreement on NSA terms. In particular, we seek comment on whether, following a default due to the failure of a winning bidder for the D Block license to execute an NSA with the Public Safety Broadband Licensee, we either should offer the license to the party with the next highest bid, in descending order, or promptly auction alternative license(s) for the D Block spectrum without the 700 MHz Public/Private Partnership conditions and subject to alternative service rules. 57. We then seek comment on a number of issues related to the auction of the D Block license, including
(1)whether to restrict who may participate in the new auction of the D Block license;
(2)how to determine any reserve price for such an auction;
(3)whether to adopt an exception to the impermissible material relationship rule for the determination of designated entity eligibility with respect to arrangements for the lease or resale (including wholesale) of the spectrum capacity of the D Block license; and
(4)whether we should modify the auction default payment rules with respect to the D Block winning bidder. We also seek comment on the rules governing the relocation of public safety narrowband operations and the D Block license winner's obligations to fund that relocation, and on any other revisions that may be appropriate with regard to the 700 MHz Public/Private Partnership. Finally, we seek comment on other revisions or clarifications that may be appropriate with regard to the 700 MHz Public/Private Partnership, including whether to license the D Block and public safety broadband spectrum on a nationwide or REAG basis. 1. The 700 MHz Public/Private Partnership a. Network/System Requirements 58. Assuming that we determinate that we should continue to require the 700 MHz Public/Private Partnership, in this section, we seek comment on whether to adopt changes to the requirements of the network that the D Block licensee is required to construct, and whether to modify the required schedule for that construction. 83 We seek comment on what changes will best serve the Commission's goal of making a broadband, interoperable network available on a nationwide basis to public safety entities, which requires providing sufficient assurances to bidders for the D Block license that the required shared network will be commercially viable. We also are seeking comment below on the costs to build and operate such a broadband, interoperable network, including the specific costs necessary to meet public safety needs and the additional costs of covering remote areas. 83 47 CFR 27.1305, 27.14(m).
(i)Technical Requirements for the Shared Wireless Broadband Network 59. *Background.* In the *Second Report and Order,* we found that in order to ensure a successful public/private partnership between the D Block licensee and the Public Safety Broadband Licensee, with a shared nationwide interoperable broadband network infrastructure that meets the needs of public safety, we must adopt certain technical network requirements. 84 Accordingly, among other requirements, we mandated that the network incorporate the following technical specifications: 84 *Second Report and Order,* 22 FCC Rcd at 15433. • Specifications for a broadband technology platform that provides mobile voice, video, and data capability that is seamlessly interoperable across agencies, jurisdictions, and geographic areas. The platform should also include current and evolving state-of-the-art technologies reasonably made available in the commercial marketplace with features beneficial to the public safety community ( *e.g.* , increased bandwidth). • Sufficient signal coverage to ensure reliable operation throughout the service area consistent with typical public safety communications systems ( *i.e.* , 99.7 percent or better reliability). • Sufficient robustness to meet the reliability and performance requirements of public safety. To meet this standard, network specifications must include features such as hardening of transmission facilities and antenna towers to withstand harsh weather and disaster conditions, and backup power sufficient to maintain operations for an extended period of time. • Sufficient capacity to meet the needs of public safety, particularly during emergency and disaster situations, so that public safety applications are not degraded ( *i.e.* , increased blockage rates and/or transmission times or reduced data speeds) during periods of heavy usage. In considering this requirement, we expect the network to employ spectrum efficient techniques, such as frequency reuse and sectorized or adaptive antennas. • Security and encryption consistent with state-of-the-art technologies. 85 85 *Id.* 60. We required that the parties determine more specifically what these technical specifications would be and implement them through the NSA. In addition, we required that the parties determine and implement other detailed specifications of the network that the D Block licensee would construct. 86 We determined that allowing the parties to determine specific details, including the technologies that would be used, subject to approval by the Commission, would provide the parties with flexibility to evaluate the cost and performance of all available solutions while ensuring that the shared wireless broadband network has all the capabilities and attributes needed for a public safety broadband network. 87 86 *Id.* at 15434. 87 *Id.* at 15426. 61. *Discussion.* We seek comment on whether we should clarify or modify any aspect of the technical network requirements adopted in the *Second Report and Order* or otherwise establish with more detail the technical requirements of the network. To guide the discussion that follows, and to enable more focused comment that better assists the Commission as we address these technical requirements, we attach as an appendix a possible technical framework (“Technical Appendix”) that identifies in greater detail potential technical parameters for the shared wireless broadband network. We thus seek detailed comment on this Technical Appendix, as well as on the following discussion points. 62. Would clarifications in this regard provide appropriate additional certainty, prior to re-auction, regarding the obligations of the D Block licensee and the costs of the network that this licensee would be expected to construct? Would such specification enhance the abilities of the winning bidder of the D Block license and the Public Safety Broadband Licensee to negotiate the NSA? Would modifications provide greater assurance that the required network would be economically viable? Conversely, would greater specificity hinder the NSA negotiations or otherwise inadvertently impact the success of the 700 MHz Public/Private Partnership? 63. We seek comment on whether, as a general matter, maintaining parties' flexibility to negotiate most details of the network specifications would best serve the public interest goals of the partnership. We seek comment on what technical requirements should be specified in advance, rather than being left to be negotiated after the auction, and whether there are any critical aspects of the network, either in the existing requirements or beyond those already addressed, that it would be beneficial to specify or clarify in the rules in order to increase bidder certainty regarding the cost of the D Block obligations. In addition, are there network specifications that would be particularly difficult to negotiate in the absence of further clarification by the Commission? 64. Are any changes to requirements needed to reflect the practical differences between the architecture of traditional local wireless public safety systems and the architecture of nationwide commercial broadband network systems? If so, we seek comment on what requirements, modifications, or clarifications we should adopt. Conversely, we seek comment on whether to require national standardization in the implementation of these network requirements, and the extent to which national standardization will help the network to achieve efficiency and economies of scale and scope. 65. We also welcome comments on other specifications we required of the network. These included: • A mechanism to automatically prioritize public safety communications over commercial uses on a real-time basis and to assign the highest priority to communications involving safety of life and property and homeland security consistent with the requirements adopted in the *Second Report and Order;* • Operational capabilities consistent with features and requirements specified by the Public Safety Broadband Licensee that are typical of current and evolving state-of-the-art public safety systems (such as connection to the PSTN, push-to-talk, one-to-one and one-to-many communications, etc.); • Operational control of the network by the Public Safety Broadband Licensee to the extent necessary to ensure public safety requirements are met; and • A requirement to make available at least one handset that would be suitable for public safety use and include an integrated satellite solution, rendering the handset capable of operating both on the 700 MHz public safety spectrum and on satellite frequencies. 88 88 *Id.* at 15433-34. We seek comment on the responsibilities of the D Block licensee with regard to the operation of the shared network elsewhere herein. 66. Commenters with proposals should provide detailed information regarding their proposed technical network specifications, and the extent to which such proposals are typical of current wireless public safety or commercial systems. For example, with regard to any particular network requirement, are there any established public safety standards in the broadband context? To what extent have these standards been implemented in commercial networks? Commenters should also discuss how such proposals will ensure that the goals of the 700 MHz Public/Private Partnership are met, in particular by enabling the creation of a viable commercial network that addresses the unique needs of the public safety community. 67. We seek comment on how the technical specifications of existing or anticipated future public safety networks differ from existing or anticipated commercial networks. Commenters are encouraged to be as specific as possible in answering these questions, providing detailed technical data where possible. How different are the technical specifications of existing or anticipated public safety networks from other public safety networks? How do the technical requirements of different public safety networks differ based upon factors such as intended user base and local morphology (e.g., urban vs. rural environments; fire, police, emergency medical service, and other first responders; in-building vs. outdoor usage; high-speed vehicular vs. pedestrian public safety users, etc.)? How do these technical requirements differ based upon factors such as type of use (mission-critical voice and data versus non-mission-critical communications)? What purposes, if any, do public safety users make of commercial wireless networks today for mission-critical and/or non-mission-critical communications? How distinct in practice is the line between mission-critical and non-mission-critical communications? How do network construction and operation costs vary among different types of public safety networks and between public safety and commercial networks? To what extent can a commercial provider make use of publicly-owned or leased property, and how could use of such facilities affect the cost of constructing and operating a public safety broadband network? 68. We seek comment on the payment and funding models employed by public safety users when building and operating dedicated public safety networks (e.g., construction and operation by municipal employees, construction and operation by private subcontractors). Similarly, we seek comment on the payment and funding models employed by public safety users when they rely upon commercial wireless services. Are fees assessed based on usage, number of users, or other factors? What provisions are typically made for unanticipated demand for services and how are these reconciled with fixed budgets? Again, commenters are encouraged to be as specific as possible in answering these questions, providing specific cost data or concrete numerical estimates where possible. 69. We note that the Public Safety Spectrum Trust (“PSST”), after it was designated Public Safety Broadband Licensee by the Commission, released what it referred to as a Bidders Information Document (“BID”), which, it stated, was offered to provide “high-level information regarding the PSST's expectations of the D Block partner in building and operating the shared Public/Private network” and “to define and detail certain expectations that the PSST has for this partnership.” 89 We emphasize that the BID has no formal legal role in the development of the nationwide, broadband public safety network under the existing rules and we express no view on the positions taken by the PSST as reflected in the BID. We take this opportunity, however, to seek comment on the impact of the BID on the previous auction, whether any particular aspects of the PSST's “expectations” were of particular concern to potential bidders or of particular importance to public safety entities, whether the release of the BID was helpful in clarifying costs, what role the BID played in pre-auction discussions and what formal role, if any, that a document similar to the BID such as a statement of requirements should play in establishing or clarifying the technical requirements of the nationwide, broadband public safety network under revised rules. We note, for example, that one commercial entity has suggested that the Public Safety Broadband Licensee should be required to release a statement of requirements before auction, and that the statement of requirements should constrain the elements that the Public Safety Broadband Licensee can require in the shared network. 90 We seek comment on this suggestion. 89 *See* Letter from Harlin R. McEwen, Chairman, Public Safety Spectrum Trust to Prospective D Block Bidders (Nov. 30, 2007) ( *available at* *http://www.psst.org/documents/BID2_0.pdf* ) at 3. The PSST released an initial version of this document on November 15, 2007, and released version 2.0, the final version, on November 30, 2007. See *http://www.psst.org/bidsummary.jsp.* 90 *See* AT&T Petition for Reconsideration at 4-5. 70. With these questions and issues in mind, we seek comment on whether the Commission should itself establish in a detailed and comprehensive fashion the technical obligations of the D Block licensee with regard to the network, and if so, what specifications it should adopt. For example, we seek comment on whether the attached Technical Framework could, following comment on its specific components, provide for establishing an appropriate set of requirements for the shared wireless broadband network. We also seek comment on a number of particular technical issues, as set forth below. 71. *Specification for broadband technology platform.* We seek comment on whether we should modify or further clarify any aspect of the broadband technology platform specifications provided in the *Second Report and Order.* Would clarifying that the D Block winning bidder has the right to make the final technical determinations with regard to the network platform serve the public interest? Should the Commission specify the precise public safety services and applications that must be carried or that need not be carried, beyond typical broadband applications ( *e.g.* , Internet access, video, multimedia), such as cellular telephony, dispatch voice service, push-to-talk, etc., and if so, what should they be? Should we establish limits on the obligation to accommodate applications similar to those established in the C Block? For example, should we provide that there is no obligation to carry customized applications where accommodating such applications would require modifying network infrastructure or back-office systems? 91 What impact might any of these determinations have on the utility of the network for public safety purposes? 91 *See Second Report and Order,* 22 FCC Rcd at 15371 n.502. 72. We ask commenters to provide detailed information regarding any proposed broadband platform solution. How can we establish a set of requirements that will meet public safety's needs while providing prospective bidders with sufficient certainty that it will be possible to construct a system that is economically viable? How can we best meet this objective without impeding flexibility regarding network design or inadvertently deterring potential bidders from participating in the auction? 73. *Reliability.* We seek comment on whether we should modify any aspect of the reliability standard established in the *Second Report and Order.* Should we eliminate the specific requirement of 99.7 percent network reliability and impose only the general requirement of “reliable operation throughout the service area consistent with typical public safety communications,” leaving the specific level of reliability to negotiations? Should we specify a different level of reliability, such as 95 percent reliability over 95 percent of a defined area? 92 Does the latter standard better reflect a typical level of reliability in public safety communications systems? Further, is the typical level of reliability in public safety systems a relevant factor for cellularized broadband systems? Are there any real-world examples of reliability based on cellularized broadband systems used by public safety? 92 *See* Cyren Call Petition for Reconsideration at 8; Frontline Petition for Reconsideration at 23. 74. We also seek comment on whether, in the event we continue to require a specific level of reliability, we should nevertheless expressly provide that the parties have flexibility to mutually agree to a different level in particular geographic areas. Are there specific provisions related to reliability that would create unreasonable challenges in establishing the network? If so, what limitations should we establish? Finally, we seek comment on how the reliability standard impacts the performance requirement, *e.g.* , might it effectively transform the population-based performance requirements into geographic benchmarks? 75. *Robustness and hardening.* We seek comment on whether to further specify or modify the requirements of the network regarding robustness and hardening. For example, should we further specify the particular environmental conditions (temperature range, wind, vibration, etc.) that the installations must be designed to withstand? Should we specify the minimal number of hours that base stations and network equipment must be capable of operating in the event of a power outage? Should we require an onsite power generator and a specific supply of fuel for each base station? Should we simply provide that the network must meet the same requirements regarding backup power applicable to commercial mobile radio service providers, given that these requirements were themselves established to meet homeland security and public safety goals? 93 Should we address whether and to what extent redundant infrastructure must be provided, such as provisions for overlapping cell sites that could provide backup coverage in an emergency, and if so, how would such provisions impact the viability of the system and its cost? Should we establish minimum obligations to have access to backup equipment and systems, such as cellular systems on wheels, or minimum timeframes for system restoration? Alternatively or additionally, should we establish ceilings on the extent of robustness and hardening that may be required of the D Block licensee? 93 *See,* *e.g.* , Recommendations of the Independent Panel Reviewing the Impact of Hurricane Katrina on Communications Networks, EB Docket No. 06-119, WC Docket No. 06-63, *Order on Reconsideration,* 22 FCC Rcd 18013 (2007). 76. We also seek comment on whether these requirements should be subject to variation. Should we specify circumstances in which the robustness and hardening obligations may vary, such as to account for local zoning restrictions, geography, or patterns of weather? Should we alternatively specify that the extent and circumstances of variation will be left to the parties to negotiate? Commenters advocating particular requirements relative to robustness and hardening should also explain how their proposals compare to the standards for current public safety wireless systems. 77. *Capacity, throughput, and quality of service.* As stated in the *Second Report and Order,* NPSTC contended that capacity is a key consideration, arguing that “the Commission should require a detailed capacity plan as one of the central elements in the negotiated agreement * * *” 94 Should we further specify the minimum levels of capacity or throughput ( *i.e.* data transmission rates), or ceilings on such levels, that the network must provide? If so, how should such levels be defined? Should they vary by geographic location, or other conditions? Should we establish other quality of service parameters, such as resource reservation and session control mechanisms? What means should be made available by the D Block licensee to enable public safety to monitor the quality of service in an unobtrusive way and without the addition of significant cost to the network? Should the means be nationally standardized and/or be limited to those provided by the D Block licensee? Is there a need for a formal process to address future increases in demand? 94 *Second Report and Order,* 22 FCC Rcd at 15433 ¶ 404 (quoting NPSTC *700 MHz Further Notice* Comments at 13). 78. As we have emphasized throughout this Second FNPRM, one of the key elements of the 700 MHz Public/Private Partnership is the D Block licensee's access to the public safety broadband spectrum on a secondary basis to defray the cost of building a nationwide network serving both commercial and public safety users. We thus invite comment as to whether there are any particular services or applications that might be too inefficient or far removed from typical public safety communications needs, or that may overburden or otherwise not be viable for a broadband network, such that they may frustrate this key element by excessively limiting or precluding the secondary access to this spectrum contemplated in the *Second Report and Order.* For example, would it be appropriate to prohibit or restrict use of the network for continuous or routine video surveillance from fixed locations as being an inefficient or inappropriate use of the capacity of the shared wireless broadband network? 95 Would such use create undue uncertainty concerning network availability for either the D Block licensee or for public safety users? If there are such concerns, how else should they be addressed? Are other frequencies available to public safety users more appropriate for fixed video applications? Could such networks be made interoperable with the public safety broadband network using 700 MHz spectrum? What are the relative costs of using alternative frequencies? What cost savings, if any, would there be to incorporating video into the 700 MHz network as compared to allowing individual jurisdictions to develop their own fixed video wireless networks? Should we set certain parameters to determine or predict capacity needs of public safety users? We could, for example, base the capacity needs on the levels of authority within the public safety community, the existence or absence of an “emergency” (further discussed below), or type, time, or location of communication. Are there any technical, operational, or cost-based means to monitor or regulate capacity needs of certain public safety entities? Should we require the Public Safety Broadband Licensee to forecast public safety use on a regular basis (monthly, quarterly), or otherwise provide the assistance needed for the D Block licensee to make such predictions? Commenters proposing any limits to address such capacity concerns should provide detailed information on how such limitations could be implemented without compromising public safety. Would payment obligations of public safety users for network use be sufficient incentive for users to voluntarily limit use? Would a rate-of-return or cost-plus pricing mechanism provide the appropriate incentives? Alternatively, should we vary the obligations of the D Block licensee, its right to recover costs from public safety, or other terms of the NSA, based on the extent to which the public safety broadband spectrum is available for commercial operations? Or is it sufficient to clarify that the parties may negotiate such variations? 95 *See* , *e.g.* , “DC OCTO Wireless Broadband Network Wins Police Chiefs' Technology Award,” *http://newsroom.dc.gov/show.aspx/agency/octo/section/2/release/6342* (stating that the DC wireless broadband network is designed to provide, among other applications, “remote video surveillance”); *see also http://govtsecurity.com/state_local_security/close_watch/* (stating, with regard to Baltimore, Maryland, video surveillance system, that “[m]any of the city's surveillance cameras and all of its housing cameras are wireless” and that “[w]ireless camera signals from groups of cameras are brought back to a fiber node * * *.”). 79. *Security and encryption.* Should we provide greater specificity regarding what the D Block licensee must provide with regard to security and encryption, or establish an alternate requirement? Should we identify further what constitutes “state-of-the-art” security and encryption technology? Should we limit the requirement to technical network solutions or standards for security and encryption implemented on a nationwide basis? We seek comment on the costs and practical challenges of implementing such measures in the public/private network to be constructed by the D Block licensee, particularly in the event that we permit local variation in the security solutions and standards. 80. *Combined use of spectrum.* We seek comment on whether, in order to provide the D Block licensee with appropriate flexibility to achieve an efficient and effective implementation of the 700 MHz Public/Private Partnership obligations, we should amend our rules to clarify that the D Block licensee may construct and operate the shared wireless broadband network using the entire 20 megahertz of D Block spectrum and public safety broadband spectrum as a combined, blended resource. In particular, we seek comment on whether, in designing and operating the shared network, the 10 megahertz of D Block spectrum and the 10 megahertz of public safety broadband spectrum may be combined, in effect, into a single and integrated 20 megahertz pool of fungible spectrum that may be assigned to users without regard to whether a public safety user is being assigned frequencies in the D Block or a commercial user is being assigned frequencies in the public safety broadband spectrum, so long as the network provides commercial and public safety users with service that is consistent with the respective capacity and priority rights of the D Block license and Public Safety Broadband License and with our rules. For example, such a network would have to guarantee that public safety users have priority access to at least 10 megahertz of spectrum capacity consistent with the 10 megahertz associated with the Public Safety Broadband License, but, at any particular time, the network might be using frequencies associated with either the D Block license or the Public Safety Broadband License to provide that capacity. 96 96 We note that, under current rules for the 700 MHz Public/Private Partnership, public safety users would be entitled in emergencies to the full combined 20 megahertz of capacity on a priority basis. Elsewhere in this Second Further Notice, we seek comment on whether to eliminate or clarify this requirement. 81. We seek comment on whether permitting the combined use of spectrum in this fashion would provide for a more efficient and effective use of spectrum, whether it provides further flexibility to evaluate and use all available wireless broadband technologies to build and operate the network and thus promote our ultimate goal of making available a nationwide interoperable broadband network for public safety users. We also seek comment on whether such combined use would be consistent with the different rights and obligations associated with the D Block license and the Public Safety Broadband License, respectively, and whether, in light of these and other considerations, it would be in the public interest to allow such use. Commenters should also discuss whether permitting such combined use of the spectrum associated with these two licenses would be consistent with the requirements of Sections 337(a) and
(f)and the Commission rules allotting specific frequencies for use by the Public Safety Broadband Licensee and the D Block licensee. 82. *Power flux density, and related notification, and coordination requirements.* In the text of the *Second Report and Order* , we indicated that we would not adopt any power flux density
(PFD)limit requirement in the public safety broadband segment, based on the limited record received on this issue. 97 We also noted that, should additional facts be presented, we might revisit this issue. 98 The applicable rules adopted by the *Second Report and Order* , however, require the Public Safety Broadband Licensee to meet a PFD limit when operating base stations at power levels above 1 kW ERP. 99 In light of this discrepancy between the text of the order and the rules, we seek comment on whether we should retain this PFD requirement for the public safety broadband spectrum. 100 Further, we note that Verizon Wireless (“Verizon”) filed a petition for reconsideration of the *First Report and Order* 101 with regard to certain of the notification and coordination obligations placed on commercial 700 MHz licensees. 102 First, Verizon requests that we eliminate the PFD/notification requirement for Upper 700 MHz C and D Block licensees when operating base stations at power levels above 1 kW ERP in non-rural areas. And second, with respect to Upper 700 MHz C and D Block licensees operating in rural areas, Verizon requests that such licensees:
(1)Should only have to coordinate with adjacent block licensees ( *i.e.* , not all other 700 MHz licensees) when seeking to operate at power levels greater than 1 kW ERP;
(2)should be permitted to use a power level of “1 kW ERP and 1 kW/MHz ERP” as the trigger for coordination instead of 1 kW ERP; 103 and finally,
(3)should be subject to a PFD/notification requirement, rather than a coordination requirement, when operating base stations at power levels greater than 1 kW ERP and 1 kW/MHz ERP. 104 In light of this petition, we seek comment on whether to apply any or all of Verizon's proposed rule changes to the public safety broadband spectrum. 97 *See id.* , 22 FCC Rcd at 15417 para. 358. 98 *Id.* 99 *See* 47 CFR. 90.542(a)(5), (b). 100 This requirement had initially been imposed on Upper 700 MHz C and D Block licensees to protect public safety narrowband licensees from interference. 101 *See* Service Rules for the 698-746, 747-762 and 777-792 MHz Bands, WT Docket No. 06-150, Revision of the Commission's Rules to Ensure Compatibility with Enhanced 911 Emergency Calling Systems, CC Docket No. 94-102, Section 68.4(a) of the Commission's Rules Governing Hearing Aid-Compatible Telephones, WT Docket No. 01-309, Biennial Regulatory Review—Amendment of Parts 1, 22, 24, 27, and 90 to Streamline and Harmonize Various Rules Affecting Wireless Radio Services, WT Docket 03-264, Former Nextel Communications, Inc. Upper 700 MHz Guard Band Licenses and Revisions to Part 27 of the Commission's Rules, WT Docket No. 06-169, Implementing a Nationwide, Broadband, Interoperable Public Safety Network in the 700 MHz Band, PS Docket No. 06-229, Development of Operational, Technical and Spectrum Requirements for Meeting Federal, State and Local Public Safety Communications Requirements Through the Year 2010, WT Docket No. 96-86, *Report and Order and Further Notice of Proposed Rulemaking,* 22 FCC Rcd 8064
(2007)( *First Report and Order* ). 102 Petition for Reconsideration of Verizon Wireless, WT Docket No. 06-150 (filed June 14, 2007) (Verizon Petition). 103 Upper 700 MHz C and D Block licensees may operate base stations at power levels up to 2 kW/MHz ERP in rural areas. 104 Verizon Petition at 8-12. 83. *Other technical requirements.* As noted above, we also seek comment on whether to establish, modify, or clarify the requirements with regard to any other critical aspect of the network that may significantly affect its commercial viability or its ability to meet the needs of public safety. For example, should we further specify the technical requirements and standards with regard to interoperability or network availability?
(ii)Priority Public Safety Access to Commercial Spectrum During Emergencies 84. *Background.* In addition to requiring that the network meet certain technical specifications, we also required that the D Block licensee provide the Public Safety Broadband Licensee with priority access, during emergencies, to the spectrum associated with the D Block license (in addition to the 700 MHz public safety broadband spectrum). At the same time, we noted that the potential disruption of commercial service in the D Block, while appropriate in an emergency situation, must be limited to the most serious occasions in order to avoid jeopardizing the commercial viability of the 700 MHz Public/Private Partnership. To balance these competing concerns, we thus required the parties to define “emergency” for purposes of priority access to D Block license spectrum as part of the NSA. 105 We also provided that in the event that the parties are unable to agree that an emergency situation requires priority access to the D Block license spectrum, especially in circumstances that do not clearly fall within the definition of “emergency” negotiated by the parties in the NSA, the Public Safety Broadband Licensee may request that the Commission declare, on an expedited basis, that particular circumstances warrant emergency priority access. 106 105 *Second Report and Order* , 22 FCC Rcd at 15441-42 ¶ 426. 106 *Id.* at 15442. We delegated authority to the Defense Commissioner to decide these requests. See 47 CFR 0.181. 85. *Discussion.* We seek comment on whether we should continue to require that the D Block licensee provide the Public Safety Broadband Licensee with priority access, during emergencies, to the spectrum associated with the D Block license. We seek comment on whether this obligation is essential to ensure that the network capacity will meet public safety wireless broadband needs, or whether removing the obligation could significantly improve the chances that this proceeding will succeed in achieving our goal of making available to public safety users a nationwide, interoperable, broadband network that incorporates the greater levels of reliability, robustness, security, and other features required for public safety services. 86. If we continue to require that the D Block licensee provide the Public Safety Broadband Licensee with priority access, during emergencies, to the spectrum associated with the D Block license, we seek comment on whether we should provide more clarity on the circumstances that would constitute an “emergency” for this purpose. If so, we ask whether any or all of the following events should define an “emergency:” • The declaration of a state of emergency by the President or a state governor. • The issuance of an evacuation order by the President or a state governor impacting areas of significant scope. • The issuance by the National Weather Service of a hurricane or flood warning likely to impact a significant area. • The occurrence of other major natural disasters, such as tornado strikes, tsunamis, earthquakes, or pandemics. • The occurrence of manmade disasters or acts of terrorism of a substantial nature. • The occurrence of power outages of significant duration and scope. • The elevation of the national threat level, as determined by the Department of Homeland Security, to either orange or red for any portion of the United States, or the elevation of the threat level in the airline sector or any portion thereof, as determined by the Department of Homeland Security, to red. 87. Are there any other events, or modifications to the above, that would assist in removing uncertainty in reaching a definition of “emergency?” Would this proposed definition of “emergency” be too burdensome on the D Block licensee? If we adopted some or all of the above event-defining emergencies, should we permit the parties to the NSA to propose different or additional scenarios that should be considered emergencies? Further, should we make explicit that priority access in emergency situations be limited to the geographic and/or jurisdictional area directly affected by the emergency? Should we establish time limits on the duration of priority access? If so, how should such time limits be based? Alternatively, should we establish limits on the priority access given to the D Block spectrum capacity, for example by limiting public safety's priority access to D Block spectrum capacity in emergencies to 50 percent?
