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A. 1. a.(1)(a) i) a)#)a [ PuQ)P# ## b, oT9 #)^ `> XivQ)X#Intermediate Legal WordPerfect Learning Guide   z I. A. 1. a.(1)(a) i) a)#)a [ PwQ)P# ## b, oT9 #)^ `> XixQ)X#   Copyright  Portola Systems, Inc.`e%APage   I. A. 1. a.(1)(a) i) a)#)a [ PyQ)P# ## b, oT9 Update7=@6FInitial Codes for Update Module*'Ç.7=.Ee MN#)a [ P{Q)P# dn  ##  [ b, oT9 ! I. A. 1. a.(1)(a) i) a)#)a [ P|Q)P# ## b, oT9 !#)^ `> Xi}Q)X#`Ye%%Legal WordPerfect 5.0 Update Class Learning Guide   } I. A. 1. a.(1)(a) i) a)#)a [ P~Q)P# ## b, oT9 !#)^ `> XiQ)X#Legal WordPerfect 5.0 Update Class Learning Guide   } I. A. 1. a.(1)(a) i) a)#)a [ PQ)P# ## b, oT9 !#)^ `> XiQ)X#   Copyright  Portola Systems, Inc. 1987, 1988`e%APage   I. A. 1. a.(1)(a) i) a)#)a [ PQ)P# ## b, oT9 !#)^ `> XiQ)X#   Page ``e%)Copyright  Portola Systems, Inc. 1987, 1988 2dtqqI58Ç.7=@6FFormat Downloaded Document=F*'Ç.7=.EUOP XX    #\ #d6X@7@#Bld/Und7=@6FBold and Underline Text87=F*'Ç.7=.EQR  a4Agenda.E+'*Ç.Agenda Items=('87=FGD!*'7=*'YZa5Agenda.E+'*Ç.Agenda Items=('87=FGD!*'7=*'[\2qq]q?a6Agenda.E+'*Ç.Agenda Items=('87=FGD!*'7=*']^a7Agenda.E+'*Ç.Agenda Items=('87=FGD!*'7=*'_`a8Agenda.E+'*Ç.Agenda Items=('87=FGD!*'7=*'aba159.E+'*Ç.Right-Aligned Paragraph Numbers'87=F*'8st@   2Ba259.E+'*Ç.Right-Aligned Paragraph Numbers'87=F*'Auv@` `  ` ` ` a359.E+'*Ç.Right-Aligned Paragraph Numbers'87=F*'Jwx` ` @  ` `  a459.E+'*Ç.Right-Aligned Paragraph Numbers'87=F*'Syz` `  @  a559.E+'*Ç.Right-Aligned Paragraph Numbers'87=F*'\{|` `  @hh# hhh 2" ^!/"a659.E+'*Ç.Right-Aligned Paragraph Numbers'87=F*'e}~` `  hh#@( hh# a759.E+'*Ç.Right-Aligned Paragraph Numbers'87=F*'n` `  hh#(@- ( a859.E+'*Ç.Right-Aligned Paragraph Numbers'87=F*'w` `  hh#(-@pp2 -ppp 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S' #&J\  P6Qu&P#Privileged and ConfidentialGhh}pp"X  March 1, 1999(#(#1 X4` `   #XP\  P6QynXP#Ghh}pp"X  xx oՊ+ Before the w BFederal Communications Commission  X'tWashington, D.C. 20554 ă  X4#&a\  P6G;u&P#In the Matter of#Xj\  P6G;ynXP##&J\  P6Qu&P#) )  SN'Amendment of the Commission's Rules)pp"WT Docket No. 9781 Regarding Multiple Address Systems)  X ' #Xj\  P6G;ynXP#FURTHER NOTICE OF PROPOSED RULE MAKING AND ORDER #&a\  P6G;u&P# l  S 'X` hp x (#%'0*,.8135@8: Paragraph 1(#  S'1(#lI.INTRODUCTIONGhh}pp"X  xx 1  Sg'II.EXECUTIVE SUMMARYhh}pp"X  xx 2  S?'III.BACKGROUNDGhh}pp"X  xx 3  S'IV. DISCUSSION Ghh}pp"X  xx   S'A.` ` Spectrum Allocationhh}pp"X  xx 8  S'` ` 1. Backgroundhh}pp"X  xx 8  S'` ` 2. Proposals in the Noticepp"X  xx 9  Sy'B.` ` The Impact of the Balanced Budget Act of 1997X  xx 14  SQ'` ` 1. Authority to Employ Competitive Bidding Procedures  xx 16  S)'` ` 2. Exemptions from Competitive Biddingpp"X  xx 18  S'` ` 3. Licensing in the 928/952/956 MHz BandsX  xx 21  S'C.` ` Frequency SetAside for Services Exempt from Competitive Biddingxx 22  S'D.` ` Resolution of Mutually Exclusive Applications for Services  S '` ` Exempt from Competitive Biddingpp"X  xx 24  Sa!'E.` ` Competitive Bidding Procedurespp"X  xx 25  S9"'F.` ` Suspension of Acceptance and Processing of Applications  xx 28  S#'V.CONCLUSIONGhh}pp"X  xx 32  S#'VI.PROCEDURAL MATTERS  S$'A.` ` Ex Parte Rules PermitButDisclose ProceedingX  xx 33  S%'B.` ` Initial Regulatory Flexibility Analysispp"X  xx 34  Sq&'C.` ` Initial Paperwork Reduction Act of 1995 AnalysisX  xx 35"q&0*''II,%"Ԍ S'D.` ` Comment Dateshh}pp"X  xx 36  S'E.` ` Further Informationhh}pp"X  xx 40  S'VII.ORDERING CLAUSEShh}pp"X  xx 41 APPENDIX A: Initial Regulatory Flexibility Analysis  S' I. INTRODUCTION  S'l  S'  kA1.ؠ` ` In this Further Notice of Proposed Rule Making and Order ("Further Notice"), we address  S' |$the impact of the Balanced Budget Act of 1997 yO 'ЍPub. L. No. 10533, Title III, 111 Stat. 251 (1997) ("Balanced Budget Act"). on the Commission's ongoing Multiple Address Systems  Sr' |$("MAS") rule making proceeding."rX yOj ' G6!& ЍMAS is a pointtomultipoint, multipointtopoint, radio communications service licensed under Parts 22 and  |$ 101 of the Commission's Rules, 47 C.F.R. Parts 22 and 101. Part 22 refers to the MAS service as pointto {O ' |$g multipoint. See 47 C.F.R.  22.621. As specifically described infra, 3.2 megahertz of spectrum in the middle of the 900 MHz band is allocated for MAS use. Our objective is to supplement the record received in response to the  SJ ' |$Notice of Proposed Rule Making in this docket. J B {O,' G6!& Ѝ Amendment of the Commission's Rules Regarding Multiple Address Systems, WT Docket No. 9781, Notice  {O'of Proposed Rule Making, 12 FCC Rcd 7973 (1997) ("Notice").  We believe that the ultimate resolution of the issues in  |$this ongoing proceeding will benefit from further discussion in light of the revisions to the  S ' |$Communications Act of 1934, as amended, ("Communications Act")  {O:'ЍCommunications Act of 1934, ch. 652, 48 Stat. 1064 (codified as amended at 47 U.S.C.  151 et seq). by the Balanced Budget Act. 0  yO' G6!y ЍWe have initiated a proceeding to assess the impact of the Balanced Budget Act on the Commission's  |$ determinations of which services are now auctionable. Implementation of Sections 309(j) and 337 of the  |$ Communications Act of 1934 as Amended, Promotion of Spectrum Efficient Technologies on Certain Part 90  |$* Frequencies, Establishment of Public Service Radio Pool in the Private Mobile Frequencies Below 800 MHz, WT  {O'Docket No. 9987, Notice of Proposed Rule Making, FCC 9952 (rel. Mar. 25, 1999) ("BBA NPRM"). We  |$seek comment, therefore, on the effect of the new statutory language in Section 309(j) of the  S 'Communications ActQ  yO.'Ѝ47 U.S.C.  309(j).Q on the proposals set forth in the Notice.  S^'l. II. EXECUTIVE SUMMARY l  S'  kB2.ؠ` ` This Further Notice is intended to refine certain of the Commission's outstanding  |$proposals in this proceeding. These refinements are intended to comport with statutory requirements  S' |$established as a result of the Balanced Budget Act subsequent to the adoption of the Notice. Our goal in  |$Mthis proceeding continues to be to facilitate the further development and implementation of MAS. The  Sr'following is a synopsis of our major proposals and actions taken herein. This Further Notice: "Lr0*%%II"Ԍ S'  k~` ` Examines the impact of the Balanced Budget Act on the proposal in the Notice to allocate   kthe 932/941 MHz and 928/959 MHz bands for subscriberbased services and to award initial licenses for these bands through competitive bidding.(#`  S' X(#  Sb'  k` ` Seeks comment on whether passage of the Balanced Budget Act has affected the proposal  S:'  kin the Notice to reserve five channel pairs in the 932/941 MHz MAS bands for Federal Government/public safety use.(#`  S'  k` ` Seeks comment on whether passage of the Balanced Budget Act has affected the proposal  S'  kin the Notice to reserve the 928/952/956 MHz MAS bands exclusively for private, internal use and to continue to issue licenses for these bands on a sitebysite basis.(#`  S& '  k` ` Seeks comment on how to resolve mutually exclusive MAS applications received from   k'` ` parties exempted from the competitive bidding process, assuming that we reserve channels  S '  k ` ` in either the 932/941 MHz or 928/952/956 MHz bands, or both, for public safety radio ` ` services.  S^'  k# ` ` Seeks comment on specific size standards to be applied to the small business definition, ` ` and the offering of "tiered bidding credits" for the different sizes of small businesses.  S'  kJ` ` Immediately suspends the acceptance and processing of applications in the 928/952/956   kMHz bands, regardless of the type of service proposed by the applicant, except certain   kpending applications, applications for minor modifications (as defined herein), and   kapplications for license assignment or transfer of control during the pendency of this rule making.(#`  S' Đ S' III. BACKGROUND l  S'  k3.ؠ` ` Historically, the primary users of MAS spectrum have been the power, petroleum and  |$security industries for various alarm, control, interrogation and status reporting requirements, and the  SV' |$Qpaging industry for control of multiple paging transmitters in the same general geographic area.VV {O'ԍSee Notice, 12 FCC Rcd at 7976.V In 1989,  |$the Commission allocated forty 12.5kilohertz channel pairs in the 932932.5 MHz and 941941.5 MHz  S' |$bands (932/941 MHz bands) for both Federal Government and nonGovernmental pointtomultipoint use.