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Leader in Public Safety Communications™

Procedures for Commission Review of State Opt-Out Requests from the FirstNet Radio Access Network

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of

Procedures for Commission Review of State Opt- Out Requests from the FirstNet Radio Access Network – PS Docket No. 16-269

Implementing Public Safety Broadband Provisions of the Middle Class Tax Relief and Job Creation Act of 2012 – PS Docket No. 12-94

Implementing a Nationwide, Broadband, Interoperable Public Safety Network in the 700 MHz Band – PS Docket No. 06-229

Service Rules for the 698-746, 747-762 and 777-792 MHz Bands – WT Docket No. 06-150

REPORT AND ORDER AND NOTICE OF PROPOSED RULEMAKING

Adopted: August 24, 2016 Released: August 26, 2016

Comment Date: [30 days after publication in Federal Register]

Reply Comment Date: [60 days after publication in Federal Register]

By the Commission: Commissioner Pai issuing a statement.

TABLE OF CONTENTS

Heading Paragraph #

I. INTRODUCTION…………………………………………………………………………………………………………………. 1

II. REPORT AND ORDER…………………………………………………………………………………………………………. 3

A. General Background ………………………………………………………………………………………………………… 3

B. Incumbent Relocation ………………………………………………………………………………………………………. 7

1. Narrowband Incumbents …………………………………………………………………………………………….. 7

2. Other Incumbents …………………………………………………………………………………………………….. 31

C. FirstNet License Renewal and Buildout Requirements ……………………………………………………….. 35

III. NOTICE OF PROPOSED RULEMAKING ……………………………………………………………………………. 46

A. Opt-Out Procedures………………………………………………………………………………………………………… 47

B. Evaluation Criteria …………………………………………………………………………………………………………. 56

C. Content and Review of State Plan Elements………………………………………………………………………. 66

1. Compliance with the Recommendations of the Interoperability Board ……………………………. 68

2. Interoperability with the NPSBN …………………………………………………………………………………. 1

3. Compliance demonstration (“Showing”)……………………………………………………………………… 71

D. Documentation of Commission Decisions…………………………………………………………………………. 73

IV. PROCEDURAL MATTERS…………………………………………………………………………………………………. 74

A. Ex Parte Rules – Permit-But-Disclose………………………………………………………………………………. 74

B. Comment Period and Procedures……………………………………………………………………………………… 75

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C. Regulatory Flexibility Analysis ……………………………………………………………………………………….. 76

D. Paperwork Reduction Act ……………………………………………………………………………………………….. 78

E. Congressional Review Act………………………………………………………………………………………………. 80

F. Further Information………………………………………………………………………………………………………… 81

V. ORDERING CLAUSES……………………………………………………………………………………………………….. 82

APPENDIX A – PROPOSED RULES

APPENDIX B – OPT-OUT TECHNICAL INTEROPERABILITY REQUIREMENTS BASED ON THE

BOARD DOCUMENT

APPENDIX C – INITIAL REGULATORY FLEXIBILITY ANALYSIS

APPENDIX D – FINAL REGULATORY FLEXIBILITY ANALYSIS

I. INTRODUCTION

1. This Report and Order and Notice of Proposed Rulemaking addresses the 758-769/788-

799 MHz band, which the Commission licensed to the First Responder Network Authority (FirstNet) on a

nationwide basis pursuant to the provisions of the Middle Class Tax Relief and Job Creation Act of 2012.1

The Report and Order adopts rules intended to resolve the remaining questions posed in the 2013 Notice

of Proposed Rulemaking in these dockets.2 As specified herein, we provide a mechanism to facilitate the

relocation of the public safety narrowband incumbents currently operating on FirstNet’s spectrum. We

also affirmatively decline at this time to impose specific build-out requirements on FirstNet as a condition

of renewal of its license. Rather, we find that the build-out obligations and specifications of the Act,

coupled with the specifications of FirstNet’s recently released Request for Proposal (Final RFP),3 provide

adequate milestones to ensure rural coverage while also providing both FirstNet and the states flexibility

in terms of planning for optimal network coverage. We will continue to monitor FirstNet’s buildout

progress against these milestones, and expect that existing reporting obligations will be sufficient to allow

the Commission to carry out its license renewal responsibilities.

2. In the Notice of Proposed Rulemaking, we open a new proceeding to seek comment on

proposed procedures for administering the state opt-out process as provided under the Public Safety

Spectrum Act, as well as on our implementation of the specific statutory standards by which the

Commission is obligated to evaluate state opt-out applications.