(iii)Performance Requirements Relating to Construction of the Network 88. *Background.* In the *Second Report and Order* , we decided that the D Block license would be issued for a period of 10 years and imposed unique performance requirements for the D Block license in connection with the construction of the shared wireless broadband network. Specifically, we required the D Block licensee to provide signal coverage and offer service to at least 75 percent of the population of the nationwide D Block license area by the end of the fourth year, 95 percent by the end of the seventh year, and 99.3 percent by the end of the tenth year. 107 We further specified that “the network and signal levels employed to meet these benchmarks be adequate for public safety use * * * and that the services made available be appropriate for public safety entities in those areas.” 108 107 *Second Report and Order* , 22 FCC Rcd at 15445. 108 *Id.* at 15446. 89. Certain other requirements were imposed to further ensure coverage of highways and certain other areas such as incorporated communities with a population in excess of 3000. 109 We concluded that these build-out requirements “will ensure that public safety needs are met.” 110 We also required, however, that, “to the extent that the D Block licensee chooses to provide commercial services to population levels in excess of the relevant benchmarks, the D Block licensee will be required to make the same level of service available to public safety entities.” 111 109 *See id.* at 15445, 15446. 110 *Id.* at 15445. 111 *Id.* at 15446. 90. *Discussion.* We seek comment on whether we should revise the performance requirements that we imposed on the D Block licensee with regard to building out the nationwide, interoperable broadband network and, if so, how those requirements should be revised. We also invite comment on whether to extend the license term for that license, and possibly the Public Safety Broadband License, if we determine to provide for construction benchmarks that extend past the initial license term that we established for the D Block license. 91. We seek comment on whether we should retain the existing end-of-term population benchmark of 99.3 percent or whether instead we should adopt a lower population benchmark that is equal to or more aggressive than the 75 percent benchmark that is applicable to the C Block. We note that each of the top four nationwide carriers is currently providing coverage to approximately 90 percent or more of the U.S. population. 112 Given that existing commercial wireless infrastructure already covers approximately 90 percent of the population, we seek comment on whether it is reasonable to expect that the D Block licensee would be able to meet at least a 90 percent of the population coverage requirement or more, or whether some other coverage requirement is appropriate. 112 UBS Warburg Investment Research, U.S. Wireless 411, at 17 (Mar. 18, 2008). 92. Based on extrapolations from one estimate in the record, it appears that reducing the population coverage level from 99.3 to 98 percent would result in a potential cost savings for the D Block licensee of approximately $3.1 billion in capital expenditures and reducing the coverage level to 95 percent would result in a potential cost savings of approximately $6.1 billion in capital expenditures. 113 Even assuming that a more reasonable estimate of potential cost savings may amount to around half these figures, reducing the coverage level to 98 percent would result in a potential cost savings of approximately $1.6 billion and reducing the coverage level to 95 percent would result in a potential cost savings of around $3.1 billion. 114 We seek comment on these specific estimates, as well as any other estimates that commenters can provide relating to the incremental additional costs associated with covering each percentage (in whole or part) of the population above 95 percent. We also note that reducing the population coverage level for the end-of-term benchmark from 99.3 percent to 98 percent or 95 percent would also reduce the geographic area covered by the network. We estimate, for example, that under the current 99.3 percent end-of-term build-out benchmark, approximately 61 percent of the geographic area of the country would be covered by the network. By contrast, with a 95 percent end-of-term build-out benchmark, we estimate that approximately 40 percent of the geographic area of the country would be covered. 115 We seek comment on these estimates, or on any related estimates. 113 *See* Frontline Petition for Reconsideration at 22 (stating that increasing the 10-year coverage requirement from 99 percent of the population to 99.3 percent added $1 billion in costs to the network). Commission staff extrapolated from Frontline's analysis to estimate potential cost savings associated with various coverage levels. First, Commission staff estimated Frontline's implied network cost per square mile by taking the difference in square miles between CONUS population coverage at 99.3 percent and 99 percent (149,048 square miles), and then dividing Frontline's $1 billion cost savings by this difference in square miles. Using this methodology, Commission staff estimated Frontline's implied network cost per square mile to be approximately $6,700. In estimating the difference in square miles between population coverage at 99 percent and 99.3, Commission staff used U.S. Census-based population data by county, starting with the county that has the highest population density, and working down in counties to arrive at 99 and 99.3 percent of the U.S. population. Using the implied network cost per square mile derived from the Frontline data, Commission staff estimated that reducing the CONUS population coverage level from 99.3 to 98 percent would result in a reduction of 913,612 square miles covered by the network. This reduction in square miles is multiplied by the implied cost of $6,700 to arrive at potential network cost savings for the D Block licensee of approximately $3.1 billion. Similarly, Commission staff estimated that reducing the CONUS population coverage level from 99.3 to 95 percent would result in a reduction of 462,591 square miles covered by the network. This reduction in square miles is multiplied by the implied cost of $6,700 to arrive at potential network cost savings for the D Block licensee of approximately $6.1 billion. 114 By reducing this estimated implied network cost per square mile by 50 percent (from $6,700 to $3,355), Commission staff estimated a potential cost savings of approximately $1.6 billion if the coverage level were reduced to 98 percent, and a potential cost savings of $3.1 billion if the coverage level were reduced to 95 percent. 115 *See* Implementation of Section 6002(b) of the Omnibus Budget Reconciliation Act of 1993; Annual Report and Analysis of Competitive Market Conditions with Respect to Commercial Mobile Services, *Twelfth Report,* 23 FCC Rcd 2241, at 5
(2008)(Twelfth CMRS Competition Report). 93. More generally, we seek comment on how much a dedicated, nationwide, interoperable broadband network for public safety, built to the requirements outlined in the *Second Report and Order* , costs to build and operate. We seek as much detail on these costs as commenters can provide. How should the Commission balance the potential savings associated with adopting less stringent performance requirements with our goal of establishing a nationwide interoperable public safety network? 94. As we consider appropriate construction benchmarks for the D Block license, we note that for the 22 megahertz C Block we required licensees to provide signal coverage and offer service to at least 40 percent of the population in each EA of the license area within four years and to at least 75 percent of the population in each EA of the license area by the end of the ten-year license term. 116 Given that the licenses in the C Block were successfully auctioned in Auction 73, and that at least one bidder has put together a nearly nationwide geographic footprint with these licenses, we assume that the D Block licensee should, at the very minimum, be able to meet these benchmarks with respect to its nationwide license. We seek comment on this assumption. 116 *Second Report and Order,* 22 FCC Rcd at 15351. 95. Depending on which performance benchmarks we may ultimately adopt, should we include benchmarks that extend beyond the end of the initial 10 year license term? If so, should we also extend the term of the D Block license accordingly? Would doing so make it easier for the D Block licensee to meet the performance requirements the Commission adopted? If, for example, we were to adopt a 15 year license term, would such a modification increase the commercial viability of the required network while still meeting public safety needs? If we were to adopt a 15 year license term, how should the interim build-out benchmarks be modified? We could, for example, require the D Block licensee to provide signal coverage and offer service to at least 50 percent of the population of the nationwide license area by the end of the fifth year, 80 percent of the population of the nationwide license area by the end of the tenth year, and 95 percent of the population of the nationwide license area by the end of the fifteenth year. Would modifying the license term and performance requirements in this way, or similar way, serve the public interest? Alternatively, if we extend the overall license term, should we add additional interim benchmarks to reflect the longer deployment period? What potential impact would these revised terms and benchmarks have on the near-term and long-term needs of public safety? Would roaming be a possible solution to increased coverage needs? 96. We also seek comment on how making changes to the license term and performance requirements as described above would affect other aspects of the rules that we adopted, such as the requirement that the D Block licensee and Public Safety Broadband Licensee negotiate inclusion into the build-out schedule coverage of major highways and interstates, as well as incorporated communities with a population in excess of 3,000 people? 117 In addition, we seek comment on whether any aspect of the renewal requirements for the D Block licensee should be revised. In the *Second Report and Order* , we determined that, at the end of the 10 year license term, the D Block licensee will be allowed to apply for license renewal that will be subject to its success in meeting the material requirements set forth in the NSA as well as all other license conditions, including meeting the performance benchmark requirements. 118 Because the initial NSA term will expire at the same time, we also required the D Block licensee to file a renewed or modified NSA for Commission approval at the time of its license renewal application. 119 Should we make any changes to these requirements? 117 We do not revisit our decision to prohibit geographic partitioning and spectrum disaggregation for the D Block licensee in the context of the 700 MHz Public Private Partnership. We continue to find that such restriction is necessary to ensure the integrity of the public/private partnership and nationwide broadband network. 118 *Second Report and Order,* 22 FCC Rcd at 15450. 119 *Id.* 97. How will the possibility of NSA re-negotiation at some point in the future affect the incentives of public safety users to develop reliance on the public safety broadband network? What steps could provide public safety users with confidence that using the broadband network will remain attractive after potential changes to the NSA at renewal time? 120 What are the downsides to such an approach? 120 *See* A New Proposal for a Commercially Run Nationwide Broadband System Serving Public Safety by Jon M. Peha, Associate Director, Center for Wireless and Broadband Networking, Professor of Electrical Engineering and Public, PS Docket No. 06-229, WT Docket No. 96-86 (filed Feb. 27, 2007), at 9. 98. As discussed above, we are seeking comment on whether the license term of the D Block should be revised. In adopting the ten-year license term for the Public Safety Broadband Licensee, we sought to harmonize the license terms to facilitate the contemplated leasing arrangement and build out requirements. Accordingly, should we determine to extend the term of the D Block license, we seek comment on whether we also should extend the Public Safety Broadband Licensee term in a corresponding manner. Further, we determined in the *Second Report and Order* that the NSA was to have a term not to exceed 10 years from February 17, 2009, to coincide with the term of the D Block license. Thus, we also ask whether we should extend the term of the NSA to be co-extensive with any extended term we may adopt for the D Block. 99. We also seek comment on whether we should revise our rules to permit the D Block licensee to use Mobile Satellite Service to help it meet its build-out benchmarks. In the *Second Report and Order* , we found that satellite services can enable public safety users to communicate in rural and remote areas that terrestrial services do not reach. We also stated that satellite technology can provide the only means of communicating where terrestrial communications networks have been damaged or destroyed by wide-scale natural or man-made disasters. 121 As a result, we required that the D Block licensee make available to public safety users at least one handset that includes a seamlessly integrated satellite solution. 122 In addition, we strongly encouraged the D Block licensee and the Public Safety Broadband Licensee to negotiate large-scale satellite service agreements that could be used to either expand or expedite build-out in rural areas and to replace terrestrial services where terrestrial facilities are damaged or destroyed. 123 121 *Second Report and Order* at 15452. 122 *Id.* at 15452. 123 *Id.* at 15453. 100. In light of the potential for Mobile Satellite Services to supplement the D Block licensee's coverage, we seek comment in this Second FNPRM on whether it would serve the public interest to permit the D Block licensee to utilize Mobile Satellite Service as a way to meet, in part, its build-out requirements. We seek comment on whether this proposal could better enable the D Block licensee to meet its performance requirements by providing the licensee with additional means for ensuring that broadband public safety services are available in remote and rural areas. If the D Block licensee is able to make use of Mobile Satellite Service coverage, we seek comment on whether satellite coverage would make it easier to cover gaps in rural areas in the terrestrial 700 MHz public safety network. We seek comment on whether this additional flexibility in infrastructure deployment would serve to bolster the availability, robustness, and survivability of the public safety communications network. If we permit the D Block licensee to use Mobile Satellite Services to help it meet the build-out benchmarks, we seek comment on whether we should limit the extent to which it can rely upon such services and, if so, how its reliance on Mobile Satellite Services should be limited. 101. We also seek comment on whether the D Block licensee's obligation to meet its build-out requirements should be delayed or relaxed if the licensee ensures that handsets with terrestrial and mobile satellite components are available in areas that have not been built out with a terrestrial network, but are covered by a Mobile Satellite Service footprint. Alternatively, we seek comment on whether we should retain the terrestrial build-out requirement, but provide the D Block licensee with more flexibility if it makes terrestrial/mobile satellite handsets available for public safety use. We seek comment, for example, on whether the D Block licensee should be provided scaled flexibility based on the substitutability of the satellite offering for terrestrial services to be used by public safety users. Factors that we could consider in assessing such an offering might include:
(1)The capabilities of the satellite component ( *e.g.* , voice, data, video, interoperability, priority/preemption);
(2)the availability of terrestrial/mobile satellite data devices, in addition to handheld voice devices; and
(3)geographic coverage. To the extent we determine to lower the population coverage level for the end-of-term benchmark from 99.3 percent to 98 percent or 95 percent, is there some other way than Mobile Satellite Service to provide service to 99.3 percent of the population? 102. What would be the marginal cost to public safety entities of using Mobile Satellite Service-based communications services? To what extent would these marginal costs be comparable to the marginal cost of using the terrestrial component of the public safety broadband network? Is it reasonable to require the D Block licensee to ensure some degree of comparability of costs for public safety end users if the D Block licensee relies upon Mobile Satellite Service to fulfill a network build-out requirement? How could such comparability be defined and enforced? 103. We also seek comment on whether there are other terrestrial or non-terrestrial technologies or services that the D Block licensee may utilize to satisfy its performance requirements. 124 We reiterate the questions asked of Mobile Satellite Services above with regard to other such non-terrestrial technologies, and we seek comment on the costs and benefits of such technologies, particularly in comparison to Mobile Satellite Service, and whether permitting the use of such technologies to satisfy in part the D Block licensee's performance requirements would raise any other issues that should be addressed by the Commission. 124 *See,* *e.g.* , Letter from Gerald Knoblach, CEO, Space Data Corporation, to Marlene H. Dortch, Secretary, FCC, AU Docket No. 07-157, ET Docket No. 04-186, *Ex Parte* (filed April 29, 2008) (arguing that wide area technologies such as Space Data's SkySite Platforms, which “create a wireless network consisting of transceivers on weather balloons that operate in near space from 60,000 to 100,000 feet,” can “address issues associated with build-out and landmass coverage for the 700 MHz D Block. * * *”); Interoperable Communications: Hearing Before the H. Subcomm. on Telecommunications and the Internet, 110th Congress
(2008)(statement of Robert F. Duncan, Rear Admiral, United States Coast Guard (ret.), Senior Vice President, Rivada Networks). *See also* Letter from Cheryl A. Tritt, Counsel to Space Data Corp., to Marlene H. Dortch, Secretary, FCC, WT Docket Nos. 96-86, 05-211, and 06-150, PS Docket No. 06-229, AU Docket No. 07-157, *Ex Parte Notice* (filed Oct. 24, 2007). 104. We further seek comment on whether, to reduce the cost of meeting our build-out requirements, we should adopt rules to promote or facilitate access by the D Block licensee to public safety towers and/or rights of way, and if so, what measures would be appropriate? We might, for example, obligate the licensees in the 700 MHz Public/Private Partnership to make “reasonable, good-faith efforts to obtain access” to both public safety towers and public safety rights of way, as earlier proposed by one party in this proceeding. 125 We seek comment on this option, and on whether measures should be adopted to provide public safety entities with some degree of obligation or incentive to provide such access. Commenters proposing such a measure should also discuss the Commission's authority to adopt it. Alternatively, should we clarify that the D Block licensee has flexibility to provide this type of incentive, such as by agreeing to reduced rates for services to public safety entities that provide access to their towers, and otherwise leave the issue to be negotiated between the two licensees and the relevant public safety entities? Are there impediments that might limit the ability of public safety entities to enter into such arrangements? If so, what steps can the Commission take to address such impediments that are within its authority and consistent with the public interest? 125 *See* Notice by Frontline Wireless, LLC, WT Docket No. 06-150 and 06-169, PS Docket No. 06-229 (filed Mar. 27, 2007), Draft Rules at 5. 105. Finally, as an alternative approach for establishing construction requirements, we seek comment on whether we should employ a “two tiered” build out obligation, such that the D Block licensee would be allowed to incrementally enhance its network. Under this approach, the D Block licensee could satisfy its “first tier” build out requirement by meeting a subset, or some lower-cost aspects, of the technical requirements we adopt for the public-private partnership, and later enhance the network to meet public safety needs. The D Block licensee would then be required to satisfy a “second tier” requirement and fully upgrade portions of the network to meet all technical requirements adopted for the shared wireless broadband network based on certain temporal and/or public safety take-rate-based triggering mechanisms. Would adopting this two tiered performance requirement serve our goals to ensure a commercially viable opportunity for the D Block licensee to construct a shared wireless broadband network suitable for public safety use? If so, what “first tier” requirements or capabilities should the D Block be required to meet? When should the D Block licensee be required to fully upgrade to the entire set of technical requirements? Should we specify a certain amount of time following each construction benchmark, or after a certain take-rate is achieved by public safety entities? b. Respective Roles and Responsibilities of the D Block Licensee and Public Safety Broadband Licensee With Regard to Construction, Management, Operations, and Use of the Network 106. In adopting the 700 MHz Public/Private Partnership in the *Second Report and Order,* we sought to delineate the respective roles and responsibilities of the D Block licensee and the Public Safety Broadband Licensee in a manner that would ensure that the construction and operation of a shared, interoperable broadband network infrastructure that operated on the 20 megahertz of spectrum associated with the D Block license and the Public Safety Broadband License and that served both the needs of commercial and public safety users. 126 Under this plan, the D Block licensee and its related entities would finance, construct, and operate the shared network, 127 while the Public Safety Broadband Licensee would represent the interests of public safety community and ensure that the shared network meets their needs. 128 126 *See,* *e.g.* , 22 FCC Rcd at 15426 ¶ 383, 15431 ¶ 396. 127 *See,* *e.g.* , *id.* at 15428 ¶ 386, 15431 ¶¶ 395-96, 15432 ¶ 399, 15437 ¶ 415, 15441 ¶ 425, 15445-46 ¶¶ 437-43, 15450 ¶ 457, 15449 ¶ 452, 15467 ¶ 517. 128 *See,* *e.g.* , *id.* at 15421-25 ¶¶ 373-75, 15426-27 ¶ 383, 15433-34 ¶ 405, 15437-38 ¶ 416. 107. In establishing the 700 MHz Public/Private Partnership, we determined that promoting commercial investment in the build-out of a shared network addressed the most significant obstacle to constructing a public safety network—the limited availability of public funding. 129 We concluded that providing for a shared infrastructure would help achieve significant cost efficiencies, provide the public safety community with priority access to commercial spectrum during emergencies, and speed deployment of a nationwide interoperable broadband network for public safety. At the same time, by providing the D Block licensee with rights to operate commercial services in the 10 megahertz of public safety broadband spectrum on a secondary, preemptible basis, this partnership would help defray the costs of build-out and ensure that the spectrum is used efficiently. 130 129 *Id.* at 15431 ¶ 396. 130 *Id.* 108. We stated that the D Block licensee would have the “exclusive right and obligation to build out the shared network,” using both the spectrum associated with the D Block license as well as the public safety broadband spectrum leased from the Public Safety Broadband Licensee. 131 We determined that providing for “commercial operations” on the public safety broadband spectrum, on a secondary and preemptible basis, was “an integral part of a viable framework for enabling the 700 MHz Public/Private Partnership to finance construction of a nationwide, interoperable public safety broadband network.” 132 We also afforded the D Block licensee “operational flexibility” in using the leased spectrum to provide “an appropriate balance between the commercial and public safety operations in the public safety broadband spectrum.” 133 We stated that the spectrum leasing component of the partnership “permits the D Block licensee to construct a network to serve its business needs, yet preserves the network infrastructure required for primary public safety use in the Public Safety Broadband Licensee's band.” 134 We considered the D Block licensee's commercial operations throughout the 20 megahertz band of spectrum, including operations on a secondary basis with regard to public safety spectrum, as a necessary condition in order to “harness private sector resources to facilitate construction of a nationwide interoperable public safety broadband network.” 135 131 *Id.* at 15432 ¶ 399. *See also,* *e.g.* , *id.* at 15450 ¶ 457; 47 CFR 27.1303. 132 *Id.* at 15437 ¶ 416. 133 *Id.* at 15438 ¶ 417. 134 *Id.* 135 *Id* . at 15438 ¶ 419. 109. Meanwhile, in the *Second Report and Order* we provided that the Public Safety Broadband Licensee's responsibilities would center around directly representing the public safety interests with respect to the 700 MHz Public/Private Partnership, negotiating on their behalf with the winning bidder of D Block license and ensuring that their interests are met in the NSA. 136 Among other things, as discussed above, we provided that no commercial interest may be held in the Public Safety Broadband Licensee, that no commercial interest may participate in the management of the licensee, and that the licensee must be a non-profit organization. 137 We assigned various general responsibilities that we considered in keeping with the Public Safety Broadband Licensee's responsibilities, as discussed more fully below. We afforded the Public Safety Broadband Licensee “significant flexibility and control in connection with the construction and use of the nationwide broadband public safety network,” while at the same time we sought “to balance that discretion with the concurrent and separate responsibilities” of the D Block licensee. 138 136 *Id.* at 15437 ¶ 416 (role of the Public Safety Broadband Licensee “in ensuring that the public/private network established pursuant to the 700 MHz Public/Private Partnership serves the interests of public safety”), 15438 ¶ 417 (Public Safety Broadband Licensee, through its spectrum leasing arrangement with the D Block licensee, “has the regulatory means (and obligation) to preserve the fundamental public safety function of the band”). 137 *Id.* at 15421-22 ¶¶ 373-374. 138 *Id.* at 15426 ¶ 383. 110. Finally, we provided some guidance on the service fees that the D Block licensee could charge public safety users for their access to the shared network, both for “normal network service” using the public safety broadband spectrum and for priority access to the D Block spectrum. 139 We required that these fees, to be negotiated by the winning bidder of the D Block license and the Public Safety Broadband Licensee, be specified in the Network Sharing Agreement. 140 In addition, we indicated that the Public Safety Broadband Licensee, as part of its administration of public safety access to the shared wireless broadband network, might assess “usage fees to recoup its expenses and related frequency coordination duties.” 141 139 *Id.* at 15448-49 ¶¶ 450-52. 140 *Id.* at 15448 ¶ 450. 141 *Id.* at 15426 ¶ 383. 111. Below, we seek comment on whether we should clarify or revise the roles and responsibilities relating to the D Block licensee and the Public Safety Broadband Licensee. We also seek comment on whether we should clarify or revise the guidance or requirements relating to fees, including both service fees and spectrum usage fees. Finally, we seek comment generally on whether additional revisions or clarifications regarding the construction, operation, management, or use of the shared network would help ensure that the goals of the 700 MHz Public/Private Partnership are achieved.
(i)Role and Responsibilities of the D Block Licensee 112. *Background.* As discussed above, the D Block licensee is generally responsible for financing, construction, and operation of the shared network, which will serve both commercial users and public safety users. Also as noted above, we considered the D Block licensee's “commercial operations” throughout the 20 megahertz band of spectrum as a necessary condition in order to “harness private sector resources to facilitate construction” of the network. 142 142 *Id.* at 15439 ¶ 419. 113. *Discussion.* We invite comment on whether additional clarity with regard to the role and responsibilities of the D Block licensee would be helpful to ensure that the 700 MHz Public/Private Partnership achieves its goal in creating a shared, interoperable broadband network. We further seek comment on the appropriate extent of the relationship between the D Block licensee and individual public safety entities with regard to either the establishment of service with those entities or ongoing customer care and billing, bearing in mind the role and responsibilities of the Public Safety Broadband Licensee, which we discuss below. 114. As we have indicated, the ability of the D Block licensee to finance construction of the shared network is critical. Have we established sufficient and appropriate incentives in the 700 MHz Public/Private Partnership that ultimately will enable the D Block licensee to finance and construct the shared network as contemplated? Are there additional steps we can take, or further clarifications, that would improve the likelihood of the success for this partnership? 115. With respect to management and operations of the network, we expect that the D Block licensee will establish a network operations system to support the network infrastructure that it deploys and uses to serve its commercial customers. Such network operations functions typically include a network operations/monitoring center, billing functions, customer care, and similar functions. Should these network operations functions be viewed, much like the build-out of a common network infrastructure, as responsibilities to be assumed solely by the D Block licensee for the benefit of both its commercial customers and the public safety users represented by the Public Safety Broadband Licensee? If the D Block licensee were to assume all traditional network service provider operations, would this better enable the Public Safety Broadband Licensee to administer access to the national public safety broadband network by individual public safety entities, coordinate frequency usage, assess usage fees, and exercise its sole authority to approve equipment and applications for use by public safety entities? 116. We also seek comment on the factors that will affect and determine the D Block licensee's commercial operations and anticipated profitability. Commenters are encouraged to be as specific as possible and to provide detailed projections and figures where possible. What types of commercial customers can the licensee be expected to serve (e.g., critical infrastructure industries, commercial wireless carriers seeking additional spectrum or roaming capacity, commercial wireless customers, automotive companies and service providers, large enterprise customers)? How might current trends and recent developments in the commercial wireless market and the general financial markets affect the D Block licensee's financial model?
(ii)Role and Responsibilities of the Public Safety Broadband Licensee 117. *Background.* As discussed above, the Public Safety Broadband Licensee generally is charged with representing the interests of the public safety community to ensure that the shared interoperable broadband network meets their needs. In the *Second Report and Order* , we assigned the following responsibilities to the Public Safety Broadband Licensee concerning its partnership with the D Block licensee: • General administration of access to the national public safety broadband network by individual public safety entities, including assessment of usage fees to recoup its expenses and related frequency coordination duties. • Regular interaction with and promotion of the needs of the public safety entities that would utilize the national public safety broadband network, within the technical and operational confines of the NSA. • Use of its national level of representation of the public safety community to interface with equipment vendors on its own or in partnership with the D Block licensee, as appropriate, to achieve and pass on the benefits of economies of scale concerning network and subscriber equipment and applications. • Sole authority, which cannot be waived in the NSA, to approve, in consultation with the D Block licensee, equipment and applications for use by public safety entities on the public safety broadband network. • Responsibility to facilitate negotiations between the winning bidder of the D Block license and local and state entities to build out local and state-owned lands. 143 143 *Id.* at 15427 ¶ 383. 118. We also identified several other of the Public Safety Broadband Licensee's responsibilities, which included: • Coordination of stations operating on public safety broadband spectrum with public safety narrowband stations, including management of the internal public safety guard band. • Oversight and implementation of the relocation of narrowband public safety operations in channels 63 and 68, and the upper 1 megahertz of channels 64 and 69. • Exercise of sole discretion, pursuant to Section 2.103 of the Commission's rules, whether to permit Federal public safety agency use of the public safety broadband spectrum, with any such use subject to the terms and conditions of the NSA. • Responsibility for reviewing requests for wideband waivers and including necessary conditions or limitations consistent with the deployment and construction of the national public safety broadband network. 144 144 *Id.* 119. As noted above, we also provided that no commercial interest may be held in the Public Safety Broadband Licensee, that no commercial interest may participate in the management of the licensee, and that the licensee must be a non-profit organization. 145 We indicated, however, that, as part of its administration of public safety access to the shared wireless broadband network, the Public Safety Broadband Licensee might assess usage fees to recoup its expenses and related frequency coordination duties. 146 145 *Id.* at 15421-22 ¶¶ 373-374. 146 *Id.* at 15426 ¶ 383. 120. We afforded the Public Safety Broadband Licensee flexibility in overseeing the construction and use of the nationwide broadband public safety network, while seeking “to balance that discretion with the concurrent and separate responsibilities” of the D Block licensee. 147 In order to fulfill these obligations, we indicated that the Public Safety Broadband Licensee should have “operational control of the network to the extent necessary to ensure public safety requirements are met.” 148 147 *Id.* at 15426 ¶ 383. 148 *Id.* at 15434 ¶ 405. 121. *Discussion.* As an initial matter, we seek comment on whether we should clarify that the Public Safety Broadband Licensee may not assume any additional responsibilities other than those specified by the Commission in this proceeding. We also seek comment generally on whether we should clarify, revise, or eliminate any of the specific responsibilities listed above that the Public Safety Broadband Licensee must assume. We seek comment in particular on whether to clarify or revise the division of responsibility between the Public Safety Broadband Licensee and the D Block licensee regarding direct interaction with individual public safety entities in the establishment of service to such entities, the provision of service, customer care, service billing, or other matters. What division will best serve the interests of public safety and the goals of this proceeding? 122. In addressing these questions, we ask commenters to consider the unique role served by the Public Safety Broadband Licensee by virtue of holding the single nationwide public safety license, while not being an actual user of the network. As evidenced by many of the responsibilities given to the Public Safety Broadband Licensee, at a fundamental level, the Public Safety Broadband Licensee would in many respects function much like the way regional planning committees presently do in the 700 MHz and 800 MHz bands, yet with a nationwide scope. For example, like regional planning committees, the Public Safety Broadband Licensee would administer access to the spectrum, coordinate spectrum use, interact with and promote the needs of individual public safety agencies, and ensure conformance with applicable technical and operational rules. One important difference, however, is that unlike regional planning committees, the Public Safety Broadband Licensee is the licensee of the spectrum that it administers. Further, the Public Safety Broadband Licensee has distinct abilities, in that it may assess usage fees to recoup its costs, can use its national level of representation to pass on the benefits of economies of scale for subscriber equipment and applications, and holds sole authority to approve, in consultation with the D Block licensee, equipment and applications for public safety users, and to permit Federal public safety agency use. 123. In light of these similarities and differences, we ask whether it would add clarity to the Public Safety Broadband Licensee's role to specify how it is to carry out these responsibilities. For example, are there certain elements of the existing regional planning committee functions that we should adopt for the Public Safety Broadband Licensee? For those functions distinct from regional planning committees, should we adopt specific rules to govern how the Public Safety Broadband Licensee is to carry out such functions? Other responsibilities listed above are more specific to the Public Safety Broadband Licensee's status as a partner with the D Block licensee. These include its role to facilitate negotiations between the D Block licensee and state and local agencies for local build-outs, oversight and implementation of narrowband relocation, and review of wideband waiver requests. Thus, while a number of the Public Safety Broadband Licensee responsibilities are in a frequency planning and coordination role, the Public Safety Broadband Licensee is at the same time an equal partner with the D Block licensee with respect to the overall partnership we envision. Accordingly, we seek comment on how the Public Safety Broadband Licensee's role as one half of the 700 MHz Public/Private Partnership should impact how we modify or clarify the respective responsibilities of the D Block licensee and the Public Safety Broadband Licensee. 124. While the Public Safety Broadband Licensee may need some discretion to carry out its partner-related responsibilities, there may need to be more specific limits on the nature of this role. For example, related to the Public Safety Broadband Licensee responsibilities discussed herein, we previously noted that among the shared wireless broadband network requirements we adopted in the *Second Report and Order* was that the network infrastructure incorporate operational control of the network by the Public Safety Broadband Licensee “to the extent necessary” to ensure public safety requirements are met. 149 As we have reiterated throughout this item, the underlying premise of the 700 MHz Public/Private Partnership is the responsibility of the D Block licensee for construction of a broadband network for shared commercial and public safety use. Thus, primary operational control of the network is inherently the responsibility of the D Block licensee (and its related entities), which would in turn generally provide the operations and services that enable the Public Safety Broadband Licensee to ensure public safety requirements are met. Conversely, allowing duplication of some or all of these operational functions may result in a structure more akin to a reseller of services, which could inject an inappropriate “business” or “profit” motive into the Public Safety Broadband Licensee structure, detracting from the intended primary focus of the Public Safety Broadband Licensee. Accordingly, we seek comment on whether to clarify that none of the responsibilities and obligations of the Public Safety Broadband Licensee, either as previously adopted or as possibly revised pursuant to this Second FNPRM, would permit the Public Safety Broadband Licensee to assume or duplicate any of the network monitoring, operations, customer care, or related functions that are inherent in the D Block licensee's responsibilities to construct and operate the shared network infrastructure. 149 *Id.* 125. We further seek comment on whether to expressly provide that neither the Public Safety Broadband Licensee nor any of its advisors, agents, or service providers may assume responsibilities akin to a “mobile virtual network operator,” 150 because such a role would be contrary to the respective roles and responsibilities of the D Block licensee and Public Safety Broadband Licensee regarding construction, management, operations, and use of the shared wireless broadband network, may unnecessarily add to the costs of the 700 MHz Public/Private Partnership, and may otherwise permit “for profit” incentives to influence the operations of the Public Safety Broadband Licensee. 150 A mobile virtual network operator is a non-facility-based mobile service provider that resells service to the public for profit. *See* Implementation of Section 6002(B) of the Omnibus Budget Reconciliation Act of 1993, WT Docket No. 05-71, *Tenth Report* , 20 FCC Rcd 15908, 15920 ¶ 27 (2005). 126. In addition, we seek comment on whether we should modify Section 2.103 of the Commission's rules to limit Federal public safety agency use of the public safety broadband spectrum to situations where such use is necessary for coordination of Federal and non-Federal activities. If so, should Commission approval be required? That would ensure that Federal public safety agencies will be able to interoperate with state and local public agencies in the use of 700 MHz public safety broadband services during incidents of mutual interest. In other situations, Federal public safety agencies would, of course, be able to purchase 700 MHz wireless broadband services from commercial service providers using the D Block, just as they purchase satellite service from commercial service providers. How does the proposed public safety broadband network for state and local users compare (on a technical level or in terms of functionality) with the planned Integrated Wireless Network (“IWN”) for Federal users? 151 What lessons can the Commission learn from the IWN program? To what extent should development of the public safety broadband network be coordinated with the agencies responsible for construction and planning of the IWN program? 151 The IWN is a collaborative effort by the U.S. Departments of Justice, Homeland Security, and the Treasury to provide a consolidated nationwide Federal wireless communications service that replaces stovepipe stand-alone component systems, and supports law enforcement, first responder, and homeland security requirements with integrated communications services (voice, data, and multimedia) in a wireless environment. The IWN will implement solutions to provide Federal agency interoperability with appropriate links to state, local, and tribal public safety, and homeland security entities. *See http://www.usdoj.gov/jmd/iwn.* On April 17, 2007, the Department of Justice announced that it has selected General Dynamics C4 Systems to implement wireless communications services to department field agents as part of the IWN program. *See* *http://www.usdoj.gov/opa/pr/2007/April/07_jmd_256.html* .
(iii)Fees 127. *Background.* In the *Second Report and Order* , we provided guidance concerning the service fees that the D Block licensee could charge public safety users for their access to and use of the public safety broadband network and, in times of emergency, to the D Block spectrum. 152 We also discussed the importance of the D Block licensee's ability to offer commercial services using the public safety broadband spectrum leased from the Public Safety Broadband Licensee. 153 152 *Second Report and Order* , 22 FCC Rcd at 15448-49 ¶¶ 450-52. 153 *Id.* at 15437-39 ¶¶ 414-19, 15441 ¶ 425. 128. We required that all service fees—including service fees that the D Block licensee would charge public safety users for normal network service using the public safety broadband spectrum and for their priority access to the D Block spectrum—be specified in the Network Sharing Agreement. 154 We stated our expectation, however, that the winning bidder of the D Block license and the Public Safety Broadband Licensee will negotiate a fee structure for priority access to the D Block in an emergency that will protect public safety users from incurring unforeseen (and unbudgeted) payment obligations in the event that a serious emergency necessitates preemption for a sustained period. 155 We also encouraged the parties to negotiate a fee agreement that incorporates financial incentives for the D Block licensee based on the number of public safety entities and localities that subscribe to the service. 156 We noted that, for the negotiation of reasonable rates, typical commercial rates for analogous services may be useful as a guide, but that the negotiated rates may in fact be lower than typical commercial rates for analogous services. 157 154 *Id.* at 15448 ¶ 450. 155 * Id.* Elsewhere, we stated that this “[p]riority service, although provided to public safety, will still be commercial, and will not appreciably impair the D Block licensee's ability to provide commercial services to other parties.” *Id.* at 15437 ¶ 413. 156 *Id.* at 15448 ¶ 450. 157 *Id.* at 15449 ¶ 451. 129. In addition, we considered the D Block licensee's opportunity to provide commercial services using the public safety broadband spectrum (on a secondary, preemptible basis) to be “an integral part of a viable framework for enabling the 700 MHz Public/Private Partnership to finance construction of a nationwide, interoperable public safety broadband network.” 158 We also noted that permitting such access to this spectrum “will harness private sector resources to facilitate the construction” of the network. 159 158 *Id.* at 15437 ¶ 416. 159 *Id.* at 15439 ¶ 419. *See also id.* at 15438 ¶ 417 (stating that the requirement that the Public Safety Broadband Licensee lease the public safety broadband spectrum to the D Block licensee spectrum “permits the D Block licensee to construct a network to serve its business needs. * * *”). 130. We did not discuss the commercial fees that the D Block licensee might charge subscribers to the commercial services that it offers using the shared network. We left that to the marketplace. As discussed above, however, we seek comment in this Second FNPRM on whether all non-public safety users of the shared spectrum—including critical infrastructure users—should be treated as commercial users that gain access to the shared network through the commercial services provided by the D Block licensee. 160 160 *See supra* discussion in section III.A.1. 131. * Discussion.* We seek comment on whether we should further clarify, revise, or specify the service fees that the D Block licensee may charge public safety users for access to the shared network. We also seek comment on whether we should provide any guidance on whether the Public Safety Broadband Licensee may assess spectrum usage fees for the leasing of the public safety broadband spectrum to the D Block licensee or the amount of any fee permitted. Is there any additional guidance that we could provide with regard to fees that the D Block licensee or Public Safety Broadband Licensee might assess that would be helpful in ensuring that the goals of the 700 MHz Public/Private Partnership are achieved? 132. *Network service fees.* We invite comment on whether we should reconsider any aspect of the rules regarding service fees to be paid by public safety users, including any applicable fees for normal network service and fees for priority access to the D Block in an emergency. Specifically, we seek comment on whether we should clarify any aspect of these service fees that was left to negotiations. Did we provide adequate guidance in the *Second Report and Order* to enable the parties to negotiate reasonable rates for all fees? Or should the Commission adopt a more detailed fee structure or formula to facilitate negotiations on this issue? 161 For example, should we specify that the D Block licensee is entitled to charge rate-of-return or cost-plus rates, taking the incremental costs of public safety network specifications and other costs attributable uniquely to public safety users into account? Alternatively, would requiring public safety users to pay the same rates as commercial users be sufficient? Should we mandate that public safety users be entitled to receive the lowest rate that the D Block licensee offers to its commercial users for analogous service? Commenters suggesting that the Commission adopt a detailed fee structure should provide detailed information on their proposals and discuss how adopting such proposals would result in just and reasonable rates and strike the best balance among competing interests in determining fees. Would more clearly defining the circumstances that would constitute an “emergency,” as addressed elsewhere, impact how fees should be structured for priority access? 161 *See* , *e.g.* , Frontline September 20, 2007, Request at 3 (proposing a formula that would limit the amount public safety users could be charged to that necessary to recover
(1)the amortized, incremental fixed costs of building the network to public safety standards, plus
(2)ongoing operating expenses for maintaining the network to public safety standards, minus
(3)the amortized value of secondary use of the Public Safety Broadband Licensee spectrum by commercial customers). 133. We also seek comment on whether particular uses of the public safety broadband network by public safety users should be free and others fee-based. On what bases can this distinction be made? Is it practical to use service- and context-based distinctions such as between voice and advanced data services, mission-critical and non-mission-critical communications, emergency and non-emergency events, priority and non-priority access, or similar metrics? Would it instead be preferable to rely on technical distinctions, such as a specified number of minutes or bits, a percentage of network capacity, or similar metrics? Would either approach give sufficient certainty to public safety users and/or the commercial D Block licensee? 134. *Spectrum leasing fees associated with the public safety broadband spectrum leasing arrangement.* In the *Second Report and Order,* we did not specifically address whether the Public Safety Broadband Licensee, when leasing access to the public safety broadband spectrum to the D Block licensee, may impose any spectrum usage fees for use of this spectrum. We seek comment on whether any aspect of the spectrum leasing arrangement should be clarified by the Commission, or whether spectrum usage fees might be considered reasonable or unreasonable given the role of the spectrum leasing arrangement in the 700 MHz Public/Private Partnership. When we provided guidance in the *Second Report and Order* on determining reasonable network service fees, we assumed that the network service and priority access fees may in fact be lower than typical commercial rates in part to reflect the value of the D Block licensee's access to the public safety spectrum through leasing. We seek comment on whether and how any spectrum usage fees might affect the reasonableness of service and emergency access fees discussed above. Should we prohibit any spectrum usage fees associated with the spectrum leasing arrangement? Is the D Block's responsibility for building the public safety broadband network sufficient in-kind contribution for use of the public safety spectrum? If we allow spectrum usage fees, should we require public safety users to pay commercial rates for their access to the shared network? 2. Negotiation of the Network Sharing Agreement 135. *Background.* To ensure the timely establishment and execution of an NSA that adequately safeguards the public interest, we provided rules to govern the process by which the winning bidder of the D Block license and the Public Safety Broadband Licensee would negotiate and establish the agreement. 162 Under these rules, the parties were required to begin negotiations on the date that the D Block winning bidder filed its long form application and to conclude negotiations within six months. 163 Both the D Block winning bidder and the Public Safety Broadband Licensee were required to negotiate in good faith, and were obligated to submit status reports during the negotiations period. 164 To ensure that the D Block winning bidder would not stall negotiations to avoid its obligations to public safety, we provided that the D Block license would not be issued until the parties filed an NSA that had been approved by the Commission and was subsequently executed by the parties. 165 162 *See Second Report and Order,* 22 FCC Rcd at 15463 ¶ 501, 15466 ¶ 512. 163 *See id.* at 15464 ¶ 504. 164 *See id.* at 15464-65 ¶¶ 505-506. 165 *See id.* at 15463 ¶ 502. 136. If the parties successfully negotiated an agreement on all terms within the six month period, they were required to submit the NSA to the Commission for review and approval. In the event the parties did not reach agreement on all terms at the end of the six month negotiation period, or if they were found to have reached an impasse at any time, we delegated authority jointly to the Chiefs of PSHSB and WTB (the Bureaus) to take a variety of actions to resolve the disputes, including but not limited to:
(1)Granting additional time for negotiation;
(2)issuing a decision on the disputed issues and requiring the submission of a draft agreement consistent with their decision;
(3)directing the parties to further brief the remaining issues in full for immediate Commission decision; and/or
(4)immediate denial of the long-form application filed by the winning bidder for the D Block license, to be followed by either re-auction of the license or some other means of re-assignment. 166 166 *See id.* at 15465 ¶ 508. 137. After the release of the *Second Report and Order,* the Chiefs of PSHSB and WTB issued a public notice that, among other things, clarified how the Bureaus would exercise their authority to resolve disputes that arise in the NSA negotiations. 167 They stated: “We will not exercise our authority for immediate denial of the long-form application filed by the winning bidder for the D Block license, as a result of any dispute over the negotiation of the terms of the NSA, until we take one of two steps:
(1)Issuing a decision on the disputed issues and requiring the submission of a draft agreement consistent with our decision; or
(2)referring the issues to the Commission for an immediate decision and the Commission issues such a decision.” 168 The Bureaus also noted that “failure to comply with a decision by the Commission or the Bureaus on the disputed issues * * * will be deemed a default.” 169 167 *See* “Revised Procedure for Auctions 73 and 76: Additional Default Payment for D Block Set at Ten Percent of Winning Bid Amount; Disputed Issues in the Negotiation of Network Sharing Agreement,” *Public Notice,* 22 FCC Rcd 19320
(2007)*(D Block Default Payments PN)* . 168 *Id.* at 19322 ¶ 7. 169 *See id.* at 19322 n.11. 138. *Discussion.* We seek comment on whether and how to modify the rules governing the negotiation of the NSA, including dispute resolution, to provide bidders with greater certainty regarding their obligations while still protecting the interests and needs of public safety, and to ensure that both the D Block license winner and the Public Safety Broadband Licensee have incentives to engage in good faith negotiation and to reach terms that will reasonably protect the interests of both sides. In particular, we seek to provide a process that will give bidders confidence that the network the D Block licensee will be required to construct will be commercially viable, and provide assurance to state and local public safety entities that the resulting network will meet their needs for broadband wireless service. 139. To achieve these goals, we seek a process that provides incentives to both sides to make a maximum good faith effort to reach an agreement consistent with the important commercial and public safety interests at stake. As discussed elsewhere in this Second FNPRM, one way for the Commission to provide greater certainty regarding the terms of the NSA would be to further specify the requirements of the 700 MHz Public/Private Partnership in our rules. In this section, we seek comment on whether we should modify the NSA negotiation process itself. 140. Any party's incentives to make a maximum good faith effort in any negotiation process are framed by the consequences of failing to reach agreement. Below, we seek comment on whether we should maximize the incentives for a bidder winning the D Block license to reach agreement on an NSA with the Public Safety Broadband Licensee by providing that, if the parties do not reach agreement, we promptly will offer the license to the next highest bidder, in descending order. Alternatively, we seek comment on whether we should maximize the incentives for both parties to reach agreement on an NSA by providing that, if the parties do not reach agreement, we promptly will offer in a subsequent auction the license(s) for the D Block spectrum without the 700 MHz Public/Private Partnership conditions and subject to service rules more typical of commercial wireless services licenses. Would either of these alternatives offer an appropriate balance of incentives for the negotiating parties to reach an agreement? 141. We also seek comment in this section on other related issues. First, we seek comment on whether, if the NSA process fails to produce an agreement between the parties, there are any circumstances in which we should relieve a defaulting D Block license winning bidder of its obligation to make default payments. We discuss later the distinct question of what amounts a defaulting D Block license winning bidder should be required to pay, if any, under these or other circumstances. Second, in the following subsections, we seek further comment on whether to modify the mechanisms for resolving any disputes that may arise during the negotiations or otherwise modify the negotiation process. 142. *Action subsequent to failure to negotiate an NSA.* Pursuant to the Commission's competitive bidding rules, in the event of a default by a winning bidder, the Commission, at its discretion, may either offer the licenses to the next highest bidders (in descending order) at their final bids or auction new licenses for the spectrum. 170 If the winning bidder does not execute an NSA with the Public Safety Broadband Licensee, that winning bidder will be in default and its license application will be dismissed. We seek comment on whether, following such a default, we should offer the license to the party with the next highest bid, in descending order. The next highest bidder would then have the option of paying the amount of its final bid, filing a long-form application, and entering into a negotiation process with the Public Safety Broadband Licensee. If that next highest bidder declined to exercise that option, the Commission could offer the license to the party with the next highest bid, in descending order, and so on. Under such circumstances, should the Commission provide for a shorter time period for a second attempt to negotiate an NSA, in light of the first effort? Or should each D Block bidder be entitled to the same amount of time to attempt to negotiate the terms of the NSA? 170 *See* 47 CFR 1.2109(b), (c); *see Second Report and Order,* 22 FCC Rcd at 15465 ¶ 508 (noting that, after failure of the parties to negotiate an NSA, the Commission may reassign the license to the next highest bidder, citing 47 CFR 1.2109). 143. In the event of a failure to negotiate the NSA, we also seek comment on whether, in lieu of offering the license to the next highest bidder, we promptly should auction alternative license(s) for the D Block spectrum without the 700 MHz Public/Private Partnership conditions and subject to different service rules. This option limits not only the winning bidder for the D Block license to one opportunity to negotiate an NSA but also limits the Public Safety Broadband Licensee to one opportunity. Does this limit create a better or worse set of incentives for the negotiators, given the public interest in producing a broadband network to serve the public safety users? 144. Under each of the foregoing alternatives, how should the Commission define a “failure” of the negotiation process? For instance, should we require adjudication of any dispute before deeming the negotiations a failure and the D Block winning bidder in default? Should such adjudication be binding? Or should we deem the negotiations a failure and the D Block winning bidder in default simply if negotiations are at an impasse after six months, or even sooner if the parties certify that an impasse exists? If the consequence of a failure of negotiations is the auction of the alternative D Block license(s), should we make additional provisions for resolving any impasse between the parties? 145. We further seek comment on whether there are any circumstances in connection with the failure to negotiate an NSA under which a winning bidder for the D Block license should be relieved from making default payments based on its winning bid. Commenters also should address the possibility that relieving the winning bidder from default obligations while offering the D Block license to the next highest bidder might create an incentive for the winning bidder to bargain with the next highest bidder and offer to default. Generally, if we do not adjudicate any impasse that arises in negotiation, should we automatically subject the D Block winning bidder to default payments when its license application is dismissed? Or should some finding of fault on the part of the winning bidder be a prerequisite of imposing a default payment? If so, how should such fault be determined? Should any other consequences, separate and apart from a default payment, be imposed on the defaulting D Block winning bidder under any of these circumstances? 146. Alternatively, if we provide for binding adjudication with respect to any negotiation impasse, should we subject the D Block license winning bidder to default payments if either party rejects the binding decision or only if it the D Block license winning bidder fails to comply? Should any other consequences, separate and apart from a default payment, be imposed on the defaulting D Block winning bidder under any of these circumstances? 147. Elsewhere in this Second FNPRM, we seek comment on the rules we should adopt for the D Block, as well as the Public Safety Broadband License, if we offer the license(s) for the D Block without the 700 MHz Public/Private Partnership conditions. If we decide that such licenses should be offered after a failure to negotiate an NSA, should that affect the rules we otherwise might adopt for such license(s)? We likewise seek comment on whether any of our Part 1 competitive bidding rules or other auction procedures would be inappropriate or should be modified for an auction of D Block license(s) without the 700 MHz Public/Private Partnership conditions that is held subsequent to negotiations between a winning bidder and the Public Safety Broadband Licensee that do not produce an NSA. 148. If we provide that a failure of negotiations to produce an NSA will result in a subsequent auction of D Block license(s) without the 700 MHz Public/Private Partnership conditions, a winning bidder might have an incentive for those negotiations to fail so that it can bid on license(s) without the 700 MHz Public/Private Partnership conditions in the subsequent auction. We seek comment on whether this theoretical incentive is a practical concern and, if so, whether we should adopt either of two potential auction eligibility rules to mitigate any such concern. 149. First, we could prohibit a D Block license winning bidder and related parties from participating in any subsequent auction in which any licenses for the D Block are offered without the 700 MHz Public/Private Partnership conditions. We seek comment on this alternative, and on whether any such eligibility restriction should depend on whether the D Block license winning bidder is at fault for the failure of the 700 MHz Public/Private Partnership, *e.g.* , if the D Block license winning bidder refused to comply with a Commission adjudication of a negotiation dispute. Further, should any such eligibility restriction extend to the winning bidder's controlling interests or other related parties? If so, how should such parties be defined? 150. Alternatively, we might lift any auction eligibility restrictions that made other parties ineligible for the prior auction of the D Block license with the 700 MHz Public/Private Partnership conditions. We seek comment in a later section of this Second FNPRM regarding whether to restrict parties already possessing significant access to 700 MHz spectrum from participating in auctions of license(s) for the D Block. If such a restriction applied to an auction of the D Block license with the 700 MHz Public/Private Partnership conditions, we could lift the restriction in a subsequent auction of licenses without those conditions. Would doing so significantly alter the likelihood that the winning bidder in an initial auction could win the license again, and would this offset any potential incentive such a winning bidder might have for NSA negotiations to fail following the first auction? 151. *Potential modifications to dispute resolution mechanisms.* We also seek comment on whether we should eliminate the option of binding adjudication of disputed issues and provide that, in the event of an intractable dispute, so long as a D Block bidder has negotiated in good faith, the Commission will relieve the D Block winning bidder of its financial obligations in connection with the license. Although this option has been advanced by parties on reconsideration, 171 we are concerned that it would be difficult for the Commission to determine when a disagreement was the product of “bad faith” negotiations and that this option may not provide sufficient incentive to the D Block winning bidder to meet the needs of public safety. We therefore invite commenters that advocate this option to discuss these concerns and how they might be addressed. For example, should we establish a specific standard for what will constitute an act of bad faith, similar to the standard incorporated at Section 76.65(b) of our rules? 172 171 * See* , *e.g.* , AT&T Petition for Reconsideration at 8; Cyren Call Petition for Reconsideration at 6, 7; Frontline Petition for Reconsideration at 23. 172 *See* 47 CFR 76.65(b). Implementing the requirements of 47 U.S.C. 325(b)(3)(C), this section provides that television broadcast stations and multi-channel video programming distributors must negotiate the terms and conditions of retransmission consent agreements in good faith. It establishes the following standard for determining whether a party has violated its duty to negotiate in good faith:
(1)Standards. The following actions or practices violate a broadcast television station's or multichannel video programming distributor's (the “Negotiating Entity”) duty to negotiate retransmission consent agreements in good faith:
(i)Refusal by a Negotiating Entity to negotiate retransmission consent;
(ii)Refusal by a Negotiating Entity to designate a representative with authority to make binding representations on retransmission consent;
(iii)Refusal by a Negotiating Entity to meet and negotiate retransmission consent at reasonable times and locations, or acting in a manner that unreasonably delays retransmission consent negotiations;
(iv)Refusal by a Negotiating Entity to put forth more than a single, unilateral proposal;
(v)Failure of a Negotiating Entity to respond to a retransmission consent proposal of the other party, including the reasons for the rejection of any such proposal;
(vi)Execution by a Negotiating Entity of an agreement with any party, a term or condition of which, requires that such Negotiating Entity not enter into a retransmission consent agreement with any other television broadcast station or multichannel video programming distributor; and
(vii)Refusal by a Negotiating Entity to execute a written retransmission consent agreement that sets forth the full understanding of the television broadcast station and the multichannel video programming distributor.