&Z {O' G6! ЍSee  Amendment of Parts 1, 21, 22, 74, and 94 of the Commission's Rules to Establish Service and Technical  |$ Rules for Government and nonGovernment Fixed Service Usage of the Frequency Bands 932935 MHz and 941944  {O ' |$ MHz, GN Docket No. 82243, Second Report and Order, 4 FCC Rcd 2012 (1989) ("932/941 MHz Second Report  {O\!'and Order").  S' |$The Interdepartment Radio Advisory Committee (IRAC) of the National Telecommunications and  S' |$3Information Administration (NTIA) was to coordinate Governmental and nonGovernmental use.V H {O$'ԍSee Notice, 12 FCC Rcd at 7977.V By" 0*%%II"  S' |$Public Notice, the Commission stated it would open five twoday filing windows for licenses authorizing  |$use of these bands during January and February, 1992, and thereafter license applications on a firstcome,  S' |$firstserved basis.v  {O'ԍPublic Notice, DA 911422, 6 FCC Rcd 7242 (rel. Nov. 27, 1991).v In the event we received mutually exclusive applications, we indicated that lotteries  S' |$would be used to select among applicants.: Z {O'ԍId.: In response to the series of filing windows, over 50,000  Sb'applications were filed for the available forty 12.5kilohertz channel pairs in these bands.  S'  k4.ؠ` ` On August 10, 1993, the Omnibus Budget Reconciliation Act of 1993 ("Budget Act")  {O ' G6! ЍPub. L. No. 10366, Title VI,  6002(a), 107 Stat. 312, 387 (1993); see H.R. Conf. Rep. No. 213, 103d  yOh 'Cong., 1st Sess. 48089 (1993).    S' |$added Section 309(j) to the Communications Act.M F yO 'ԍ47 U.S.C.  309(j).M Under the Budget Act, Section 309(j) permitted the  S' |$Commission, for certain classes of licenses, to employ competitive bidding procedures to choose among  |$mutually exclusive applications for initial license grants or authorizations. Specifically, the Commission  |$Iwas authorized to grant licenses by competitive bidding if the "principal use" of the spectrum to be  |$Qauctioned was to provide "subscriber based services," and if auctioning would promote the public interest  S" ' |$objectives stated in Section 309(j)(3)._"  {O'ԍSee 47 U.S.C.  309(j)(1)(3) (1996)._ As a result, the Commission commenced a proceeding to examine  S ' |$whether licenses for various services should be assigned by competitive bidding.5 h  {O' G6! ЍSee  Implementation of Section 309(j) of the Communications Act Competitive Bidding, PP Docket No.  {O'93253, Notice of Proposed Rule Making, 8 FCC Rcd 7635 (1993) ("Competitive Bidding NPRM"). 5 Based on the record  S ' |$7in that proceeding and the requirements of the statute, the Competitive Bidding Second Report and Order  S ' |$Zestablished rules governing the types of services and licenses that may be subject to auctions.Z&  yO' G6! ЍImplementation of Section 309(j) of the Communications Act Competitive Bidding, PP Docket No. 93 {O' |$| 253, Second Report and Order, 9 FCC Rcd 2348 (1994) ("Competitive Bidding Second Report and Order"). See also  {O' |$ Implementation of Section 309(j) of the Communications Act Competitive Bidding, PP Docket No. 93253, Second  {Ol'Memorandum Opinion and Order, 9 FCC Rcd 7245 (1994) ("Competitive Bidding Second MO&O").Z In that  S ' |$context, the Commission determined at that time that MAS, part of the Private Operational Fixed  S\' |$*Microwave ("POFM") service,|Z\ yO' G6! ЍThe former Part 94 of the Commission's Rules had contained the rules for the POFM Service. Part 94  |$ eligibles were persons (individuals, partnerships, associations, joint stock companies, trusts, or corporations),  |$ governmental entities, or agencies eligible to provide Private Operational Fixed Service under Parts 80, 87, or 90,  {O"' |$ or entities proposing to provide such service to such POFM eligibles, e.g. on a private carrier basis. The POFM  |$ Service includes any use of microwave frequencies other than for common carrier purposes (which were governed  |$3 by thenPart 21). Effective August 1, 1996, however, the Commission consolidated the service rules for fixed  {O`$' |$ microwave operations, e.g., Parts 21 and 94 of the rules, into a single Part 101. See In the Matter of Reorganization"`$0*%%Z$"  |$ and Revision of Parts 1, 2, 21, and 94 of the Rules to Establish a New Part 101 Governing Terrestrial Microwave  |$D Fixed Radio Services, WT Docket No. 94148; Amendment of Part 21 of the Commission's Rules for the Domestic  {O 'Public Fixed Radio Services, CC Docket No. 932, Report and Order, 11 FCC Rcd 13,449 (1996).  did not qualify as subscriberbased and, therefore, should not be subject"\0*%%II+"  S' |$_to competitive bidding. {O' G6!I ЍSee Competitive Bidding NPRM, 8 FCC Rcd at 765960;   Competitive Bidding Second Report and Order  yOT'9 FCC Rcd at 2354 .  Thus, the Commission decided that it would not be appropriate to use  S' |$Qcompetitive bidding for the award of those POFM MAS licenses for which 50,000plus applications were  S' |$pending, even in the event of mutual exclusivity.D {O ' G6!c ЍCompetitive Bidding NPRM, 8 FCC Rcd at 7660 n.156; Competitive Bidding Second Report and Order, 9 FCC Rcd at 2354 n.25. Subsequently, the Commission undertook a preliminary  S' |$&examination of the pending applications and ascertained that the vast majority were filed by applicants  S`'seemingly proposing to use their licenses principally to provide subscriberbased service.V` {O 'ԍSee Notice, 12 FCC Rcd at 7978.V  S'  k~5.ؠ` ` Because of the overwhelming interest in commercial operations of MAS facilities and the  |$*substantial number of applications filed for the 932/941 MHz bands, the Commission was concerned that  |$&the analysis made in the Competitive Bidding docket regarding MAS might be inaccurate. As a result,  S' |$xin February 1997, the Commission issued the Notice to reexamine current and future uses of, and demand  Sr' |$for, MAS spectrum. The Notice sought to determine the appropriate method of license distribution for  |$the numerous pending applications. It also sought to establish a streamlined regulatory framework that  S$ ' |$would provide licensees sufficient flexibility to meet the public's MAS needs. The Notice reached  |$tentative conclusions, and sought comment on, as described more fully below, issues relating to the  |$authority to use competitive bidding, the allocation of the MAS bands, sitebased versus geographic area  |$licensing, particularly where the principal use of the spectrum would involve, or was reasonably likely to  S ' |$involve, "subscriberbased" services, service areas, operational and technical flexibility, the treatment of  |$incumbents, spectrum block size, partitioning and disaggregation, construction requirements, regulatory  S6' |$7status, the establishment of a public safety setaside, and the disposition of previouslyfiled applications.R60  {O'ԍ Id. at 797999.R  S' |$QThe Notice also temporarily suspended the acceptance and processing of some MAS applications pending  S'resolution of the issues in the proceeding.R  {OJ'ԍ  Id. at 800304.R  S'  k~6.ؠ` ` On August 5, 1997, the President signed the Balanced Budget Act. The Balanced Budget  Sp' |$MAct,  inter alia, eliminated the Commission's authority to issue licenses or permits by random selection  |$after July 1, 1997, with the exception of licenses or permits for noncommercial educational radio and"JT 0*%%II"  S' |$television stations.oX yOh' G6!& ЍBalanced Budget Act at  3002(a)(2)(B)(5). In the Conference Report that accompanies the legislation, these  |$; changes are characterized as providing for "expanded" auction authority. H.R. Conf. Rep. No. 105217, 105th Cong., 1st Sess., at 572 ("Conference Report"). o Because the Balanced Budget Act eliminated our authority to use lotteries, and new  S' |$Qlicensing rules had yet to be finalized, the Public Safety and Private Wireless Division and the Commercial  S' |$^Wireless Division of the Wireless Telecommunications Bureau dismissed the pending 50,000plus pending  S' |$<MAS applications to use the 932/941 MHz bands.^ {O' G6! ЍSee In the Matter of Amendment of the Commission's Rules Regarding Multiple Address Systems, DA 98 {O' |$Z 1889, Order, 13 Communications Reg. (P&F) 606 (WTB PSPWD rel. Sept. 17, 1998) (modified by Erratum,  DA  {O '982038 (WTB PSPWD, CWD, rel. October 7, 1998)) ("MAS Dismissal Order").  