II. REPORT AND ORDER

A. General Background

3. The Public Safety Spectrum Act provides for the deployment of a nationwide public

safety broadband network (NPSBN) in the 700 MHz band.4 The Act established FirstNet as an

independent authority within the National Telecommunications and Information Administration (NTIA),5

1 See Middle Class Tax Relief and Job Creation Act of 2012, Pub. L. No. 112-96, 126 Stat. 156 §§ 6001-6303, 6413

(codified at 47 U.S.C. §§ 1401-1443, 1457) (“Public Safety Spectrum Act” or “Act”)

2 See Implementing Public Safety Broadband Provisions of the Middle Class Tax Relief and Job Creation Act of

2012 et al., PS Docket 12-94 et al., Notice of Proposed Rulemaking, 28 FCC Rcd 2715 (2013) (2013 Notice).

3 The FirstNet Board released a Final RFP on January 13, 2016, detailing the construction, operation, maintenance

and improvement of the nationwide public safety broadband network (NPSBN) for local, state, regional, tribal and

federal first responders. Section C – Nationwide Public Safety Broadband Network (NPSBN) Solicitation Number:

D15PS00295E (Jan. 13, 2016) (Final RFP).

https://www.fbo.gov/index?s=opportunity&mode=form&tab=core&id=7806696f4340f16474647ccc57805040&_cvi

ew=0.

4 See generally Public Safety Spectrum Act, Pub. L. No. 112-96 § 6001 et. seq.

5 Id., § 6204(a).

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and required the Commission to grant a license to FirstNet for the 758-769/788-799 MHz band.6 The Act

charges FirstNet with responsibility for establishing and overseeing “a nationwide, interoperable public

safety broadband network”7 operated in this spectrum by taking “all actions necessary to ensure the

building, deployment, and operation of the . . . network, in consultation with Federal, State, tribal, and

local public safety entities, the Director of NIST, the Commission, and the public safety advisory

committee [that section 6205 of the Act requires FirstNet to establish].”8 Among its more specific duties,

FirstNet is responsible for issuing requests for proposals and entering into contracts for the construction,

operation and management of the network on a nationwide basis, using funds allocated for these purposes

under the Act.9

4. In the 2013 Notice, the Commission sought comment on implementation of certain

provisions of the Public Safety Spectrum Act, including how to relocate incumbents operating on the

spectrum licensed to FirstNet, and how to address FirstNet’s renewal expectations, including whether

FirstNet should be subject to Commission-initiated build-out requirements.10 With respect to the

incumbent relocation issue, the 2013 Notice identified three classes of incumbents that occupied portions

of the FirstNet spectrum: (1) jurisdictions operating narrowband systems that predate the Commission’s

2007 Second Report and Order, some of which had received waivers for continued deployment; (2) two

jurisdictions operating wideband systems, and (3) one commercial incumbent in the D Block spectrum.11

The Commission sought comment on the appropriate mechanism to transition these operators out of the

public safety broadband segment of the band and on a timeframe by which such a transition should be

accomplished.12

5. With respect to renewal of FirstNet’s license, the Public Safety Spectrum Act empowers

the Commission to renew FirstNet’s license after its initial ten-year term.13 Prior to the expiration of this

term or the expiration of any subsequent renewal of the license, FirstNet is required to submit a renewal

application to the Commission that demonstrates that it has met its duties and obligations as set forth in

the Act.14 The Act, however, does not provide guidance to the Commission on how to evaluate whether

FirstNet has met its duties and obligations. Therefore, in the 2013 Notice, the Commission sought

comment on how it should assess FirstNet’s compliance with its duties and obligations and the terms of

its license at the time of renewal.15

6. In the 2013 Notice, the Commission also noted that one of FirstNet’s obligations under

the Act includes “deployment phases with substantial rural coverage milestones” that are “consistent with

the license granted” by the Commission.16 The Commission proposed to decline to specify rural

6 Id. §§ 6101(a), 6201(a), 6204(a).

7 Id. § 6202(a). See generally id. § 6206 (setting out FirstNet’s powers, duties and responsibilities).

8 Id. § 6206(b).

9 Id. § 6206.

10 2013 Notice, 28 FCC Rcd at 2729-33, para. 48-59.

11 Id., para 47.

12 2013 Notice, 28 FCC Rcd at 2731-33, para. 52-59.

13 Implementing Public Safety Broadband Provisions of the Middle Class Tax Relief and Job Creation Act of 2012 et

al., PS Docket 12-94 et al., Report and Order, 27 FCC Rcd 10953 (2012). On November 15, 2012, the Commission

issued FirstNet a ten-year license under Call Sign WQQE234.

14 Public Safety Spectrum Act, Pub. L. No. 112-96 § 6201(b)(2).

15 2013 Notice, 28 FCC Rcd at 2728-29.

16 2013 Notice, 28 FCC Rcd at 2728-29, para.46. See Public Safety Spectrum Act, Pub. L. No. 112-96 §§

6201(b)(2), 6206(b)(3).

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