(2)Totality of the circumstances. In addition to the standards set forth in section 76.65(b)(1), a Negotiating Entity may demonstrate, based on the totality of the circumstances of a particular retransmission consent negotiation, that a television broadcast station or multichannel video programming distributor breached its duty to negotiate in good faith as set forth in section 76.65(a). 152. We further seek comment on whether, instead of eliminating binding adjudication, we should modify its application or scope. For example, should we limit the issues of adjudication to the requirements specified in our rules? If so, what rules should apply to disputes regarding other terms? Alternatively, should we adopt a specific measure, such as a presumption that a D Block bidder proposal that otherwise satisfies the Commission's stated requirements should be upheld in adjudication? If so, what demonstration should we require of the Public Safety Broadband Licensee to rebut the presumption? Should we provide that we will require the parties to the adjudication to each submit their best offer and that we will then choose one submission or the other? Would this encourage the parties to make proposals that address each other's needs? 153. *Other modifications to the process for establishing the NSA.* We also seek comment on whether to adopt other measures relating to the process for establishing the NSA. We seek comment on whether there are any concerns inherent in the adjudication of NSA disputes by the Commission. If so, we seek comment on how such concerns could be addressed, and whether there are alternatives to Commission adjudication that will still achieve a final agreement in the event of a dispute. 154. This Second FNPRM generally seeks comment on whether we should further clarify or revise requirements relating to the network as well as the D Block licensee's and Public Safety Broadband Licensee's respective responsibilities with regard to the 700 MHz Public/Private Partnership. One likely effect of such additional clarity would be to reduce the scope of and uncertainty relating to issues that need to be negotiated between the parties to the NSA. Accordingly, we seek comment on whether, if we adopt such clarifications, it would be appropriate to also reduce the length of the NSA negotiation process, and if so, what length would be reasonable. We also invite commenters to suggest other measures that we might adopt that would help to give potential bidders additional certainty regarding the outcome of the process, or otherwise reduce the risks of the process for the D Block winning bidder, or that would otherwise improve the process. In considering this issue, commenters should take into account the availability of the spectrum as of the DTV transition date, and the needs of both parties to access and utilize this spectrum in a timely manner. 3. Auction-Related Issues a. Eligibility To Participate in the D Block Auction 155. *Background.* In the *Second Report and Order,* after considering whether open eligibility would pose a significant likelihood of substantial competitive harm in a specific market, we declined to restrict eligibility for 700 MHz Band licenses. 173 We determined that the appropriate market to assess when considering restrictions on eligibility to hold 700 MHz licenses is the broadband services market. 174 Recognizing the numerous actual and potential broadband service providers that exist, we concluded that the record did not demonstrate that open eligibility to hold 700 MHz band licenses was likely to result in substantial competitive harm in the provision of broadband services. 175 Since our prior determination, Auction 73 has only increased the number of potential providers of broadband service. 173 *Second Report and Order* , 22 FCC Rcd at 15383-84 ¶ 256. 174 *Id.* 175 *Id.* 156. *Discussion.* Although there is no significant likelihood of substantial competitive harm in the broadband services market that we need to address by restricting otherwise eligible parties from holding the D Block license, the D Block is intended for uses that extend beyond commercial broadband services. Indeed, the requirements of the D Block create a unique opportunity for a new type of nationwide network. Such an opportunity is unlikely to present itself again in the foreseeable future. It therefore may serve the public interest to limit eligibility for participation in the D Block auction in order to maximize the possibility that a party otherwise without significant access to spectrum potentially suitable for the provision of mobile wireless broadband services will have an opportunity to create a nationwide 700 MHz network using the D Block. 176 176 As we determined in the *Second Report and Order* , we are not proposing to change our decision to prohibit geographic partitioning and spectrum disaggregation for the D Block licensee. The D Block licensee would continue to be permitted to assign or transfer its license subject to Commission review and prior approval. *See Second Report and Order* , 22 FCC Rcd at 15475 ¶ 542. 157. The Commission has adopted auction eligibility restrictions in other circumstances, where limited opportunities in existing or emerging services presented potential competitive concerns but did not warrant restricting license ownership or spectrum access beyond the initial auction of the license. 177 Accordingly, we now seek comment on whether the public interest would be served by adopting an auction eligibility restriction with respect to the license(s) made available for the D Block. 178 More specifically, now that various parties have already obtained spectrum access as a result of Auction 73, we seek comment on whether the public interest would be served by limiting eligibility to bid on the license(s) for the D Block to parties that do not already have significant access to 700 MHz Band spectrum or other spectrum potentially suitable for the provision of mobile wireless broadband services. A restriction limited to eligibility to bid on the license(s) in a Commission auction would not restrict any parties' ability to acquire the license(s) or to access D Block spectrum in the secondary market—through leasing or wholesaling arrangements, which are otherwise permissible within our rules. 179 We also seek comment on whether any restriction that limits the ability of otherwise qualified parties to bid on the license(s) for D Block spectrum should apply only to the next auction of any license(s) for D Block spectrum, or to all future auctions of such license(s). Should whether the restriction applies depend in whole or in part on whether the license(s) are subject to the 700 MHz Public/Private Partnership conditions? 177 *See* Service Rules for the 746-764 and 776-794 MHz Bands and Revisions to Part 27 of the Commission's Rules, WT Docket No. 99-168, *Second Report and Order* , 15 FCC Rcd 5299, 5326 ¶ 62
(2000)( *700 MHz Guard Bands Second Report and Order* ) (adopting auction eligibility restriction in new service by precluding one party from winning both licenses in a given area); Revision of Rules and Policies for the Direct Broadcast Satellite Service, IB Docket No. 95-168, *Report and Order* , 11 FCC Rcd 9712, 9736-37, ¶¶ 61-66
(1995)(imposing an auction eligibility restriction in Direct Broadcast Satellite (“DBS”) service by prohibiting any party with an attributable interest in DBS channels at a full-CONUS orbital location from acquiring at auction an attributable interest in the full-CONUS channels offered at the 110° orbital location without divesting its prior interest in full-CONUS channels). 178 As discussed elsewhere, we seek comment on whether the D Block should be comprised of regional licenses instead of one nationwide license. 179 We would not, however, propose that such access would be permitted through partitioning or disaggregation of the D Block spectrum in light of the unique relationship contemplated and the D Block licensee's responsibilities under the 700 MHz Public/Private Partnership. 158. Generally, restrictions on the ability of parties to bid for new licenses based on their existing access to spectrum may favor new entrants. Should the auction rules favor new entrants? If so, how? We seek comment on how to structure an auction eligibility restriction to assure that a party not already able to offer nationwide or near-nationwide service using 700 MHz Band spectrum or other spectrum potentially suitable for the provision of mobile wireless broadband services will have the opportunity to win a D Block license. Should we preclude from applying for D Block license(s) parties in which any party holding a present or future interest already has sufficient spectrum access, however that access is defined? Should we preclude from applying for D Block license(s) any party with an agreement to provide future access to D Block spectrum, *e.g.* , a spectrum lease agreement, to any party that already has sufficient spectrum access, however that access is defined? Given that the restriction is intended solely to apply to auction eligibility, and not subsequent eligibility to hold the license, parties already having sufficient spectrum access might obtain an interest in winning bidders or access to their spectrum, but only after licensing. 159. With respect to the spectrum access parties already have, should the potential restriction be concerned with only particular spectrum blocks or bands, or should we consider any spectrum potentially suitable for the provision of mobile wireless broadband services? One party previously proposed a restriction that would have precluded the same party from winning in initial Commission auctions both licenses in the C Block and the D Block license. 180 Should we be concerned only with parties' access to the adjacent C Block or to all 700 MHz spectrum, including spectrum held in the C and D Blocks of the Lower 700 MHz Band? What extent of spectrum access should trigger any restriction? Should we restrict the auction eligibility only of those parties that have nationwide or near-nationwide 700 MHz spectrum access or include parties that have nationwide or near-nationwide access in other bands? Should the extent of access be measured by geographic or population coverage, or some combination of the two? Should bandwidth be a factor? What is the appropriate threshold at which to apply the restriction? 180 *See* PISC Petition for Reconsideration at 3. 160. We also seek comment on the appropriate method of measuring a party's spectrum access for this purpose. Should it be measured solely by the party's control of current 700 MHz license holders and winning bidders? Or by the party's equity interest in current 700 MHz Band license holders and winning bidders? By existing leased access to 700 MHz Band spectrum capacity, i.e., leases with respect to already granted licenses? By existing leased rights to 700 MHz Band spectrum capacity, i.e., leases with parties that are winning bidders but not yet licensees? Should we include other bands potentially suitable to the provision of mobile wireless broadband services? If so, what method should we use to measure a party's access to such bands? 161. While we seek comment on the appropriate scope of an auction eligibility restriction, at the same time, we recognize that restricting eligibility may adversely impact the ability of public safety to gain access to an advanced broadband network as quickly as possible. In this respect, it may be desirable to have the broadest pool of bidders possible in order to maximize the likelihood of a successful partnership that will benefit both public safety and consumers. We seek comment on how this consideration should impact our decision on auction eligibility rules. We also seek comment on whether the Commission should apply its spectrum aggregation screen used for wireless transactions to the D Block. b. Reserve Price 162. *Background.* In the *Second Report and Order* , we directed WTB to adopt and publicly disclose block-specific aggregate reserve prices, pursuant to its delegated authority and its regular pre-auction process, consistent with our conclusions in the *Second Report and Order.* 181 Those conclusions in part directed WTB to establish the particular amounts of the block-specific aggregate reserves by taking into account a conservative estimate of market value based on auction results for AWS-1 spectrum licenses. 182 With respect to the specific circumstances of the D Block, we directed WTB to give substantial weight to the detailed rules regarding the D Block license, the D Block licensee's required construction of a network to be shared by public safety service users, and the resulting limitations on the flexibility of the D Block licensee, which together, we noted, might make it appropriate to expect a D Block licensee to pay only 75 to 80 percent of an amount based on AWS-1 auction results, or roughly $1.33 billion. 183 Pursuant to our direction, WTB issued the *700 MHz Auction Comment Public Notice* , in which, among other things, WTB proposed and sought comment on reserve prices for all blocks of 700 MHz licenses offered in Auction 73, including a $1.33 billion reserve price for the D Block. 184 After reviewing the record of comments submitted in response, WTB issued the *700 MHz Auction Procedures Public Notice* , which adopted and set forth procedures for Auction 73, including a $1.33 billion D Block reserve price. 185 In Auction 73 bidding, applicants placed bids for licenses in the A, B, C, and E Blocks that met, and in some cases significantly exceeded, the applicable reserve price adopted pursuant to the Commission's direction. 186 The single bid for the D Block did not meet its reserve price. 187 181 *Second Report and Order* , 22 FCC Rcd at 15400-01 ¶ 304. 182 *Id.* 183 *Id.* at 15401 ¶ 305. 184 *Auction 73/76 Procedures Public Notice* , 22 FCC Rcd at 18195 ¶ 199. 185 *Id.* 186 *See* “Auction of 700 MHz Band Licenses Closes,” *Public Notice* , DA 08-595 (rel. Mar. 20, 2008) ( *700 MHz Auction Closing Public Notice* ). 187 *Id.* 163. *Discussion.* We now seek comment on whether we should direct WTB to adopt a different approach to establishing a reserve price in a new auction for the D Block license, pursuant to its delegated authority and its regular pre-auction process. This Second FNPRM generally considers revisions to the rules governing the D Block license in order to further the public interest by facilitating the creation of an interoperable broadband network that can meet public safety needs. In light of that public interest, as well as Auction 73's success in raising the revenue anticipated by Congress, we now seek comment on an appropriate reserve price, or whether we need a reserve price, other than a minimum opening bid, at all, for a new auction for the D Block license. We seek comment on the purpose that a reserve price should serve in the current context, and what level of reserve price would best serve that purpose. We seek comment later in this Second FNPRM regarding whether to offer regional licenses for the D Block in place of a single nationwide license. In an auction offering multiple licenses, the Commission could set either aggregate reserve price(s), as it did for licenses in the A, B, C, and E Blocks in the 700 MHz auction, or a license-specific reserve price. Commenters should address whether aggregate or license-specific reserve prices would best serve the purpose of any proposed reserve price. In the event that there is some uncertainty regarding the relative value of multiple licenses, an aggregate reserve price applicable to a set of licenses may allow some flexibility in relative license prices. With respect to aggregate reserve prices, commenters should address whether all the licenses offered should be subject to a single aggregate reserve price or whether subsets of the licenses offered should be subject to various aggregate reserve prices. We ask that commenters provide detailed support for any suggested reserve prices provided. Furthermore, would any of the rule revisions presently contemplated be likely to increase or decrease the appropriate reserve price? 164. In addition, we seek comment on whether we should direct WTB to set minimum opening bid(s) at the amount of any separate license specific reserve price(s), whether for a single nationwide license or for regional licenses. For Auction 73, WTB established a minimum opening bid for the D Block license below the D Block license reserve price to facilitate substitution among licenses in different blocks. If we conduct an auction with multiple licenses and aggregate reserve price(s), should we set the minimum opening bids of individual licenses such that the aggregate total of the minimum opening bids is less than the aggregate reserve price, to reduce the risk that a mistaken minimum opening bid will keep bidders from bidding on a particular license? However, in the event we set license-specific reserve prices, whether for a single nationwide license or regional licenses, there would be no apparent benefit from accepting bids below the license-specific reserve. 188 For the next auction of license(s) for the D Block spectrum, WTB will establish the minimum opening bid and any reserve price for the D Block pursuant to its delegated authority and its regular pre-auction process. We ask commenters addressing the reserve price issues raised herein to address whether there is any reason to permit bids below any reserve price and, if so, the extent to which their comments on reserve price issues presume a particular relationship between a minimum opening bid and any reserve price. 188 *Auction 73/76 Procedures Public Notice* , 22 FCC Rcd at 18199-200 ¶ 212. c. Designated Entity Eligibility for the D Block Licensee 165. *Background.* Under our designated entity eligibility rules, as modified in 2006 in the *Designated Entity Second Report and Order,* a business model that involves a designated entity licensee entering into arrangements with other entities for the lease or resale (including wholesaling arrangements) that involve more than 50 percent of the spectrum capacity of a license constitutes an impermissible material relationship and renders the licensee ineligible for otherwise available size-based bidding credits. 189 On November 15, 2007, however, we waived, on our own motion, the application of our impermissible material relationship rule 190 for purposes of determining an applicant's or licensee's designated entity eligibility solely with respect to arrangements for lease or resale (including wholesale) of the spectrum capacity of the D Block license. 191 In so doing, we determined that the unique regulations then governing the D Block license, which required the establishment of the 700 MHz Band Public/Private Partnership subject to a Commission-approved Network Sharing Agreement 192 —together with the application of the Commission's other designated entity eligibility requirements 193 —eliminated for the D Block license the risks that led the Commission to adopt the impermissible material relationship rule. We found that the D Block rules subjected the licensee to significant obligations and substantial Commission oversight, which when combined with the continued application of other designated entity rules led us to conclude that waiver of the impermissible material relationship rule served the public interest. 189 *See generally* Implementation of the Commercial Spectrum Enhancement Act and Modernization of the Commission's Competitive Bidding Rules and Procedures, WT Docket No. 05-211, *Second Report and Order and Second Further Notice of Proposed Rule Making,* 21 FCC Rcd 4753
(2006)*(Designated Entity Second Report and Order) recon. pending;* Implementation of the Commercial Spectrum Enhancement Act and Modernization of the Commission's Competitive Bidding Rules and Procedures, WT Docket No. 05-211, *Order on Reconsideration of the Second Report and Order,* 21 FCC Rcd 6703
(2006)*(Order on Reconsideration of Designated Entity Second Report and Order);* 47 CFR 1.2110(b)(3)(iv)(A). 190 47 CFR 1.2110(b)(3)(iv)(A). 191 *See generally D Block Waiver Order.* 192 *See Second Report and Order,* 22 FCC Rcd at 15428-79 ¶¶ 386-553. 193 *See Designated Entity Second Report and Order; Order on Reconsideration of the Designated Entity Second Report and Order;* 47 CFR 1.2110, 1.2111, 1.2112, 1.2114. 166. *Discussion.* Now that we are revisiting the service and auction rules for the D Block license, we seek comment regarding whether we should adopt a service specific exception to our impermissible material relationship rule for purposes of determining designated entity eligibility solely with respect to arrangements for lease or resale (including wholesale) of the spectrum capacity of the D Block license. Could revised service and auction rules that we might adopt for the D Block license continue to present unique circumstances and regulatory obligations that warrant an exception to our impermissible material relationship rule? 167. If we establish such a service specific exception to our general designated entity impermissible material relationship rule, will our other designated entity rules sufficiently ensure that only bona fide small businesses, exercising control over the D Block license in accordance with our rules, will benefit from bidding credits applicable to that license? 194 For instance, consistent with the scope of the *D Block Waiver Order,* will the continued application of the controlling interest rule, attributable material relationship rule, and the unjust enrichment rule, as well as all other designated entity eligibility rules together with the unique requirements that will apply to the D Block license prevent the abuses the impermissible material relationship rule was designed to address? Do the terms and conditions pertaining to the D Block license, both previously set forth and as discussed in this Second FNPRM, provide sufficient assurance that the D Block commercial licensee's provision of service for the benefit of the public will not be significantly influenced by any party leasing (or accessing through wholesale arrangements) fifty percent or more of the spectrum capacity of the D Block license? Does the unique relationship between the D Block licensee and the Public Safety Broadband Licensee, and their regulatory obligations to ensure the ongoing integrity and consistency of service to the public safety users of the network, mitigate any potential for such influence? If, however, the Commission chooses to license the D Block without the 700 MHz Public/Private Partnership, are there any circumstances in which we should consider an exception to the impermissible material relationship rule? 194 This attribution requirement based on D Block arrangements will affect the designated entity's ongoing eligibility for designated entity benefits. *See, e.g., Designated Entity Second Report and Order,* 21 FCC Rcd at 4759-60 ¶ 15, 4763-65 ¶¶ 25-30, 4765-68 ¶¶ 31-41; *Order on Reconsideration of Designated Entity Second Report and Order,* 21 FCC Rcd at 6712-13 ¶¶ 24-26; 47 CFR 1.2110(b)(3)(iv)(B), 1.2111(d). *See also* 47 CFR 1.2110(b)(1)(i), (m), (n). d. Default Payment 168. *Background.* The Commission's competitive bidding rules provide that if a winning bidder defaults for any reason, the bidder is liable for a default payment. 195 In the *Second Report and Order* , the Commission provided that the D Block winning bidder would be deemed to have defaulted under Section 1.2109(c) of the Commission's rules and would be liable for the default payments set forth in Section 1.2104(g) if it failed to comply with the procedures established for negotiation or dispute resolution in the NSA, including a failure to comply with a Commission or Bureau decision in binding adjudication, as well as under other circumstances, *e.g.* , if it failed to pay its winning bid. 196 Pursuant to Section 1.2104(g) of those rules, a default payment is comprised of
(1)a “deficiency payment,” based on the amount, if any, by which a subsequent winning bid is lower than the defaulted bid; and
(2)an “additional payment,” based on a percentage of the lesser of the defaulted bid or the subsequent winning bid. 197 195 47 CFR 1.2109(b), (c). 196 *See Second Report and Order,* 22 FCC Rcd at 15466 ¶ 511. 197 *See* 47 CFR 1.2104(g)(2). 169. The Commission's implementation of its competitive bidding authority enables the assignment of licenses to parties that value them more highly than others and are more likely to put the licenses to efficient and effective use. The failure to pay a winning bid undermines this entire process. At a minimum, defaults delay the assignment of licenses and the deployment of service. In addition, a default may impair the ability of the auction process to assign licenses to those parties best able to serve the public. Accordingly, the Commission requires defaulting bidders (or withdrawing bidders, in auctions in which withdrawals are permitted) to pay the deficiency portion of the default payment so that bidders are more likely to submit bids accurately reflecting their ability to pay, enhancing the efficiency of the competitive bidding process in assigning licenses. 198 198 *See* Implementation of Section 309(J) of the Communications Act-Competitive Bidding, *Second Report and Order,* 9 FCC Rcd 2348, 2373 ¶ 147
(1994)( *Competitive Bidding Second Report and Order* ). 170. The Commission further requires an additional payment when a winning bidder defaults to both discourage unsupportable bidding and provide an incentive to bidders wishing to withdraw previously placed bids to do so prior to the close of an auction (when permitted), because, among other things, a default or disqualification after an auction prevents other bidders from winning the license in the initial auction, thereby delaying the use of the spectrum to provide service to the public. 199 Originally, the additional default payment was set at three percent. 200 In 2006, we concluded that having the discretion to set the additional payment percentage between three and 20 percent would help the Commission “persuade bidders to be more realistic in their advance assessment of how much they can afford to pay for licenses.” 201 For Auction 73, the additional default payment percentage for any default on a bid for the D Block license was set at ten percent. In auctions where the Commission accepts single bids on combinations, or packages, of licenses, the Commission has fixed the additional default payment percentage at twenty-five percent. 202 The Commission adopted the higher additional default percentage in response to the greater potential significance of such a default. In auctions with combinatorial bidding, a bidder's winning bid may affect not only the licenses subject to that winning bid, but the set of bids that wins other licenses as well. 199 *Id.* at 2374 ¶ 154, 2382-83 ¶ 197. 200 *Id.* at 2374 ¶ 154, 2382-83 ¶ 197. 201 Implementation of the Commercial Spectrum Enhancement Act and Modernization of the Commission's Competitive Bidding Rules and Procedures, WT Docket No. 05-211, *Report and Order,* 21 FCC Rcd 891, 903-04 ¶ 31
(2006)( *CSEA/Part 1 Report and Order* ). 202 47 CFR 1.2104(g)(2)(ii). 171. Over the history of the Commission's 69 auctions before Auction 73, the net winning bids placed by bidders totaled nearly $59 billion, yet the Commission's collection of those bids has totaled far less. The shortfall in the applicants' promised payments has stemmed, in large part, from bidders' failure to bid consistently with a careful and realistic assessment of their ability to pay. This failure has been evidenced by bidders subsequently filing for bankruptcy or seeking debt compromise in lieu of fulfilling their auction obligations. Historically, the Commission has found that a bidder's inability to render full and timely payment for its winning bid impairs the Commission's assignment of licenses by competitive bidding by impeding the deployment of service to the public and interfering with the efficiency of the assignment. To counter the negative effect of bidders' failure to honor their payment obligations, such as in the case of a post-auction default, we have sought to assure that the additional payment portion of the default payment calculation is sufficient to discourage defaults resulting from insincere bidding and to help ensure that licenses are assigned to financially and otherwise qualified parties that are able to use them effectively and efficiently to provide service. 203 203 *See* BDPCS, Inc., *Memorandum Opinion and Order,* 15 FCC Rcd 17590, 17598-99 ¶ 15
(2000)(citing *Second Report and Order,* 9 FCC Rcd at 2381 ¶ 190); *see also Competitive Bidding Second Report and Order,* 9 FCC Rcd 2348. 172. *Discussion.* In the present context, the need to deter default is substantially increased. The Commission seeks to license the D Block spectrum to promote the creation of a ubiquitous nationwide wireless network providing interoperable broadband service to the nation's public safety service providers. Delay in assignment of the license could result in substantial harm to the public. Much of this Second FNPRM seeks to reduce the risk of default, and consequent delay, by seeking comment on where greater specificity in the requirements of the 700 MHz Public/Private Partnership might increase the likelihood of success in creating the hoped-for public safety network. At the same time, we seek comment on whether we should modify the default payment rules with respect to a D Block winning bidder. We recognize that a D Block winning bidder faces risks of default that are different in nature, and potentially greater, than those facing the typical winning bidder in a Commission auction. We seek comment on whether a D Block winning bidder's consequent exposure to a potential default payment is excessive and, if so, on ways to reduce it to an acceptable level by modifying either the rules regarding the imposition of a default payment or the default payment amount. In particular, we seek comment regarding the obligation of a D Block winning bidder to make default payments in the event that the Bureaus or the Commission adjudicate a dispute with respect to the NSA and a D Block winning bidder will not comply with the decision on the disputed issues. In this context, the default payments provide a strong inducement to a D Block winning bidder to accept the adjudicated terms. It is possible, however, that public safety representatives aware of a D Block winning bidder's incentives may have greater incentives to make additional demands in pre-adjudication negotiations than if the D Block winning bidder were not facing the threat of default payments. 173. More specifically, we seek comment on whether we should modify the applicable default payment based on the particular circumstances that lead to the default, such as after negotiations fail to produce an NSA. Under such circumstances, should we cap the deficiency portion of the default payment, or direct WTB to apply a different percentage when calculating the additional payment portion of the default payment than it would after a winning bidder defaults on a post-auction payment, or eliminate one of these components of the default payment, while retaining the other? We note that in the event that we conduct a subsequent auction after negotiations fail to produce an NSA and offer license(s) for the D Block that are not subject to any 700 MHz Public/Private Partnership conditions, the deficiency portion of any default payment may well be zero, given that, if all other factors are equal, the winning bid(s) in such a subsequent auction should be higher. How should we take this possibility into account? 174. We seek comment on what specific amount or percentage limits, if any, would provide the best balance between maintaining the incentives for a D Block winning bidder to commit to its bid amount and the required negotiating process while limiting the risk that it may face a choice between default and accepting NSA terms that jeopardize the success of its business plan. Commenters should consider the possibility that the Commission might offer multiple regional D Block licenses subject to combinatorial bidding. Under such circumstances, should the Commission continue to retain the higher additional default payment percentage for combinatorial auctions, given the potentially greater effects of a default by one of multiple winners? We note generally with respect to the percentage for the additional payment portion of the default payment, applying the ten percent additional payment previously adopted to a bid equal to the previous $1.33 billion reserve price would have resulted in additional payment portion of the default payment of $133 million. The Commission has assessed a total default payment pursuant to Section 1.2109 that exceeded $200 million on one prior occasion. The license in that case was for Basic Trading Area 347, covering Phoenix, Arizona and approximately one-one hundredth the population covered by the D Block nationwide license. However, the largest additional payment previously assessed as part of a default payment was less than $6 million. 175. We also seek comment on whether, in the event that the Public Safety Broadband Licensee is required to negotiate multiple times after separate auctions of the D Block license, to require a defaulting D Block winning bidder, either as a substitute for or in conjunction with any default payments, to pay the Public Safety Broadband Licensee's negotiation costs for unsuccessful negotiations. If we establish such an obligation, how should we define the covered negotiation costs? Such a payment might provide some additional incentive to reach successful negotiations, and would also ensure that, in the event the parties did not reach an agreement, the Public Safety Broadband Licensee would not be left financially unable to proceed with alternatives or to negotiate with a future licensee. 4. Narrowband Relocation 176. *Background.* Among other things, in designating the lower half of the 700 MHz Public Safety Band (763-768/793-798 MHz) for broadband communications, the *Second Report and Order* consolidated existing narrowband allocations to the upper half of the 700 MHz Public Safety block (769-775/799-805 MHz). 204 To effectuate the consolidation of the narrowband channels, we required the D Block licensee to pay the costs of relocating narrowband radios from channels 63 and 68, and the upper one megahertz of channels 64 and 69, and capped the disbursement amount for relocation costs at $10 million. 205 We also cautioned that any narrowband equipment deployed in channels 63 and 68, or in the upper one megahertz of channels 64 and 69, more than 30 days following the adoption date of the *Second Report and Order* would be ineligible for relocation funding. 206 In addition, we prohibited authorization of any new narrowband operations in that spectrum, as of 30 days following the adoption date of the *Second Report and Order.* 207 204 *Second Report and Order,* 22 FCC Rcd at 15406 ¶ 322. 205 *Id.* at 15412 ¶ 341. 206 *Id.* at 15412 ¶ 339. 207 *Id.* 177. We found that, in order to maximize the benefits of the 700 MHz Public/Private Partnership to deploy a nationwide, interoperable broadband communications network, the current 700 MHz narrowband public safety operations must be consolidated and cleared no later than the DTV transition date. 208 We required every public safety licensee impacted by the consolidation to file a certification with the Commission no later than 30 days from the effective date of the *Second Report and Order,* including certain information to account for “pre-programmed narrowband radios that public safety agencies may have already taken delivery as of the adoption date of the *Second Report and Order* and intend to immediately place into operation.” 209 We emphasized that such information was “integral to the success of the relocation process,” and cautioned public safety entities that failing to file this information in a timely manner would result in forfeiture of reimbursement. 210 As “an additional measure to define and contain the costs that would be entitled to reimbursement,” we prohibited any new authorizations outside of the consolidated narrowband segment, stating that such a prohibition would “ensure that the relocation proceeds in an orderly manner and without complications stemming from additional operations being deployed in spectrum being reallocated.” 211 Moreover, as “an additional means to ensure the integrity of the relocation process,” we imposed a $10 million cap based on the best evidence available in the record at the time of the *Second Report and Order.* 212 208 *Id.* at 15406 ¶ 322. 209 *Id.* at 15411 ¶ 336. 210 *Id.* at 15411 ¶ 337. 211 *Id.* at 15412 ¶ 339. 212 *Id.* at 15412 ¶ 341. 178. Two parties filed petitions seeking reconsideration of some or all of the foregoing requirements in the *Second Report and Order.* 213 Among other things, these parties challenged the adequacy of the $10 million cap on relocation expenses. 214 A number of other parties also supported revising or eliminating the relocation cap. 215 213 *See* Virginia Petition for Reconsideration; Pierce Transit Petition for Reconsideration. 214 *See* Virginia Petition for Reconsideration; Pierce Transit Petition for Reconsideration. 215 *See* National Association of Telecommunications Officers and Advisors (NATOA) Comments at 9-11; State of Nebraska (Nebraska) Opposition at 2; Motorola Comments at 1-7. 179. One petitioner also asked that the Commission make clear that parties who purchased and began to deploy systems before the August 30 cut-off date can continue to deploy those systems after August 30, and allow full reimbursement for the relocation of all such systems. 216 Another party asks the Commission to modify the *Second Report and Order* to permit continued authorization and deployment of statewide radio public safety systems in Channels 63 and 68 and the upper one megahertz of Channels 64 and 69 through January 31, 2009, allow the owner of a statewide radio public safety system to obtain reimbursement for all its costs incurred in the installation of such a system which was in the process of construction and implementation as of the date of the *Second Report and Order,* and reconsider the $10 million cap on rebanding costs. 217 216 *See generally* Pierce Transit Petition for Reconsideration. 217 *See generally* Virginia Petition for Reconsideration. 180. *Discussion.* Being mindful of the desire to provide certainty to potential bidders as to the relocation obligation that would attach to the winner of this spectrum, we seek comment on whether we should revise or eliminate the $10 million cap on relocation expenses. In commenting, we ask parties to provide specific data and cost estimates regarding relocation expenses, particularly taking into account the certifications filed in the docket pursuant to the *Second Report and Order.* 181. Given the proposed re-auction of the D Block and associated timing, we also seek comment on the date by which such relocation must be completed. Should we continue to require relocation be completed by the DTV transition date? If not, should we set an alternative date, and if so, what would that date be? Should we allow relocation to occur on a rolling basis, such that the D Block licensee would be required to relocate narrowband operations only as the broadband network is built out in a particular market? If so, how much notice should the D Block licensee be required to give to a narrowband licensee in advance of relocation? We also seek comment on any other viable mechanism for facilitating relocation, and the appropriate timing of such an approach. Should we retain the requirement that capped costs be deposited in a trust account to be administered by the Public Safety Broadband Licensee? If we eliminate the cap, how would the trust mechanism function? Should we continue to require that the Public Safety Broadband Licensee manage the reimbursement process for these licensees? If so, should we require that public safety entities seeking reimbursement provide detailed cost information to the Public Safety Broadband Licensee? What should such cost information entail? Should the Public Safety Broadband Licensee be afforded discretion in assessing the soundness of the cost estimates? Can the Public Safety Broadband Licensee leverage its status as the nationwide public safety broadband license holder to negotiate terms with equipment and technology vendors to relocate multiple narrowband operations, and thus achieve economies of scale? Should the Public Safety Broadband Licensee have recourse to the Commission if it determines that cost estimates provided by individual public safety entities, including those passed through by technology or equipment vendors, unreasonable? 182. With respect to the August 30, 2007, cut off date for narrowband deployments outside of the consolidated narrowband spectrum, we sought to balance the needs of individual public safety entities with the necessity of carrying out a swift and thorough narrowband relocation process in order to quickly and efficiently establish the nationwide, interoperable public safety broadband network. While we understand the concerns expressed by certain parties, we continue to believe that the cut off date was appropriate and struck the right balance. Rather, addressing each such situation on a case-by-case basis through the waiver process is a more appropriate mechanism. Accordingly, we seek comment on whether extension of the August 30, 2007, deadline established in the *Second Report and Order* would be inappropriate, and any other issue related to the reconsideration petitions filed by Virginia and Pierce Transit. 5. Size of Geographic Areas and Other Rules and Conditions 183. *Size of geographic areas.* In the *Second Report and Order,* the Commission determined that the D Block license would be auctioned as a single, nationwide license to provide for commercial service in the D Block to build and operate a joint broadband public safety and commercial network for public safety use. 218 We seek comment on the appropriate geographic service area for the D Block. Our goal has been to make a nationwide, interoperable broadband network available to state and local public safety users. We found that creating a partnership between a single, national public safety entity and a single D Block licensee with a nationwide license was the most practical means of speeding deployment of the shared network. We seek comments about whether there is any reason to change the approach taken in the *Second Report and Order.* Would it best serve the public interest to continue to license the D Block on a nationwide basis, or should we choose regional geographic service areas such as REAGs? 218 *700 MHz Second Report and Order,* 22 FCC Rcd at 15315-16 ¶ 62. 184. If the D Block were split into regional licenses, to what extent, if any, should we modify any of the policies or rules previously adopted or proposed herein with respect to a D Block 700 MHz Public/Private Partnership? How would the Commission ensure that the primary goal of a national, interoperable, communications network for public safety agencies is not jeopardized? In particular, how would we ensure interoperability of communications between public safety users of different regional networks? How would we ensure that interoperable communications capabilities are extended to first responders in every region in an equitable fashion? What obligations should we adopt to facilitate coordination between D Block licensees or to otherwise promote the ability of the regional networks to function as a seamless, nationwide network for public safety users? For example, should we mandate that each D Block licensee provide roaming to the public safety users of all other D Block regional networks? What rules should apply in the event that some regional licenses are successfully auctioned while other regional licenses are not successfully auctioned? 185. We also seek comment on whether the D Block should be split into one license (or several licenses) covering high-population density areas and a second license (or set of licenses) covering low-population density areas. Would such an arrangement allow a commercial licensee that specializes in rural coverage (or has some comparative economic advantage in covering such areas) to better serve public safety users in rural areas? Do public safety users in rural areas have different or unique technical requirements as compared to public safety users in more densely-populated areas? If so, to what extent are commercial entities that specialize in rural coverage suited to serving public safety users in such areas? 219 219 *See* Letter from Andrew D. Beard, counsel for Vanu, Inc., to Marlene H. Dortch, Secretary, FCC, WT Docket Nos. 06-150; 06-169, 96-86; PS Docket No. 06-229; AU Docket No. 07-157, filed May 8, 2008. 186. We also seek comment on whether any of our other standard rules, such as our Part 1 competitive bidding rules, should be modified to take into account the possibility of offering multiple licenses to use D Block spectrum subject to the 700 MHz Public/Private Partnership conditions. What rules should we adopt regarding the establishment of an NSA? Are the needs of public safety served if the Public Safety Broadband Licensee must negotiate separate NSAs with several commercial entities, rather than a single, nationwide commercial partner? Under a regional approach, how would we ensure that interoperable communications capabilities are extended to first responders in every region in an equitable fashion? Should we mandate a “master” NSA that would include minimum network specifications, which could then be modified on a regional basis with more detailed schedules? If we were to adopt regional license areas for the D Block, should we also adopt corresponding regional public safety broadband licenses for the public safety broadband spectrum to facilitate the establishment of regional 700 MHz Public/Private Partnerships? 187. *Other rules and conditions.* Lastly, we seek comment on whether there are any other aspects of the rules or conditions for the 700 MHz Public/Private Partnership that we should modify. For example, should we require the D Block licensee to operate on an exclusively wholesale and/or open access basis? 220 Would it serve the goals of this partnership to impose such requirements? Or, would maintaining a more flexible approach improve the viability of the 700 MHz Public/Private Partnership? How would an open access environment affect public safety? If we adopt a wholesale only approach, do we need to revise or clarify any aspect of the operational responsibilities of the D Block and the Public Safety Broadband Licensee? Should we permit the D Block licensee in certain circumstances to obtain access to public safety narrowband spectrum on a secondary, non-interference basis? If so, under what circumstances should this be permitted, and what safeguards should be adopted? Are there any other changes that the Commission should consider making to the rules or conditions for the 700 MHz Public/Private Partnership to ensure its success? 220 In the *Second Report and Order,* the Commission declined to impose wholesale or open access obligations on the D Block licensee. *Second Report and Order,* 22 FCC Rcd at 15476-77 ¶ 545. 188. We seek comment on other means by which the Commission could effectively match the needs of public safety users with the capabilities of potential service providers while still meeting our obligation under the Act to assign the D Block by competitive bidding. 221 In particular, we observe that Federal, State and local government agencies regularly use requests for proposals (“RFPs”) to contract for services provided by private parties. Such RFPs can be weighted to reflect the priorities and needs of the contracting governments. We seek comment on the feasibility of such an approach in this instance. 221 *See* 47 U.S.C. 337(a)(2) (Commission must assign 36 megahertz of 700 MHz spectrum for commercial use “by competitive bidding pursuant to section 309(j).”). 