In addition, the Balanced Budget Act amended  |$/Section 309(j) of the Communications Act to require the Commission to award mutually exclusive  |$applications for initial licenses or permits using competitive bidding procedures, with very limited  S' |$&exceptions. yO ' G6! ЍBalanced Budget Act at  3002(a)(1)(A)(1)(2). It was determined that, because the 50,000plus pending  |$ applications were mutually exclusive, and because the overwhelming majority of these applications proposed services  |$ that were not exempted from competitive bidding under the Balanced Budget Act, the Commission was without  |$ authority to process them pursuant to the rules and requirements under which they were filed. Accordingly, they  {O'had to be dismissed. MAS Dismissal Order at 26. Specifically, Section 309(j) now provides that competitive bidding must be employed in  |$ instances of mutually exclusive applications, while exempting certain licenses, most notably those for  S' |$Q"public safety radio services."n  yO 'ԍ Balanced Budget Act at  3002(a)(1)(A)(1)(2).n "Public safety radio services" include "private internal radio services used  |$by State and local governments and nongovernment entities and including emergency road services  |$provided by notforprofit organizations, that (i) are used to protect the safety of life, health, or  SH 'property; and (ii) are not made commercially available to the public."QH P  {O8'ԍId. at  3002(a)(2)(A).Q  S '  k7.ؠ` ` The comments received in response to the Notice generally support the Commission's  |$ proposals, particularly those advocating simplified licensing procedures and increased operational and  S ' |$technical flexibility for MAS licensees.{  {O,'ԍ See, e.g., CellNet Comments at 312; Radscan Comments at 212.{ The comments were divided, however, regarding the proposal  S ' |$Dto award licenses by a system of competitive bidding.| t {O'ԍ See, e.g., Radscan Comments at 1; Itron Comments at 67. | Although the Commission received thorough and  SZ' |$diverse public input in response to the Notice, we believe that the issues in this proceeding cannot be  S4' |$decided fairly solely on the basis of the record compiled in response to the Notice, because parties have  |$not been afforded an opportunity to assess the impact of the Balanced Budget Act on the Commission's  |$outstanding proposals for MAS spectrum. Notably, the Balanced Budget Act has altered the criteria for  |$determining whether or not applications for a particular service or class of frequencies are subject to  S' |$competitive bidding. As a result, we believe that the public interest would be furthered by giving"0*%%II;"  |$interested parties, particularly the predominant users of MAS spectrum, a further opportunity to comment.  S' |$Q For example, as stated in the Notice, a review of the Commission's licensing database has determined that  S' |$many of the channels in the 928/952/956 MHz bands are used to provide services that may potentially be  S' |$tcovered by the public safety auction exemption in the Balanced Budget Act.b {O'ԍSee Notice, 12 FCC Rcd at 7980.b Hence, we believe that a  Sb' |$further opportunity for comment will result in a more comprehensive record on which to base decisions  S:'regarding the future licensing of MAS spectrum.  S' IV. DISCUSSION l  S' A.Spectrum Allocation  Sr'  SJ '1.` ` Background  S" '  S '  k8.ؠ` ` Initially, in establishing the MAS service, the Commission allocated twenty 25kilohertz  |$3channel pairs in the 928929 MHz and 952953 MHz bands for exclusive, private use by Power Radio  S ' |$IService eligibles for energy distribution automation.y Z {O' G6! ЍSee In the Matter of Amendment of Parts 2 and 94 of the Commission's Rules to Provide Regulations for  {On' |$D Use of Radio in Public Utility Distribution Automation Systems, SS Docket No. 7918, Report and Order, 46 Fed.  yO8' |$ Reg. 9950 (Jan. 30, 1981). Energy distribution automation systems are a type of MAS operation that use remote  |$ radio transceivers located at customers' premises to enable utilities to control energy peak usage through load management techniques. y The Commission later allocated fourteen 25 |$kilohertz channel pairs in the same bands and eight 25kilohertz unpaired channels in the 956 MHz band  |$for private MAS operations by all entities eligible for the POFM Service under former Part 94 of the  S2' |$Rules. 2 {O' G6!I ЍSee In the Matter of Amendment of Parts 2 of the Commission's Rules Governing Frequency Allocations,  |$t 22 of the Commission's Rules Governing the Public Mobile Radio Services, and 94 of the Rules Governing the  |$* Private OperationalFixed (Microwave) Service to Reallocate FortyEight 25 kHz Channels in the 900 MHz Range  |$U for Multiple Address Radio Systems; and Amendment of Parts 22 and 94 to Establish a New Standard for Frequency  {O' |$ Tolerance on 900 MHz Multiple Address Channels, SS Docket No. 7918, Second Report and Order, 88 FCC 2d 1173 (1982).  It also allocated six 25kilohertz paired channels in the 928 and 959 MHz bands for common  S ' |$Zcarrier Domestic Public Land Mobile (DPLM) use under Part 22 of our Rules for control of widearea  S' |$paging networks.]!  {O 'ЍSee 47 C.F.R.  22.623. ] The Commission instituted sharing criteria to facilitate the efficient use of this  S' |$ allocation approach. Specifically, if the MAS channels available under the POFM service have been  |$licensed in a given area, Part 101 eligibles may apply for MAS channels allocated for DPLM operations,  Sj' |$ and vice versa.U"j {O&#'ԍSee 47 C.F.R.  101.147(b).U In 1988, the Commission established a standard mileage separation and reduced the  SD' |$channel spacing from 25 kilohertz to 12.5 kilohertz, in an effort to increase spectrum efficiency and reduce"D"0*%%II"  S' |$regulatory burdens.#| {Oh' G6! ЍSee In the Matter of Amendment of  22.501(g)(2) and 94.65(a)(1) of the Rules and Regulations to Re |$ Channel the 900 MHz Multiple Address Frequencies; Amendment of  94.65(a)(1) of the Rules to Revise Footnote  |$* 3 in the Frequency Table to Make the Frequencies Available for Use by any Part 94 Eligible; Amendment of Part  |$ 2 and  94.63(d)(5) and 94.65 (a)(1) Footnote 3 of the Rules to Permit Operation of Mobile Remote Meter Reading  |$ Systems on a Primary Basis on the Exclusive Power Radio Service Frequencies in 952.3625952.8375 MHz Band;  |$ Amendment of Part 94 of the Commission's Rules to Permit Intrasystem Communications Among Multiple Address  {O'System Master Stations, PR Docket No. 875, Report and Order, 3 FCC Rcd 1564 (1988). Finally, as noted earlier, the Commission made forty 12.5kilohertz channel pairs  |$in the 932932.5 MHz and 941941.5 MHz bands available for both Federal Government and non S'Governmental use.n$  {O\ 'ԍ932/941 MHz Second Report and Order, 4 FCC Rcd at 2012.n  S`4 2.` ` Proposals in the Notice  S'  k9.ؠ ` ` As described more fully in the paragraphs that follow, the Notice proposed a variety of  S' |$Dchanges for the MAS spectrum allocation. The Commission proposed to designate most of the spectrum  |$Iin the 932/941 MHz bands and all of the spectrum in the 928/959 MHz bands for subscriberbased  |$services, and to use competitive bidding to choose among mutually exclusive applications for licenses in  Ss' |$these bands.Y%s {O'ԍNotice, 12 FCC Rcd at 797980, 97.Y The Commission also proposed to designate the 928/952/956 MHz bands exclusively for  |$private, internal use, and not utilize competitive bidding to select among mutually exclusive applications  S# 'in these bands.C&# 0  {O'ԍId. at 7980.C  S '  k10.` ` Pursuant to Section 309(j)(6)(E) of the Communications Act, the Commission has an  |$"obligation in the public interest to continue to use engineering solutions, negotiation, threshold  S ' |$qualifications, service regulations, and other means in order to avoid mutual exclusivity in application and  S[' |$licensing proceedings."t'[  yO'#X\  P6G;ɒP#э47 U.S.C.  309(j)(6)(E).t The Commission previously has interpreted Section 309(j)(6)(E) to impose an  |$tobligation to attempt to avoid mutual exclusivity in defining licensing schemes for commercial services  S ' |$Zonly when it would further the public interest goals of Section 309(j)(3) of the Communications Act.(F" R  {O'#X\  P6G;ɒP#э See, e.g., Amendment of Part 90 of the Commission's Rules to Facilitate Future Development of SMR  {O'Systems in the 800 MHz Frequency Band, PR Docket No. 93144, Second Report and Order, 12 FCC Rcd 19079, 19104, 19154 (1997). The public interest objectives stated in Section 309(j)(3) include: (A) the rapid development and deployment of new technologies to the public; (B) promoting economic opportunity and competition, and ensuring the ready accessibility of new technologies to the public; (C) recovery for the public a portion of the value of the spectrum made available for commercial use, and avoiding unjust enrichment; and  {O#'(D)efficient and intensive use of the spectrum. Note that after the Notice was adopted, Congress added a new provision to Section 309(j)(3) requiring the Commission to ensure that an adequate period is allowed for notice"{$'0*%%l$" and comment on proposed auction procedures prior to the issuance of bidding rules, and after such bidding rules are issued, an adequate period is permitted so that interested parties have sufficient time to develop business  {O 'plans, assess market conditions, and evaluate the availability of equipment for the relevant services. See 47 U.S.C.  309(j)(3)(E).  " (0*%%II"  S' |$pIn the Notice, the Commission considered the Section309(j)(3) public interest goals and tentatively  S' |$concluded that the proposed change in the MAS licensing scheme comports with those objectives.Y) {O,'ԍSee Notice, 12 FCC Rcd at 7997. Y  S' |$Subsequent to the Notice, Congress highlighted in the Balanced Budget Act the Commission's obligation  S' |$Dunder Section 309(j)(6)(E) by referencing that obligation in the general auction authority provision.*D yOp 'ԍThe current language of Section 309(j)(1) provides that "[i]f, consistent with the obligations described in paragraph (6)(E), mutually exclusive applications are accepted for any initial license or construction permit, then, except as provided in paragraph (2), the Commission shall grant the license or permit to a qualified applicant through a system of competitive bidding that meets the requirements this subsection." 47 U.S.C.  309(j)(1) (1998). The  |$3Commission recently sought comment on whether that reference changes the scope or content of the  S<'Commission's obligation under Section 309(j)(6)(E).^+<  {O'ԍBBA NPRM at paras. 5864 . ^  S'  S'  k 11.` ` 932/941 MHz Bands. The first category of MAS spectrum, consisting of one megahertz  |$of paired spectrum in the 932932.5 MHz and 941941.5 MHz bands is available for both Federal  S' |$Government and nonGovernmental use.U,  {O'ԍSee 47 C.F.R.  101.147(b).U These 12.5kilohertz channels are authorized for both common  Sv' |$carrier and private radio use on a coprimary basis.-v {O.'ЍSee 932/941 MHz Second Report and Order, 4 FCC Rcd at 2014; 47 C.F.R.  101.147(b)(4). According to the FCC's licensing databases, only  |$*two Federal Government licensees utilize these bands. No nonGovernmental users are licensed on these  S& ' |$bands, and, as noted above, over 50,000 applications for nonGovernmental use of these bands were  S ' |$dismissed. In the Notice, the Commission proposed to allocate these bands for subscriberbased uses.b.  {OH'ԍSee Notice, 12 FCC Rcd at 7980.b  |$It based this proposal on the fact that the majority of applicants seemingly proposed to use their licenses  S ' |$xto offer subscriberbased services.C/ < {O'ԍId. at 7979.C Based on its tentative conclusion that the 932/941 MHz bands would  |$be used by licensees seeking to provide subscriberbased services, the Commission proposed to use  S`' |$competitive bidding procedures to select between mutually exclusive initial applications for MAS licenses"` /0*%%II+"  S' |$in these bands.C0 {Oh'ԍId. at 7997.C The Commission also proposed to set aside five of the 40 channel pairs in these bands  S'for public safety/Federal Government use and to issue these licenses on a first come, first served basis.F1Z {O'ԍId. at 800203.F  S'  k 12.` ` 928/959 MHz Bands. The second category of MAS spectrum, consisting of 300 kilohertz  Sb' |$of paired spectrum in the 928.85929 MHz and 959.85960 MHz bands (928/959 MHz bands), is allocated  |$for, and used primarily by, common carrier licensees under Part 22 of our Rules, and may also be used  S' |$Dfor private radio licensees pursuant to certain sharing criteria.m2 {O 'ԍSee 47 C.F.R.  22.621 and 101.147(b), Table 5.m In the Notice, the Commission tentatively  |$concluded that because the majority use of these bands is for the provision of subscriberbased services,  S' |$the 928/959 MHz bands should be designated for such services.Y3~ {O 'ԍSee Notice, 12 FCC Rcd at 797980.Y Because of the current and foreseen  |$7subscriberbased use of these channels, the Commission proposed to use competitive bidding procedures  St'to select among mutually exclusive initial applications for licenses in these bands.C4t {O$'ԍId. at 7997.C  S$ '  k 13.` ` 928/952/956 MHz Bands. The third category of MAS spectrum, consisting of 1.7  |$megahertz of paired spectrum in the 928928.85 and 952952.85 MHz bands and 200 kilohertz of unpaired  |$kspectrum in the 956.25956.45 MHz bands (928/952/956 MHz bands), is allocated for, and used primarily  S ' |$Zby, private radio licensees, and may be used by common carriers pursuant to certain sharing criteria.n5  {O'ԍSee 47 C.F.R.  22.621 and 101.147(b), Table 2. n  |$DWhile some of these private radio licensees share some or all of their capacity on a forprofit, thirdparty,  S^' |$&private carrier basis, 6^4  {O2' G6!" ЍSee generally National Ass'n of Regulatory Utility Commissioners v. FCC, 525 F.2d 630 (D.C. Cir. 1976),  {O'cert. denied, 425 U.S. 992 (1976) (private carrier concept).  the Commission tentatively concluded that the majority of the channels in these  S6' |$xbands are used for private systems to satisfy internal communications needs. In the Notice, therefore, we  S' |$proposed to designate the 928/952/956 MHz bands exclusively for private, internal use.V7  {O@'ԍSee Notice, 12 FCC Rcd at 7980.V Under this  |$kapproach, further subscriberbased use of these channels by future licensees, whether on a private carrier  S' |$basis or through sharing with common carrier licensees, would be prohibited.:8" {O!'ԍId.: However, the Commission  S' |$would grandfather existing subscriberbased services currently being provided on these MAS frequencies.:9 {O#'ԍId.: "p F90*%%II2"Ԍ S' ÙB.The Impact of the Balanced Budget Act of 1997  S'  kJ14.` ` In February, 1998, Microwave Data Systems, Inc. (MDS) filed an ex parte presentation  S' |$gurging the Commission to commence licensing in the 932/941 MHz bands.: {O'ԍSee Petition of Microwave Data Systems for Commencement of Licensing in the 932/941 MHz Bands (filed Feb. 2, 1998) (MDS Petition). We agree with MDS that  |$it is important for the Commission to license this spectrum as expeditiously as feasible. The purpose of  S8' |$the release of this Further Notice is to expedite the resolution of outstanding issues so that the  S' |$Commission can commence such licensing. Therefore, we believe that the adoption of this Further Notice  |$7is responsive to MDS' request. Insofar as MDS seeks immediate licensing of these bands without regard to the conclusion of this proceeding, its request is denied.  St'  k 15.` ` The Commission proposed in the Notice to choose among mutually exclusive initial  SN ' |$applications for use of the 932/941 and 928/959 MHz bands through a system of competitive bidding.M;N " {O'ԍNotice at 797980, 97.M  |$MThe Commission did not propose at that time to use competitive bidding to issue initial licenses for the  |$928/952/956 MHz bands because of its tentative conclusion that the majority of these channels are used  S ' |$Dby private systems to satisfy internal communications needs.L<  {O*'ԍId. at 7980. L We now assess the impact of the passage of the Balanced Budget Act on these proposals and tentative conclusions.   S^' 1.