189. We note that RFPs could be combined with an auction in at least two ways. Under one approach, the Commission or Public Safety Broadband Licensee could request proposals from potential providers of the broadband network for public safety, then select its preferred specification from the proposals offered, making these specifications part of the rules for the D Block license to be auctioned. Under another approach, the Commission or Public Safety Broadband Licensee could auction the D Block with a minimum set of requirements, then allow the three or four highest bidders to submit proposals that meet or exceed the minimum requirements, with the Commission ultimately selecting the winning bidder. We seek comment on these approaches. In particular, regarding the first approach, we ask commenters to address how we can incorporate the generally applicable information that RFP responses would provide while avoiding adopting entity-specific requirements that would limit the flexibility of other entities to meet our outcome objectives in a way that is best suited to their particular business plans, technologies, and resources. With respect to the second idea, we ask what specific criteria the Commission should use in selecting among proposals. 190. Similarly, we seek comment on whether the Commission could approximate the benefits of an RFP through a more expeditious process. In particular, as noted above, the Commission seeks comment in this Second FNPRM on the possibility of establishing a public/private partnership and, if such a partnership is established, what requirements should apply. As discussed in the Technical Appendix, these requirements would include specifications for the system architecture, reliability, and capacity. In requesting comment on these issues, we especially seek input from both the public safety users of such a network and the potential providers of such a service, including existing wireless service providers and/or potential new entrants that may be interested in participating in a public/private partnership. Following the issues raised in the Technical Appendix, what specifications are needed by public safety users? What specifications are economically feasible for potential providers, and at what cost? C. Other Options for the D Block License and the Public Safety Broadband License 191. In this section, we consider the Commission's options in the event that we determine not to proceed with the 700 MHz Public/Private Partnership approach requiring a mandatory partnership between the D Block licensee and the Public Safety Broadband Licensee with regard to a shared network using both the D Block and public safety broadband spectrum. For example, as discussed previously, we might decide that we should not retain the 700 MHz Public/Private Partnership obligations if, in the next auction of the D Block license, we offer the D Block license with the 700 MHz Public/Private Partnership obligations and the license again fails to attract a winning bidder, or the winning bidder defaults or fails to negotiate a successful NSA with the Public Safety Broadband Licensee. Alternatively, we may decide not to retain the 700 MHz Public/Private Partnership condition, and instead immediately conduct an auction to license the D Block without a 700 MHz Public/Private Partnership obligation. There may also be other circumstances whereby the 700 MHz Public/Private Partnership obligation on the D Block would not serve its purpose and our objective to facilitate the creation of a nationwide, interoperable, broadband network for public safety users. We therefore seek comment generally on rules the Commission should adopt, both for the D Block licensee and the Public Safety Broadband Licensee, in those circumstances where the D Block license would be auctioned without a 700 MHz Public/Private Partnership condition. If the D Block was auctioned for unrestricted commercial services, how much money would the auction raise? Assuming that the auction would yield less than the cost of building a dedicated, nationwide, interoperable broadband network for public safety, how should the shortfall be addressed? If estimated network construction costs exceed the estimated receipts from the auction of license(s) for the D Block with no commercial service restrictions, to what extent might this shortfall be addressed from the auction receipts of spectrum bands that will be, or might be, auctioned in the near future? 222 For example, what are reasonable estimates of the value of the AWS-3 spectrum with no commercial service restrictions? Similarly, what are reasonable estimates of the value of the “white spaces” spectrum (for unused portions of television channels 2-51) licensed with no commercial restrictions? In addition, if the D Block was auctioned for unrestricted commercial services, to what extent would the remaining spectrum available to public safety providers be insufficient to meet their communications needs, including the need for an interoperable broadband network? 223 222 We note that using auction revenues for such construction would require additional Congressional action. 223 The Commission has allocated more than 97 MHz of spectrum for use in support of public safety services, including approximately 13.7 MHz in frequencies below 470 MHz, varying amounts in the 470-512 MHz band, 24 MHz in the 700 MHz band, an average of 4.5 MHz in the 800 MHz band, and 50 MHz in the 4.9 GHz band. 1. D Block License Service Rules Without the 700 MHz Public/Private Partnership 192. We seek comment below on the particular service rules that we should adopt for the D Block in the event that we determine that the D Block should be licensed without any 700 MHz Public/Private Partnership obligation. a. Size of the Geographic Areas 193. *Background.* In the *First Report and Order,* the Commission determined that a balanced mix of geographic service area licenses—CMAs, EAs, and REAGs—would be appropriate for the commercial 700 MHz Band licenses. 224 In the *Second Report and Order,* we reaffirmed the determination to use CMAs, EAs, and REAGs for all of the 700 MHz commercial spectrum blocks except for the D Block. We concluded that the D Block should be licensed on a nationwide basis for use as part of the 700 MHz Public/Private Partnership with the Public Safety Broadband Licensee. 225 We adopted CMA, EA, and REAG areas for the other commercial licenses “to promote dissemination of licenses among a wide variety of applications, accommodate the competing need for both large and small licensing areas, [and] meet the needs expressed by potential entrants seeking access to spectrum and incumbents seeking additional spectrum.” 226 224 *See* Service Rules for the 698-746, 747-762 and 777-792 MHz Bands, WT Docket No. 06-150, Revision of the Commission's Rules to Ensure Compatibility with Enhanced 911 Emergency Calling Systems, CC Docket No. 94-102, Section 68.4(a) of the Commission's Rules Governing Hearing Aid-Compatible Telephones, WT Docket No. 01-309, Biennial Regulatory Review—Amendment of Parts 1, 22, 24, 27, and 90 to Streamline and Harmonize Various Rules Affecting Wireless Radio Services, WT Docket 03-264, Former Nextel Communications, Inc. Upper 700 MHz Guard Band Licenses and Revisions to Part 27 of the Commission's Rules, WT Docket No. 06-169, Implementing a Nationwide, Broadband, Interoperable Public Safety Network in the 700 MHz Band, PS Docket No. 06-229, Development of Operational, Technical and Spectrum Requirements for Meeting Federal, State and Local Public Safety Communications Requirements Through the Year 2010, WT Docket No. 96-86, *Report and Order and Further Notice of Proposed Rulemaking,* 22 FCC Rcd 8064, 8082-86 ¶¶ 42-45
(2007)( *First Report and Order* ). 225 *See Second Report and Order,* 22 FCC Rcd at 15431 ¶ 395. 226 *Id.* at 15316 ¶ 64. 194. *Discussion.* We now seek comment on the appropriate geographic service area for the D Block in the event that the D Block license is re-auctioned without a 700 MHz Public/Private Partnership obligation. Would it best serve the public interest to continue to license the D Block on a nationwide basis, or should we choose a smaller geographic service area, such as the CMA, EA, and REAG sizes used to license the other 700 MHz blocks? We note that, in evaluating the appropriate balance of license areas, we will continue to consider the 700 MHz Band as a whole, including the commercial spectrum that has been previously auctioned. As we stated in the *Second Report and Order,* recent statutory and regulatory changes have served to harmonize this spectrum band and warrant our consideration of the 700 MHz Band spectrum as a whole. 227 We request that commenters provide information that would corroborate the benefits of their proposed geographic area and the costs and benefits of adopting an alternative license area. Commenters should also discuss how a particular license area for the D Block would best serve the public interest, considering the commercial 700 MHz Band spectrum as a whole. Finally, commenters should address whether the availability of package bidding, which may mitigate the exposure risk for bidders seeking certain aggregations of licenses, should influence our choice of geographic license service area for the D Block. 227 *Id.* at 15316 ¶ 63. b. Performance Requirements 195. *Background* . In the *Second Report and Order* , we adopted different performance requirements for the commercial 700 MHz Band licenses depending on the geographic size of their license areas. CMA and EA licensees in the 700 MHz Band are required to provide service sufficient to cover 35 percent of the geographic area of their licenses within four years, and 70 percent of this area within ten years (the license term), and REAG licensees must provide service sufficient to cover 40 percent of the population of their license areas within four years and 75 percent of the population within ten years. 228 Licensees with CMA, EA, or REAG areas that fail to meet the applicable interim benchmark, the license term is reduced by two years, and the end-of-term benchmark must be met within eight years. 229 At the end of the license term, licensees with CMA, EA, or REAG areas that fail to meet the end-of-term benchmark will be subject to a “keep what you use” rule, which will make unused spectrum available to other potential users. 230 We adopted these stringent performance requirements to “better promote access to spectrum and the provision of service, especially in rural areas.” 231 228 *See id.* at 15439 ¶ 157, 15351 ¶ 162. 229 *Id.* at 15439 ¶ 157, 15351 ¶ 163. 230 *Id.* at 15349 ¶ 157, 15351 ¶ 163. 231 *Id.* at 15348 ¶¶ 153, 154. 196. *Discussion* . We seek comment on the appropriate performance requirements for the D Block license or licenses if the D Block license is re-auctioned without a 700 MHz Public/Private Partnership obligation. We further seek comment on whether, if we decide to license the D Block on a CMA, EA, or REAG basis, we should impose the same performance requirements applicable to other 700 MHz commercial licenses with the same geographic service area. We seek comment on whether these performance requirements are appropriate for the D Block. In the event that we continue to license the D Block on a nationwide basis, we seek comment on whether performance benchmarks similar to those required of REAG licensees would be appropriate. 232 To the extent commenters believe the performance benchmarks should be higher or lower than the proposals above, we request that they provide information that would corroborate the benefits of their proposed benchmarks and the costs and benefits of alternative approaches. Comments should address whether these specific geographic benchmarks would promote access to spectrum and the provision of service. 232 We note that only the C Block, located adjacent to the D Block, is licensed on a REAG basis. *Id.* at 15293 ¶ 4. c. License Block Size and Term 197. *Background* . In the *Second Report and Order* , we determined that the D Block should be auctioned as a 10-megahertz spectrum block made up of paired 5-megahertz blocks. 233 We also determined that it be given an initial license term of 10 years, consistent with the term given to other commercial licensees. 234 We found that a 10-year term would “provide regulatory parity by establishing the same license term for [ ] all 700 MHz licensees.” 235 233 *See id.* at 15315-16 ¶ 62. 234 *See id.* at 15450 ¶ 457. 235 *Id.* 198. *Discussion* . We intend not to revisit these determinations if the D Block license is re-auctioned without a 700 MHz Public/Private Partnership obligation. Indeed, in the *Second Report and Order* , we determined the band plan for all commercial bands as a whole. 236 Any changes to the block sizes that would affect other bands would not serve the public interest given the fact that the adjacent commercial spectrum licenses have already been auctioned. Dividing the current D Block into smaller block sizes may also not be in the public interest considering that a 10-megahertz spectrum block made up of paired 5-megahertz blocks can facilitate more innovative and efficient broadband deployment than any smaller block sizes in this band. With regard to the license term, we note that all other commercial licenses in the band have a 10-year term similar to the D Block license, and we see no reason to treat the D Block differently if it does not include the 700 MHz Public/Private Partnership. We seek comment on our intention not to revisit these determinations. 236 *See id.* at 15316 ¶ 63. d. Power Limits and Out-of-Band Emission Limits 199. *Background* . In the *Second Report and Order* , we adopted rules to protect 700 MHz Band commercial and public safety licensees from interference from the out-of-band emissions (OOBE). 237 In accordance with those rules, the D Block licensee was required to satisfy an OOBE limit of 43 + 10log P dB in protecting commercial 700 MHz Band licensees 238 and 76/65 + 10log P dB OOBE limits in protecting the 700 MHz public safety narrowband channels. 239 237 *See* 47 CFR 27.53(d). 238 *See* 47 CFR 27.53(d)(3), (5). 239 D Block base stations must meet a 76 + 10log P dB limit in a 6.25 kHz band segment and D Block mobile and portable stations must meet a 65 + 10log P dB limit in a 6.25 kHz band segment. *See* 47 CFR 27.53(d)(1), (2), (4). 200. *Discussion* . Because of the anticipated relationship between the D Block licensee and the Public Safety Broadband Licensee, it was not necessary to impose any OOBE limits on the D Block licensee in order to protect the Public Safety Broadband Licensee. However, if that relationship is no longer in effect, we seek comment on what measures we should adopt to adequately protect public safety broadband communications from interference from D Block operations, and whether measures to protect against such interference reduce the amount of usable, broadband spectrum available to the Public Safety Broadband Licensee and the D Block licensee. We would propose to require that D Block licensees provide appropriate OOBE protection to the public safety broadband spectrum. As to the appropriate level of protection, we see no reason to protect the public safety broadband block to any lesser degree than we currently protect the public safety narrowband channels. We therefore propose that D Block licensees be required to protect the public safety broadband block by satisfying the same 76/65 + 10log P dB OOBE limits currently applicable to the D Block licensee in protecting the public safety narrowband channels. We seek comment on this proposal. 201. In the *Second Report and Order* , we did not adopt any changes to the then-existing power limits for base, fixed, mobile, and portable D Block stations, 240 nor did we modify the notification and coordination requirements we had imposed on D Block licensees choosing to operate base stations at high power levels. 241 The change in the anticipated relationship between the D Block and the public safety broadband block should not necessitate any modifications to these requirements, and we therefore seek comment on whether the power, notification, and coordination requirements currently applicable to D Block licensees should remain unchanged. 242 240 *See* 47 CFR 27.50(b)(2), (3), (4), (5), (9), (10). 241 *See* 47 CFR 27.50(b)(7), (8), which impose coordination and notification requirements on D Block licensees operating base stations at power levels greater than 1000 watts ERP. 242 We note, however, that Verizon has sought reconsideration of certain rules adopted in the *First Report and Order* regarding power limits for the 700 MHz Band commercial licensees and related notification and coordination obligations, and this petition remains pending. See Petition for Reconsideration of Verizon Wireless, WT Docket No. 06-150 (filed June 14, 2007). e. License Partitioning, Disaggregation, Assignment, and Transfer 202. *Background* . In the *Second Report and Order* , the Commission prohibited geographic partitioning and spectrum disaggregation for the D Block licensee. The Commission found that adopting such a restriction would serve the public interest by assuring a reliable partnership between the D Block licensee and Public Safety Broadband Licensee. 243 243 *Second Report and Order* , 22 FCC Rcd at 15475 ¶ 542. 203. *Discussion* . If we auction the D Block without the 700 MHz Public/Private Partnership, we seek comment on whether we should allow geographic partitioning and spectrum disaggregation similar to other 700 MHz commercial bands. f. Other Service and Auction Rules and Conditions 204. *Background* . Aside from the subjects addressed above, the *Second Report and Order* addressed a number of other service and auction related issues regarding the commercial use of the D Block and the rules regarding other 700 MHz band commercial licenses, such as open platform, wholesale, license eligibility, and small business bidding credits. 244 244 *See id.* at 15289. 205. *Discussion* . We seek comment on whether we should revisit and adopt any other rules or conditions for the D Block in the event that we auction it without a mandatory public/private partnership condition. For example, would it serve the public interest to impose any eligibility restrictions, or open platform conditions similar to those imposed on the adjacent C Block? Should the Commission consider imposing a mandatory wholesale obligation? We also seek comment on whether the Commission should apply its spectrum aggregation screen used for wireless transactions to the D Block. We also seek comment on whether any of our Part 1 competitive bidding, designated entity eligibility, and/or other auction rules or procedures would be inappropriate or should be modified for licensing the D Block without the 700 MHz Public/Private Partnership. 2. Alternate Public Safety Broadband Opportunities 206. In the event that we determine not to proceed with the 700 MHz Public/Private Partnership approach requiring a partnership between the D Block licensee and the Public Safety Broadband Licensee, we seek comment broadly on how we may still achieve the public interest goal of ensuring a nationwide, interoperable broadband network is available for the use of public safety, and whether there are further revisions or obligations we should impose on the Public Safety Broadband License to achieve these goals. 207. *Background* . In the *700 MHz Public Safety Ninth NPRM* , 245 we previously considered one option in the absence of a public/private partnership with the D Block auction winner, that would permit the nationwide Public Safety Broadband Licensee to provide unconditionally preemptible access to the public safety broadband spectrum to commercial service providers, on a secondary basis, through spectrum leases or in the form of public/private partnerships established by contract with the Public Safety Broadband Licensee. In this respect, the Public Safety Broadband Licensee would enter into arrangements with one or more commercial service providers for accessing or sharing their communications systems infrastructure in order to create the nationwide, interoperable, broadband public safety communications network. This could be accomplished, for example, through the use of a request for proposal
(RFP)process by which commercial partners would be solicited to provide access to their network infrastructure. The Public Safety Broadband Licensee would then select one or more entities to provide access to or build out all or a portion of the network, and/or provide certain services to the public safety community on the public safety broadband spectrum, in exchange for secondary, preemptible access to the Public Safety Broadband Licensee spectrum. 245 *See* Implementing a Nationwide, Broadband, Interoperable Public Safety Network in the 700 MHz Band, Development of Operational, Technical and Spectrum Requirements for Meeting Federal, State and Local Public Safety Communications Requirements Through the Year 2010, PS Docket No. 06-229, WT Docket No. 96-86, *Ninth Notice of Proposed Rulemaking* , 21 FCC Rcd 14837
(2006)( *700 MHz Public Safety Ninth NPRM* ). 208. *Discussion* . We seek comment on this option as an alternative to the particular public/private partnership model that we earlier endorsed as our preferred approach in the *Second Report and Order.* This option would preserve the concepts of a unified broadband standard and nationwide level of interoperability, as managed by the Public Safety Broadband Licensee on behalf of the public safety community. We recognize, however, that such a proposal might not be ideal given that there would be no guarantee of securing a commercial partner(s) that could provide the network infrastructure, including features beneficial to the public safety community. Further, the Public Safety Broadband Licensee may be limited in the service providers with which it could partner in order to ensure deployment of a unified broadband technology with a nationwide level of interoperability, and take advantage of economies of scale in terms of handsets and network equipment. Accordingly, we seek comment on whether we should adopt this approach should the D Block fail to attract a successful bidder. What alternatives or variations on this approach may be more appropriate? Are there other sources or mechanisms of funding that could be used to build out or support a nationwide, interoperable broadband network for public safety? Will the 10 megahertz of public safety spectrum allocated for broadband be sufficient to support a nationwide, interoperable broadband network for public safety? 209. If we do adopt an approach whereby the Public Safety Broadband Licensee could enter into multiple contracts with commercial providers, would it be necessary for the Commission to establish certain baseline performance requirements, including those for broadband system architecture, interoperability, build-out of national coverage, unconditional preemption of commercial use, and disaster restoration capability? If the Commission establishes such requirements, what should they be? Alternatively, should we require or allow any or all of these issues to be addressed by the Public Safety Broadband Licensee rather than the Commission? What limits, if any, should be placed on the Public Safety Broadband Licensee's ability to enter into leasing arrangements with commercial entities? What Commission oversight should be retained with respect to the Public Safety Broadband Licensee's activities under these circumstances? Is there additional review that the Commission should undertake with respect to approval of the leasing arrangements, or other reporting with respect to the Public Safety Broadband Licensee's activities that should be required? 210. We note that many of these considerations were initially raised in the *700 MHz Public Safety Ninth NPRM* , and we thus incorporate by reference the questions posed in that document, and seek further comment here in light of the revisions to the 700 MHz band and the possible additional changes contemplated in this Second FNPRM. Are there other issues raised by the * 700 MHz Public Safety Ninth NPRM * or associated comments that we should consider here? 211. Another alternative may be to permit build-out on a regional, state, or local basis of the broadband spectrum. This could be done either through a spectrum lease with the nationwide Public Safety Broadband Licensee, or by rescinding the nationwide license and allowing regional, state, or local licensing of this spectrum. We seek comment on both approaches. In either instance, we continue to believe parameters must still be established that would ensure that systems operating on this spectrum would be interoperable with one another on a nationwide basis. Accordingly, we seek comment on the role of the Public Safety Broadband Licensee in establishing such standards, and if we adopt a local licensing scheme, whether we should retain a national body such as the Public Safety Broadband Licensee to manage the use of this spectrum by establishing baseline performance requirements, determining a common broadband standard, and/or serving in a frequency coordinator or planning role. 212. Finally, we seek comment on whether, in the absence of a public/private partnership, we should continue to obligate the D Block auction winner to fund the relocation of those public safety narrowband systems operating in the lower portion of the public safety spectrum. As noted in the Second Report and Order, it would be to the benefit of the D Block auction winner to ensure that narrowband operations adjacent to the D Block under the former band plan be relocated to the upper portion of the public safety 700 MHz band and thus minimize interference concerns. As another option, should we grandfather existing operations until such time as relocation funding is secure, and require the Public Safety Broadband Licensee to include relocation funding in its RFP process? What alternative sources of funding may be available to facilitate this transition? IV. Procedural Matters A. Initial Regulatory Flexibility Analysis 213. Section 213 of the Consolidated Appropriations Act 2000 provides that the Regulatory Flexibility Act (RFA), 5 U.S.C. § 603, shall not apply to the rules and competitive bidding procedures for frequencies in the 746-806 MHz Band, 246 which includes the frequencies of both the D Block license and the 700 MHz public safety broadband and narrowband spectrum. Accordingly, we have not prepared an Initial Regulatory Flexibility Analysis in connection with the Second FNPRM. 246 In particular, this exemption extends to the requirements imposed by Chapter 6 of Title 5, United States Code, Section 3 of the Small Business Act (15 U.S.C. 632) and Sections 3507 and 3512 of Title 44, United States Code. Consolidated Appropriations Act 2000, Pub. L. No. 106-113, 113 Stat. 2502, Appendix E, Sec. 213(a)(4)(A)-(B); *see* 145 Cong. Rec. H12493-94 (Nov. 17, 1999); 47 U.S.C.A. 337 note at Sec. 213(a)(4)(A)-(B). B. Initial Paperwork Reduction Act Analysis of 1995 Analysis 214. This document contains proposed new or modified information collection requirements. We note, however, that Section 213 of the Consolidated Appropriations Act 2000 provides that rules governing frequencies in the 746-806 MHz Band, which encompass the spectrum associated with both the D Block license and the 700 MHz public safety broadband and narrowband spectrum, become effective immediately upon publication in the **Federal Register** without regard to certain sections of the Paperwork Reduction Act. 247 We are therefore not inviting comment pursuant to the Paperwork Reduction Act on any information collections proposed in this document. 247 *Id.* C. Other Procedural Matters 1. Ex Parte Presentations 215. The rulemaking shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's *ex parte* rules. 248 Persons making oral *ex parte* presentations are reminded that memoranda summarizing the presentations must contain summaries of the substance of the presentations and not merely a listing of the subjects discussed. More than a one or two sentence description of the views and arguments presented generally is required. 249 Other requirements pertaining to oral and written presentations are set forth in Section 1.1206(b) of the Commission's rules. 250 248 47 CFR 1.200 *et. seq.* 249 *See* 47 CFR 1.1206(b)(2). 250 47 CFR 1.1206(b). 2. Comment Filing Procedures 216. Pursuant to Sections 1.415 and 1.419 of the Commission's rules, 251 interested parties may file comments on or before June 20, 2008 and reply to comments July 7, 2008. All filings related to this Second FNPRM should refer to WT Docket No. 06-150, PS Docket No. 06-229, and WT Docket No. 96-86. 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. 252 251 47 CFR 1.415, 1.419. 252 *See* Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998). • Electronic Filers: Comments may be filed electronically using the Internet by accessing the ECFS: *http://www.fcc.gov/cgb/ecfs/* or the Federal eRulemaking Portal: *http://www.regulations.gov* . Filers should follow the instructions provided on the Web site for submitting comments. • ECFS filers must transmit one electronic copy of the comments for WT Docket No. 06-150, PS Docket No. 06-229, and WT Docket No. 96-86. In completing the transmittal screen, filers should include their full name, U.S. Postal Service mailing address, and WT Docket No. 06-150, WT Docket No. 06-169, and WT Docket No. 96-86. Parties may also submit an electronic comment by Internet e-mail. To get filing instructions, filers should send an e-mail to *ecfs@fcc.gov* and include the following words in the body of the message, “get form.” A sample form and directions will be sent in response. • Paper Filers: Parties who choose to file by paper must file an original and four copies of each filing. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail (although we continue to experience delays in receiving U.S. Postal Service mail). All filings must be addressed to the Commission's Secretary, Marlene H. Dortch, Office of the Secretary, Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554. • The Commission's contractor will receive hand-delivered or messenger-delivered paper filings for the Commission's Secretary at 236 Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of before entering the building. • Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743. • U.S. Postal Service first-class, Express, and Priority mail should be addressed to 445 12th Street, SW., Washington, DC 20554. 217. Parties should send a copy of their filings to: Neşe Guendelsberger, Wireless Telecommunications Bureau, 445 12th Street, SW., Washington, D.C. 20554, or by e-mail to *nese.guendelsberger@fcc.gov* ; and Jeff Cohen, Public Safety and Homeland Security Bureau, 445 12th Street, SW., Washington, DC 20554, or by e-mail to *jeff.cohen@fcc.gov* . Parties shall also serve one copy with the Commission's copy contractor, Best Copy and Printing, Inc. (BCPI), Portals II, Room CY-B402, 445 12th Street, SW., Washington, DC 20554,
(202)488-5300, or via e-mail to *fcc@bcpiweb.com* . 218. Documents in WT Docket No. 06-150, PS Docket No. 06-229, and WT Docket No. 96-86 will be available for public inspection and copying during business hours at the FCC Reference Information Center, Portals II, Room CY-A257, 445 12th Street, SW., Washington, DC 20554. The documents may also be purchased from BCPI, telephone
(202)488-5300, facsimile
(202)488-5563, TTY
(202)488-5562, e-mail *fcc@bcpiweb.com* . 3. Accessible Formats 219. To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an e-mail to *FCC504@fcc.gov* or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (TTY). Contact the FCC to request reasonable accommodations for filing comments (accessible format documents, sign language interpreters, CARTS, etc.) by e-mail: *FCC504@fcc.gov* ; phone: 202-418-0530 (voice), 202-418-0432 (TTY). V. Ordering Clauses 220. Accordingly, *it is ordered* pursuant to sections 1, 2, 4(i), 5(c), 7, 10, 201, 202, 208, 214, 301, 302, 303, 307, 308, 309, 310, 311, 314, 316, 319, 324, 332, 333, 336, 337, 614, 615, and 710 of the Communications Act of 1934, as amended, 47 U.S.C. §§ 151, 152, 154(i), 155(c), 157, 160, 201, 202, 208, 214, 301, 302, 303, 307, 308, 309, 310, 311, 314, 316, 319, 324, 332, 333, 336, and 337, that this *second FNPRM of proposed rulemaking* in WT Docket No. 06-150, WT Docket No. 96-86 and PS Docket No. 06-229 *is adopted* . The *second FNPRM of proposed rulemaking* shall become effective upon publication in the **Federal Register** . 221. *It is further ordered* that pursuant to applicable procedures set forth in Sections 1.415 and 1.419 of the Commission's Rules, 47 CFR 1.415, 1.419, interested parties may file comments on the second FNPRM of proposed rulemaking on or before June 20, 2008 and reply to comments on or before July 7, 2008. 222. *It is further ordered* that the Commission *shall send* a copy of this second FNPRM of proposed rulemaking in a report to be sent to Congress and the General Accounting Office pursuant to the Congressional Review Act, 5 U.S.C. 801(a)(1)(A). Federal Communications Commission. Marlene H. Dortch, Secretary. Appendix—Possible Technical Framework for a 700 MHz Public/Private Partnership Shared Wireless Broadband Network I. Overview This appendix serves as a possible framework for establishing the technical requirements for the 700 MHz public/private partnership shared wireless broadband network (SWBN). It is intended to solicit detailed comment and result in a final set of technical requirements that will provide greater certainty for bidders for the D Block license while ensuring that the network meets public safety's needs. This appendix is not intended to prejudge any of the issues identified for comment in the accompanying Second Further Notice. Further, we recognize that certain aspects of the public/private partnership, if adopted, may be impacted by determinations made through the questions posed in the Second Further Notice, and that to some extent the technical considerations here are dependent on one another. Each of the technical requirements discussed in the Second Further Notice is covered below. In many cases we have included more specific technical specifications or obligations in order to solicit more meaningful comment. We ask commenters to recommend any specifications they believe should be modified, deleted, added or retained. The final requirements will take into account the comments filed in response to the Second Further Notice, as well as this appendix. II. Specifications for Public/Private System Architecture Sections 27.1305(a) and 90.1405(a) state that the network must be “[designed] for operation over a broadband technology platform that provides mobile voice, video, and data capability that is seamlessly interoperable across public safety local and state agencies, jurisdictions, and geographic areas, and which includes current and evolving state-of-the-art technologies reasonably made available in the commercial marketplace with features beneficial to the public safety community.” The architecture of the SWBN likely would consist of two general elements:
(a)a Radio Access Network
(RAN)and
(b)a Core Broadband Network (CBN). Both the RAN and CBN would be expected to be packet switched networks using Internet Protocol (IP). An overall view of a generic functional architecture for the SWBN is shown in Figure 1. The SWBN depicted has the following characteristics: 1. The broadband IP network would be based on advanced next generation mobile network standards and commercial technologies, with performance characteristics supporting voice, data, and multimedia applications. 253 253 Examples of such standards and technologies are the 802.16e IEEE standard, coupled with the WiMAX Mobile profile developed by the WiMAX Forum, and the Long Term Evolution
(LTE)proposal advanced by the 3GPP. 2. The SWBN would support end to end multiple quality of service classes associated with public safety. 3. During normal operating conditions, the RAN would support assured access for public safety users over commercial users to a limit of 50% of engineered capacity. 254 254 In other words, public safety would ensured to have primary access to the 10 megahertz allocated for public safety broadband operations. Further, commenters should consider the potential that advanced next generation technology may be employed to combine the public safety broadband spectrum with the D Block spectrum and then randomly allocate the spectrum to users in incremental amounts. Accordingly, with such technology this requirement could be characterized as ensuring that public safety has assured access to 50 percent of the engineered RAN capacity. 4. The RAN would support emergency priority access for public safety users over commercial users. 5. Commercial service capabilities deployed by the D Block licensee (e.g. voice calling, Internet access, etc.) would be available to public safety users at a quality of service
(QoS)level as identified by the Public Safety Broadband Licensee (“PSBL”) as part of its responsibilities to administer access to the SWBN and interact with individual public safety entities. 6. The CBN would support interconnection with public safety regional and local networks. This interconnection would facilitate interoperability with existing public safety networks operating in other frequency bands. It can be accomplished through a standard or proprietary interface at an appropriate point or points in an existing public safety communications system. Consideration should be given to implement this interconnection in a way that will not have a detrimental impact on the wireless broadband network. It is noted that IP broadband networks are already being used in some areas to facilitate such interoperability. 7. The D Block licensee would provide the PSBL with sufficient real-time information and network transparency to: a. Ensure that the service obligations of the D Block licensee to the PSBL are fully met. b. Provide reports on public safety network usage, user patterns, etc. c. Forecast future service needs. d. Administer access by end users. e. Assemble data for assessing usage fees. f. Activate a service alert declaring an emergency condition exists for purposes of enabling priority access in excess of the 10 megahertz of public safety broadband spectrum. EP21MY08.011 BILLING CODE 6712-01-C III. Reliability, Robustness and Hardening Sections 27.1305(c) and 90.1405(c) require that the network must incorporate “[s]ufficient robustness to meet the reliability and performance expectations of public safety.” This requirement could be met in two ways. First, the Commission could develop reasonable technical specifications based on comments received in this proceeding and incorporate these specifications into the service rules for the D Block. One advantage of this approach would be to provide certainty to public safety users as well as commercial bidders in advance of an auction. Second, the D Block licensee could prepare a draft network reliability plan and submit it to the PSBL. The PSBL would then provide comments to the D Block licensee on the plan within 30 days of receipt. The D Block licensee would incorporate any reasonable requests or suggestions. In developing the network reliability plan, the D Block licensee may employ a variety of techniques to ensure that service is maintained and that service is promptly restored in the event of an outage. These techniques may include the pre-deployment of backup equipment and systems, provisions for rapid deployment of systems such as cells on wheels, flexible system design that provides for rapid reallocation of resources such as boosting power at certain cell sites, etc. Public safety users would remain responsible for the reliability of the equipment that they purchase and use with the network, such as mobile and hand-held radios, video surveillance systems, broadband access devices, etc. Further, such equipment should meet the same standards as those specified by the D Block licensee for commercial equipment that may be connected to the broadband network. The network reliability plan also should include the following features and capabilities: 1. The network should be designed based on industry best practices, specifically, the recommendations of the Network Reliability and Interoperability Council. 255 255 *See* Network Reliability and Interoperability Council Wireless Network Reliability Final Report, September 2005 at *http://www.nric.org/meetings/docs/meeting_20051019/NRICVII_FG3A_FinalReport_September_2005.pdf.* 2. Network outages must be reported to the FCC, consistent with the requirements for commercial wireless systems. 256 Plans should be put in place and implemented to resolve any pattern of repeated outages. 256 *See* 47 CFR 4.1-4.2, 4.3(f), 4.5, 4.7, 4.9(e), 4.11, 4.13. See also New Part 4 of the Commission's Rules Concerning Disruptions to Communications, *Report and Order and Further Notice of Proposed Rulemaking* , ET Docket No. 04-35, 19 FCC Rcd 16830, 16882-16890 ¶¶ 97-114 (2004). 3. Critical network elements, 257 such as CBN facilities, base stations and antenna towers, should be built to withstand harsh weather and natural disasters that are reasonably foreseeable in any geographic area, such as hurricanes, floods, earthquakes, etc. Where appropriate, local building codes may be used as a guide, with an additional margin, as appropriate to ensure a reliable public safety system, taking into account cost and other factors. Switches, gateways, routers, radio and backhaul systems are typically self-redundant. 258 257 By “critical network elements,” we mean to refer to those network elements that would require geographic redundancy and mesh connectivity in case of catastrophic events impacting large or heavily populated areas. 258 Self-redundancy implies having a duplicate active element that will take over the function of the main element in case of the latter's malfunction or failure. 4. Critical sites should have generators available with fuel supplies sufficient to operate for as many as 5 to 7 days. By “critical sites,” we mean those sites that are necessary for maintaining basic system availability and access to the core network. 5. Backup power should be available at least at critical sites sufficient to last as many as 8 hours. 6. Back-haul diversity should be provided at critical sites. 7. Public safety users are encouraged to obtain any additional backup equipment they may need for their own use, such as a reserve supply of mobile units and chargers for use in emergencies. IV. Capacity, Throughput and Quality of Service Capacity Sections 27.1305(d) and 90.1405(d) require that the SWBN incorporate “[s]ufficient capacity to meet the needs of public safety.” One method for complying with these rules is for the D Block licensee to anticipate public safety user needs during emergency and disaster situations, so that public safety applications are not degraded (i.e., increase in blocked calls and/or transmission times or reduced data speeds) during periods of heavy usage. The network capacity, in terms of the amount of traffic that can be carried throughout the system generally, or for each user at any given location, is determined by many variables, including the characteristics of the radio transmission technology, number of cell sites, spectrum reuse, use of efficient technologies such as smart antennas, various factors affecting propagation, core network resources, backhaul availability, etc. Similarly, the users' traffic demand that determines the capacity requirements depends on a great many variables, such as the number of users, the applications that will run on the network and the resources they consume, peak usage times, acceptable blocking rates, etc. In the case of a SWBN, the network capacity available for public safety users will also be affected by the priority that is given to public safety communications and the ease and degree to which public safety users can access the commercial spectrum. We recognize that capacity requirements are not static and we expect them to continue to grow for both commercial and public safety applications. This requirement could be met in two ways. First, the Commission could develop reasonable technical specifications based on comments received in this proceeding and incorporate these specifications into the service rules for the D Block. One advantage of this approach would be to provide certainty to public safety users as well as commercial bidders in advance of an auction. Second, the D Block licensee could prepare a draft plan to meet the capacity requirements of public safety users, based on consultation with the PSBL and based on their experience with commercial broadband network performance. The plan should take into account both national and local public safety requirements. The PSBL would then provide comments to the D Block licensee on the plan within 30 days of receipt. The D Block licensee would incorporate any reasonable requests or suggestions. The D Block licensee should consult on an ongoing basis with the PSBL to address any shortcomings related to network capacity and to plan continued evolution of the network to meet growing needs. To assist with this endeavor, the PSBL should provide a rolling 12-month usage forecast on a quarterly basis. The network should incorporate a mechanism for adequate resource management so as to allow for continued improvements over time and best mitigate any detrimental impact on public safety operations. Throughput With regard to throughput, the SWBN should meet the following minimal specifications: 1. Data rates should be consistent with state-of-the-art commercial wireless systems, such as WiMAX Mobile, LTE, or other equivalent or advanced technologies. 2. Public safety applications should be provided sufficient resources to perform at least as well as similar applications on the commercial network (i.e., voice, video, Internet access). 3. Blocking rates should be no greater than 2% or other mutually agreeable criteria. 259 259 The term blocking is meant to include instances in which a public safety user's request for service cannot be fulfilled with the defined QoS associated with that specific service. Quality of Service With regard to quality of service, Sections 27.1305(f) and 90.1405(f) require the SWBN to incorporate a “mechanism to automatically prioritize public safety communications over commercial uses on a real-time basis consistent with the requirements of [Sections 27.1307 and 90.1407(c)].” There are certain priorities at the air interface that relate to the ability of a user to access and connect to the network. Such priority, “access priority,” is to be distinguished from traffic priority that arises after the connection admission. The notion of QoS is applied after the connection is established. Concerning access priority, public safety users will have priority access to the 10 megahertz of public safety broadband spectrum (or, put another way, as discussed above, half of the engineered capacity of the total spectrum (2 x 10 MHz)) at all the times, and to a portion of the engineered capacity on the D Block in the event of emergency priority access. An example of such a scheme is the current Wireless Priority Service (WPS). 260 260 *See http://www.fcc.gov/pshs/emergency/wps.html.* As it relates to traffic priority and QoS, the following can be considered as specific requirements of the SWBN: 1. The networks should provide sufficient capacity, and augment capacity as needed, in order to meet the QoS requirements for public safety applications. 2. The SWBN is anticipated to provide a number of QoS classes and performance objectives such as those defined in ITU-T Y.1541 or those defined in the advanced next generation technology standards (e.g., LTE and WiMAX Mobile). The network should support QoS classes for real time applications as well as low delay data transfer applications for public safety users, comparable to those in ITU-Y.1541. 3. Using QoS mechanisms as defined by the relevant standards (i.e. linked to the selected technology), public safety traffic should have higher priority of transmission and delivery over the commercial traffic consistent with the access priority circumstances discussed above. While the QoS classes and performance objectives are standard, the implementation of the priority schemes in achieving the QoS classes is vendor-specific. We anticipate different methods of traffic management by vendors (such as connection admission control, queuing management, congestion control, etc.) to achieve the desired QoS and priority requirements for public safety usage. It is possible that at times of network congestion, commercial traffic will be denied access to network resources, or be dropped in favor of public safety traffic, again consistent with the access priority circumstances discussed above. 4. Using QoS mechanisms as defined by standards, various public safety applications should have different levels of QoS, depending on the type of application. For instance, command-level applications may require QoS settings with relatively higher priority. V. Security and Encryption Sections 27.1305(e) and 90.1405(e) require the SWBN to incorporate “[s]ecurity and encryption consistent with state-of-the-art technologies.” Accordingly, the system should include the following capabilities: 1. The SWBN should implement controls to ensure that public safety priority and secure network access is limited to authorized public safety users and devices, using an open standard protocol for authentication. 2. The SWBN should allow for public safety network authentication, authorization, automatic logoff, transmission secrecy and integrity, and audit control capabilities as well as other unique attributes that may be mutually agreeable. 3. The SWBN technical and operational parameters should accommodate public safety administrative safeguards and controls for security management, oversight, incident management, and privacy that may be defined in the final negotiations. VI. Coverage Sections 27.1305(b) and 90.1405(b) require the SWBN to incorporate “[s]ufficient signal coverage to ensure reliable operation throughout the service area consistent with typical public safety communications systems.” The Second Further Notice invites comment on the coverage requirements for the SWBN. Coverage may be defined in terms of the signal levels that will be available at all locations based on accepted predictive methods (i.e., 90% availability, 90% of the time) and taking into account appropriate factors to meet in-building coverage needs. VII. Operational Capabilities—Network Services and Applications Sections 27.1305(g) and 90.1405(g) require the SWBN to incorporate “[o]perational capabilities consistent with features and requirements that are typical of current and evolving state-of-the-art public safety systems.” At a minimum, these capabilities should include seamless interoperability for fixed as well as mobile voice, video, and data communications on the SWBN across local, state, tribal, and Federal public safety users. To be more specific, the SWBN should support the reliable exchange of text, voice, secure voice, data, video, photographs, and detailed graphical information such as maps, drawings, engineering plans, fingerprints, graphical files, etc. The SWBN should support and be compatible with standards used by public safety. For example, these may include the standards and practices established by the National Information Exchange Model (NIEM). NIEM is a partnership of the U.S. Department of Justice and the Department of Homeland Security (DHS). Its purpose is to develop, disseminate and support enterprise-wide information exchange standards and processes that enable jurisdictions to effectively share critical information in emergency situations, as well as support the day-to-day operations of agencies throughout the nation. 261 261 *See http://www.niem.gov/* . “NIEM enables information sharing, focusing on information exchanged among organizations as part of their current or intended business practices. The NIEM exchange development methodology results in a common semantic understanding among participating organizations and data formatted in a semantically consistent manner. NIEM will standardize content (actual data exchange standards), provide tools, and managed processes.” In addition, DHS created the National Incident Management System