` ` Authority to Employ Competitive Bidding Procedures  S6'  S'  k 16. ` ` The Commission premised its initial proposal regarding the use of competitive bidding  |$^for licenses for MAS spectrum on the former language of Section 309(j) of the Communications Act. As  |$stated above, the former language of Section 309(j) provided that mutually exclusive applications for  |$ginitial licenses or construction permits would be subject to competitive bidding if: (1) the principal use  Sn' |$7of the spectrum involved, or was reasonably likely to involve, the provision of subscriberbased services;  SF' |$and (2) a system of competitive bidding would promote the objectives of Section 309(j)(3).e=FF {O,'ԍSee 47 U.S.C.  309(j)(1)(3) (1996).e  |$VSignificantly, the Balanced Budget Act revised Section 309(j) to change the criteria for determining  |$auctionability of spectrum, removing the requirement that the principal use of the spectrum be for  |$Msubscriptionbased services. As a result, we believe that it is both appropriate and necessary for us to  |$revisit the outstanding proposals for the use of competitive bidding procedures for MAS spectrum to ensure that such approaches are consistent with the statutory criteria.  S.'  k(17.` ` The current language of Section 309(j)(1) provides that "[i]f, consistent with the  |$obligations described in paragraph (6)(E), mutually exclusive applications are accepted for any initial  |$license or construction permit, then, except as provided in paragraph (2), the Commission shall grant the  |$_license or permit to a qualified applicant through a system of competitive bidding that meets the" =0*%%II"  S' |$requirements of this subsection."Q> yOh'ԍ47 U.S.C.  309(j)(1) (1998).Q As noted above, we are currently examining the issue of whether the  S' |$*Balanced Budget Act has changed the scope of the Commission's obligation under Section 309(j)(6)(E).T?X {O'ԍSee supra paragraph 10.T  |$We seek comment on whether the new reference to Section 309(j)(6)(E) in the general auction authority  S' |$provision has any effect on our tentative conclusion in the Notice that it is in the public interest to use competitive bidding to resolve mutually exclusive applications for initial MAS licenses.  S' 2.` ` Exemptions from Competitive Bidding  S'  k9 18. ` ` The remaining issue, therefore, is whether or not the auction exemptions set forth in  |$*Section 309(j)(2) apply to MAS spectrum. We note first that the exemptions for digital television service  Sr' |$Mand educational broadcasting clearly do not apply.[@r {O 'ԍSee 47 U.S.C.  309(j)(2)(B)(C).[ The most relevant exemption is for "public safety  |$/radio services" which are defined to include "private internal radio services used by State and local  |$governments and nongovernment entities and including emergency road services provided by notfor |$gprofit organizations, that (i) are used to protect the safety of life, health, or property; and (ii) are not  S ' |$made commercially available to the public."SA | yO'ԍ47 U.S.C.  309(j)(2)(A).S The Conference Report expands on this class of services,  |$lending support for a conclusion that the "public safety radio services" exemption applies to a broader  |$Dclass of services than what the Commission traditionally has considered as falling under the Public Safety  SZ' |$category.BZ  {O' G6! ЍSee Conference Report at 572.; see, e.g.  Part 90, Subpart B of the Commission's Rules. 47 C.F.R. Part 90, Subpart B. It states that the exemption includes "private internal radio services" used by utilities, railroads,  |$Qmetropolitan transit systems, pipelines, private ambulances, volunteer fire departments, and radio services  |$used by notforprofit organizations that offer emergency road services, such as the American Automobile  S'Association (AAA).QCf  yO'ԍConference Report at 572. Q  S'  k19.` ` 932/941 MHz and 928/959 MHz bands. We tentatively conclude that the proposed use  |$of the 932/941 MHz bands and the current MAS use of the 928/959 MHz bands do not fall within the  SD' |$auction exemption for public safety radio services. Regarding the 932/941 MHz bands, we note that the  |$Dsubstantial majority of dismissed applications apparently did not propose the use of these channels for the  S' |$Mprovision of public safety radio services.YD  {O"'ԍSee Notice, 12 FCC Rcd at 797980.Y Moreover, as we have noted throughout this proceeding, a  |$majority of the dismissed applications for these bands proposed the offering of services of a commercial" D0*%%IIe"  S' |$nature.lE {Oh'ԍSee, e.g., MAS Dismissal Order at  45.l Further, the Commission has never allocated these 932/941 MHz bands specifically for public  S' |$safety radio services.FZ {O' G6!V ЍAs discussed later in this Further Notice, however, we have proposed a fivechannel setaside for public safety/Federal Government use. Meanwhile, Part 22 commercial mobile radio service (CMRS) licensees are the  |$primary users of the 928/959 MHz bands and utilize their MAS spectrum for operational control of their  S' |$public mobile base transmitters.]G {O'ԍSee 47 U.S.C.  22.621, 22.623.] We tentatively conclude, therefore, that licensing of the 932/941 MHz  |$pbands and the 928/959 MHz bands for MAS services does not come within the "public safety radio  |$services" exemption from competitive bidding and, thus, we continue to believe that competitive bidding  |$should be the means by which licenses are issued for these bands. Moreover, we believe that the Balanced  |$pBudget Act now requires us to use competitive bidding for these bands. We seek comment on this tentative conclusion.  Sp'  k20.` ` 928/952/956 MHz bands. Because some of the current services provided by MAS  |$glicensees on the 928/952/956 MHz bands may fall into the broader exemption class, we seek comment  |$ on the level of representation of "public safety radio services," as defined in the Balanced Budget Act,  |$Zamong current uses of the 928/952/956 MHz bands. If it appears that the broader "public safety radio  |$Qservices" category reflects the current dominant use of these bands, we seek comment on allocating part,  |$Vor all, of the 928/952/956 MHz bands for such "public safety radio services." If we adopt such an  |$Zallocation, while we would prohibit all future licensees from offering services not meeting this criteria,  |$Zwe seek comment on whether the Commission should grandfather all existing services currently being provided in these bands.  S' 3.` ` Licensing in the 928/952/956 MHz Bands  S'  kq21. ` ` We seek comment on the licensing approach that should be adopted for the 928/952/956  |$@MHz bands. We tentatively conclude that sitebysite licensing should be maintained if we reserve the  |$bands exclusively for "public safety radio services." However, if we ultimately conclude that the current  |$and foreseeable use of these bands does not comport with that statutory definition and we do not restrict  |$eligibility for these bands accordingly, our tentative conclusion is that we would be required to grant  |$licenses for use of these bands through a system of competitive bidding. In such instance, we propose  |$Dto adopt a system of geographic area licensing. We have concluded in other services that licensing based  |$*on predefined service areas poses significant advantages over sitebased licensing because of the greater  |$operational flexibility it affords licensees, its inherent ability to simplify system expansion, and its easing  S*'of the administrative burden on the Commission.WH"*F {O"' G6! ЍSee, e.g., In the Matter of Implementation of Sections 3(n) and 332 of the Communications Act, Regulatory  |$ Treatment of Mobile Services, Amendment of Part 90 of the Commission's Rules to Facilitate Future Development  |$ of SMR Systems in the 800 MHz Frequency Band, Amendment of Parts 2 and 90 of the Commission's Rules to  |$ Provide for the Use of 200 Channels Outside the Designated Filing Areas in the 896901 MHz and 935940 MHz"j$G0*%%s$"  {O' |$U Band Allotted to the Specialized Mobile Radio Pool, PR Docket Nos. 89553, 93144, GN Docket No. 93252, Third  {OZ'Report and Order, 9 FCC Rcd 7988, 8044 (1994) ("SMR Third Report and Order").W We seek comment on these conclusions and proposals."* $H0*%%IId"Ԍ S'ԙ C .Frequency SetAside for Services Exempt from Competitive Bidding  S'  k~22. ` ` Although we do not tentatively conclude that the 932/941 MHz bands should be reserved  S' |$7for public safety radio services, we note that the Notice proposed to set aside five of the 40 channel pairs  Sb' |$for public safety/Federal Government use.UIb$ {O&'ԍNotice, 12 FCC Rcd at 800203.U In general, commenters expressed support for this proposal.VJZb {O ' G6!+ ЍSee, e.g., Association of PublicSafety Communications OfficialsInternational, Inc. Comments at 12;  |$ Microwave Data Systems Comments at 15; Washington Suburban Sanitary Commission Comments at 13; American Water Works Association Comments at 23.V  |$We believe such an approach may effectively afford both public safety and nonpublic safety users access  |$to these unencumbered bands and further the Congressional intent of increasing the public safety  |$community's access to frequencies without having to compete in an auction. We seek comment, therefore,  |$on whether we should retain this proposal. We also seek comment on how we should determine eligibility  |$for such a setaside. For example, should we use the traditional public safety service categories outlined  Sr' |$in the Commission's Rules,Kr yO' G6!_ ЍFor example, we could define a "public safety eligible" as any person or government entity eligible for licensing under 47 C.F.R. Part 90, Subpart B. or should we expand eligibility to encompass those services that fall under  |$_the "public safety radio service" definition provided for in the Balanced Budget Act's categorical  |$exemption from competitive bidding? We also seek comment on the need for this setaside if we decide  |$tto reserve part or all of the 928/952/956 MHz bands for "public safety radio service" use, as addressed  S 'above.L 0  yO' G6! ЍBecause these bands are allocated for Federal Government use as well as nonGovernmental use, the Commission cannot foreclose Federal Government use absent consent from NTIA.  S '  k23. ` ` In the absence of a fivechannel setaside in the 932/941 MHz bands for public  |$^safety/Federal Government use, we seek comment on how we should treat an application for the 932/941  |$ MHz bands that proposes a "public safety radio service." We believe that such an applicant would be  |$@required to participate in competitive bidding because the spectrum would not be allocated specifically  S' |$3for public safety radio services. We do not interpret the Balanced Budget Act to mandate that when a  |$public safety radio service applicant seeks a license, it may choose whatever segment of the spectrum it  S' |$xdesires, and by applying for the license, remove those frequencies from the competitive bidding process.M  yO ' G6!E ЍFor example, Section 337(c) of the Communications Act, added pursuant to the Balanced Budget Act,  |$ provides that eligible public safety entities may obtain unassigned spectrum not otherwise allocated for public safety  |$ services, without participating in competitive bidding. An applicant seeking assignment of such spectrum must  |$ satisfy several criteria by demonstrating that: (a) no other spectrum allocated to public safety services is immediately  |$x available to satisfy the requested use; (b) the requested use will not cause harmful interference to other spectrum  |$ users entitled to protection; (c) the proposed use of the unassigned frequency is consistent with other allocations for"$L0*%%$"  |$ the provision of such services within the geographic area; (d) the unassigned frequency has been allocated for its  {OX'present use for at least two years; and (e) granting the application is in the public interest. See 47 U.S.C. 337(c)(1).  ""M0*%%II"  |$Such a result would complicate the spectrum licensing process and foster an environment of uncertainty  S'among all other prospective licensees. We seek comment on the impact of this interpretation.  S'  S'D.Resolution of Mutually Exclusive Applications for Services Exempt from Competitive Bidding  S8'  S'  kv24. ` ` In the event that the Commission reserves channels on either the 932/941 MHz or  |$928/952/956 MHz bands, or both, for public safety radio services that are exempt from competitive  |$bidding, we tentatively conclude that licensing on a firstcome, firstserved basis would be the most  |$Qeffective licensing approach. Under such an approach, we believe that the incidents of mutual exclusivity  |$would be rare because the sitebased applications would be frequency coordinated prior to their filing with  |$the Commission and subject to a filing window. Nonetheless, because it is possible that mutual exclusivity  |$*could arise, we seek comment on how we should resolve mutual exclusivity in such instances. As noted  |$previously, the Balanced Budget Act terminated the Commission's authority to use lotteries to choose  S ' |$among mutually exclusive applications.fN " {O'ԍSee Balanced Budget Act  3002(a)(2)(B)(5). f We are therefore foreclosed from adopting our proposal in the  S ' |$tNotice to use random selection in the event that we receive mutually exclusive applications for licenses  S ' |$to use channels in a publicsafety/Federal Government setaside.VO  {O'ԍSee Notice, 12 FCC Rcd at 8003.V In this regard, we seek comment on  |$a proposal offered by Microwave Data Systems ("MDS") that if mutually exclusive applications are filed,  |$the Commission should grant all applications that reach the coordinator on the day that the mutual  |$exclusivity is created, provided that they are in order, and that the licensees be required to share the  S' |$Dchannels under whatever private arrangements they negotiate.CPF yO'ԍMDS Petition at 5.C We also seek comment on other possible alternatives.  Sj' E. Competitive Bidding Procedures  S'  k25.` ` In the Notice, the Commission sought comment generally on establishment of a "small  S' |$business" definition for MAS.RQ {Oj'ԍNotice, 12 FCC Rcd at 8000.R In this Further Notice, we seek comment on the specific size standards  |$Mthat should be applied to any small business definition we decide to adopt for the MAS service. In the  S' |$Part 1 Third Report and Order, we amended our general competitive bidding rules to establish a uniform  S' |$@set of provisions for all auctionable services, which allows us to conduct our auctions in a consistent,"h Q0*%%II"  S' |$efficient, and effective manner.R& {Oh'ԍ See Amendment of Part 1 of the Commission's Rules Competitive Bidding Procedures, WT Docket No. 9782, Allocation of Spectrum Below 5 GHz Transferred from Federal Government Use, ET Docket No. 9432,  {O'Third Report and Order and Second Further Notice of Proposed Rule Making, 13 FCC Rcd 374 (1997)  {O'(modified by Erratum, DA 98419 (rel. March 2, 1998)) ("Part 1 Third Report and Order"). xx We amended our general rules governing auction methodology and  |$procedures to reflect changes made to the auction process through servicespecific rules. However, we  |$&also decided in that proceeding to continue our practice of defining small business size standards on a  S' |$servicespecific basis.bS {O'ԍ Part 1 Third Report and Order, 13 FCC Rcd at 388. b Based on the record established in the Part 1 proceeding, we will prescribe  S`'designated entity provisions that will govern the MAS service.lT`H yOH 'ԍ The Commission makes no representations or warranties about the use of this spectrum for particular services. Applicants should be aware that an FCC auction represents an opportunity to become an FCC licensee in this service, subject to certain conditions and regulations. An FCC auction does not constitute an endorsement by the FCC of any particular services, technologies or products, nor does an FCC license constitute a guarantee of business success. Applicants should perform their individual due diligence before proceeding as they would with any new business venture.l  S'  k26.