(NIMS)to establish a framework for organizations to work together to prepare for, protect against, respond to, and recover from the entire spectrum of all-hazard events. 262 Other standards organizations that are important in the development of the transmission and information exchange standards that the network may employ include the Organization for the Advancement of Structured Information Standards (OASIS) 263 EDXL standards, and the Global Justice XML (GJXML) data model. 264 262 *See http://www.fema.gov/emergency/nims/standards.shtm.* DHS created the National Incident Management System as required under Homeland Security Presidential Directive (HSPD)-5. NIMS is a framework that provides guidelines and principles to first responders in an effort to achieve a single nationwide system for managing incidents. 263 *See http://www.oasis-open.org/who/* . 264 *See http://www.ncsconline.org/WC/CourTopics/ResourceGuide.asp?topic=GJXDM* . Users of the network should have access to the full range and suites of evolving commercial voice, data, and video services and applications as well. The Table below from the Public Safety Spectrum Trust Bidder Information Document
(BID)Version 2.0 reflects example applications and services that may be supported. Actual data rates should exceed the minimum for acceptable quality of service measures and key performance indicators shown but also should be consistent with the performance indicators listed separately in this document. However, it may not be necessary to specify data rates or performance criteria for each individual application. EP21MY08.012 VIII. Operational Control and Use of the Network Sections 27.1305(h) and 90.1405(h) require the SWBH to incorporate “[o]perational control of the network by the [PSBL] to the extent necessary to ensure that public safety requirements are met.” The D Block licensee should provide control capabilities or a level of network transparency sufficient to permit the PSBL to exercise its role in general administration of access to the SWBN by individual public safety entities. These functions should include: 1. Real time or near real time messages detailing material violations of the technical requirements contained in the Commission's rules or the NSA, including the scale and scope of the violation. The timeframes, format and the scenarios in which this information is required should be addressed in the NSA. The PBSL should be notified immediately of any situations that impede vital public safety communications, with details to be made available as soon as practicable. 2. The ability of the PSBL to host services subject to negotiation requiring elements of IP multimedia subsystem
(IMS)or Service Architecture Evolution. 3. Capabilities permitting the PSBL and/or authorized public safety entities the ability to set up and manage user/user group/application profiles, authenticate users and devices and provision services. 4. Over the air framework to allow the management of end user devices, either singly or in groups, permitting such functions as over the air programming of devices and the clearing of data and disabling of devices. 5. Notification to the PSBL of system downtime (or any work that may affect service or system performance over any given geographic area) due to planned maintenance, configuration changes, or upgrades. The PSBL should provide the D Block licensee with advance notice to address planned public safety events. Procedural Matters Ex Parte Rules-Permit-But-Disclose Proceeding This proceeding shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's ex parte rules. Persons making oral ex parte presentations are reminded that memoranda summarizing the presentations must contain summaries of the substance of the presentations and not merely a listing of the subjects discussed. More than a one-or two sentence description of the views and arguments presented is generally required. Other rules pertaining to oral and written presentations are set forth in § 1.1206(b) of the Commission's rules as well. Comment Dates 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:
(1)The Commission's Electronic Comment Filing System (ECFS),
(2)the Federal Government's eRulemaking Portal, or
(3)by filing paper copies. See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998). • Electronic Filers: Comments may be filed electronically using the Internet by accessing the ECFS: *http://www.fcc.gov/cgb/ecfs/* or the Federal eRulemaking Portal: *http://www.regulations.gov* . Filers should follow the instructions provided on the Web site for submitting comments. • For ECFS filers, if multiple docket for rulemaking numbers appear in the caption of this proceeding, filers must transmit one electronic copy of the comments for each docket or rulemaking number referenced in the caption. In completing the transmittal screen, filers should include their full name, U.S. Postal Service mailing address, and the applicable docket or rulemaking number. Parties may also submit an electronic comment by Internet e-mail. To get filing instructions, filers should send an e-mail to *ecfs@fcc.gov* , and include the following words in the body of the message, “get form.” A sample form and directions will be sent in response. • Paper Filers: Parties who choose to file by paper must file an original and four copies of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail (although the Commission continues to experience delays in receiving U.S. Postal Service mail). All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission. • The Commission's contractor will receive hand-delivered or messenger delivered paper filings for the Commission's Secretary at 236 Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of before entering the building. • Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743. • U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street, SW., Washington, DC 20554. Comments and reply comments and any other filed documents in this matter may be obtained from Best Copy and Printing, Inc., in person at 445 12th Street, SW., Room CY-B402, Washington, DC 20554, via telephone at
(202)488-5300, via facsimile at
(202)488-5563, or via e-mail at *FCC@BCPIWEB.COM* . The pleadings will be also available for public inspection and copying during regular business hours in the FCC Reference Information Center, Room CY-A257, 445 12th Street, SW., Washington, DC 20554, and through the Commission's Electronic Filing System
(ECFS)accessible on the Commission's Web site, *http://www.fcc.gov/cgb/ecfs* . People with Disabilities: To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an e-mail to *fcc504@fcc.gov* or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty). Commenters who file information that they believe should be withheld from public inspection may request confidential treatment pursuant to § 0.459 of the Commission's rules. Commenters should file both their original comments for which they request confidentiality and redacted comments, along with their request for confidential treatment. Commenters should not file proprietary information electronically. Even if the Commission grants confidential treatment, information that does not fall within a specific exemption pursuant to the Freedom of Information Act
(FOIA)must be publicly disclosed pursuant to an appropriate request. See 47 CFR 0.461; 5 U.S.C. 552. We note that the Commission may grant requests for confidential treatment either conditionally or unconditionally. As such, we note that the Commission has the discretion to release information on public interest grounds that does fall within the scope of a FOIA exemption. [FR Doc. E8-11247 Filed 5-20-08; 8:45 am] BILLING CODE 6712-01-P 73 99 Wednesday, May 21, 2008 Proposed Rules Part III Department of Transportation Federal Aviation Administration 14 CFR Part 93 Congestion Management Rule for John F. Kennedy International Airport and Newark Liberty International Airport; Proposed Rule DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 93 [Docket No. FAA-2008-0517; Notice No. 08-05] RIN 2120-AJ28 Congestion Management Rule for John F. Kennedy International Airport and Newark Liberty International Airport AGENCY: Federal Aviation Administration (FAA). ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: The FAA proposes to establish procedures to address congestion in the New York City area by assigning slots at John F. Kennedy
(JFK)and Newark Liberty (Newark) International Airports in a way that allows carriers to respond to market forces to drive efficient airline behavior. This proposal is a companion to a separate rulemaking initiative addressing congestion mitigation at New York's LaGuardia airport. Today's proposal is similar to what we have proposed for LaGuardia airport, but it takes into consideration the characteristics of both JFK and Newark, including the large number of international flights at these airports and our international obligations. The FAA proposes to extend the caps on the operations at the two airports, assign to existing operators the majority of slots at the airports, and create a market by annually auctioning off a limited number of slots in each of the first five years of this rule. The FAA is proposing two alternatives. Under the first alternative, the assignment of slots at JFK and Newark would be conducted through a uniform mechanism. The FAA would auction off a portion of the slots and would use the proceeds to mitigate congestion and delay in the New York City area. Under the second alternative, the same auction procedure would apply at Newark as under the first alternative but at JFK the auction proceeds would go to the carrier holding the slot rather than to the FAA. For both alternatives, this proposal also contains provisions for minimum usage, capping unscheduled operations, and withdrawal for operational need. The FAA proposes to sunset the rule in ten years. DATES: Send your comments on or before July 21, 2008. ADDRESSES: You may send comments identified by Docket Number FAA-2008-0517 using any of the following methods: • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov* and follow the online instructions for sending your comments electronically. • *Mail:* Send comments to Docket Operations, M-30; U.S. Department of Transportation, 1200 New Jersey Avenue, SE., Room W12-140, West Building Ground Floor, Washington, DC 20590-0001. • *Hand Delivery or Courier:* Bring comments to Docket Operations in Room W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. • *Fax:* Fax comments to Docket Operations at 202-493-2251. For more information on the rulemaking process, see the SUPPLEMENTARY INFORMATION section of this document. *Privacy:* We will post all comments we receive, without change, to *http://www.regulations.gov* , including any personal information you provide. Using the search function of our docket Web site, anyone can find and read the electronic form of all comments received into any of our dockets, including the name of the individual sending the comment (or signing the comment for an association, business, labor union, etc.). You may review the Department of Transportation's complete Privacy Act Statement in the **Federal Register** published on April 11, 2000 (65 FR 19477-78) or you may visit *http://DocketsInfo.dot.gov.* *Docket:* To read background documents or comments received, go to *http://www.regulations.gov* at any time and follow the online instructions for accessing the docket. Or, go to Docket Operations in Room W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: For technical questions regarding this rulemaking, contact: Molly W. Smith, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591; telephone
(202)267-3275; e-mail *molly.w.smith@faa.gov.* For legal questions concerning this rulemaking, contact: Rebecca MacPherson, FAA Office of the Chief Counsel, 800 Independence Ave., SW., Washington, DC 20591; telephone
(202)267-3073; e-mail *rebecca.macpherson@faa.gov.* SUPPLEMENTARY INFORMATION: Later in this preamble, under the Additional Information section, we discuss how you can comment on this proposal and how we will handle your comments. Included in this discussion is related information about the docket and the handling of proprietary or confidential business information. We also discuss how you can get a copy of this proposal and related rulemaking documents. Authority for This Rulemaking The FAA has broad authority under 49 U.S.C. 40103 to regulate the use of the navigable airspace of the United States. This section authorizes the FAA to develop plans and policy for the use of navigable airspace and to assign the use that the FAA deems necessary for its safe and efficient utilization. It further directs the FAA to prescribe air traffic rules and regulations governing the efficient utilization of the navigable airspace. I. Background A. History of Congestion Management Initiatives at JFK JFK has historically been a constrained airport. From 1969 through 2006, the FAA managed congestion there during the five hours of peak transatlantic demand—3 p.m. through 7:59 p.m., Eastern Time under the High Density Rule (HDR). 14 CFR part 93 subparts K and S. In 1994, Congress began to relax the HDR by authorizing the Secretary of Transportation, upon making a public interest finding, to grant exemptions from the HDR to enable new entrant carriers 1 to provide air transportation at certain slot-controlled airports, including JFK. 49 U.S.C. 41714. In 1999, pursuant to this authority, the Department issued an order that authorized new flight operations at JFK by granting 75 slot exemptions to JetBlue Airways (JetBlue), a new entrant carrier, to be phased in over a five-year period. 2 The order stated that JetBlue would operate the majority of its flights outside the five HDR slot-controlled hours. 1 The term “new entrant carrier” was defined as “an air carrier that does not hold a slot at the airport concerned and has never sold or given up a slot at that airport after December 16, 1985, and a limited incumbent carrier.” 49 U.S.C. 41714(h)(3). 2 *Application of New Air Corporation for Exemption from 14 CFR part 93, Subparts K and S of 49 U.S.C. 41714(c),* Order 99-9-11 (September 16, 1999). In 2000, the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR-21), Public Law No. 106-181, ended the application of the HDR at JFK, effective January 1, 2007. 49 U.S.C. 41715(a)(2). 3 AIR-21 also directed the Secretary to grant exemptions from the HDR's flight restrictions for operations by new entrant carriers or for flights serving Small-Hub and Non-Hub airports as long as the aircraft used had less than 71 seats. Additionally, it preserved the FAA's authority to impose flight restrictions by stating that “[n]othing in this section * * * shall be construed * * * as affecting the Federal Aviation Administration's authority for safety and the movement of air traffic.” 49 U.S.C. 41715(b). 3 The phase-out also included LaGuardia, as of January 1, 2007. 49 U.S.C. 41715(a)(2). The HDR at Chicago O'Hare International Airport was directed to be phased out by July 1, 2002. 49 U.S.C. 41715(a)(1). Until recently, most operations at JFK took place during relatively pronounced arrival and departure banks corresponding to the operating windows of transatlantic flights. Maximum efficiency at JFK has been achieved with the use of either two arrival runways and one departure runway, or two departure runways and one arrival runway. Air traffic controllers have employed that configuration to facilitate the historic transatlantic traffic flows. Since the spring of 2006, U.S. air carriers serving JFK have significantly increased their domestic scheduled operations throughout the day. Most of the increase has come from the two largest operators at the airport, Delta Airlines (Delta) and JetBlue. The new traffic patterns affect the efficient use of JFK's four runways, impeding the use of the three-runway configurations (two arrival/one departure, or one arrival/two departure) for maximum utility of active runways. As a result of the increase in scheduled operations at JFK, the summer 2007 demand exceeded the airport's capacity during many periods of the day. During morning hours, volume-related delays were routine from 7 a.m. through 9 a.m. The afternoon and evening demand exceeded the airport's optimal capacity until about 10 p.m. This prevented the airport from having an evening period to recover from congestion-induced delays. During fiscal year 2007, the average daily operations at JFK increased 21 percent over fiscal year 2006. Corresponding to the increased operations, on-time performance and other delay metrics have declined year over year. The on-time performance at JFK, which is defined as the arrival at the gate within 15 minutes of the scheduled time, declined from 68.5 percent in fiscal year 2006 to 62.19 percent in fiscal year 2007. On-time arrivals during the peak travel months of June, July and August declined from 63.37 percent in 2006 to 58.89 percent in 2007, while on-time departures declined from 67.49 percent to 59.89 percent. For the entire fiscal year, the average daily arrival delays exceeding one hour increased by 87 percent over fiscal year 2006 levels. Taxi out delays, which measure the time that aircraft wait prior to departing the runway, increased by 15 percent. Taxi out delays in the evening departure periods frequently exceeded an hour in duration. The increased congestion and associated delays at JFK impact other airports in the region and the National Airspace System (NAS). The airspace redesign for the New York/New Jersey/Philadelphia metropolitan area, approved in 2007, documents the costs and far-reaching impacts of delays that originate from this area. The delays that cascade from this area throughout the NAS are costly and far-reaching, as detailed in the recently approved airspace redesign plan for the New York/New Jersey/Philadelphia metropolitan area. 4 The FAA has taken steps to implement airspace redesign, which will provide efficiency and congestion relief by, among other things, opening additional arrival and departure routes in the New York area. Further, the FAA, working with stakeholders, is implementing short-term initiatives to improve the efficiency of airport operations and air traffic control, particularly during severe weather. Additionally, the FAA has increased the use of a second departure runway at JFK when conditions permit. However, none of these initiatives will offer an immediate or complete solution. 4 See: *http://www.faa.gov/airports_airtraffic/air_traffic/nas_redesign/regional_guidance/eastern_reg/nynjphl_redesign/.* On September 24, 2007, the FAA re-designated JFK as a Level 2 Schedules Facilitated Airport 5 for the summer 2008 scheduling season in accordance with the International Air Transport Association Worldwide Scheduling Guidelines (IATA WSG). 72 FR 54317. Under the WSG, carriers must inform the coordinator of projected operations at a Level 2 airport for the next scheduling season. When submitting the required information, the airlines expressed their intent to add new flights at JFK during peak and off-peak hours for summer 2008. 5 An airport, where demand is approaching capacity and a more formal level of cooperation is required to avoid the circumstances of over-capacity, is designated an IATA Level 2 Schedules Facilitated Airport. At a Level 2-designated airport, a schedules facilitator seeks the cooperation and voluntary agreement of airlines serving the airport to avoid congestion. Also in September 2007, the Administrator determined that JFK was a severely congested airport and that a scheduling reduction meeting, under 49 U.S.C. 41722, was necessary to discuss flight reductions with U.S. air carriers to reduce over-scheduling and flight delays at JFK during peak operating hours. On October 12, 2007, the Secretary of Transportation determined that a scheduling reduction meeting was necessary to meet a serious transportation need or to achieve an important public benefit. On October 22, the FAA opened a docket for information on the establishment of flight reduction targets at JFK during peak hours. 72 FR 59579. In order to address increases in demand by foreign air carriers, the FAA determined that a Level 3 Coordinated Airport declaration was warranted on October 25, 2007. 6 72 FR 60710. 6 Where demand for an airport exceeds capacity, voluntary cooperation is unlikely to resolve the problem, and short term capacity enhancements are not available, the airport is designated an IATA Level 3 Coordinated Airport. In order to address increases in demand by domestic carriers, the FAA convened the scheduling reduction meeting with U.S. carrier participants on October 23-24, 2007. Subsequent in-person and telephonic meetings took place as well. At the sessions, American Airlines, Delta and JetBlue, which together account for three-quarters of the total operations at JFK, withdrew the schedule increases each had proposed for summer 2008 during the airport's 3 p.m. to 7:59 p.m. peak hours. They also adjusted the timing of operations during those hours and others to smooth out peaks. Other airlines also agreed to retime peak operations. The FAA offered capacity during other hours to carriers who re-timed operations or added additional flights. As a result of the agreements reached at that meeting and other discussions held with carriers regarding their projected summer 2008 schedules, the FAA issued a temporary Order limiting scheduled operations at JFK, effective 6 a.m., Eastern Time, March 30, 2008, through 11:59 p.m., Eastern Time, October 24, 2009, to U.S. and foreign air carriers serving the airport and generally capping scheduled operations at 81 per hour. 73 FR 3519 (Jan. 18, 2008), as amended 73 FR 8737 (Feb. 14, 2008). This Order temporarily responds to the carriers' desire to regularly schedule flights above the airport's capacity during peak operating hours, relieves the substantial inconvenience to the traveling public caused by excessive congestion-related flight delays at the airport (which rippled through the NAS), reduces the average length of delays, and provides for a more efficient use of airspace. B. History of Congestion Management at Newark Newark was once subject to the HDR although the FAA suspended the application of the rule at Newark due to sufficient airport capacity to meet demand. 35 FR 16591 (Oct. 24, 1970). Over the past several years, however, Newark has grown to be one of the most delay-prone airports in the country. Current and anticipated demand during peak hours approaches or exceeds the average runway capacity, resulting in volume-related delays. These delays are aggravated by weather or other adverse operating conditions. Comparing FY 2007 to FY 2000, average daily operations at the airport decreased about 3 percent (from 1,253 to 1,219) but performance nevertheless suffered. The percent of on-time gate arrivals decreased from 70.66 percent to 61.71 percent; arrival delays greater than one hour increased from 54 to 93 per day on average. In 2007, for example, Newark's on-time arrival performance was 61.8 percent, the second worst among the top 35 airports. Based on “the airport's performance metrics and imbalance between air traffic control
(ATC)capacity and demand that is expected to continue in the near term,” the FAA designated Newark a Level 2 IATA Schedules Facilitated Airport for the summer 2008 scheduling season. 7 The FAA explained that “increased levels of air traffic operations, congestion and delay at [both JFK and Newark] airports and a tangible decrease in operational performance” warranted this designation. 8 The FAA found the morning hours of 7 a.m. to 10 a.m. and the afternoon and evening hours of 2 p.m. to 10 p.m. were particularly constrained, but that capacity otherwise was available for retiming of flights or new operations. 7 72 FR 54317 (Sept. 24, 2007). 8 *Id.* The FAA modeled the proposed summer 2008 schedule requests against Newark's average runway capacity, and delay projections for the summer of 2008 indicated a potential increase of almost 50 percent. The FAA also discussed carriers' future schedule plans at Newark and asked carriers to consider scheduling flights at times where there was available capacity. It was clear that some carriers intended to proceed with their plans to begin operations according to their proposed schedules during the busiest hours, regardless of the potential impact on delay. Based on the requested schedules for Newark and anticipated additional demand for Newark due to the operating limits underway at JFK, the FAA determined that the anticipated summer 2008 demand would overtax Newark's capacity, warranting a Level 3 Coordinated Airport designation. 72 FR 73418 (Dec. 27, 2007). After the designation, a series of discussions with the FAA led some carriers, including the hub carrier, Continental, to move some of their historic flights from the most oversubscribed hours. The movement of these flights tended to smooth the scheduling peaks and valleys at Newark. The information provided by the carrier for the summer 2008 scheduling season reflected a projected increase in flight schedules during the summer of 2008, especially during the peak hours. U.S. and foreign carriers had planned about 100 new operations per day at Newark, many during the afternoon and early evening hours for the summer of 2008. 9 That number of new flights, along with proposed retiming of historic flights into busier time periods, would have caused massive delays, because they would have exceeded the airport's optimal rate of handling flights over multiple, consecutive hours. For several consecutive hours, the number of hourly arrivals and departures would have reached the upper 80s to the mid-90s. These operations would have significantly exceeded the airport's average capacity of 83 total operations over the 12-month period ending August 2007. These additional flights would have caused a spike in congestion and delays at Newark and would also have had an adverse effect on other airports in the New York region and on the NAS. 9 Requests for additional flights or retiming of flights into peak periods were received after the FAA's announced schedule submission deadline of October 11, 2007. These requests were accommodated only if there was available capacity remaining after consideration of historic operations and on-time requests. Consequently, on March 18, 2008, the FAA proposed to place temporary caps on peak hour operations at Newark to mitigate persistent congestion and delays at the airport. 10 73 FR 14552. The cap would limit scheduled operations during constrained hours to an average of 81 per hour. 11 The FAA stated that it identified Newark's average capacity by considering the airport's capacity to be “the higher value of either the aircraft throughput at the airport in a given hour or the number of arrivals and departures that ATC personnel identified as achievable in that hour.” 73 FR 14552, 14554. The measurement reflected “the airport's demonstrated and potential performance over time under actual meteorological and operational conditions.” *Id.* The FAA committed to closely monitoring the gains in efficiency and delay reductions from implementing the airspace redesign and other air traffic control or airport operational changes to ensure that the scheduling limits reflect the available capacity. 10 73 FR 14552 (March 18, 2008). 11 The appendix to the order included a few operations for summer 2008 above the 81 per hour limit. The FAA has adopted its March 18, 2008, proposal to impose a temporary cap on scheduled operations at Newark. The cap takes effect 30 days after publication and expires 11:59 p.m. Eastern Time, October 24, 2009. The cap limits peak hour scheduled operations to an average of 81 per hour, except as provided in the appendix to the Order, and total scheduled and unscheduled operations to an average of 83. As indicated in the proposed order, the FAA intends to use the hours with scheduled operations below the limit of 81 for delay mitigation and would lease new capacity over 81 pursuant to an auction. C. New York Aviation Rulemaking Committee In addition to the regulatory initiatives discussed above, on September 25, 2007, the Acting FAA Administrator established an Aviation Rulemaking Committee
(ARC)to explore various options, including market-based mechanisms, for addressing airspace congestion in the New York area. The ARC was comprised of officials from the FAA and the Office of the Secretary of Transportation (OST), the Port Authority of New York and New Jersey (Port Authority), representatives of carriers and operators serving JFK, Newark, LaGuardia, and Teterboro airports, airport and aviation industry trade associations, and consumer groups. By design, the ARC provided opportunity for extensive input by all stakeholders, having members from major air carriers in the United States and their trade organizations (the Air Transport Association, the Regional Airline Association, the Air Carrier Association of America, the National Air Carrier Association), foreign carriers and their worldwide trade organization (IATA), the Port Authority, and the Airports Council International-North America. Through the ARC process, these stakeholders played a key role in exploring ideas to address congestion and ensuring that any actions contemplated by the Department and the FAA would be fully informed. The ARC worked throughout the fall and submitted a report to the Secretary, dated December 13, 2007, discussing its findings. A copy of the ARC Report may be found at: *http://www.dot.gov/affairs/FinalARCReport.pdf.* II. Discussion of Proposed Rule Today's proposal would replace the Orders imposing operating limitations at JFK and Newark and establish a rule limiting unscheduled operations at those airports. The Orders are scheduled to expire on October 24, 2009. If adopted, the proposed rule would apply to all operations at JFK and Newark between the hours of 6 a.m. and 10:59 p.m., every day. For reasons set out in the Newark and JFK Orders, discussed above, the FAA has determined that capacity is constrained at these airports for this entire period. The following table briefly summarizes today's proposal and identifies differences between the two options. Proposed Regulation for JFK and Newark Feature Newark JFK Option 1 Option 2 Base Schedule Seasonal schedule, as approved by the FAA, for summer 2008 and winter 2008/2009 Seasonal schedule, as approved by the FAA, for summer 2008 and winter 2008/2009 Same as Option 1. Slot Defined as right to land or depart (not both) in a 30-minute time window Defined as right to land or depart (not both) in a 30-minute time window Same as Option 1. Number of Slots 81/hour + 1 to 2 unscheduled 81/hour + 1 to 2 Same as Option 1 Slots definition Common Slots: The Baseline (up to 20 slots per carrier) plus 90% of slots above 20 have 10 year leases; Limited Slots: 10% would have shorter leases and be auctioned over five years (2% each) (after which they convert to Unrestricted Slots) Common Slots: the Baseline (up to 20 slots per carrier) plus 90% of slots above 20 have 10 year leases; Limited Slots: 10% would have shorter leases and be auctioned over five years (2% each) (after which they convert to Unrestricted Slots) Common Slots: The Baseline (up to 20 slots per carrier) plus 80% of slots above 20 would have 10 year leases; Limited Slots 20% would have shorter leases and then be reallocated via auction over five years (4%/yr). Slot Time of Day 6:00 a.m. through 10:59 p.m., everyday; no more than 81 in any one hour or 44 in any half-hour 6:00 a.m. through 11:59 p.m., everyday; no more than 81 in any one hour or 44 in ay half-hour Same as Option 1. Mechanics “Fair” initial distribution with half of slots with less than 10 years life selected by carriers; the other half selected by FAA according to specified rules “Fair” initial distribution with half of slots with less than 10 years life selected by carriers; the other half selected by FAA according to specified rules Same as Option 1. Auction Limited Slots would be auctioned among carriers Limited Slots would be auctioned among carriers Same as Option 1. Auction Proceeds Auction funds to FAA to defray costs of auction, then to NY capacity/projects Auction funds to FAA to defray costs of auction, then to NY capacity/projects Auction funds (net of auction costs) to incumbent holder; incumbent cannot bid on own slots. Use/Lose Only on grandfathered slots as consideration for slots Only on grandfathered slots as consideration for slots As as Option 1. Term Program is through March 2019; slot lives are whatever proportion of 10 years remain upon reallocation Program is through March 2019; slot lives are whatever proportion of 10 years remain upon reallocation As as Option 1. Bidders Airlines Airlines As as Option 1. Holders Holders of record (not marketing carrier) Holders of record (not marketing carrier) As as Option 1. New or returned capacity IATA WSG IATA WSG As as Option 1. Secondary market Transparent not blind: carrier notifies FAA of intent to sublease; FAA makes slot availability known; bilateral negotiations; final terms disclosed to OST for monitoring Transparent not blind: carrier notifies FAA of intent to sublease; FAA makes slot availability known; bilateral negotiations; final terms disclosed to OST for monitoring Same. Logistical swaps of slots Permitted Permitted Same. The rule would apply to carriers at JFK and Newark. A U.S. air carrier conducting operations solely under another carrier's market control with unified inventory control would not be considered a separate carrier, an approach that is consistent with how carriers have been treated historically under the various slot regimes. The same would not be true for foreign air carriers. This difference in treatment reflects the commercial realities of JFK and Newark where there are foreign air carriers that share a common owner but hold out service to the public as separate commercial entities. Treating foreign air carriers with common ownership as separate carriers for purposes of slot allocation is an accepted practice in the international arena. The recent SNPRM on LaGuardia airport, as well as the LaGuardia Order, treats carriers with common ownership as a single carrier. As we have explained, we do not anticipate that airport and airspace system improvements scheduled to come on line during the next year and a half will be sufficient to meet the demand for flights at either JFK or Newark for the foreseeable future. Therefore, if we let the Orders expire according to their terms, we believe carriers will once again schedule flights well in excess of the respective capacities of both JFK and Newark and unscheduled operations would grow during peak hours. Historic experience strongly suggests that congestion and delays during peak operating hours would result, requiring the FAA to step in and address unacceptable operational performance yet again. Rather than taking repeated, piecemeal approaches to limit and manage operations at JFK and Newark on a short-term basis, we believe it is prudent to adopt a longer-term rule dealing with the congestion and delays we expect to persist at those airports. The FAA's preference in addressing congestion resulting from capacity shortfalls is to expand the airport and airway system capacity and to increase the efficient use of existing resources. This is by far the most effective way to serve the traveling public and to promote a strong airport and airway system. Although both the FAA and the Port Authority are working to implement these capacity improvements, this rule would complement those efforts and mitigate projected airport congestion. We propose to treat the three major New York City-area airports similarly by capping operations and introducing market mechanisms to allocate some slots. While we have provided two different versions of the draft regulatory text to present two alternatives for market allocation, Newark would be treated the same under both versions. Accordingly, all discussion of alternative 2 will be limited to JFK. The FAA believes it is necessary to address congestion and delays at LaGuardia, JFK, and Newark in a coordinated manner. Congestion and delays at each of the three airports affect the other two airports as well as the NAS as a whole. The airports are all located relatively close to each other and consistently have been among the nation's most delay-prone airports. Excluding any one of the three major New York-area airports from the imposition of caps would simply shift the problem to the non-slot controlled airport, as it would become very attractive to carriers wanting to start or add service in the New York market. The likely result would be an overburdening of that airport and the system. We propose to award capacity at JFK and Newark through mechanisms that rely, in part, on the market. These mechanisms resemble those in the proposal for LaGuardia Airport, but are modified to reflect the respective characteristics of JFK and Newark. Today's proposal will ensure that the scarce airspace resources are used for operations by the carriers valuing the resources most highly. Additionally, over the course of the ten-year life of the proposed rule, we will monitor the need to maintain the caps and may increase the number of scheduled operations in response to technological, operational, or capacity plans or improvements or to other factors that may warrant such action. We note that both JFK and Newark are already capped under the respective Orders at 81 scheduled operations per hour (except as provided in the Appendices to the Orders). Today's proposal, if adopted, will replace those Orders. The FAA believes the summer of 2007 served as a stark reminder that the demand for access to New York City is exceptional and cannot be managed without these caps at an acceptable level of delay. The NPRM proposes to apply the limits of the recent JFK and Newark Orders, except where the Administrator determines under § 93.163 of subpart N and § 93.183 of subpart O that additional slots can be accommodated. In addition, there would be no more than 44 slots in any 30-minute period at JFK and Newark, or more than 81 in a 60-minute period. We have proposed to specify the 30- and 60-minute limitations in addition to the hourly maximum to avoid excessive bunching of slots, which can cause unnecessary delays. Section 93.163(d) of subpart N and § 93.183 of subpart O sets out the authority of the Administrator to increase the number of slots as airport conditions warrant. No additional rulemaking would be required for any increase. JFK and Newark have similar demand profiles, with an early morning peak that typically clears by mid-morning. Demand approaches capacity in the early afternoon and typically continues until about 10 p.m. Scheduled requests submitted by carriers to the FAA for summer 2008 showed marked increases throughout the day. Modeling and experience demonstrate that delays grow exponentially and have a cascading effect on airport operations and individual flights at the airport. As part of the discussions with the carriers regarding summer 2008 schedules, carriers decided to schedule flights at off-peak hours since the FAA was unwilling to authorize new peak hour flights. Based on demand and the modeling showing the potential for increased delays, the FAA determined that the appropriate hours to limit flights would cover much of the operating day. The FAA proposes that the final rule, if adopted, would terminate at 11 p.m. on March 30, 2019. This approach will allow for future determinations by the FAA as to whether a cap is still needed and, if so, whether changes are needed to more efficiently manage the scarce resource. At present it is impossible to determine what changes in business models may occur over the next ten years. In addition, full implementation of the New York/New Jersey/Philadelphia Metropolitan Area Airspace Redesign project and NextGen technologies are expected to successfully impact delays and air traffic efficiency within the next ten years, and we should not prejudge the market response. The FAA plans to evaluate the effects of the slot program proposed today on the distribution of slots and entry into JFK and Newark. The agency intends to take this experience into account in all congestion management activities. III. Proposal for Efficient Allocation of Capacity at JFK and Newark A. Need for More Efficient Allocation Congress has directed the Department to place “maximum reliance on competitive market forces and on actual and potential competition.” 49 U.S.C. 40101(a)(6). The ability of carriers to initiate or expand service at the airport is hindered, in large part, by the imposition of a cap. Accordingly, the FAA believes it must strike a balance between
(1)promoting competition and permitting access to new entrants and