` ` In the Competitive Bidding Second MO&O, we also indicated that we would establish  S' |$gdefinitions for "small business" on a servicebyservice basis.U  yOJ'ԍ Implementation of Section 309(j) of the Communications Act Competitive Bidding, PP Docket No. 93 {O'253, Second Competitive Bidding MO&O, 9 FCC Rcd at 726869. For example, the Commission adopted  S' |$a $40 million small business definition for both narrowband and broadband PCS,tV\ yO|'ԍ Implementation of Section 309(j) of the Communications Act Competitive Bidding, PP Docket No. 93 {OD'253, Third Memorandum Opinion and Order and Further Notice of Proposed Rulemaking, 10 FCC Rcd 175, 196  {O'(1995); Competitive Bidding Fifth Report and Order, 9 FCC Rcd at 55815584.t and the Multipoint  S' |$Distribution Service (MDS).W"> yOx'Ѝ Amendment of Parts 21 and 74 of the Commission's Rules With Regard to Filing Procedures in the Multipoint Distribution Service and the Instructional Television Fixed Service, MM Docket No. 94131, Implementation of Section 309(j) of the Communications Act Competitive Bidding, PP Docket No. 93253,  {O'Report and Order, 10 FCC Rcd 9589, 967172 (1995) ("MDS Report and Order"). For the 900 MHz Specialized Mobile Radio Service and the 800 MHz  |$Specialized Mobile Radio Service, however, the Commission, used a twotiered approach, adopting a  |$}definition of "small" businesses (the applicant, together with attributable investors and affiliates, has  |$average gross revenues for the three preceding years of $15 million or less) and "very small" businesses  |$3(the applicant, including attributable investors and affiliates, must have average gross revenues for the  S ' |$three preceding years of $3 million or less).X  ( yO"'ԍ Amendment of Parts 2 and 90 of the Commission's Rules to Provide for the Use of 200 Channels Outside the Designated Filing Areas in the 896901 MHz and the 935940 MHz Bands Allotted to the Specialized Mobile Radio Pool, PR Docket No. 89553, Implementation of Section 309(j) of the Communications Act Competitive Bidding, PP Docket No. 93252, and Implementation of Section 3(n) and 322 of the Communications Act, GN"$W0*%%$"  {O'Docket No. 93252, Second Order on Reconsideration and Seventh Report and Order, 11 FCC Rcd 2639, 2675 {OZ'77 (1995) ("SMR Order"). We seek comment on whether we should apply one of the" $X0*%%II "  |$Zexisting "small business" definitions to the MAS service, or whether we should adopt a new definition.  |$^We specifically propose to define a small business as an entity with average annual gross revenues for the  |$preceding three years not to exceed $15 million. We also propose to define a very small business as an  S' |$entity with average annual gross revenues for the preceding three years not to exceed $3 million. These  |$definitions match those adopted for the 800 MHz Specialized Mobile Radio, 900 MHz Specialized Mobile  |$kRadio and Phase II 220 MHz services, which have been approved in those contexts by the Small Business  S' |$"Administration.Y $ {O 'ԍ See, e.g., Letter to Daniel B. Phythyon, Chief, Wireless Telecommunications Bureau, Federal Communications Commission, from Aida Alvarez, Administrator, Small Business Administration, re: Approval of Small Business Size Standards Competitive Bidding Rules for 800 MHz Specialized Mobile Radio Services  {O. '(October 27, 1997). See also Letter to Daniel B. Phythyon, Chief, Wireless Telecommunications Bureau, Federal Communications Commission, from Aida Alvarez, Administrator, Small Business Administration (January 6, 1998) (Approval of Small Business Size Standards for the Phase II 220 MHz Services; Letter to Michele C. Farquhar, Acting Chief, Wireless Telecommunications Bureau, Federal Communications Commission, from Aida Alvarez, Administrator, Small Business Administration (July 24, 1996) (Approval of Small Business Size Standards for the 900 MHz Specialized Mobile Radio Services). The Small Business Administration has approved the proposed definitions in this  S' |$ Further Notice.mZ   yO'ԍLetter to Thomas J. Sugrue, Chief, Wireless Telecommunications Bureau, Federal Communications Commission, From Aida Alvarez, Administrator, Small Business Administration, re: Request for Approval of Small Business Size Standards Competitive Bidding Rules for Multiple Address Services [sic] (MAS) (June 4, 1999).m Commenters should also discuss the level of capital commitment that is likely to be  |$required to purchase an MAS license at auction and create a viable business. Our goal, should we adopt  |$a definition and associated special provision(s) for small businesses, will be to ensure the participation of small businesses in the auction and in the provision of service.  SJ '  S" '  kd27. ` ` We also seek comment on the possibility of offering "tiered" bidding credits for different  |$sizes of small businesses. We note that small businesses may vary in their ability to raise capital  |$depending on their size and gross revenues. By offering different levels of bidding credits depending on  |$the size of the small business, we could increase the likelihood that the full range of small businesses  |$<would be able to participate in an auction and potentially provide service. We therefore propose to  SZ' |$establish two levels of bidding credits, consistent with levels adopted in the Part 1 proceeding.[Z {O'Ѝ See Part 1 Third Report and Order, 13 FCC Rcd at 40304; See also 47 C.F.R.  1.2110(e). As we  S2' |$xstated in the Part 1 proceeding, we believe that bidding credits will enable small businesses to successfully  S ' |$kcompete in future auctions.w\" r {O"'ԍ See Part 1 Third Report and Order, 13 FCC Rcd at 40304. The use of tiered bidding credits was successful in enabling small businesses to participate in the 800 MHz Specialized Mobile Radio auction that ended on December 8, 1997 and the Local Multipoint Distribution Service auction that ended on March 25, 1998. w Accordingly, we propose that small businesses receive a 25 percent bidding" \\0*%%II"  |$<credit and that very small businesses receive a 35 percent bidding credit. Bidding credits for small  |$businesses are not cumulative. We believe that tiered bidding credits can help achieve our statutory  |$3objective under Section 309(j)(3)(B) by providing varying sizes of small businesses with a meaningful opportunity to participate in the auction of MAS spectrum. We seek comment on this proposal.  S`'  S8' F. Suspension of Acceptance and Processing of Applications  S'  k28. ` ` In light of our actions described above, we will maintain the current suspension of the  |$acceptance of MAS applications for new licenses, amendments, or modifications for the 932/941 MHz and  S' |$928/959 MHz bands. Further, effective as of the date of the release of this Further Notice, we suspend  |$Ethe acceptance of all MAS applications for new licenses, amendments, or modifications for the  SJ ' |$928/952/956 MHz bands .]J  {O 'ԍWe note that during the six month period prior to the release of this Further Notice, the Commission has received an average of seventy 928/952/956 MHz bands applications per month. Unlike the suspension ordered in the Notice,Y^J " {O 'ԍSee Notice, 12 FCC Rcd at 800304.Y applications for the 928/952/956  |$ MHz bands will not be accepted, regardless of the type of service proposed by the applicant. We are  |$expanding the suspension on the filing of applications for the 928/952/956 MHz bands due to the  |$guncertainty regarding whether to employ geographic area licensing and auctions for these bands. This  |$suspension is effective until further notice and applies to applications received on or after the date of the  S ' |$release of this Further Notice. Any such applications received after this deadline will be returned as  |$Munacceptable for filing. We take this action to permit the orderly and effective resolution of the issues  |$in this proceeding. We find that this suspension is in the public interest because absent such action,  |$<applications could limit the effectiveness of the decisions made and the standards developed in this  |$proceeding. Further, we note that this action is consistent with the approach we have taken in all other  S'existing services where we have proposed to adopt geographic area licensing and auction rules._$ {O' G6! ЍSee, e.g., In the Matter of Revision of Part 22 and Part 90 of the Commission's Rules to Facilitate Future  |$M Development of Paging Systems, Implementation of Section 309(j) of the Communications Act Competitive  {O' |$ Bidding, WT Docket No. 9618, PP Docket No. 93253, Notice of Proposed Rule Making, 11 FCC Rcd 3108, 3136 & n.270 (1996).  Sn'  ki29. ` ` Notwithstanding this suspension, we will continue to accept and process all MAS  SF' |$applications for minor modifications_`F {O'ԍSee 47 C.F.R.  1.929 and 101.61._ or for license assignment or transfer of control under existing  |$procedures. This exception will also apply to amendments to applications for minor modifications. This  |$exception should permit modifications that can improve the efficiency of incumbent MAS operations without affecting the effective and orderly resolution of the issues in this proceeding.  S~'  k30. ` ` With respect to MAS applications for new licenses, amendments, or nonminor  |$modifications which were filed prior to the applicable deadlines (stated above for all applications for the  |$928/952/956 MHz bands, and February 19, 1997, for the original suspension) and remain pending, we will".2 `0*%%IId"  |$process such applications provided that (1) they are not mutually exclusive with other applications as of  |$the deadlines stated above, and (2) the relevant period for filing competing applications has expired as of  |$the deadlines stated above. We believe that this approach gives the appropriate consideration to those  S' |$7applicants who filed applications prior to our proposed changes and whose applications are not subject to  |$competing applications. Previouslyfiled applications not meeting the above criteria will be held in  |$abeyance until the conclusion of this proceeding. We will determine later, in accordance with such new rules as are adopted, whether to process or return any such pending applications.  S'  kO31. ` ` These actions are procedural in nature and therefore not subject to the notice and  S' |$Qcomment, and effective date requirements of the Administrative Procedure Act (APA).a {O 'ԍSee 5 U.S.C.  553(b)(A), (d); Kessler v. FCC, 326 F.2d 673 (D.C. Cir. 1963). Moreover, good  |$xcause exists for proceeding in this manner in that doing otherwise would be impractical, unnecessary, and  |$contrary to the public interest because compliance with the APA provisions would undercut the purpose  S 'of the interim measures._b Z {O'ԍSee 5 U.S.C.  553(b)(B), (d)(3)._  S '  S 'V. CONCLUSION l  S '  k 32. ` ` In this Further Notice, we seek comment, inter alia, on the impact of the Balanced Budget  SZ' |$Act on our proposals in the Notice to allocate the 932/941 MHz and 928/959 MHz bands for subscriber |$based services, to award initial licenses for the 932/941 MHz and 928/959 MHz bands through competitive  |$7bidding, and to reserve five channel pairs in the 932/941 MHz bands for federal government/public safety  |$use. In addition, we seek comment on the impact of the Balanced Budget Act on our proposal in the  S' |$7Notice to reserve the 928/952/956 MHz bands exclusively for private, internal use and to continue issuing  S' |$licenses for these bands on a sitebysite basis. We also seek comment in this Further Notice on  |$3interpreting the "public safety radio service" exemption established by the Balanced Budget Act and its  SH' |$impact upon this proceeding. Finally, this Further Notice immediately suspends the acceptance and  |$<processing of MAS applications, regardless of the type of service proposed by the applicant. This  S' |$suspension is effective as of the date of the release of this Further Notice. These actions are intended to  |$Mestablish a flexible regulatory framework for MAS that will, among other things, provide opportunities  |$Qfor continued development of competitive new service offerings by allowing flexible use of the spectrum,  |$7expedite market entry through streamlined licensing procedures, and promote technological innovation by eliminating unnecessary regulatory burdens.  S4'  S 'dVI. PROCEDURAL MATTERS l  S' A.Ex Parte Rules PermitButDisclose Proceeding  Sl'  k(33. ` ` This is a permitbutdisclose rule making proceeding. Ex parte presentations are  |$permitted, except during the Sunshine Agenda period, provided they are disclosed as provided in  S 'Commission rules. See generally 47 C.F.R.  1.1202, 1.1203, and 1.1206. " b0*%%II "Ԍ S'ԙ B.Initial Regulatory Flexibility Analysis  S'  k34. ` ` With respect to this present Further Notice, an Initial Regulatory Flexibility Analysis  S' |$(IRFA), see generally 5 U.S.C.  603, is contained in Appendix A. The IRFA addresses the expected  |$Dimpact on small entities of the proposals made in this document, and requests written comments on these  |$proposals. To fulfill the mandate of the Contract with America Advancement Act of 1996 (Pub. L. No.  |$104121, 110 Stat. 847 (1996)) regarding the subsequent Final Regulatory Flexibility Analysis in this  |$gproceeding, we ask a number of questions in IRFA regarding the prevalence of small businesses in the  |$Multiple Address System industry. Comments on the IRFA must be filed in accordance with the same  S' |$Dfiling deadlines as comments regarding this Further Notice, and must have a separate and distinct heading  |$designating them as responsive to the IRFA. The Office of Public Affairs, Performance Operations  SN ' |$*Division shall send a copy of this Further Notice, including the IRFA, to the Chief Counsel for Advocacy  |$*of the Small Business Administration in accordance with Section 603(a) of the Regulatory Flexibility Act,  S 'Pub. L. No. 96354, 94 Stat. 1164, 5 U.S.C.  601 et seq. (1981).  S ' C.Initial Paperwork Reduction Act of 1995 Analysis  Sb'  k35. ` ` This Further Notice contains a proposed information collection. As part of the  |$Commission's continuing effort to reduce paperwork burdens, we invite the general public, the Office of  |$Management and Budget (OMB), and other agencies to take this opportunity to comment on the  S' |$information collections contained in this Further Notice, as required by the Paperwork Reduction Act of  |$D1995, Pub. L. No. 10413. Public and agency comments are due at the same time as other comments on  S' |$gthis Further Notice; OMB comments are due 60 days after the publication of this Further Notice in the  |$Federal Register. Comments should address: (a) whether the proposed collection of information is  |$necessary for the proper performance of the functions of the Commission, including whether the  |$information shall have practical utility; (b) the accuracy of the Commission's burden estimates; (c) ways  |$to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the  |$burden of the collection of information on the respondents, including the use of automated collection  |$techniques or other forms of information technology. In addition to filing comments with the Secretary,  S' |$a copy of any comments on the information collections contained herein should be submitted to both of  |$3the following: Dorothy Conway, Federal Communications Commission, Room 3C306, 445 12th St.,  S:' |$S.W., Washington, DC 20554, or via the Internet to dconway@fcc.gov, and Timothy Fain, OMB Desk  |$Officer, 10236 NEOB, 725 17th Street, N.W., Washington DC 20503, or via the Internet to  |$ fain_t@al.eop.gov. For additional information regarding the information collections contained herein, contact Dorothy Conway, above.  Sr' D.Comment Dates  S" '  k 36. ` ` Pursuant to Sections 1.415 and 1.419 of the Commission's rules, 47 C.F.R.  1.415,  S ' |$1.419, written comments by the public are due on or before 60 days after a summary of this Further  S!' |$Notice is published in the Federal Register. Reply comments are due on or before 90 days after this  S"' |$^summary is published in the Federal Register. Comments may be filed using the Commission's Electronic  S#' |$Comment Filing System (ECFS) or by filing paper copies. See Electronic Filing of Documents in  S`$'Rulemaking Proceedings, 63 Fed. Reg. 24,121 (1998). "`$b0*%%II$#"Ԍ S'  k`ԙ37. ` ` Comments filed through the ECFS can be sent as an electronic file via the Internet to  S' |$&. Only one copy of an electronic submission must be filed. In  |$completing the transmittal screen, commenters should include their full name, Postal Service mailing  |$address, and the applicable docket or rulemaking number. Parties may also submit an electronic comment  |$by Internet email. To get filing instructions for email comments, commenters should send an email to  |$ecfs@fcc.gov, and should include the following words in the body of the message, "get form