(2)recognizing historical investments in the airport by carriers and the need to provide continuity. It is not the role of the Government either to dictate particular business models or to constrain a market and provide no means for others to enter that limited market. Simply imposing a cap and then doing nothing to ensure that there are competitive market forces and actual and potential competition is unacceptable. Not only is the FAA required to assure the efficient use of the NAS, but it must do so in a manner that does not penalize all potential operators at the airport by effectively shutting them out of the market. Accordingly, the FAA believes that it is well within the agency's authority in 49 U.S.C. 40103 to provide some mechanism for slot reallocation. Today's proposal attempts to strike the appropriate balance by actively developing a market that values the limited asset that the FAA created. B. Authority To Assign Slots at JFK and Newark The FAA has statutory authority to dispose of property. Because of the congressional mandate in 49 U.S.C. 40101(a)(6) to rely to the maximum extent possible on competitive market forces, the FAA is tailoring its approach at the two airports. Today the agency is requesting comment on an approach whereby the FAA would establish a cap on operations and address, through a regulation, which slots would revert to the FAA for reallocation but would use its transaction authority to allow for reallocation of slots via a market-based mechanism. 1. Authority To Determine the Best Use of the Airspace The United States Government holds exclusive sovereignty over United States airspace. 49 U.S.C. 40103. Citizens of the United States have a public right of transit through navigable airspace, but the FAA is authorized to assign the use of the airspace necessary to ensure the efficient use of airspace. To the extent these needs can be met without specifying which citizen may transit or reserve a particular segment of airspace at a particular time, there was no need for the FAA to place constraints such as slots on the use of the airspace—this remains the case for the vast majority of the NAS. As described above, however, at New York-area airports, in order to ensure the efficient use of airspace, FAA has had to impose constraints by assigning to carriers operational authority to conduct a scheduled arrival or departure operation on a particular day of the week during a specified 30-minute period. These reservations of airspace were called slots under the HDR. After the FAA issued the “buy/sell rule”, 14 CFR part 93, subpart S, these slots were treated not only as property of the United States Government, but also as if the carriers had a property interest, albeit an interest that was heavily encumbered by the restrictions imposed by the FAA. The nature of this property interest, however, has always been somewhat unclear. To encourage the most efficient use of constrained airspace, the FAA is clarifying the proprietary interest that the FAA is willing to transfer to airlines for a limited period of time. However, the FAA has determined that in order to assure the efficient use of airspace, it cannot simply permit those whom it grants authority to use the airspace to treat that authority as their own; it is the United States Government that has sovereignty over, and control of, the airspace. Such an approach would not only ignore the inherently valuable nature of an airspace usage assignment, but allows a select few to profit from a governmental interest to the detriment of their competitors and the public as a whole. 2. Authority To Enter Into Leases and Cooperative Agreements The FAA has authority to lease real and personal property, including intangible property, to others. 49 U.S.C. 106(l)(6) and 106(n). When disposing of an interest in property, however, the FAA must receive adequate compensation. 49 U.S.C. 40110(a)(2). Nevertheless, the FAA also has broad authority to enter into cooperative agreements on such terms and conditions as the FAA may consider appropriate. 49 U.S.C. 106(l)(6). Under the Federal Grants and Cooperative Agreements Act, a cooperative agreement is to be used when the principal purpose of the agreement is to transfer a thing of value to a recipient, either public or private, to carry out a public purpose of support or stimulation authorized by law, instead of acquiring (by purchase, lease or barter) property or services for the direct use or benefit of the agency, and there is substantial Federal involvement in the activity. Because we must balance the need to promote market forces with the value of continuity and certainty of services, the FAA believes this is the appropriate vehicle to use to transfer most of the slots as described in the following options, for a ten-year period, to the carriers that currently have operating authorizations at JFK and Newark. Doing so will recognize these carriers' historical investment in JFK and Newark, and the public interest that has been served by that investment. In addition, it would prevent disruption to the national air transportation system that might otherwise occur, allowing the public to benefit from continued certainty of readily available air transportation to and from these airports. There will, however, be substantial ongoing Federal involvement with these slots, as the FAA will retain ATC responsibilities for assuring that the use of these segments of airspace for their specified times is done safely and with maximum possible efficiency. 12 12 Under the cooperative agreements FAA will be transferring a leasehold interest in the slots, but FAA will not entirely dispose of its property. Receiving compensation from these transfers is antithetical to the definition of a cooperative agreement. Nonetheless, to the degree that adequate compensation might be considered required under 49 U.S.C. 40110(a)(2), the compensation will be the carriers' agreement to be bound by the terms in the cooperative agreement as well as FAA's recognition of the public value received by the carriers' historical investment at JFK and Newark. C. Description of the Proposal 1. Categories of Slots Today's proposal would create three categories of slots: Common Slots, Limited Slots, and Unrestricted Slots. All three categories would be held by carriers pursuant to a lease. While the overwhelming percentage of slots will be Common Slots, many carriers would hold slots in all three categories. Common Slots would be assigned to carriers currently serving the airports, and would be leased for the duration of the rule, *i.e.* , ten years. Once the rule sunsets, all interests would revert to the FAA, assuming the rule is not replaced by a different regulatory regime. Unlike slots allocated under the HDR and Operating Authorizations allocated under the JFK and Newark Orders, carriers would be granted clear property rights to Common Slots, allowing the slots to be collateralized or subleased to another carrier for consideration. However, Common Slots would be subject to reversion to the FAA under the rule's minimum usage provision and could be withdrawn for operational reasons. Leases for Limited Slots would also be assigned by cooperative agreements between the FAA and the carriers, but during each of the first five years of the rule, a percentage of Limited Slots would be made available by auction, at which point they would be converted to Unrestricted Slots. Limited Slots would consist only of those slots operated on a daily, year-round basis. Thus, slots used on a seasonal or on a less-than-daily basis would not be designated as Limited Slots. The FAA arrived at this tentative proposal because we seek to populate the auction pool with those slots that are most economically valuable to carriers seeking to serve New York City. Slots only available on certain days or during one scheduling season would likely have value only to small subsets of operators at any given time, thus limiting the effectiveness of the market. Although slots would be awarded to carriers through the auction for daily, year-round operation, the acquiring carrier may sublet to other carriers any portion of that award. Under alternative 1, as currently proposed, 10 percent of the slots above the baseline operations 13 at both JFK and Newark would be designated as Limited Slots, and thus could become Unrestricted Slots. Under alternative 2, 20 percent of the slots at JFK above the baseline operations would be designated as Limited Slots. 13 “Baseline operations”, as defined in § 93.162 and § 93.182, are up to 20 slots per day. The FAA recognizes that the percentage of slots that the agency proposes to reallocate represents a relatively small percentage of the total number of slots at the two airports, particularly since each carrier's first 20 slots, at each airport, will not be subject to reversion. Accordingly, we specifically invite commenters to address the desirability of assigning different percentages for both JFK and Newark under both alternatives. For example, should we increase the percentages to be auctioned under alternative 1 to 20 percent? Additionally, the FAA seeks comment on whether the proposed percentages are sufficient to ensure the opportunity for new entry and an efficient allocation of slots among all carriers at the airports, such that each slot is allocated to the user who values it the most highly. Increasing the percentage of slots for auction would further facilitate the use of market forces to allocate capacity, which is a major goal of this rulemaking. On the other hand, lowering the number of slots withdrawn for auction would be less disruptive to the carriers currently operating at JFK and Newark, and would allow the agency to gain experience with the auction process. The agency also seeks input on the appropriate percentages of slots available for auction (both in total and annually) sufficient to assure an efficient allocation of this scarce resource. The final rule may provide for the reversion of a higher or lower percentage of slots available for auction than we have proposed under either alternative in this document. Following a review of the comments and further consideration, we may provide in a Final Rule for an auction of a greater percentage of a carrier's Limited Slots. As with Common Slots, Limited Slots could be withdrawn under the proposed minimum usage provision, or for operational reasons. Unrestricted Slots are slots that a carrier would lease directly from the FAA under the auction processes under both alternatives. These slots would not be withdrawn by the FAA either under the minimum usage provisions or for operational reasons because carriers are required to purchase them due to government action. As with Common Slots, Unrestricted Slots would expire when the rule sunsets. 2. Initial Assignment of Capacity Upon the rule's effective date, each carrier at JFK and Newark would automatically be assigned up to 20 slots. Carriers whose approved schedules under the JFK and Newark orders call for fewer than 20 operations would be assigned the same number of slots as they are approved to operate under the respective orders. These slots would constitute carrier's baseline operations. Slots above a carrier's baseline operations would be designated as Common or Limited Slots as described above. The FAA believes this is a rational approach to assuring that no carrier is affected at a level that could seriously disrupt its existing operations at the airports. The number of slots to be designated as Limited Slots would be calculated after subtracting the slots in each carrier's baseline operations of up to 20 slots per day. In other words, if a carrier has 30 slots at JFK or Newark, 20 would be protected at that airport. Under alternative 1, 10 percent of the remainder, or one slot, would become a Limited Slot. Under alternative 2, 20 percent of the remainder, or two slots, would become Limited Slots at JFK. Of course, most carriers hold a number of slots that would not be evenly divisible by applying a 10-or 20-percent rule. In such situations, the FAA would round the number of slots to be designated as Limited Slots up or down to the nearest whole number. As a practical matter, a carrier would have to have at least 25 slots under alternative 1 or 23 slots under alternative 2, before any would be designated as Limited Slots. Given the seasonality of operations at these airports, both in terms of differences between summer and winter operations and within-season variability (which is much greater than at LaGuardia), the determination of which carrier is entitled to which slot will be based on the seasonal schedules approved by the FAA for summer 2008 and winter 2008/2009. The FAA has tentatively decided to assign the majority of slots at the airport to existing carriers in order to minimize disruption and to recognize the carriers' historical investments in both the airport and the community. No later than the final rule's effective date, the FAA will inform all carriers that will have Limited Slots of the number of Limited Slots they will have. The designations as Limited Slots would be made by both carriers and the FAA. Once the total number of Limited Slots is communicated to each carrier, the carrier would designate 50 percent of the total by notifying the FAA within 10 days which of the slots in its slot pool it designates as Limited Slots. During the subsequent 10 days, the FAA would determine the remainder of slots that will be designated as Limited Slots for each carrier. In making this determination, the FAA would initially exclude from consideration slots held during all hours where carriers have collectively determined two or more slots should be Limited Slots. This approach will assure that slots will be available for auction throughout the day. The time windows for the Limited Slots would be distributed evenly over the day to the extent possible. Limited Slots would expire on designated dates and the duration of each Limited Slot would be arranged to ensure that each affected carrier's aggregate lease duration would be approximately equal to that of the other affected carriers. The FAA would publish a list showing the expiration date for each Limited Slot. In this way, all carriers would know within 20 days of the rule's effective date what slots will become available for purchase, and when. A technical report more fully explaining how Limited Slots could be categorized and allocated was prepared for the LaGuardia rulemaking. A copy of that report has been placed in the docket for this rulemaking. Commenters are encouraged to review and comment on that document. 3.Market-Based Award of Capacity For the first five years of the rule, the FAA would conduct an annual auction of Limited Slots. Section 93.165(c) of subpart N and § 93.185 of subpart O provides for the conversion of Limited Slots to Unrestricted Slots. In accordance with the schedule published under § 93.164, one-fifth of the identified Limited Slots would revert to the FAA for auction each year. Both the auction and secondary market would be open to any carrier in order to avoid artificially restricting any carrier's flexibility to acquire Unrestricted Slots for its services, and to offer carriers wishing to initiate or expand operations at JFK or Newark the full range of opportunities to acquire slots. Under alternative 1, the FAA is proposing to have 10 percent of the carriers' slots above its baseline operations revert to the FAA over the first five years of the rule. The FAA would auction the reverting Limited Slots, with FAA retaining proceeds of the sale. After recouping its auction costs, the FAA plans to spend the remainder of the proceeds on aviation congestion and delay management initiatives in the New York City area. Alternative 1 would make approximately 19 slots available for auction at JFK and 18 slots available at Newark each year. Carriers typically require pairs of slots, so alternative 1 would provide the equivalent of approximately 9 round trips per day at both airports. Under alternative 1, any carrier could bid on a slot in an auction that is blind to the participants and it would be awarded in the form of an Unrestricted Slot to the highest responsive bidder. The winning carrier could commence operations using the newly acquired slot at the beginning of the next summer scheduling season. Alternative 2 proposes a different auction procedure for JFK that would provide that the holder of a Limited Slot would retain the proceeds of its sale in the auction. The only deduction from the sale price would be for the FAA's costs associated with conducting the auction. Under this alternative, 20 percent of the carriers' slots above the baseline operations at JFK would revert to the FAA over the first five years of the rule. Therefore, approximately 179 slots would be available at JFK, of which approximately 36 slots would be available for auction each year. Carriers typically require pairs of slots, so alternative 2 as proposed would provide the equivalent of 18 round trips per day at JFK. Under alternative 2, Unrestricted Slots would be awarded to the highest responsive bidders in a blind auction. Only cash could be bid for a slot. Since the goal of this rulemaking is to impose marketplace discipline on the use of slots, the FAA has proposed certain restrictions in alternative 2 to reduce anticompetitive behavior. For example, carriers may not set minimum bids for the slots, so they cannot impose a price so prohibitively high as to effectively preclude any sales. For similar reasons, carriers would not be permitted to bid on their own slots; otherwise, knowing that no actual payment would be made, they could bid unrealistic amounts that no competitor could match. With unrealistic bids, the fair market value of the slot would not be identified. Although the prohibition against a carrier bidding on its own slots would mean that the carrier would no longer have that slot, any carrier could negotiate for subleases or transfers from other carriers in the secondary market or bid on other slots concurrently up for auction and held by other carriers. 14 14 The FAA will attempt to auction an even number of slots during each hour to provide an opportunity for a carrier to replace a slot that it is auctioning. This may not always be possible. The FAA believes that the above procedures could not be applied at Newark, because the current market profile there would diminish the likelihood that the auction would bring the beneficial effects of market forces that this proposal seeks to stimulate. At JFK (and at LaGuardia), no one carrier provides the vast majority of slots that would be up for auction, and any carrier that values a slot at a particular time could have the opportunity to bid on an equivalent slot that is held by another carrier. At Newark, however, Continental would have approximately 174 of its slots up for auction if 20 percent of its slots reverted to the FAA, but would be unable to bid on those slots or on an equivalent number of slots because only 19 slots would be available from any other carrier. Under this circumstance, the prices paid for slots at Newark may not be reflective of their actual value, with no meaningful slot market developing. Among the specific questions on which we request comment is whether under alternative 2, 20 percent of a carrier's slots above its baseline at Newark should revert to the FAA for auction, even though the reallocation mechanism would be the same as under the first alternative. The agency also requests comment on whether alternative 2, in its entirety, should be adopted at Newark. The FAA considered using a transparent auction procedure for both alternatives 1 and 2. The FAA believes that such transparency with respect to identity of the bidders and their corresponding bids would encourage gaming of the auction and significantly reduce the economic value of the initial auction of slots. The FAA also believes that an auction where the identity of the bidders is not known assists new entrants seeking to enter the market. Therefore, under Alternative 1, the identity of bidders would not be known to other bidders. Since the FAA will accept the highest responsive bid, regardless of who that bidder is, there is no need to keep bidders' identities from the agency. Under Alternative 2, the identity of bidders would be known only to the auctioneer, and then only for administrative purposes. The FAA does not propose to auction slots after the first five years because it believes that ideally slots should transfer from one carrier to another through the secondary market. Not only will the auctions help create a market for slots, but all carriers will be able to assess the true market value of a slot. Armed with information on how much a given slot is likely to be worth on the open market, carriers (and their shareholders) will be in an even better position to determine how best to use their slots based on commercial considerations. In the unlikely event no bids were received for a slot, we propose that the FAA retire the slot until the next auction to assist in delay mitigation. We request comment on whether, in the alternative, the carrier that previously held the slot should retain the slot for use until the next season. 4. New and Returned Capacity As mentioned above, the FAA may raise the caps at JFK or Newark based on an analysis of delay statistics, aircraft operations at the respective airports, airport and airspace improvements, and other pertinent factors. The agency believes there is unlikely to be much, if any, returned capacity because carriers can sublease slots that they do not utilize efficiently rather than surrender them to the FAA because of inadequate usage. It is impossible at this time to estimate with any certainty how much new capacity is likely to come online; but it is unlikely there will be much new capacity in the near-term. Over a longer period of time, the realization of new capacity is dependent upon NextGen technologies. The efficiencies realized from the New York/New Jersey/Philadelphia Metropolitan Area Airspace Redesign project will benefit delay reduction and will not be used to add new capacity at the airports. The auction method proposed for LaGuardia, whereby all new and returned capacity would be auctioned, maximizes the total number of slots available for auction and would, in turn, increase the efficiencies that the proposal is intended to generate. However, the FAA believes the character of operations at JFK and Newark justifies a different approach. At both airports, a substantial percentage of air traffic is international. Historically, the FAA has used the IATA Worldwide Scheduling Guidelines
(WSG)to allocate slots for international operations at slot constrained airports to the extent they did not conflict with the rules imposing caps at the affected airports. The use of the WSG to assign new slots could affect carriers' scheduling incentives and reduce the efficiency of the market for existing slots. However, given the amount of new capacity that is likely to be available during the rule's timeframe, this effect is likely to be small. Given the significant international presence at both airports, the FAA proposes to follow procedures for assigning newly available or returned slots that are largely derived from the WSG. A new entrant would be defined as a carrier holding or operating eight slots or fewer, assigned by the FAA, during the constrained hours. The FAA understands that in order to maintain viable operations at JFK or Newark, a carrier would need four to six slots for domestic operations, and at least two slots for an international operation. The five slots contemplated under the WSG provide little opportunity for a new entrant carrier to establish its operations before losing new entrant status and thereafter being able to expand in the New York market only through the purchase of a lease. Setting a limit of eight slots administratively assigned by the FAA as the cut-off for new entrant status allows a carrier to maintain its operations and provides some ability to grow without jeopardizing the carrier's access to slots through the WSG. The agency is proposing that carriers lose their new entrant status if, at any point during the duration of the proposed rule, the FAA assigns a total of more than eight Common or Limited Slots on a particular day. Thus, if a carrier were awarded six Common Slots on a given day of the week, it could only be eligible for assignment of two more slots for that day through the WSG before losing its new entrant status, even if it subsequently subleased some of those Common Slots to another carrier, giving it less than eight total slots. However, the same carrier could be assigned six Common Slots, acquire any number of additional slots through the secondary market, and still be eligible to receive two additional slots under the WSG as a new entrant. This provision is intended to prevent carriers from continuing to gain an advantage as a new entrant by transferring holdings for which they have provided no monetary consideration. On the other hand, since only those slots administratively assigned by the FAA, and not those awarded by auction or through a lease with another carrier, would be considered in determining new entrant status, carriers with eight or fewer of these slots will not be discouraged from entering into lease agreements with other carriers, contributing to the development of a robust secondary market. A carrier's new entrant status would not be affected by one-for-one trades, which the agency believes are necessary for operational efficiency, which do not result in either a gain or reduction in operations, and for which no consideration may be given. The FAA seeks comment on whether carriers should be allowed to retain their new entrant status if they have subleased or otherwise transferred slots originally allocated to them by the FAA. After allowing for retimings and accommodating requests by new entrants, the FAA would evaluate the efficiency of the requested assignment in determining which carriers should receive the slot. We would consider the effective period of operation, the extent and regularity of the proposed usage, and the carrier's schedule constraints. Using a WSG-based approach would facilitate the continued smooth integration of JFK and Newark into the international slot allocation system. Based on discussions during the ARC, we believe that the WSG approach is well-understood and is an internationally-recognized system of allocation at airports. We recognize that this method of allocation differs from the method proposed for new and returned capacity in the companion proposal at LaGuardia. We also recognize that several commenters to the LaGuardia NPRM argued that any administrative allocation of capacity could dilute the viability of the secondary market. Accordingly, the FAA may adopt an allocation method that allocates new and returned capacity via an auction. This was the approach favored in the LaGuardia SNPRM. Under that approach, the slots would be auctioned as Unrestricted Slots. During the first five years of the rule, this new capacity would be auctioned at the same time as the slots that revert to the FAA under today's proposal. Should insufficient capacity be available to justify the expense of conducting an auction in the last five years of the rule, the FAA would retain the slots until sufficient capacity was available for a meaningful auction. The FAA invites comment as to whether the final rule should specify that new and returned capacity at JFK and Newark be allocated by auction instead of by the WSG-method method described above. D. Auction Procedures The FAA is currently engaged in procuring the services of a contractor to conduct auctions of the proposed Limited Slots. 15 The details regarding the specifics of any potential auction will be disclosed after the contractor has developed and validated an auction process and the FAA is ready to proceed with an auction. 16 15 As indicated in the *Order Limiting Operations at John F. Kennedy International Airport,* 73 FR 3510 (1/18/08) and the *Notice of Proposed Order Limiting Scheduled Operations at Newark Liberty International Airport,* 73 FR 14552 (3/18/08), the FAA intends to auction new or returned capacity, if any, under those orders. The contract would cover auctions at all possible airports. The FAA is not waiting until this rule is finalized to award the contract, because this proposal and the two orders contemplate potentially conducting the first auction before the end of the year. 16 Since the auction will address the lease of slots awarded by the FAA under its leasing authority rather than under any administrative allocation, notice to interested parties will be governed by applicable procurement law rather than the Administrative Procedure Act. In order to ensure that auction participants understand how the auction process works, the FAA anticipates the contractor would have to conduct a training seminar and a mock auction prior to each auction. A single training seminar and mock auction would not suffice since presumably not every carrier will participate in every auction. The auction would also have to be structured to prevent gaming. This would likely be accomplished through the use of activity rules. Finally, the contractor would have to provide and maintain a secure communication mechanism for conducting the auction and develop a website that provides information on the availability of slots and the logistics of the auction. At present, the FAA is contemplating requiring bidding carriers to provide up-front payments as a prerequisite to participating in the auction and requiring full payment for the slots at the time of award. The Federal Communications Commission
(FCC)has experienced problems with bidders who were not financially secure or who were otherwise unwilling or unable to pay for the awards. The upfront payment could also discourage bid-sniping by preventing carriers from adding slots to their bid package beyond the amount of the upfront payment. The FAA recognizes that paying for the entire lease at one time could be expensive; however, it also believes that serious bidders should be able to obtain the requisite financing. E. Secondary Trading All slots will have value in the secondary market. To the extent that the secondary market is not mature and the value of slots is not well-known, the auction should inform potential buyers of the value of these slots and stimulate the secondary market. The FAA believes that ultimately the best way to maximize competition is with the development of a robust secondary market. Through the years, the FAA has received complaints that carriers were unaware of possible opportunities to buy or lease slots at slot-controlled airports and that incumbent carriers were colluding to keep new entrant carriers out of the airport. We believe some measures must be taken to assure access to the secondary market. All carriers interested in initiating operations at JFK and Newark, or increasing their operations there, should have an opportunity to participate in any transactions. Accordingly, the FAA proposes to
(1)permit carriers to include Common Slots for sale in the auction, organized by the FAA, and
(2)establish a “secondary-market” bulletin-board system whereby carriers seeking to sublet slots, or to acquire such subleases, would notify the FAA, which would then post the relevant information on its Web site. If a carrier wishes to include some of its slots in the auction, these slots will be treated in the same manner as other slots being auctioned by the FAA. However, the carrier would be able to specify a minimum price for these slots so that it need not give up the slots unless they command a price that the carrier is willing to accept. The FAA has tentatively decided that transactions via the bulletin-board-system would not have to be blind, and the transaction could include both cash and non-cash payments. While it may be argued that transparency among parties to the transaction encourages anti-competitive behavior, the FAA believes that a blind, cash-only requirement could be unduly restrictive. In particular, the FAA believes that non-cash bids promote competition by enlarging the pool of potential bidders. Thus, non-cash transactions should result in both more bidders and potentially higher bids. However, it is critical that the identities of parties be known if non-cash assets are permitted because that is the only way to value those assets. In addition, the non-cash aspect of the transaction would require direct negotiating. The FAA believes that these concerns could be met in a blind secondary market. For example, the agency could adopt a hybrid scheme whereby the initial offer and acceptance would be blind and limited to a cash offer, but the parties could negotiate non-cash assets after the offer had been accepted. Such an approach may be workable. During the posting of the lease and subsequent bidding for the slots, the parties' identities would not be known. Once the auction closed, the FAA would forward the highest bid to the sublessor without any bidder identification. The sublessor would have a set number of business days to accept the bid. At that point, the parties' identities would be revealed, and they would have a set period of time to negotiate the possibility of non-cash assets in lieu of money as consideration for the lease. If the parties were unable to come to an agreement, the lease would have to proceed on a cash basis. The FAA seeks comment on this and other viable alternatives. The FAA recognizes that non-blind transactions could facilitate, and even encourage, collusion. The Department has the authority under 49 U.S.C. 41712 to investigate, prohibit, and impose penalties on an air carrier for an unfair or deceptive practice or an unfair method of competition in air transportation or the sale of air transportation. The Department has consistently held that this authority empowers it to prohibit anticompetitive conduct
(1)that violates the antitrust laws,
(2)that is not yet serious enough to violate the antitrust laws but may do so in the future, or
(3)that, although not a violation of the letter of the antitrust laws, is close to a violation or contrary to their spirit. 17 17 See *United Airlines, Inc.* v. *Civil Aeronautics Board,* 766 F. 2d 1107, 1112, 1114 (7th Cir. 1985) and cases cited therein; see also H.R. Rep. No. 98-793, 98th Cong., 2d Sess.
(1984)at 4-5, Order 2002-9-2, *Complaint of the American Society of Travel Agents, Inc., and Joseph Galloway against United Air Lines, Inc, et al.* (Docket No. OST-99-6410) and *Complaint of The American Society of Travel Agents, Inc., and Hillside Travel, Inc. against Delta Air Lines, et al.* (Docket No. OST-02-12004) (September 4, 2002) at 22-23. In order to assure that the Department can conduct adequate oversight, today's proposal would require carriers to file with the Department a detailed breakdown of all lease terms and asset transfers for each transaction, and the subletting carrier would have to disclose all bids submitted in response to its solicitation. The slot could not be operated by the acquiring carrier until all documentation has been received, and the FAA has approved the transfer. The FAA has considered whether to publicly disclose non-confidential business information so that all carriers have an assessment of the relative value of the slots that are being traded. We have not included language to this effect in the proposed regulatory text. However, we seek comment on whether it would be helpful for this type of information to be disclosed. Under proposed § 93.168 and § 93.188, trades among U.S. air carriers with unified marketing control (marketing carriers) would not have to be advertised, because they are considered a single carrier for the purpose of this rule and these trades do not have the characteristics of a normal arm's-length transaction. Since foreign air carriers are considered separate carriers, they would not be able to take advantage of this provision. As it has done historically, the FAA would approve these transactions after it has received written evidence from each carrier that it consents to the transfer. The receiving carrier could not use the slot until the FAA has provided written approval of the transfer. Same day transactions among marketing carriers that address emergency situations, such as maintenance problems, adverse weather, or other unforeseen operational issues, could take place without prior approval by the FAA, but carriers would have to notify the FAA of the trade within five business days. One-for-one trades between any two carriers would similarly not be subject to the restrictions of the secondary market. Such trades enhance the operational efficiency of the airport. However, the proposed rule would not allow consideration other than slots to be offered. When monetary or other compensation is involved in a slot transfer, the transaction would have to be handled as a sublease under § 93.168 of subpart N and § 93.188 of subpart O. As with subleases and trades between marketing carriers, the slot could not be used by the new carrier until the FAA provides written confirmation of the transfer. IV. Unscheduled Operations The FAA intends to limit unscheduled operations into and out of JFK and Newark during the constrained hours. Unscheduled operations at Newark would be limited to two per hour between 6 a.m. and 11:59 a.m. and between 10 p.m. and 10:59 p.m. and one per hour between 12 noon and 9:59 p.m. At JFK, there would be two unscheduled operations permitted per hour between 6 a.m. and 1:59 p.m. and between 10 p.m. and 10:59 p.m. and one per hour between 2 p.m. and 9:59 p.m. Under today's proposal, reservations would be required to use the airport (except for emergency operations) and could be obtained up to 72 hours in advance. To the extent ATC can handle additional requests (for example, in good weather) it will do so without regard to the reason for the request. However, there is no guarantee that the FAA would accept more than the specified number of reservations per hour, and the determination to handle more traffic would likely be made on that day. Reservations for all non-emergency flights would still be required and would be assigned by the FAA's e-CVRS system. Additional information of procedures for obtaining reservations will be available on the Internet at *http://fly.faa.gov/ecvrs.* The FAA proposes to allow Public Charter operators to reserve an allowable operation up to six months in advance. Since the reservation pool consists of operations planned well in advance and last-minute operations, the number of reservations made available to public charter flights up to six months in advance would be limited to no more than one in any hour and no more than 25 percent of the total reservations from 12 noon to 9:59 p.m. local time. A Public Charter operator without the advance reservation could attempt to secure a reservation within the three-day window that is available for all other unscheduled operations. A carrier could also elect to use one of its assigned slots or obtain a slot from another carrier in the secondary market. V. Other Issues A. 30-Minute Windows Consistent with the existing JFK and Newark Orders, we propose to assign slots at JFK and Newark in 30-minute windows. The FAA cautions, however, that peaking within the 30-minute windows could lead to increased congestion. The FAA will continue to monitor operations and will address any significant operational issues through discussions with carriers. B. Use-or-Lose Consistent with the approach taken in the JFK and Newark Orders, which is based on the WSG, the FAA is proposing a use-or-lose requirement for JFK and Newark that takes into consideration the seasonal nature of international, as well as some domestic, operations at those airports. Carriers would be expected to operate their Common Slots and Limited Slots in accordance with approved schedules at least 80 percent of the time. However, proposed § 93.170 of subpart N and § 93.190 of subpart O would consider the summer and winter schedules separately. Carriers would be allocated slots on the days and for the time periods set out in their summer 2008 and winter 2008/2009 schedules approved by the FAA. The carriers will be subject to the use-or-lose requirement only for those slot times that are allocated to them. Unrestricted Slots would not be subject to usage requirements. The proposed rule would allow for limited waivers of the minimum usage requirements in the event that the carrier experiences an unusual and unpredictable condition that prevents it from using the slot for at least five consecutive days. If weather conditions prevented operations, for example, an operator might be granted a waiver of the use-or-lose provisions. To enable carriers to make necessary operational adjustments, the usage requirements will not apply for the first 90 days after a carrier receives a slot under a sublease. However, a transfer between carriers under § 93.168(f) of subpart N and § 93.188(f) of subpart O of this part, in which one carrier holds marketing and inventory control of the flights operated by another carrier, is not a sublease for the purpose of this section. Therefore, there would be no 90-day waiver of the minimum use requirements following a transfer between them. Likewise, there would be no waiver for slots acquired via the WSG because carriers would have ample time after the slots were allocated to take the steps necessary to initiate the new operations. C. Usage Reporting Requirements The minimum usage requirement for JFK and Newark would be calculated on a seasonal basis. Therefore, we are proposing to require carriers to file reports with the FAA for each scheduling season. In accordance with § 93.172 of subpart N and § 93.192 of subpart O, carriers would report the usage of Common and Limited Slots. An interim report would be due no later than September 1 for the summer scheduling season and no later than February 1 for the winter scheduling season. Carriers would also be required to file final usage reports within 30 days of the last day of the applicable scheduling season. D. Administrative Provisions The FAA may withdraw or suspend slots at JFK or Newark for operational reasons pursuant to § 93.167 of subpart N and § 93.187 of subpart O. The FAA would assign a withdrawal priority number to each Common and Limited Slot by a random lottery. If a reduction in operations becomes necessary, slots would be withdrawn starting with the highest number. The Common or Limited Slot with the lowest assigned numbers would be the last to be withdrawn. The FAA would provide at least 45 days' notice of its intention to withdraw or temporarily suspend a slot, unless the operational circumstances necessitate a shorter notice period. Given that a number of operators will have only a limited number of slots at JFK and Newark, we are requesting comment on whether the FAA should establish a level of slots that would not be subject to withdrawal or temporary suspension to fulfill operational needs to avoid the possibility of marginalizing or excluding such operators from the airport. VI. Regulatory Notices and Analyses Changes to Federal regulations must undergo several economic analyses. First, Executive Order 12866 directs that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (19 U.S.C. 4 2531-2533) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. In developing U.S. standards, the Trade Act requires agencies to consider international standards and, where appropriate, to be the basis of U.S. standards. Fourth, the Unfunded Mandate Reform Act of 1995 (Pub. L. 104-4) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more annually (adjusted for inflation). In conducting these analyses, FAA has determined this final rule
(1)has benefits that justify its costs, is a “significant regulatory action” as defined in § 3(f) of Executive Order 12866, which is also known as an “economically significant regulation action,” and is “significant” as defined in DOT's Regulatory Policies and Procedures;
(2)would not have a significant economic impact on a substantial number of small entities;
(3)would not adversely affect international trade; and
(4)would not impose an unfunded mandate on State, local, or tribal governments, or on the private sector. These analyses, set forth in this document, are summarized below. Total Costs and Benefits of This Rulemaking Through implementation of an auction, FAA estimates that this proposed rule would result in a long-term improvement in the allocation of scarce slot resources at JFK and Newark. The estimated present value of net benefits of improved slot allocation by auctions is between $256 million and $267 million at JFK and between $207 million and 218 million at Newark from 2009 to 2019. The costs of the rule, with a present value between $11 and $22 million each at JFK and Newark, are due to the design, implementation and participation in an auction of slots. These costs assume that the full cost of setting up the auction mechanism and participating in the auctions are individually borne at each airport; in fact, if auctions are conducted at more than one airport in the New York area, the costs of the setting up and participating in the auctions could be shared among the users of the airports and would be lower on a per airport basis. This regulatory impact analysis assumes as a baseline that in the absence of this rulemaking, the FAA would not otherwise impose long-term caps on aircraft operations at JFK and Newark. Therefore, the FAA estimates that, through the long-term implementation of a cap on aircraft operations, this proposed rule would result in about a 25 percent reduction in the average delay per operation at JFK relative to a situation with no cap. After allowing for the lost consumer and producer surplus due to a reduction in air service caused by the caps, the net value of the savings in average delay attributable to the cap generates a present value net benefit of about $686 million from 2009 to 2019. At Newark, this proposed rule would result in about a 23 percent reduction in the average delay per operation at Newark relative to a situation with no cap, generating a present value net benefit (after deducting lost producer and consumer surplus from reductions in air service) of about $705 million from 2009-2019. 18 The benefits are estimated by comparing the no-rule scenario (similar to the situation at JFK and Newark in August 2007) with the proposed cap. 18 Estimates based on a 7 percent discount rate. All results reported in this analysis are cost-beneficial at a 7 percent discount rate; using a 3 percent rate would make them even more so, with a present value net benefit of about $836 million from 2009-2019 for JFK and $859 million from 2009-2019 for Newark. Who Is Potentially Affected by This Rulemaking • Operators of scheduled and non-scheduled, domestic and international flights, and new entrants who do not yet operate at JFK and Newark. • All communities with air service to JFK and Newark. • Passengers of scheduled flights to JFK and Newark. • The Port Authority of New York and New Jersey, which operates the airport. Key Assumptions • *Base Case:* No operating authorizations or caps. • Cap on operations provides delay improvement. • *Alternative 1:* 100 percent of slots held by a carrier with fewer than 21 slots at either JFK or Newark would be reassigned to the carrier with 10 years of life; for holders with 21 or more slots at either airport, 100 percent of the first 20 slots at each airport would reassigned to the carrier with leases of 10 years and 90 percent of slots above the 20 slot base for the carrier would be reassigned to the carrier with leases of 10 years. Ten percent of slots above the 20 slot base would be designated as Limited Slots and would be auctioned: one-fifth immediately upon the implementation of the rule. 19 The remaining four-fifths of the Limited Slots would be assigned to the carrier which held them previously, but with leases of 1 to 4 years of life. The FAA would auction the Limited Slots to the highest bidder in annual auctions beginning in January 2009 and ending in January 2013. FAA would use the net revenues of the annual auctions to invest in capacity in the New York area. 19 The slots auctioned in January 2009 under both alternatives would become available beginning in the summer season of 2009. Until that time, the air carrier that formerly held the Limited Slot could continue to use it. • *Alternative 2:* For JFK, 100 percent of slots held by carriers with fewer than 21 slots at JFK would be reassigned to the carrier with leases of 10 years; for holders with 21 or more slots, 100 percent of the first 20 slots would be reassigned to the carrier with leases of 10 years and 80 percent of slots above the 20 slot base for the carrier would be reassigned to the carrier with leases of 10 years. Twenty percent of slots above the 20 slot base would be designated as Limited Slots and would be auctioned: one-fifth immediately upon the implementation of the rule. The remaining four-fifths of the Limited Slots would be assigned to the carrier which held them previously, but with leases of 1 to 4 years of life. The FAA would auction the Limited Slots to the highest bidder in annual auctions beginning in January 2009 and ending in January 2013. Carriers at JFK could not bid on slots they formerly held but would retain the net revenues generated by the sale of the former leases. As Newark would be treated the same under either approach, the key assumptions for Newark are the same as under Alternative 1. • For the purposes of this evaluation, the effective date is 12/01/08. Other Important Assumptions • *Discount Rate* —3 and 7 percent in real (net of inflation) terms. • *Period of Analysis:* 2009 to 2019. • Assumes 2008 constant year
(real)dollars. • Passenger Value of Travel Time—$28.60 per hour at JFK and Newark. 20 20 GRA, Incorporated “Economic Values for FAA Investment and Regulatory Decisions, A Guide,” prepared for FAA Office of Aviation Policy and Plans, (October 3, 2007). Passenger value of time is for “all purposes,” reflecting a mix of business and leisure travel. Alternatives We Have Considered • *No Action:* This alternative would let the current orders restricting operations at JFK and Newark expire on October 24, 2009 without replacing the limitations. The FAA expects that, without caps, air carriers would expand flight operations at these two airports to levels equal to or exceeding those experienced in the summer of 2007, causing increasingly severe delays at these airports and throughout the National Airspace System (NAS). • *Caps:* This alternative would permanently impose caps at 81 scheduled operations per hour each at JFK and Newark, plus up to two unscheduled operations per hour at each airport, every day from 6 a.m. to 10:59 p.m.; it would grandfather current holders of operating authorizations to operate at the airports. • *Alternative 1:* This alternative would institute caps at both JFK and Newark as described above and reallocate 10 percent of eligible capacity via five annual auctions beginning in January 2009. The FAA would retain the net proceeds of the auctions for use on congestion and delay management initiatives in the New York City area. • *Alternative 2:* This alternative would institute caps at JFK as above and reallocate 20 percent of eligible slots at JFK, via five annual auctions beginning in January 2009. The carrier holding a slot to be reallocated would not be able to bid on its own slots, but would retain the net auction proceeds. Under alternative 2, the regime of Newark would be the same as in alternative 1. We are requesting comment from industry on the range of alternatives considered. Benefits of This Rulemaking The primary benefits of this rulemaking would be due to the delay reduction from the caps on operations and an improvement in the efficiency of allocation of scarce slot resources through the use of an auction mechanism and secondary slot subleasing markets characterized by clearly defined property rights. Costs of This Rulemaking The major costs of this proposed rule are the costs to the public and private sectors of designing, implementing and participating in the auction. Additionally, the implementation of caps under this rulemaking will lead to a reduction in flights into JFK and Newark compared to what would occur without the caps. The FAA has estimated the value of these scheduled flight reductions and has deducted them from the delay benefits of the caps at each airport to calculate overall net benefits of the caps. FAA specifically requests comment on the impacts from the reduction in scheduled flights. Paperwork Reduction Act This proposal contains the following new information collection requirements. As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), the FAA has submitted the information requirements associated with this proposal to the Office of Management and Budget for its review. Some of the information requirements in today's notice are similar to those originally proposed in the SNPRM “Congestion Management Rule for LaGuardia Airport” (Docket No. FAA-2006-25707; Notice No. 08-04). The FAA has applied these requirements and summarized them below. *Title:* Congestion Management Rule for John F. Kennedy International Airport and Newark Liberty International Airport. *Summary:* The FAA proposes to grandfather the majority of operations at JFK and Newark and develop a secondary market by annually auctioning off a limited number of slots at each airport. This proposal also contains provisions for use-or-lose and withdrawal for operational need. The FAA proposes to sunset the rule in ten years. More information on the proposed requirements is detailed elsewhere in today's notice. *Use of:* The information is reported to the FAA by scheduled operators holding slots at JFK and Newark. The FAA logs, verifies, and processes the requests made by the operators. This information is used to allocate, track usage, withdraw, and confirm transfers of slots among the operators and facilitates the transfer of slots in the secondary market. The FAA also uses this information in order to maintain an accurate accounting of operations to ensure compliance with the operations permitted under the rule and those actually conducted at the airports. *Respondents:* The respondents to the proposed information requirements in today's notice are scheduled carriers with existing service at JFK and Newark, carriers that plan to enter the JFK and Newark markets (by auction or secondary market), and carriers that enter the JFK and Newark market in the future. There are currently seventy-seven
(77)carriers with existing scheduled service at JFK and thirty-nine
(39)carriers with existing scheduled service at Newark. Various carriers included in these totals have service at both airports. *Frequency:* The information collection requirements of the rule involve scheduled carriers notifying the FAA of their use of slots. Each carrier must notify the FAA of its:
(1)Designation of 50 percent of its Limited Slots, if applicable;
(2)request for confirmation to sublease slots;
(3)consent to transfer slots under the transferring Carrier's marketing control;
(4)requests for confirmation of one-for-one slot trades;
(5)slot usage (operations); and
(6)request for assignment of slots available on a temporary basis. *Annual Burden Estimate:* The annual reporting burden for each subsection of the rule is presented below. Annual burden estimates presented in today's notice are based on burden estimates from the SNPRM “Congestion Management Rule for LaGuardia Airport” (Docket No. FAA-2006-25709; Notice No. 08-04). The burden is calculated by the following formula: Annual Hourly Burden = (# of respondents) * (time involved) * (frequency of the response). Section 93.164(c)(2) Categories of Slots: A Carrier Shall Designate 50 Percent of Its Limited Slots *JFK* (4 carriers with Limited Slots) * (80 hours per submittal) = 320 hours. Based on the current allocation of Operating Authorizations and the proposed level of baseline operations each carrier would be grandfathered under today's proposal, we assumed the four carriers with the most operations at JFK would expend up to 10 days of planning time each, potentially 80 hours, to develop and submit their designations of 50 percent of their Limited Slots, for a total of 320 hours. This designation would occur once, 10 days after the final rule effective date. *Newark* (1 carrier) * (240 hours per submittal) = 240 hours. (5 carriers) * (80 hours per submittal) = 400 hours. Total Annual Hourly Burden = 640 hours. Based on the projected allocation of Operating Authorizations and the proposed level of baseline operations each carrier would be grandfathered under today's proposal, we assumed that one carrier, Continental Airlines, with the most operations at Newark would expend up to 30 days of planning time, potentially 240 hours, to develop and submit its designation of 50 percent of its Limited Slots. The remaining five carriers required to designate Limited Slots would each expend up to 10 days of planning time, potentially 80 hours each, to develop and submit their designation of 50 percent of their Limited Slots. These five carriers would therefore need 400 hours. In total, the six carriers at Newark required to designate Limited Slots would require 640 hours of effort to make the designation. This designation would occur once, 10 days after the final rule effective date. Section 93.165(c) Initial Assignment of Slots We assumed that the 77 carriers operating at JFK and 39 carriers operating at Newark would expend time submitting and collecting information to participate in the proposed auctions for slot assignments. The FAA is currently in the process of procuring auction software and services. The FAA will make available burden estimates for information requirements relating to auction participation in a separate notice. Section 93.166(b)-(c) Assignment of New or Returned Slots We made no assumptions about additional workload for carriers at either airport associated with the IATA-like administrative process for assigning new or returned slots. Workload would vary depending on how many (if any) new or returned slots were to develop at either airport over the 10 year period of the proposed rule. In any case, carriers are already familiar with and use IATA-like allocation methods and would handle them in the course of normal operations at JFK and Newark. Section 93.168(b), (d),
(f)Sublease and Transfer of Slots *JFK* (18 carriers) * (1.5 hours per submittal) * (4 occurrences per year) = 108 hours. (59 carriers) * (1.5 hours per submittal) * (2 occurrences per year) = 177 hours. Total Annual Hourly Burden = 285 hours. Based on burden estimates from “Congestion Management Rule for LaGuardia Airport,” we assumed the 77 carriers operating at JFK would expend 1 1/2 hours for each occurrence of a lease or transfer of a slot. For each operator with 6 or more slots (18 carriers total), we assumed that a lease or transfer of a slot would occur on average quarterly. For each operator with fewer than 6 slots (59 carriers total), we assumed that a lease or transfer of a slot would occur on average biannually. The total annual hourly burden for all carriers collectively would be 285 hours. *Newark* (1 carrier) * (1.5 hours per submittal) * (16 occurrences per year) = 24 hours. (12 carriers) * (1.5 hours per submittal) * (4 occurrences per year) = 72 hours. (26 carriers) * (1.5 hours per submittal) * (2 occurrences per year) = 78 hours. Total Annual Hourly Burden = 174 hours. As with JFK, we assumed the 39 carriers operating at Newark would expend 1/ 1/2 hours for each occurrence of a lease or transfer of a slot. For the largest operator, we assumed that a lease or transfer of 4 slots would occur on average quarterly. For those operators at Newark with 6 or more slots (12 carriers total, excluding Continental Airlines), we assumed that a lease or transfer of a slot would occur on average quarterly. For each operator with fewer than 6 slots (26 carriers total), we assumed that a lease or transfer of a slot would occur on average biannually. The total annual hourly burden for all carriers collectively would be 174 hours. Section 93.169(b),
(d)One-for-One Trades of Slots *JFK* (18 carriers) * (1.5 hours per submittal) * (4 occurrences per year) = 108 hours. (59 carriers) * (1.5 hours per submittal) * (2 occurrences per year) = 177 hours. Total Annual Hourly Burden = 285 hours. Based on burden estimates from “Congestion Management Rule for LaGuardia Airport,” we assumed the 77 carriers operating at JFK would expend 1 1/2 hours for each occurrence of a one-for-one trade of a slot. For each operator with 6 or more slots (18 carriers total), we assumed that a one-for-one slot trade would occur on average quarterly. For each operator with fewer than 6 slots (59 carriers total), we assumed that a one-for-one slot trade would occur on average biannually. The total annual hourly burden would be 285 hours. *Newark* (1 carrier) * (1.5 hours per submittal) * (16 occurrences per year) = 24 hours. (12 carriers) * (1.5 hours per submittal) * (4 occurrences per year) = 72 hours. (26 carriers) * (1.5 hours per submittal) * (2 occurrences per year) = 78 hours. Total Annual Hourly Burden = 174 hours. As with JFK, we assumed the 39 carriers operating at Newark would expend 1 1/2 hours for each occurrence of a one-for-one trade of a slot. For the largest operator, we assumed that a one-for-one trade of 4 slots would occur on average quarterly. For those operators at Newark with 6 or more slots (12 carriers total, excluding Continental Airlines), we assumed that a one-for-one slot trade would occur on average quarterly. For each operator with fewer than 6 slots (26 carriers total), we assumed that a one-for-one slot trade would occur on average biannually. The total annual hourly burden would be 174 hours. Section 93.171 Unscheduled Operations This section of the proposed rule requires unscheduled and public charter operations at JFK and Newark to be reserved using the Airport Reservation Office
(ARO)or, for public charters seeking reservations up to six months in advance, through the Slot Administration Office. It is the FAA's intention, however, to require these reservation procedures at JFK and Newark regardless of and apart from the outcome of this rulemaking. Accordingly, the FAA will make available burden estimates relating to unscheduled and public charter operations in a separate rulemaking notice. Section 93.172(a)-(b) Reporting Requirements *JFK* (77 carriers) * (1.5 hours per submittal) * (4 occurrences per year) = 462 hours. Based on burden estimates from the “Congestion Management Rule for LaGuardia Airport” (Docket No. FAA-2006-25709; Notice No. 08-04), we assumed the 77 carriers operating at JFK would expend, on average, 1 1/2 hours two times per summer and winter season to submit the data required by § 93.172. *Newark* (39 carriers) * (1.5 hours per submittal) * (4 occurrences per year) = 234 hours. Based on burden estimates from the “Congestion Management Rule for LaGuardia Airport” (Docket No. FAA-2006-25709; Notice No. 08-04), we assumed the 39 carriers operating at Newark would expend, on average, 1 1/2 hours every two months to submit the data required by § 93.172. Summary *JFK* *Total First Year Hourly Burden—320 Hours.* *Total Recurring Annual Hourly Burden (per year for 10 years)—1,032 Hours.* *Newark* *Total First Year Hourly Burden—640 Hours.* *Total Recurring Annual Hourly Burden (per year for 10 years)—582 Hours.* The burden estimates for JFK and Newark do not include the time required to participate in the annual auctions. The FAA will make available burden estimates for information requirements relating to auction participation in a separate notice. The agency is soliciting comments to—
(1)Evaluate whether the proposed information requirements are necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2)Evaluate the agency's estimate of the burden;
(3)Enhance the quality, utility, and clarity of the information to be collected; and
(4)Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology. Individuals and organizations may submit comments on the information collection requirement by July 21, 2008, and should direct them to the address listed in the ADDRESSES section of this document. Comments also should be submitted to the Office of Information and Regulatory Affairs, OMB, via facsimile at
(202)395-6974, Attention: Desk Officer for FAA. According to the 1995 amendments to the Paperwork Reduction Act (5 CFR 1320.8(b)(2)(vi)), an agency may not collect or sponsor the collection of information, nor may it impose an information collection requirement unless it displays a currently valid OMB control number. The OMB control number for this information collection will be published in the **Federal Register** , after the Office of Management and Budget approves it. Regulatory Flexibility Determination The Regulatory Flexibility Act of 1980
(RFA)establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objective of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the business, organizations, and governmental jurisdictions subject to regulation.” To achieve that principle, the RFA requires agencies to solicit and consider flexible regulatory proposals and to explain the rationale for their actions. The RFA covers a wide range of small entities, including small businesses, not-for-profit organizations, and small governmental jurisdictions. Agencies must perform a review to determine whether a proposed or final rule would have a significant economic impact on a substantial number of small entities. If the agency determines that it would, the agency must prepare a regulatory flexibility analysis as described in the Act. However, if an agency determines that a proposed or final rule is not expected to have a significant economic impact on a substantial number of small entities, § 605(b) of the 1980 RFA provides that the head of the agency may so certify and a regulatory flexibility analysis is not required. The certification must include a statement providing the factual basis for this determination, and the reasoning should be clear. The basis for such FAA determination follows. The proposed rule most directly affects four scheduled operators at JFK (Delta Air Lines, JetBlue Airways, American Airlines, and United Airlines) and five scheduled operators at Newark (Continental Airlines, American Airlines, United Airlines, Delta Air Lines, and U.S. Airways). These carriers would receive one or more Limited Slots. None of these carriers are small businesses. However, the FAA considered that some small regional operators affiliated with these carriers and using slots provided by these carriers could be affected. Based on a review of the number of employees for each scheduled operator, the FAA found that only two scheduled operators (CommutAir and EOS Airlines) at JFK, and none at Newark, are considered small by Small Business Administration size standards (in this case, firms with 1,500 or fewer employees). Of the two scheduled operators at JFK, CommutAir operates under the name Continental Connection for Continental Airlines. Continental Airlines has fewer than 20 operations per day at JFK and therefore neither it nor CommutAir is affected by this rule. Using Enhanced Traffic Management System
(ETMS)data, the FAA has determined that there are approximately 54 identifiable unscheduled operators at JFK and 61 identifiable unscheduled operators at Newark who could be affected by this rule. While some of these operators may be small businesses, the FAA does not believe they will be significantly impacted by this rulemaking. These operators typically have greater flexibility to adjust operations and carry out very few operations during peak hours compared to scheduled operators. During peak hours in the summer of 2007, there were fewer than two average unscheduled operations per hour at each airport, whereas the proposed rule would allow 1 to 2 operations per hour. Section 93.171(g) of subpart N and § 93.191(g) of subpart O enables the FAA to determine that additional reservations may be accommodated for a specific time period, and allows unused slots to be available temporarily for unscheduled operations. In summary, while the proposed rule reduces the number of unscheduled operations per hour, it does not significantly affect the overall number of current unscheduled operations that take place at each airport. Using 2007 Census data, the FAA has also reviewed whether there would be interruptions to service to communities with a population of less than 50,000. We do not know if there will be any service interruptions as a result of the rule. We have reviewed population statistics for every city served from JFK and Newark in August 2007 (the base for initial allocation of slots under the proposal) and found none with a population of less 50,000. Therefore, the FAA certifies that this proposed rule would not have a significant economic impact on a substantial number of small entities. International Trade Impact Assessment The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal agencies from establishing any standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Pursuant to these Acts, the establishment of standards or engaging in related activities is not considered as creating unnecessary obstacles to the foreign commerce of the United States, so long as the standards and activities have a legitimate domestic objective, such the protection of safety, and do not operate in a manner that excludes imports that meet this objective. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. The FAA notes the proposed rule to establish slots and limited auctions of slot leases at JFK and Newark is necessary for the efficient utilization of the national airspace system, and has assessed the effects of this rulemaking to ensure that the final rule, if adopted, would not impose costs or barriers to international entities within the national airspace system. Foreign entities at both JFK and Newark would not have any slots classified as Limited Slots under either alternative 1 or 2 under the terms of § 93.164 of subpart N and § 93.184 of subpart O of the proposed rule. Foreign carriers might benefit from the rule if they choose to participate in the proposed auction to acquire additional slots or to sublease slots in the secondary market. Unfunded Mandate Assessment The Unfunded Mandate Reform Act of 1995 (the Act) is intended, among other things, to curb the practice of imposing unfunded Federal mandates on State, local, and tribal governments. Title II of the Act requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (adjusted annually for inflation) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.” The FAA currently uses an inflation-adjusted value of $136.1 million in lieu of $100 million. This final rule does not contain such a mandate. The requirements of Title II do not apply. Executive Order 13132, Federalism The FAA has analyzed this proposed rule under the principles and criteria of Executive Order 13132, Federalism. We determined that this action 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, and, therefore, would not have federalism implications. Environmental Analysis FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures” identifies FAA actions that are normally categorically excluded from preparation of an environmental assessment or environmental impact statement under the National Environmental Policy Act
(NEPA)in the absence of extraordinary circumstances. The FAA has determined that this rulemaking qualifies for the categorical exclusions identified in paragraph 312d “Issuance of regulatory documents ( *e.g.* , Notices of Proposed Rulemaking and issuance of Final Rules) covering administration or procedural requirements (does not include Air Traffic procedures; specific Air traffic procedures that are categorically excluded are identified under paragraph 311 of this Order)” and paragraph 312f, “Regulations, standards, and exemptions (excluding those which if implemented may cause a significant impact on the human environment.)” It has further been determined that no extraordinary circumstances exist that may cause a significant impact and therefore no further environmental review is required. The FAA has documented this categorical exclusion determination. A copy of the determination and underlying documents has been included in the Docket for this rulemaking. Regulations That Significantly Affect Energy Supply, Distribution, or Use The FAA has analyzed this NPRM under Executive Order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use (May 18, 2001). We have determined that it is not a “significant energy action” under the executive order because it is not a “significant regulatory action” under Executive Order 12866, and it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Additional Information *Comments Invited:* The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. We also invite comments relating to the economic, environmental, energy or federalism impacts that might result from adopting the proposals in this document. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, please send only one copy of written comments, or if you are filing comments electronically, please submit your comments only one time. We will file in the docket all comments we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, we will consider all comments we receive on or before the closing date for comments. We will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay. We may change this proposal in light of the comments we receive. Proprietary or Confidential Business Information Do not file in the docket information that you consider to be proprietary or confidential business information. Send or deliver this information directly to the person identified in the FOR FURTHER INFORMATION CONTACT section of this document. You must mark the information that you consider proprietary or confidential. If you send the information on a disk or CD ROM, mark the outside of the disk or CD ROM and also identify electronically within the disk or CD ROM the specific information that is proprietary or confidential. Under 14 CFR 11.35(b), when we are aware of proprietary information filed with a comment, we do not place it in the docket. We hold it in a separate file to which the public does not have access, and we place a note in the docket that we have received it. If we receive a request to examine or copy this information, we treat it as any other request under the Freedom of Information Act (5 U.S.C. 552). We process such a request under the DOT procedures found in 49 CFR part 7. Availability of Rulemaking Documents *You can get an electronic copy of rulemaking documents using the Internet by* — 1. Searching the Federal eRulemaking Portal ( *http://www.regulations.gov* ); 2. Visiting the FAA's Regulations and Policies Web page at *http://www.faa.gov/regulations_policies/* ; or 3. Accessing the Government Printing Office's Web page at *http://www.gpoaccess.gov/fr/index.html* . You can also get a copy by sending a request to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue SW., Washington, DC 20591, or by calling
(202)267-9680. Make sure to identify the docket number, notice number, or amendment number of this rulemaking. You may access all documents the FAA considered in developing this proposed rule, including economic analyses and technical reports, from the internet through the Federal eRulemaking Portal referenced in paragraph (1). List of Subjects in 14 CFR Part 93 Air traffic control, Airports, Navigation (air). Proposed Regulatory Text In consideration of the foregoing, the Federal Aviation Administration proposes to amend Chapter I of Title 14, Code of Federal Regulations, as follows: PART 93—SPECIAL AIR TRAFFIC RULES 1. The authority citation for part 93 continues to read as follows: Authority: 49 U.S.C. 106(g), 40103, 40106, 40109, 40113, 44502, 44514, 44701, 44719, 46301. Proposed Amendment—Alternative 1 2. Subpart N is added to read as follows: Subpart N—John F. Kennedy International Airport and Newark Liberty International Airport Traffic Rules Sec. 93.161 Applicability. 93.162 Definitions. 93.163 Slots for scheduled arrivals and departures. 93.164 Categories of slots. 93.165 Initial assignment of slots. 93.166 Assignment of new or returned slots. 93.167 Reversion and withdrawal of slots. 93.168 Sublease and transfer of slots. 93.169 One-for-one trade of slots. 93.170 Minimum usage requirements. 93.171 Unscheduled operations. 93.172 Reporting requirements. 93.173 Administrative provisions. Subpart N—John F. Kennedy International Airport and Newark Liberty International Airport Traffic Rules § 93.161 Applicability.
(a)This subpart prescribes the air traffic rules for the arrival and departure of aircraft used for scheduled and unscheduled service, other than helicopters, at John F. Kennedy International Airport
(JFK)and Newark Liberty International Airport (Newark).
(b)This subpart also prescribes procedures for the assignment, transfer, sublease and withdrawal of Slots issued by the FAA for scheduled operations at JFK and Newark.
(c)The provisions of this subpart apply to JFK and Newark during the hours of 6 a.m. through 10:59 p.m., Eastern Time. No person shall operate any scheduled arrival or departure into or out of JFK or Newark during such hours without first obtaining a Slot in accordance with this subpart. No person shall conduct an Unscheduled Operation to or from JFK or Newark during such hours without first obtaining a Reservation.
(d)A U.S. Air Carrier conducting operations solely under another Carrier's marketing control with unified inventory control shall not be considered a separate Carrier for purposes of this subpart.
(e)The Slots assigned under this subpart terminate at 11 p.m. on March 30, 2019. § 93.162 Definitions. For purposes of this subpart, the following definitions apply: *Airport Reservation Office (ARO)* is an operational unit of the FAA's David J. Hurley Air Traffic Control System Command Center. It is responsible for the administration of reservations for unscheduled operations at JFK and Newark. *Baseline Operations* are those common slots held by a carrier at JFK or Newark on [final rule effective date], that do not exceed 20 operations per day. *Carrier* is a U.S. or foreign air carrier with authority to conduct scheduled service under parts 121, 129, or 135 of this chapter and the appropriate economic authority for scheduled service under 14 CFR chapter II and 49 U.S.C. chapter 411. *Common Slot (C-slot)* is a slot that is assigned by the FAA as a lease under its cooperative agreement authority for the length of this rule. *Enhanced Computer Voice Reservation System (e-CVRS)* is the system used by the FAA to make arrival and/or departure reservations for unscheduled operations at JFK, Newark, and other designated airports. *Limited Slot (L-slot)* is a slot operated every day, the lease for which expires prior to the expiration of this rule for subsequent award by the FAA as an unrestricted slot. *New Entrant* is any carrier that is administratively allocated a total of 8 or fewer slots at JFK or Newark, respectively, during controlled hours at any point during the duration of the rule. *Public Charter* is defined in 14 CFR 380.2 as a one-way or roundtrip charter flight to be performed by one or more direct air carriers that is arranged and sponsored by a public charter operator. *Public Charter Operator* is defined in 14 CFR 380.2 as a U.S. or foreign public charter operator. *Reservation* is an authorization received by a carrier or other operator of an aircraft, excluding helicopters, in accordance with procedures established by the FAA to operate an unscheduled arrival or departure on a particular day of the week during a specific 30-minute period. *Scheduled Operation* is the arrival or departure segment of any operation regularly conducted by a carrier between either JFK or Newark and another point regularly served by that carrier. *Slot* is the operational authority assigned by the FAA to a carrier to conduct one scheduled arrival or departure operation at JFK or Newark on a particular day of the week during a specific 30-minute period. *Summer Scheduling Season* begins on the last Sunday of March. *Unrestricted Slot (U-slot)* is a slot that is awarded to a carrier by the FAA via the auction of a lease. *Unscheduled Operation* is an arrival or departure segment of any operation that is not regularly conducted by a carrier or other operator of an aircraft, excluding helicopters, between JFK or Newark and another service point. The following types of carrier operations shall be considered unscheduled operations for the purposes of this subpart: Public, on-demand, and other charter flights; hired aircraft service; extra sections of scheduled flights; ferry flights; and other non-passenger flights. *Winter Scheduling Season* begins on the last Sunday in October. § 93.163 Slots for scheduled arrivals and departures.
(a)During the hours of 6 a.m. through 10:59 p.m., Eastern Time, no person shall operate any scheduled arrival or departure into or out of JFK or Newark without first obtaining a Slot in accordance with this subpart.
(b)Except as otherwise established by the FAA under paragraph
(c)of this section, the number of Slots shall be limited to no more than eighty-one
(81)per hour at JFK and eighty-one
(81)per hour at Newark. At JFK, the number of Slots may not exceed 44 in any 30-minute period, and 81 in any 60-minute period. At Newark, the number of Slots may not exceed 44 in any 30-minute period and 81 in any 60-minute period. The number of arrival and departure Slots in any period may be adjusted by the FAA as necessary based on the actual or potential delays created by such number or other considerations relating to congestion, airfield capacity and the air traffic control system.
(c)Notwithstanding paragraph
(b)of this section, the Administrator may increase the number of Slots based on a review of the following:
(1)The number of delays;
(2)The length of delays;
(3)On-time arrivals and departures;
(4)The number of actual operations;
(5)Runway utilization and capacity plans; and
(6)Other factors relating to the efficient management of the National Airspace System. § 93.164 Categories of slots.
(a)*General.* Each Slot shall be designated as a Common Slot, Limited Slot or Unrestricted Slot and shall be assigned to the Carrier under a lease agreement. A lease for a Common or Limited Slot shall be awarded via a cooperative agreement. A lease for an Unrestricted Slot shall be awarded via an auction.
(b)*Common Slots.*
(1)All Slots within any Carrier's Baseline Operations, as determined on [final rule effective date], shall be designated as Common Slots.
(2)Ten percent of the Slots at JFK and Newark on [final rule effective date] not otherwise designated as Common Slots under paragraph (b)(1) of this section shall be designated as Limited Slots. All other Slots shall be designated as Common Slots.
(c)*Limited Slots.* Those Slots assigned to a Carrier subject to return to the FAA under § 93.165(c) shall be designated as Limited Slots until the date of their reassignment by the FAA as Unrestricted Slots. A Carrier may continue to use a Limited Slot that has reverted to the FAA until the date of the auction.
(1)Each Carrier with a total number of daily operations at JFK or Newark in excess of its Baseline Operations will be notified by [final rule effective date] how many of its Slots will be designated as Limited Slots pursuant to paragraphs (c)(2) and
(3)of this section.
(2)A Carrier shall designate 50 percent of its Limited Slots. The Carrier must notify the FAA of its determination by [date 10 days after the final rule effective date].
(3)The FAA will designate the remaining Limited Slots initially excluding those hours in which two or more Slots have been designated as Limited Slots by the Carriers.
(4)No later than [date 20 days after the final rule effective date], the FAA will publish a list of all Limited Slots and the dates upon which they will expire.
(d)*Unrestricted Slots.* Unrestricted Slots are Slots acquired by a Carrier through a lease with the FAA awarded via an auction. Unrestricted Slots are not subject to withdrawal by the FAA. § 93.165 Initial assignment of slots.
(a)Except as provided for under paragraphs
(b)and
(c)of this section, any Carrier allocated operating rights under the Order limiting operations at JFK or the Order limiting operations at Newark as evidenced by the FAA's records, will be assigned corresponding Slots in 30-minute periods consistent with the limits under § 93.163(b) and its summer and winter season schedules as approved by the FAA. If necessary, the FAA may utilize administrative measures such as voluntary measures or a lottery to re-time the assigned Slots within the same hour to meet the 30-minute limits under § 93.163(b). The FAA Vice President, System Operations Services, is the final decisionmaker for determinations under this section.
(b)If a Carrier was allocated operating rights under the Order limiting operations at JFK or the Order limiting operations at Newark, but the operating rights were held by another Carrier, then the corresponding Slots will be assigned to the Carrier that held the operating rights for that period, as evidenced by the FAA's records.
(c)Starting [date 35 days after the effective date] and every year thereafter through 2013, one-fifth of the total number of Limited Slots shall revert to the FAA in accordance with the schedule published under § 93.164(c)(4) and be auctioned as Unrestricted Slots by the FAA. Any Slot receiving no responsive bids will be retired until the next auction. An affected Carrier will be allowed to use the Limited Slot until the effective date of an award to a Carrier as an Unrestricted Slot. § 93.166 Assignment of new or returned slots.
(a)This section describes the process by which the FAA assigns new Slots, as well as Slots returned to the FAA pursuant to the provisions of § 93.170. These Slots will be assigned by the FAA to requesting Carriers for the summer and winter scheduling seasons.
(b)Requests for the new Slots or returned Slots or both must be submitted to the Federal Aviation Administration, Slot Administration Office, AGC-200, 800 Independence Avenue, SW., Washington, DC 20591 (Facsimile:
(202)267-7277; e-mail: *7-awa-slotadmin@faa.gov* ), by the deadline as published by the FAA in a **Federal Register** notice for each Summer and Winter Scheduling Season. The requesting Carrier must submit its entire schedule at JFK and Newark for the particular season, noting which requests are in addition to, or changes from, the previous corresponding season at the respective airports.
(c)Before assigning new or returned Slots under this section, the FAA will first accommodate Carrier requests to retime Slots for operational reasons or to bring the flight time closer to the time originally requested by the applicant Carrier in previous corresponding seasons, as reflected in FAA records.
(d)After accommodating Carrier requests for retiming of Slots, the FAA will assign 50% of the new Slots and returned Slots to New Entrants, unless requests by New Entrants constitute fewer than 50% of available Slots.
(e)With the remaining available Slots, if all requests for Slots under this section cannot be accommodated, the FAA will give priority to requests to introduce year-round service or to extend an existing operation to a year-round operation.
(f)Thereafter, the FAA will assign Slots considering all relevant factors including:
(1)The effective period of operation;
(2)The extent and regularity of intended use of a Slot;
(3)Schedule constraints of Carriers requesting Slots. § 93.167 Reversion and withdrawal of slots.
(a)This section does not apply to Unrestricted Slots.
(b)A Carrier's Common Slots or Limited Slots at JFK or Newark revert back to the FAA 30 days after the Carrier has ceased all operations at the respective airport(s) for any reasons other than a strike.
(c)The FAA may retime, withdraw, or temporarily suspend Common Slots and Limited Slots at any time to fulfill operational needs.
(d)Common Slots and Limited Slots will be withdrawn in accordance with the priority list established under § 93.173 and international obligations.
(e)Except as otherwise provided in paragraph
(a)of this section, the FAA will notify an affected Carrier before withdrawing or temporarily suspending a Common Slot or Limited Slot and specify the date by which operations under the Common Slot or Limited Slot must cease. The FAA will provide at least 45 days' notice unless otherwise required by operational needs.
(f)Any Common Slot or Limited Slot that is temporarily withdrawn under this paragraph will be reassigned, if at all, only to the Carrier from which it was withdrawn, provided the Carrier continues to conduct Scheduled Operations at the respective airport. § 93.168 Sublease and transfer of slots.
(a)A Carrier may sublease its Slots to another Carrier in accordance with this section and subject to the provisions of the Carrier's lease agreement with the FAA.
(b)A Carrier must provide notice to the FAA to sublease a Slot. Such notice must contain: the Slot number and time, effective dates and, if appropriate, the duration of the lease. The Carrier may also provide the FAA with a minimum bid price.
(c)The FAA will post a notice of the offer to sublease the Slot and relevant details on the FAA Web site at *http://www.faa.gov* . An opening date, closing date and time by which bids must be received will be provided.
(d)Upon consummation of the transaction, written evidence of each Carrier's consent to sublease must be provided to the FAA, as well as all bids received and the terms of the sublease, including but not limited to:
(1)The names of all bidders and all parties to the transaction;
(2)The offered and final length of the sublease;
(3)The consideration offered by all bidders and provided by the sublessee.
(e)The Slot may not be used until the conditions of paragraph
(d)of this section have been met, and the FAA provides notice of its approval of the sublease.
(f)Slots may be transferred among a U.S. Air Carrier and another Carrier that conducts operations at JFK or Newark solely under the transferring Carrier's marketing control, including the entire inventory of the flight. Each party to such transfer must provide written evidence of its consent to the transfer and the FAA must confirm and approve these transfers in writing prior to the effective date of the transaction. However, the FAA will approve transfers under this paragraph up to five business days after the actual operation to accommodate operational disruptions that occur on the same day of the scheduled operation. The FAA Vice President, System Operations Services is the final decision-maker for any determinations under this section.
(g)A Carrier wishing to sublease a Slot via an FAA auction, rather than pursuant to this section, may do so. The Carrier shall retain the proceeds and the Slot shall retain the same designation that it had prior to the Carrier placing it up for auction. § 93.169 One-for-one trade of slots.
(a)A Carrier may trade a Slot with another Carrier on a one-for-one basis.
(b)Written evidence of each Carrier's consent to the trade must be provided to the FAA.
(c)Each recipient of the trade may not use the acquired Slot until written confirmation has been received from the FAA.
(d)Carriers participating in a one-for-one trade must certify to the FAA that no consideration or promise of consideration was provided by either party to the trade. § 93.170 Minimum usage requirements.
(a)This section does not apply to Unrestricted Slots.
(b)Any Common Slot or Limited Slot included in a summer or winter season schedule approved by the FAA that is not used at least 80 percent of the time during the period for which it is assigned will be withdrawn by the FAA.
(c)Paragraph
(b)of this section does not apply to the first 90-day period after assignment of a Common Slot or Limited Slot through a sublease.
(d)The FAA may waive the requirements of paragraph
(b)of this section in the event of a highly unusual and unpredictable condition which is beyond the control of the Carrier and which affects Carrier operations for a period of five or more consecutive days. Examples of conditions which could justify a waiver under this paragraph are weather conditions that result in the restricted operation of the airport for an extended period of time or the grounding of an aircraft type.
(e)The FAA will treat as used any Common Slot or Limited Slot held by a Carrier on Thanksgiving Day, the Friday following Thanksgiving Day, and the period from December 24 through the first Sunday of January. § 93.171 Unscheduled operations.
(a)During the hours of 6 a.m. through 10:59 p.m. Eastern Time, no person may operate an aircraft other than a helicopter to or from JFK or Newark unless he or she has received, for that Unscheduled Operation, a Reservation that is assigned by the Airport Reservation Office
(ARO)or in the case of Public Charters, in accordance with the procedures in paragraph
(d)of this section. Requests for Reservations will be accepted through the e-CVRS beginning 72 hours prior to the proposed time of arrival to or departure from JFK or Newark. Additional information on procedures for obtaining a Reservation is available on the Internet at *http://www.fly.faa.gov/ecvrs* .
(b)Reservations, including those assigned to Public Charter operations under paragraph
(d)of this section, will be available to be assigned by the ARO on a 30-minute basis as follows:
(1)At JFK, two Reservations per hour between 6 a.m. and 1:59 p.m. and between 10 p.m. and 10:59 p.m. and one Reservation per hour between 2 p.m. and 10:59 p.m.
(2)At Newark, two Reservations per hour between 6 a.m. and 11:59 a.m. and between 10 p.m. and 10:59 p.m. and one Reservation per hour between 12 noon and 9:59 p.m.
(c)The ARO will receive and process all Reservation requests for unscheduled arrivals and departures at JFK and Newark. Reservations are assigned on a “first-come, first-served” basis determined by the time the request is received at the ARO. Reservations must be cancelled if they will not be used as assigned.
(d)One Reservation per hour will be available for assignment to Public Charter operations prior to the 72-hour Reservation window in paragraph
(a)of this section. No more than 25 percent of the Reservation available from 12 noon through 9:59 p.m. will be made available to Public Charter operations under this paragraph.
(1)The Public Charter operator may request a reservation up to six months in advance of the date of the flight operation. Reservation requests should be submitted to Federal Aviation Administration, Slot Administration Office, AGC-200, 800 Independence Avenue, SW., Washington, DC 20591. Submissions may be made via facsimile to
(202)267-7277 or by e-mail to: *7-awa-slotadmin@faa.gov* .
(2)The Public Charter operator must certify that its prospectus has been accepted by the Department of Transportation in accordance with 14 CFR part 380.
(3)The Public Charter operator must identify the call sign/flight number or aircraft registration number of the direct Air Carrier, the date and time of the proposed operation(s), the airport served immediately prior to or after JFK or Newark, aircraft type, and the nature of the operation ( *e.g.* , ferry or passenger). Any changes to an approved Reservation must be approved in advance by the Slot Administration Office.
(4)If Reservations under paragraph (d)(1) of this section have already been assigned, the Public Charter Operator may request a Reservation under paragraph
(a)of this section.
(e)The filing of a request for a Reservation does not constitute the filing of an IFR flight plan as required by regulation. The IFR flight plan may be filed only after the Reservation is obtained, must include the Reservation number in the “Remarks” section, and must be filed in accordance with FAA regulations and procedures.
(f)Air Traffic Control will accommodate declared emergencies without regard to Reservations. Non-emergency flights in direct support of national security, law enforcement, military aircraft operations, or public-use aircraft operations may be accommodated above the Reservation limits with the prior approval of the Vice President, System Operations Services, Air Traffic Organization. Procedures for obtaining the appropriate waiver will be available on the Internet at *http://www.fly.faa.gov/ecvrs* .
(g)Notwithstanding the limits in paragraph
(b)of this section, if the Air Traffic Organization determines that air traffic control, weather and capacity conditions are favorable and significant delay is unlikely, the FAA may determine that additional Reservations may be accommodated for a specific time period. Unused Slots may also be made available temporarily for unscheduled operations. Reservations for additional operations must be obtained through the ARO.
(h)Reservations may not be bought, sold or leased. § 93.172 Reporting requirements.
(a)No later than September 1 for the summer scheduling season and February 1 for the winter scheduling season, each Carrier holding a Common Slot or Limited Slot must submit an interim report of Slot usage for each day of the applicable scheduling season. No later than 30 days after the last day of the applicable scheduling season, each Carrier holding a Common Slot or Limited Slot must submit a final report of the completed operations for each day of the entire scheduling season.
(b)Such reports, in a format acceptable to the FAA, must contain the following information for each Common Slot or Limited Slot:
(1)The Slot number, time, and arrival or departure designation;
(2)The operating Carrier;
(3)The date and time of each of the operations conducted pursuant to the Slot, including the flight number and origin/destination; and
(4)The aircraft type identifier.
(c)The FAA may withdraw the Slot of any Carrier that does not meet the reporting requirements of paragraph
(a)of this section. § 93.173 Administrative provisions.
(a)Each Slot shall be assigned a number for administrative convenience.
(b)The FAA will assign priority numbers by random lottery for Common Slots and Limited Slots at JFK and Newark. Each Common Slot and Limited Slot will be assigned a withdrawal priority number, and the 30-minute time period for the Common Slot or Limited Slot, frequency, and the arrival or departure designation.
(c)If the FAA determines that operations need to be reduced for operational reasons, the lowest assigned priority number Common Slot or Limited Slot will be the last withdrawn.
(d)Any Slot available on a temporary basis may be assigned by the FAA to a Carrier on a non-permanent, first-come, first-served basis subject to permanent assignment under this subpart. Any remaining Slots may be made available for unscheduled operations on a non-permanent basis and will be assigned under the same procedures applicable to other operating Reservations.
(e)All transactions under this subpart must be in a written or electronic format approved by the FAA. Proposed Amendment—Alternative 2 3. Subparts N and O are added to read as follows: Subpart N—John F. Kennedy International Airport Traffic Rules Sec. 93.161 Applicability. 93.162 Definitions. 93.163 Slots for scheduled arrivals and departures. 93.164 Categories of slots. 93.165 Initial assignment of slots. 93.166 Assignment of new or returned slots. 93.167 Reversion and Withdrawal of Slots. 93.168 Sublease and transfer of slots. 93.169 One-for-one trade of slots. 93.170 Minimum usage requirements. 93.171 Unscheduled operations. 93.172 Reporting requirements. 93.173 Administrative provisions. Subpart O—Newark Liberty International Airport Traffic Rules 93.181 Applicability. 93.182 Definitions. 93.183 Slots for scheduled arrivals and departures. 93.184 Categories of slots. 93.185 Initial assignment of slots. 93.186 Assignment of new or returned slots. 93.187 Reversion and withdrawal of slots. 93.188 Sublease and transfer of slots. 93.189 One-for-one trade of slots. 93.190 Minimum usage requirements. 93.191 Unscheduled operations. 93.192 Reporting requirements. 93.193 Administrative provisions. § 93.161 Applicability.
(a)This subpart prescribes the air traffic rules for the arrival and departure of aircraft used for scheduled and unscheduled service, other than helicopters, at John F. Kennedy International Airport (JFK).
(b)This subpart also prescribes procedures for the assignment, transfer, sublease and withdrawal of Slots issued by the FAA for scheduled operations at JFK.
(c)The provisions of this subpart apply to JFK during the hours of 6 a.m. through 10:59 p.m., Eastern Time. No person shall operate any scheduled arrival or departure into or out of JFK during such hours without first obtaining a Slot in accordance with this subpart. No person shall conduct an Unscheduled Operation to or from JFK during such hours without first obtaining a Reservation.
(d)A U.S. Air Carrier conducting operations solely under another Carrier's marketing control with unified inventory control shall not be considered a separate Carrier for purposes of this subpart.
(e)The Slots assigned under this subpart terminate at 11 p.m. on March 30, 2019. § 93.162 Definitions. For purposes of this subpart, the following definitions apply: *Airport Reservation Office (ARO)* is an operational unit of the FAA's David J. Hurley Air Traffic Control System Command Center. It is responsible for the administration of reservations for unscheduled operations at JFK. *Baseline Operations* are those common slots held by a carrier on [final rule effective date], that do not exceed 20 operations per day. *Carrier* is a U.S or foreign air carrier with authority to conduct scheduled service under Parts 121, 129, or 135 of this Chapter and the appropriate economic authority for scheduled service under 14 CFR chapter II and 49 U.S.C. chapter 411. *Common Slot (C-slot)* is a slot that is assigned by the FAA as a lease under its cooperative agreement authority for the length of this rule. *Enhanced Computer Voice Reservation System (e-CVRS)* is the system used by the FAA to make arrival and/or departure reservations for unscheduled operations at JFK and other designated airports. *Limited Slot (L-slot)* is a slot operated every day, the lease for which must be transferred to another carrier by the holder of the limited slot as an unrestricted slot. *New Entrant* is any carrier that is administratively allocated a total of 8 or fewer slots at JFK during controlled hours at any point during the duration of the rule. *Public Charter* is defined in 14 CFR 380.2 as a one-way or roundtrip charter flight to be performed by one or more direct air carriers that is arranged and sponsored by a public charter operator. *Public Charter Operator* is defined in 14 CFR 380.2 as a U.S. or foreign public charter operator. *Reservation* is an authorization received by a carrier or other operator of an aircraft, excluding helicopters, in accordance with procedures established by the FAA to operate an unscheduled arrival or departure on a particular day of the week during a specific 30-minute period. *Scheduled Operation* is the arrival or departure segment of any operation regularly conducted by a carrier between JFK and another point regularly served by that carrier. *Slot* is the operational authority assigned by the FAA to a carrier to conduct one scheduled arrival or departure operation at JFK on a particular day of the week during a specific 30-minute period. *Summer Scheduling Season* begins on the last Sunday of March. *Unrestricted Slot (U-slot)* is a slot that is awarded to another carrier by the holder of a limited slot pursuant to the mandatory lease transfer provisions of this subpart. *Unscheduled Operation* is an arrival or departure segment of any operation that is not regularly conducted by a carrier or other operator of an aircraft, excluding helicopters, between JFK and another service point. The following types of carrier operations shall be considered unscheduled operations for the purposes of this subpart: public, on-demand, and other charter flights; hired aircraft service; extra sections of scheduled flights; ferry flights; and other non-passenger flights. *Winter Scheduling Season* begins on the last Sunday in October. § 93.163 Slots for scheduled arrivals and departures.
(a)During the hours of 6 a.m. through 10:59 p.m., Eastern Time, no person shall operate any scheduled arrival or departure into or out of JFK during such hours without first obtaining a Slot in accordance with this subpart.
(b)Except as otherwise established by the FAA under paragraph
(c)of this section, the number of Slots shall be limited to no more than eighty-one
(81)per hour at JFK. The number of Slots may not exceed 44 in any 30-minute period, and 81 in any 60-minute period. The number of arrival and departure Slots in any period may be adjusted by the FAA as necessary based on the actual or potential delays created by such number or other considerations relating to congestion, airfield capacity and the air traffic control system.
(c)Notwithstanding paragraph
(b)of this section, the Administrator may increase the number of Slots based on a review of the following:
(1)The number of delays;
(2)The length of delays;
(3)On-time arrivals and departures;
(4)The number of actual operations;
(5)Runway utilization and capacity plans; and
(6)Other factors relating to the efficient management of the National Airspace System. § 93.164 Categories of slots.
(a)*General* . Each Slot shall be designated as a Common Slot, Limited Slot or Unrestricted Slot and shall be assigned to the Carrier under a lease agreement. A lease for a Common or Limited Slot shall be awarded via a cooperative agreement. A lease for an Unrestricted Slot shall be awarded via an auction.
(b)*Common Slots.*
(1)All Slots within any Carrier's Baseline Operations, as determined on [final rule effective date], shall be designated as Common Slots.
(2)Twenty percent of the Slots at JFK on [final rule effective date] not otherwise designated as Common Slots under paragraph
(1)of this section shall be designated as Limited Slots. All other Slots shall be designated as Common Slots.
(c)*Limited Slots* . Those Slots assigned to a Carrier subject to return to the FAA under § 93.165(c) shall be designated as Limited Slots until they are transferred to another Carrier under those provisions. A Carrier may continue to use a Limited Slot that has reverted to the FAA until reassigned to another Carrier as an Unrestricted Slot.
(1)Each Carrier with a total number of daily operations at JFK in excess of its Baseline Operations will be notified by [final rule effective date] how many of its remaining Slots will be classified as Limited Slots pursuant to paragraphs (c)(2) and
(3)of this section.
(2)A Carrier shall designate 50 percent of its Limited Slots. The Carrier must notify the FAA of its determination by [date 10 days after the final rule effective date].
(3)The FAA will designate the remaining Limited Slots, initially excluding those hours in which two or more Slots have been designated as Limited Slots by the Carriers.
(4)No later than [date 20 days after the final rule effective date], the FAA will publish a list of all Limited Slots and the dates upon which they will expire.
(d)*Unrestricted Slots* . Unrestricted Slots are Slots acquired by a Carrier through a lease with the FAA awarded via an auction. Unrestricted Slots are not subject to withdrawal by the FAA. § 93.165 Initial assignment of slots.
(a)Except as provided for under paragraphs
(b)and
(c)of this section, any Carrier allocated operating rights under the Order limiting operations at JFK, as evidenced by the FAA's records, will be assigned corresponding Slots in 30-minute periods consistent with the limits under § 93.163(b), and its summer and winter season schedules as approved by the FAA. If necessary, the FAA may utilize administrative measures such as voluntary measures or a lottery to re-time the assigned Slots within the same hour to meet the 30-minute limits under § 93.163(b). The FAA Vice President, System Operations Services, is the final decisionmaker for determinations under this section.
(b)If a Carrier was allocated operating rights under the Order limiting operations at JFK but the operating rights were held by another Carrier, then the corresponding Slots will be assigned to the Carrier that held the operating rights for that period, as evidenced by the FAA's records.
(c)Starting [date 35 days after the effective date] and every year thereafter through 2013, one-fifth of the total number of Limited Slots identified on [date 20 days after the effective date] shall revert to the FAA in accordance with the schedule published under § 93.164(c)(4) and be auctioned as Unrestricted Slots by the FAA and subsequently transferred to another Carrier, effective no later than the next Summer Scheduling Season.
(1)The auction shall be blind, and only cash may be bid.
(2)The holder of a Limited Slot may not bid on its own Slots.
(3)The FAA shall pay to the holder of the Limited Slot all proceeds from the transaction following deduction of the FAA's expenses for conducting the auction.
(4)The auction shall be conducted by the FAA, which will dictate all procedures related to the auction, including but not limited to the requirement that the Carrier may not specify a minimum bid price.
(5)In the event no Carrier bids on the Slot, the FAA will retire it until the next auction.
(6)The Carrier holding a Limited Slot will be allowed to use the Slot until the first day of the next Summer Scheduling Season. § 93.166 Assignment of new or returned slots.
(a)This section describes the process by which the FAA assigns new Slots, as well as Slots returned to the FAA pursuant to the provisions of § 93.170. These Slots will be assigned by the FAA to requesting Carriers for the Summer and Winter Scheduling Seasons.
(b)Requests for the new Slots or returned Slots or both must be submitted to the Federal Aviation Administration, Slot Administration Office, AGC-200, 800 Independence Avenue, SW., Washington, DC 20591 (Facsimile:
(202)267-7277; e-mail: *7-awa-slotadmin@faa.gov* ), by the deadline as published by the FAA in a **Federal Register** notice for each Summer and Winter Scheduling Season. The requesting Carrier must submit its entire schedule at JFK for the particular season, noting which requests are in addition to, or changes from, the previous corresponding season at the respective airports.
(c)Before assigning new or returned Slots under this section, the FAA will first accommodate Carrier requests to re-time Slots for operational reasons or to bring the flight time closer to the time originally requested by the applicant Carrier in previous corresponding seasons, as reflected in FAA records.
(d)After accommodating Carrier requests for re-timing of Slots, the FAA will assign 50% of the new Slots and returned Slots to New Entrants, unless requests by New Entrants constitute fewer than 50% of available Slots.
(e)With the remaining available Slots, if all requests for Slots under this section cannot be accommodated, the FAA will give priority to requests to introduce year-round service or to extend an existing operation to a year-round operation.
(f)Thereafter, the FAA will assign Slots considering all relevant factors including:
(1)The effective period of operation;
(2)The extent and regularity of intended use of a Slot;
(3)Schedule constraints of Carriers requesting Slots. § 93.167 Reversion and withdrawal of slots.
(a)This section does not apply to Unrestricted Slots.
(b)A Carrier's Common Slots or Limited Slots revert back to the FAA 30 days after the Carrier has ceased all operations at JFK for any reasons other than a strike.
(c)The FAA may re-time, withdraw, or temporarily suspend Common Slots and Limited Slots at any time to fulfill operational needs.
(d)Common Slots and Limited Slots will be withdrawn in accordance with the priority list established under § 93.173 and international obligations.
(e)Except as otherwise provided in paragraph
(a)of this section, the FAA will notify an affected Carrier before withdrawing or temporarily suspending a Common Slot or Limited Slot and specify the date by which operations under the Common Slot or Limited Slot must cease. The FAA will provide at least 45 days' notice unless otherwise required by operational needs.
(f)Any Common Slot or Limited Slot that is temporarily withdrawn under this paragraph will be reassigned, if at all, only to the Carrier from which it was withdrawn, provided the Carrier continues to conduct Scheduled Operations at JFK. § 93.168 Sublease and transfer of slots.
(a)A Carrier may sublease its Slots to another Carrier in accordance with this section and subject to the provisions of the Carrier's lease agreement with the FAA.
(b)A Carrier must provide notice to the FAA to sublease a Slot. Such notice must contain: the Slot number and time, effective dates and, if appropriate, the duration of the lease. The Carrier may also provide the FAA with a minimum bid price.
(c)The FAA will post a notice of the offer to sublease the Slot and relevant details on the FAA Web site at http://www.faa.gov. An opening date, closing date and time by which bids must be received will be provided.
(d)Upon consummation of the transaction, written evidence of each Carrier's consent to sublease must be provided to the FAA, as well as all bids received and the terms of the sublease, including but not limited to:
(1)The names of all bidders and all parties to the transaction;
(2)The offered and final length of the sublease;
(3)The consideration offered by all bidders and provided by the sublessee.
(e)The Slot may not be used until the conditions of paragraph
(d)of this section have been met, and the FAA provides notice of its approval of the sublease.
(f)Slots may be transferred among a U.S. Air Carrier and another Carrier that conducts operations at JFK solely under the transferring Carrier's marketing control, including the entire inventory of the flight. Each party to such transfer must provide written evidence of its consent to the transfer and the FAA must confirm and approve these transfers in writing prior to the effective date of the transaction. However, the FAA will approve transfers under this paragraph up to five business days after the actual operation to accommodate operational disruptions that occur on the same day of the scheduled operation. The FAA Vice President, System Operations Services, is the final decision-maker for any determinations under this section.
(g)A Carrier wishing to sublease a Slot via an FAA auction, rather than pursuant to this section, may do so. The Carrier shall retain the proceeds and the Slot shall retain the same designation that it had prior to the Carrier placing it up for auction. § 93.169 One-for-one trade of slots.
(a)A Carrier may trade a Slot with another Carrier on a one-for-one basis.
(b)Written evidence of each Carrier's consent to the trade must be provided to the FAA.
(c)Each recipient of the trade may not use the acquired Slot until written confirmation has been received from the FAA.
(d)Carriers participating in a one-for-one trade must certify to the FAA that no consideration or promise of consideration was provided by either party to the trade. § 93.170 Minimum usage requirements.
(a)This section does not apply to Unrestricted Slots.
(b)Any Common Slot or Limited Slot included in a summer or winter season schedule approved by the FAA that is not used at least 80 percent of the time during the period for which it is assigned will be withdrawn by the FAA.
(c)Paragraph
(b)of this section does not apply to the first 90-day period after assignment of a Common Slot or Limited Slot through a sublease.
(d)The FAA may waive the requirements of paragraph
(b)of this section in the event of a highly unusual and unpredictable condition which is beyond the control of the Carrier and which affects Carrier operations for a period of five or more consecutive days. Examples of conditions which could justify a waiver under this paragraph are weather conditions that result in the restricted operation of the airport for an extended period of time or the grounding of an aircraft type.
(e)The FAA will treat as used any Common Slot or Limited Slot held by a Carrier on Thanksgiving Day, the Friday following Thanksgiving Day, and the period from December 24 through the first Sunday of January. § 93.171 Unscheduled operations.
(a)During the hours of 6 a.m. through 10:59 p.m., Eastern Time, no person may operate an aircraft other than a helicopter to or from JFK unless he or she has received, for that Unscheduled Operation, a Reservation that is assigned by the Airport Reservation Office
(ARO)or in the case of public charters, in accordance with the procedures in paragraph
(d)of this section. Requests for Reservations will be accepted through the e-CVRS beginning 72 hours prior to the proposed time of arrival to or departure from JFK. Additional information on procedures for obtaining a Reservation is available on the Internet at *http://www.fly.faa.gov/ecvrs* .
(b)Reservations, including those assigned to Public Charter operations under paragraph
(d)of this section, will be available to be assigned by the ARO on a 30-minute basis at JFK as follows:
(1)Two Reservations per hour between 6 a.m. and 1:59 p.m. and between 10 p.m. and 10:59 p.m.
(2)One Reservation per hour between 2 p.m. and 10:59 p.m.
(c)The ARO will receive and process all Reservation requests for unscheduled arrivals and departures at JFK. Reservations are assigned on a “first-come, first-served” basis determined by the time the request is received at the ARO. Reservations must be cancelled if they will not be used as assigned.
(d)One Reservation per hour will be available for assignment to Public Charter operations prior to the 72-hour Reservation window in paragraph
(a)of this section. No more than 25 percent of the reservations from 12 noon through 9:59 p.m. will be made available for Public Charter operations under this paragraph.
(1)The Public Charter Operator may request a reservation up to six months in advance of date of the flight operation. Reservation requests should be submitted to Federal Aviation Administration, Slot Administration Office, AGC-200, 800 Independence Avenue, SW., Washington, DC 20591. Submissions may be made via facsimile to
(202)267-7277 or by e-mail to: *7-awa-slotadmin@faa.gov* .
(2)The Public Charter operator must certify that its prospectus has been accepted by the Department of Transportation in accordance with 14 CFR part 380.
(3)The Public Charter operator must identify the call sign/flight number or aircraft registration number of the direct Air Carrier, the date and time of the proposed operations(s), the airport served immediately prior to or after JFK, aircraft type, and the nature of the operations ( *e.g.* , ferry, passenger). Any changes to an approved Reservation must be approved in advance by the Slot Administration Office.
(4)If Reservations under paragraph (d)(1) of this section have already been assigned, the Public Charter Operator may request a Reservation under paragraph
(a)of this section.
(e)The filing of a request for a Reservation does not constitute the filing of an IFR flight plan as required by regulation. The IFR flight plan may be filed only after the Reservation is obtained, must include the Reservation number in the “Remarks” section, and must be filed in accordance with FAA regulations and procedures.
(f)Air Traffic Control will accommodate declared emergencies without regard to Reservations. Non-emergency flights in direct support of national security, law enforcement, military aircraft operations, or public-use aircraft operations may be accommodated above the Reservation limits with the prior approval of the Vice President, System Operations Services, Air Traffic Organization. Procedures for obtaining the appropriate waiver will be available on the Internet at *http://www.fly.faa.gov/ecvrs* .
(g)Notwithstanding the limits in paragraph
(b)of this section, if the Air Traffic Organization determines that air traffic control, weather and capacity conditions are favorable and significant delay is unlikely, the FAA may determine that additional Reservations may be accommodated for a specific time period. Unused Slots may also be made available temporarily for unscheduled operations. Reservations for additional operations must be obtained through the ARO.
(h)Reservations may not be bought, sold or leased. § 93.172 Reporting requirements.
(a)No later than September 1 for the Summer Scheduling season and February 1 for the Winter Scheduling Season, each Carrier holding a Common Slot or Limited Slot must submit an interim report of Slot usage for each day of the applicable scheduling season. No later than 30 days after the last day of the applicable scheduling season, each Carrier holding a Common Slot or Limited Slot must submit a final report of the completed operations for each day of the entire scheduling season.
(b)Such reports, in a format acceptable to the FAA, must contain the following information for each Common Slot or Limited Slot:
(1)The Slot number, time, and arrival or departure designation;
(2)The operating Carrier;
(3)The date and time of each of the operations conducted pursuant to the Slot, including the flight number and origin/destination; and
(4)The aircraft type identifier.
(c)The FAA may withdraw the Slot of any Carrier that does not meet the reporting requirements of paragraph
(a)of this section. § 93.173 Administrative provisions.
(a)Each Slot shall be assigned a number for administrative convenience.
(b)The FAA will assign priority numbers by random lottery for Common Slots and Limited Slots at JFK. Each Common Slot and Limited Slot will be assigned a withdrawal priority number, and the 30-minute time period for the Common Slot or Limited Slot, frequency, and the arrival or departure designation.
(c)If the FAA determines that operations need to be reduced for operational reasons, the lowest assigned priority number Common Slot or Limited Slot will be the last withdrawn.
(d)Any Slot available on a temporary basis may be assigned by the FAA to a Carrier on a non-permanent, first-come, first-served basis subject to permanent assignment under this subpart. Any remaining Slots may be made available for unscheduled operations on a non-permanent basis and will be assigned under the same procedures applicable to other operating Reservations.
(e)All transactions under this subpart must be in a written or electronic format approved by the FAA. Subpart O—Newark Liberty International Airport Traffic Rules § 93.181 Applicability.
(a)This subpart prescribes the air traffic rules for the arrival and departure of aircraft used for scheduled and unscheduled service, other than helicopters, at Newark Liberty International Airport (Newark).
(b)This subpart also prescribes procedures for the assignment, transfer, sublease and withdrawal of Slots issued by the FAA for scheduled operations at Newark.
(c)The provisions of this subpart apply to Newark during the hours of 6 a.m. through 10:59 p.m., Eastern Time. No person shall operate any scheduled arrival or departure into or out of Newark during such hours without first obtaining a Slot in accordance with this subpart. No person shall conduct an Unscheduled Operation to or from Newark during such hours without first obtaining a Reservation.
(d)A U.S. Air Carrier conducting operations solely under anther Carrier's marketing control with unified inventory control shall not be considered as a separate Carrier for purposes of this rule.
(e)The Slots assigned under this subpart terminate at 11 p.m. on March 30, 2019. § 93.182 Definitions. For purposes of this subpart, the following definitions apply: *Airport Reservation Office (ARO)* is an operational unit of the FAA's David J. Hurley Air Traffic Control System Command Center. It is responsible for the administration of reservations for unscheduled operations at Newark. *Baseline Operations* are those Common Slots held by a carrier on [final rule effective date], that do not exceed 20 operations per day. *Carrier* is a U.S or foreign air carrier with authority to conduct scheduled service under Parts 121, 129, or 135 of this Chapter and the appropriate economic authority for scheduled service under 14 CFR chapter II and 49 U.S.C. chapter 411. *Common Slot (C-slot)* is a slot that is assigned by the FAA as a lease under its cooperative agreement authority for the length of this rule. *Enhanced Computer Voice Reservation System (e-CVRS)* is the system used by the FAA to make arrival and/or departure reservations for unscheduled operations at Newark and other designated airports. *Limited Slot (L-slot)* is a slot operated every day, the lease for which expires prior to the expiration of this rule for subsequent award by the FAA as an unrestricted slot. *New Entrant* is any carrier that is administratively allocated a total of 8 or fewer slots at either JFK or Newark during controlled hours at any point during the duration of the rule. *Public Charter* is defined in 14 CFR 380.2 as a one-way or roundtrip charter flight to be performed by one or more direct air carriers that is arranged and sponsored by a public charter operator. *Public Charter Operator* is defined in 14 CFR 380.2 as a U.S. or foreign public charter operator. *Reservation* is an authorization received by a carrier or other operator of an aircraft, excluding helicopters, in accordance with procedures established by the FAA to operate an unscheduled arrival or departure on a particular day of the week during a specific 30-minute period. *Scheduled Operation* is the arrival or departure segment of any operation regularly conducted by a carrier between Newark and another point regularly served by that carrier. *Slot* is the operational authority assigned by the FAA to a carrier to conduct one scheduled arrival or departure operation at Newark on a particular day of the week during a specific 30-minute period. *Summer Scheduling Season* begins on the last Sunday of March. *Unrestricted Slot (U-slot)* is a slot that is awarded to a carrier by the FAA via the auction of a lease. *Unscheduled Operation* is an arrival or departure segment of any operation that is not regularly conducted by a carrier or other operator of an aircraft, excluding helicopters, between Newark and another service point. The following types of carrier operations shall be considered unscheduled operations for the purposes of this rule: public, on-demand, and other charter flights; hired aircraft service; extra sections of scheduled flights; ferry flights; and other non-passenger flights. *Winter Scheduling Season* begins on the last Sunday in October. § 93.183 Slots for scheduled arrivals and departures.
(a)During the hours of 6 a.m. through 10:59 p.m., Eastern Time, no person shall operate any scheduled arrival or departure into or out of Newark without first obtaining a Slot in accordance with this subpart.
(b)Except as otherwise established by the FAA under paragraph
(c)of this section, the number of Slots shall be limited to no more than eighty-one
(81)period at Newark. The number of Slots may not exceed 44 in any 30-minute period and 81 in any 60-minute period. The number of arrival and departure Slots in any period may be adjusted by the FAA as necessary based on the actual or potential delays created by such number or other considerations relating to congestion, airfield capacity and the air traffic control system.
(c)Notwithstanding paragraph
(b)of this section, the Administrator may increase the number of Slots based on a review of the following:
(1)The number of delays;
(2)The length of delays;
(3)On-time arrivals and departures;
(4)The number of actual operations;
(5)Runway utilization and capacity plans; and
(6)Other factors relating to the efficient management of the National Airspace System. § 93.184 Categories of slots.
(a)*General.* Each Slot shall be designated as a Common Slot, Limited Slot or Unrestricted Slot and shall be assigned to the Carrier under a lease agreement. A lease for a Common or Limited Slot shall be awarded via a cooperative agreement. A lease for an Unrestricted Slot shall be awarded via an auction.
(b)*Common Slots.*
(1)All Slots within any Carrier's Baseline Operations, as determined on [final rule effective date], shall be designated as Common Slots.
(2)Ten percent of the Slots at Newark on [final rule effective date] not otherwise designated as Common Slots under paragraph
(1)of this section shall be designated as Limited Slots. All other Slots shall be designated as Common Slots.
(c)*Limited Slots.* Those Slots assigned to a Carrier subject to return to the FAA under § 93.185(c) shall be designated as Limited Slots until the date of their reassignment by the FAA as Unrestricted Slots. A Carrier may continue to use a Limited Slot that has reverted to the FAA until reassigned to another Carrier as an Unrestricted Slot.
(1)Each Carrier with a total number of daily operations at Newark in excess of its Baseline Operations will be notified by [final rule effective date] how many of its remaining Slots will be designated as Limited Slots pursuant to paragraphs (c)(2) and
(3)of this section.
(2)A Carrier shall designate 50 percent of its Limited Slots. The Carrier must notify the FAA of its determination by [date 10 days after the final rule effective date].
(3)The FAA will designate the remaining Limited Slots, initially excluding those hours in which two or more Slots have been classified as Limited Slots by the Carriers.
(4)No later than [date 20 days after the final rule effective date], the FAA will publish a list of all Limited Slots and the dates upon which they will expire.
(d)*Unrestricted Slots.* Unrestricted Slots are Slots acquired by a Carrier through a lease with the FAA awarded via an auction. Unrestricted Slots are not subject to withdrawal by the FAA. § 93.185 Initial assignment of slots.
(a)Except as provided for under paragraphs
(b)and
(c)of this section, any Carrier allocated operating rights under the Order limiting operations at Newark as evidenced by the FAA's records, will be assigned corresponding Slots in 30-minute periods consistent with the limits under § 93.183(b) and its summer and winter season schedules as approved by the FAA. If necessary, the FAA may utilize administrative measures such as voluntary measures or a lottery to re-time the assigned Slots within the same hour to meet the 30-minute limits under § 93.183(b). The FAA Vice President, System Operations Services, is the final decision-maker for determinations under this section.
(b)If a Carrier was allocated operating rights under the Order limiting operations at Newark, but the operating rights were held by another Carrier, then the corresponding Slots will be assigned to the Carrier that held the operating rights for that period, as evidenced by the FAA's records.
(c)Starting [date 35 days after the effective date] and every year thereafter through 2013, one-fifth of the total number of Limited Slots shall revert to the FAA in accordance with the schedule published under § 93.164(c)(4) and be auctioned as Unrestricted Slots by the FAA. Any Slot receiving no responsive bids will be retired until the next auction. An affected Carrier will be allowed to use the Limited Slot until the effective date of an award to a Carrier as an Unrestricted Slot. § 93.186 Assignment of new or returned slots.
(a)This section describes the process by which the FAA assigns new Slots, as well as Slots returned to the FAA pursuant to the provisions of § 93.190. These Slots will be assigned by the FAA to requesting Carriers for the Summer and Winter Scheduling Seasons.
(b)Requests for the new Slots or returned Slots or both must be submitted to the Federal Aviation Administration, Slot Administration Office, AGC-200, 800 Independence Avenue, SW., Washington, DC 20591 (Facsimile:
(202)267-7277; e-mail: *7-awa-slotadmin@faa.gov* ), by the deadline as published by the FAA in a **Federal Register** notice for each Summer and Winter Scheduling Season. The requesting Carrier must submit its entire schedule at Newark for the particular season, noting which requests are in addition to, or changes from, the previous corresponding season at the respective airports.
(c)Before assigning new or returned Slots under this section, the FAA will first accommodate Carrier requests to retime Slots for operational reasons or to bring the flight time closer to the time originally requested by the applicant Carrier in previous corresponding seasons, as reflected in FAA records.
(d)After accommodating Carrier requests for retiming of Slots, the FAA will assign 50% of the new Slots and returned Slots to New Entrants, unless requests by New Entrants constitute fewer than 50% of available Slots.
(e)With the remaining available Slots, if all requests for Slots under this section cannot be accommodated, the FAA will give priority to requests to introduce year-round service or to extend an existing operation to a year-round operation.
(f)Thereafter, the FAA will assign Slots considering all relevant factors including:
(1)The effective period of operation;
(2)The extent and regularity of intended use of a Slot;
(3)Schedule constraints of Carriers requesting Slots. § 93.187 Reversion and withdrawal of slots.
(a)This section does not apply to Unrestricted Slots.
(b)A Carrier's Common Slots or Limited Slots revert back to the FAA 30 days after the Carrier has ceased all operations at Newark for any reasons other than a strike.
(c)The FAA may retime, withdraw, or temporarily suspend Common Slots and Limited Slots at any time to fulfill operational needs.
(d)Common Slots and Limited Slots will be withdrawn in accordance with the priority list established under § 93.193 and international obligations.
(e)Except as otherwise provided in paragraph
(a)of this section, the FAA will notify an affected Carrier before withdrawing or temporarily suspending a Common Slot or Limited Slot and specify the date by which operations under the Common Slot or Limited Slot must cease. The FAA will provide at least 45 days' notice unless otherwise required by operational needs.
(f)Any Common Slot or Limited Slot that is temporarily withdrawn under this paragraph will be reassigned, if at all, only to the Carrier from which it was withdrawn, provided the Carrier continues to conduct Scheduled Operations at the airport. § 93.188 Sublease and transfer of slots.
(a)A Carrier may sublease its Slots to another Carrier in accordance with this section and subject to the provisions of the Carrier's lease agreement with the FAA.
(b)A Carrier must provide notice to the FAA to sublease a Slot. Such notice must contain: the Slot number and time, effective dates and, if appropriate, the duration of the lease. The Carrier may also provide the FAA with a minimum bid price.
(c)The FAA will post a notice of the offer to sublease the Slot and relevant details on the FAA Web site at *http://www.faa.gov.* An opening date, closing date and time by which bids must be received will be provided.
(d)Upon consummation of the transaction, written evidence of each Carrier's consent to sublease must be provided to the FAA, as well as all bids received and the terms of the sublease, including but not limited to:
(1)The names of all bidders and all parties to the transaction;
(2)The offered and final lengths of the sublease;
(3)The consideration offered by all bidders and provided by the sublessee.
(e)The Slot may not be used until the conditions of paragraph
(d)of this section have been met, and the FAA provides notice of its approval of the sublease.
(f)Slots may be transferred among a U.S. Air Carrier and another Carrier that conducts operations at Newark solely under the transferring Carrier's marketing control, including the entire inventory of the flight. Each party to such transfer must provide written evidence of its consent to the transfer and the FAA must confirm and approve these transfers in writing prior to the effective date of the transaction. However, the FAA will approve transfers under this paragraph up to five business days after the actual operation to accommodate operational disruptions that occur on the same day of the scheduled operation. The FAA Vice President, System Operations Services is the final decision-maker for any determinations under this section.
(g)A Carrier wishing to sublease a Slot via an FAA auction, rather than pursuant to this section, may do so. The Carrier shall retain the proceeds and the Slot shall retain the same designation that it had prior to the Carrier placing it up for auction. § 93.189 One-for-one trade of slots.
(a)A Carrier may trade a Slot with another Carrier on a one-for-one basis.
(b)Written evidence of each Carrier's consent to the trade must be provided to the FAA.
(c)Each recipient of the trade may not use the acquired Slot until written confirmation has been received from the FAA.
(d)Carriers participating in a one-for-one trade must certify to the FAA that no consideration or promise of consideration was provided by either party to the trade. § 93.190 Minimum usage requirements.
(a)This section does not apply to Unrestricted Slots.
(b)Any Common Slot or Limited Slot included in a summer or winter season schedule approved by the FAA that is not used at least 80 percent of the time during the period for which it is assigned will be withdrawn by the FAA.
(c)Paragraph
(b)of this section does not apply to the first 90-day period after assignment of a Common Slot or Limited Slot through a sublease.
(d)The FAA may waive the requirements of paragraph
(b)of this section in the event of a highly unusual and unpredictable condition which is beyond the control of the Carrier and which affects Carrier operations for a period of five or more consecutive days. Examples of conditions which could justify a waiver under this paragraph are weather conditions that result in the restricted operation of the airport for an extended period of time or the grounding of an aircraft type.
(e)The FAA will treat as used any Common Slot or Limited Slot held by a Carrier on Thanksgiving Day, the Friday following Thanksgiving Day, and the period from December 24 through the first Sunday of January. § 93.191 Unscheduled operations.
(a)During the hours of 6 a.m. through 10:59 p.m. Eastern Time, no person may operate an aircraft other than a helicopter to or from Newark unless he or she has received, for that Unscheduled Operation, a Reservation that is assigned by the Airport Reservation Office
(ARO)or in the case of Public Charters, in accordance with the procedures in paragraph
(d)of this section. Requests for Reservations will be accepted through the e-CVRS beginning 72 hours prior to the proposed time of arrival to or departure from Newark. Additional information on procedures for obtaining a Reservation is available on the Internet at *http://www.fly.faa.gov/ecvrs.*
(b)Reservations, including those assigned to Public Charter operations under paragraph
(d)of this section, will be available to be assigned by the ARO on a 30-minute basis at Newark as follows:
(1)Two Reservations per hour between 6 a.m. and 11:59 a.m. and between 10 p.m. and 10:59 p.m.
(2)One Reservation per hour between 12 noon and 9:59 p.m.
(c)The ARO will receive and process all Reservation requests for unscheduled arrivals and departures at Newark. Reservations are assigned on a “first-come, first-served” basis determined by the time the request is received at the ARO. Reservations must be cancelled if they will not be used as assigned.
(d)One Reservation per hour will be available for assignment to Public Charter operations prior to the 72-hour Reservation window in paragraph
(a)of this section. No more than 25 percent of the reservations available from 12 noon through 9:59 p.m. will be made available for Public Charter operations under this paragraph.
(1)The Public Charter Operator may request a reservation up to six months in advance of the date of the flight operation. Reservation requests should be submitted to Federal Aviation Administration, Slot Administration Office, AGC-200, 800 Independence Avenue, SW., Washington, DC 20591. Submissions may be made via facsimile to
(202)267-7277 or by e-mail to: *7-awa-slotadmin@faa.gov.*
(2)The Public Charter operator must certify that its prospectus has been accepted by the Department of Transportation in accordance with 14 CFR part 380.
(3)The Public Charter operator must identify the call sign/flight number or aircraft registration number of the direct Air Carrier, the date and time of the proposed operation(s), the airport served immediately prior to or after Newark, aircraft type, and the nature of the operation ( *e.g.* , ferry, passenger). Any changes to an approved Reservation must be approved in advance by the Slot Administration Office.
(4)If Reservations under paragraph (d)(1) of this section have already been assigned, the Public Charter operator may request a Reservation under paragraph
(a)of this section.
(e)The filing of a request for a Reservation does not constitute the filing of an IFR flight plan as required by regulation. The IFR flight plan may be filed only after the Reservation is obtained, must include the Reservation number in the “Remarks” section, and must be filed in accordance with FAA regulations and procedures.
(f)Air Traffic Control will accommodate declared emergencies without regard to Reservations. Non-emergency flights in direct support of national security, law enforcement, military aircraft operations, or public-use aircraft operations may be accommodated above the Reservation limits with the prior approval of the Vice President, System Operations Services, Air Traffic Organization. Procedures for obtaining the appropriate waiver will be available on the Internet at *http://www.fly.faa.gov/ecvrs.*
(g)Notwithstanding the limits in paragraph
(b)of this section, if the Air Traffic Organization determines that air traffic control, weather and capacity conditions are favorable and significant delay is unlikely, the FAA may determine that additional Reservations may be accommodated for a specific time period. Unused Slots may also be made available temporarily for unscheduled operations. Reservations for additional operations must be obtained through the ARO.
(h)Reservations may not be bought, sold or leased. § 93.192 Reporting requirements.
(a)No later than September 1 for the Summer Scheduling Season and February 1 for the Winter Scheduling Season, each Carrier holding a Common Slot or Limited Slot must submit an interim report of Slot usage for each day of the applicable scheduling season. No later than 30 days after the last day of the applicable scheduling season, each Carrier holding a Common Slot or Limited Slot must submit a final report of the completed operations for each day of the entire scheduling season.
(b)Such reports, in a format acceptable to the FAA, must contain the following information for each Common Slot or Limited Slot:
(1)The Slot number, time, and arrival or departure designation;
(2)The operating Carrier;
(3)The date and time of each of the operations conducted pursuant to the Slot, including the flight number and origin/destination; and
(4)The aircraft type identifier.
(c)The FAA may withdraw the Slot of any Carrier that does not meet the reporting requirements of paragraph
(a)of this section. § 93.193 Administrative provisions.
(a)Each Slot shall be assigned a number for administrative convenience.
(b)The FAA will assign priority numbers by random lottery for Common Slots and Limited Slots at Newark. Each Common Slot and Limited Slot will be assigned a withdrawal priority number, and the 30-minute time period for the Common Slot or Limited Slot, frequency, and the arrival or departure designation.
(c)If the FAA determines that operations need to be reduced for operational reasons, the lowest assigned priority number Common Slot or Limited Slot will be the last withdrawn.
(d)Any Slot available on a temporary basis may be assigned by the FAA to a Carrier on a non-permanent, first-come, first-served basis subject to permanent assignment under this subpart. Any remaining Slots may be made available for unscheduled operations on a non-permanent basis and will be assigned under the same procedures applicable to other operating Reservations.
(e)All transactions under this subpart must be in a written or electronic format approved by the FAA. Issued in Washington, DC, on May 15, 2008. Nan Shellabarger, Director of Aviation Policy and Plans. [FR Doc. 08-1271 Filed 5-16-08; 12:00 pm]
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U.S. Code
65 references not yet in our index
  • 49 CFR 231
  • 49 CFR 213.137
  • Pub. L. 109-59
  • 49 CFR 18
  • 49 CFR 655
  • 49 CFR 665
  • 49 CFR 17
  • 49 CFR 21
  • 49 CFR 27.9
  • 49 CFR 25
  • 49 CFR 24.4
  • 49 CFR 24
  • 49 CFR 41.117(d)
  • 49 CFR 41
  • EO 11738
  • Pub. L. 93-348
  • 49 CFR 11
  • 49 CFR 18.36(g)(3)(ii)
  • 49 CFR 18.36
  • 49 CFR 31
  • 31 CFR 223
  • Pub. L. 92-463
  • 36 CFR 242
  • 50 CFR 100
  • 47 CFR 90.523
  • 47 CFR 27.502
  • 47 CFR 1.2110(b)(3)(iv)(A)
  • 47 CFR 90.523(a)
  • 47 CFR 90.523(b)
  • 47 CFR 90.523(e)
  • 47 CFR 90.523(e)(i)
  • 47 CFR 27.1305
  • 47 CFR 90.542(a)(5)
  • 47 CFR 0.181
  • 47 CFR 27.1303
  • 47 CFR 1.2109(b)
  • 47 CFR 1.2109
  • 47 CFR 76.65(b)
  • 47 CFR 1.2110
  • 47 CFR 1.2110(b)(3)(iv)(B)
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U.S.C.§ 4321
U.S.C.§ 5302
U.S.C.§ 5335
U.S.C.§ 5323
U.S.C.§ 5332
F. App'x766 F.2d 1107
Cite49 CFR 231
Cite49 CFR 213.137
Cites 141 · showing 12Cited by 0 across 0 sources
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