§  27.14   Construction requirements; Criteria for renewal.

   (a) AWS and WCS licensees, with the exception of WCS licensees holding
   authorizations for Block A in the 698–704 MHz and 728–734 MHz bands,
   Block B in the 704–710 MHz and 734–740 MHz bands, Block E in the
   722–728 MHz band, Block C, C1, or C2 in the 746–757 MHz and 776–787 MHz
   bands, or Block D in the 758–763 MHz and 788–793 MHz bands, must, as a
   performance requirement, make a showing of “substantial service” in
   their license area within the prescribed license term set forth in
   § 27.13. “Substantial service” is defined as service which is sound,
   favorable and substantially above a level of mediocre service which
   just might minimally warrant renewal. Failure by any licensee to meet
   this requirement will result in forfeiture of the license and the
   licensee will be ineligible to regain it.

   (b) A renewal applicant involved in a comparative renewal proceeding
   shall receive a preference, commonly referred to as a renewal
   expectancy, which is the most important comparative factor to be
   considered in the proceeding, if its past record for the relevant
   license period demonstrates that:

   (1) The renewal applicant has provided “substantial” service during its
   past license term; and

   (2) The renewal applicant has substantially complied with applicable
   FCC rules, policies and the Communications Act of 1934, as amended.

   (c) In order to establish its right to a renewal expectancy, a WCS
   renewal applicant involved in a comparative renewal proceeding must
   submit a showing explaining why it should receive a renewal expectancy.
   At a minimum, this showing must include:

   (1) A description of its current service in terms of geographic
   coverage and population served;

   (2) An explanation of its record of expansion, including a timetable of
   new construction to meet changes in demand for service;

   (3) A description of its investments in its WCS system; and

   (4) Copies of all FCC orders finding the licensee to have violated the
   Communications Act or any FCC rule or policy; and a list of any pending
   proceedings that relate to any matter described in this paragraph.

   (d) In making its showing of entitlement to a renewal expectancy, a
   renewal applicant may claim credit for any system modification
   applications that were pending on the date it filed its renewal
   application. Such credit will not be allowed if the modification
   application is dismissed or denied.

   (e) Comparative renewal proceedings do not apply to WCS licensees
   holding authorizations for Block A in the 698–704 MHz, 728–734 MHz
   bands, Block B in the 704–710 MHz and 734–740 MHz bands, Block C in the
   710–716 MHz and 740–746 MHz bands, Block D in the 716–722 MHz band,
   Block E in the 722–728 MHz band, Block C, C1, or C2 in the 746–757 MHz
   and 776–787 MHz bands, or Block D in the 758–763 MHz and 788–793 MHz
   bands. Each of these licensees must file a renewal application in
   accordance with the provisions set forth in § 1.949, and must make a
   showing of substantial service, independent of its performance
   requirements, as a condition for renewal at the end of each license
   term.

   (f) Comparative renewal proceedings do not apply to WCS licensees
   holding authorizations for the 698–746 MHz, 747–762 MHz, and 777–792
   MHz bands. These licensees must file a renewal application in
   accordance with the provisions set forth in § 1.949 of this chapter.

   (g) WCS licensees holding EA authorizations for Block A in the 698–704
   MHz and 728–734 MHz bands, cellular market authorizations for Block B
   in the 704–710 MHz and 734–740 MHz bands, or EA authorizations for
   Block E in the 722–728 MHz band, if the results of the first auction in
   which licenses for such authorizations are offered satisfy the reserve
   price for the applicable block, shall provide signal coverage and offer
   service over at least 35 percent of the geographic area of each of
   their license authorizations no later than June 13, 2013 (or within
   four years of initial license grant if the initial authorization in a
   market is granted after June 13, 2009), and shall provide such service
   over at least 70 percent of the geographic area of each of these
   authorizations by the end of the license term. In applying these
   geographic benchmarks, licensees are not required to include land owned
   or administered by government as a part of the relevant service area.
   Licensees may count covered government land for purposes of meeting
   their geographic construction benchmark, but are required to add the
   covered government land to the total geographic area used for
   measurement purposes. Licensees are required to include those populated
   lands held by tribal governments and those held by the Federal
   Government in trust or for the benefit of a recognized tribe.

   (1) If an EA or CMA licensee holding an authorization in these
   particular blocks fails to provide signal coverage and offer service
   over at least 35 percent of the geographic area of its license
   authorization by no later than June 13, 2013 (or within four years of
   initial license grant, if the initial authorization in a market is
   granted after June 13, 2009), the term of that license authorization
   will be reduced by two years and such licensee may be subject to
   enforcement action, including forfeitures. In addition, an EA or CMA
   licensee that provides signal coverage and offers service at a level
   that is below this interim benchmark may lose authority to operate in
   part of the remaining unserved areas of the license.

   (2) If any such EA or CMA licensee fails to provide signal coverage and
   offer service to at least 70 percent of the geographic area of its
   license authorization by the end of the license term, that licensee's
   authorization will terminate automatically without Commission action
   for those geographic portions of its license in which the licensee is
   not providing service, and those unserved areas will become available
   for reassignment by the Commission. Such licensee may also be subject
   to enforcement action, including forfeitures. In addition, an EA or CMA
   licensee that provides signal coverage and offers service at a level
   that is below this end-of-term benchmark may be subject to license
   termination. In the event that a licensee's authority to operate in a
   license area terminates automatically without Commission action, such
   areas will become available for reassignment pursuant to the procedures
   in paragraph (j) of this section.

   (3) For licenses under paragraph (g) of this section, the geographic
   service area to be made available for reassignment must include a
   contiguous area of at least 130 square kilometers (50 square miles),
   and areas smaller than a contiguous area of at least 130 square
   kilometers (50 square miles) will not be deemed unserved.

   (h) WCS licensees holding REAG authorizations for Block C in the
   746–757 MHz and 776–787 MHz bands or REAG authorizations for Block C2
   in the 752–757 MHz and 782–787 MHz bands shall provide signal coverage
   and offer service over at least 40 percent of the population in each EA
   comprising the REAG license area no later than June 13, 2013 (or within
   four years of initial license grant, if the initial authorization in a
   market is granted after June 13, 2009), and shall provide such service
   over at least 75 percent of the population of each of these EAs by the
   end of the license term. For purposes of compliance with this
   requirement, licensees should determine population based on the most
   recently available U.S. Census Data.

   (1) If a licensee holding a Block C authorization fails to provide
   signal coverage and offer service over at least 40 percent of the
   population in each EA comprising the REAG license area by no later than
   June 13, 2013 (or within four years of initial license grant if the
   initial authorization in a market is granted after June 13, 2009), the
   term of the license authorization will be reduced by two years and such
   licensee may be subject to enforcement action, including forfeitures.
   In addition, a licensee that provides signal coverage and offers
   service at a level that is below this interim benchmark may lose
   authority to operate in part of the remaining unserved areas of the
   license.

   (2) If a licensee holding a Block C authorization fails to provide
   signal coverage and offer service over at least 75 percent of the
   population in any EA comprising the REAG license area by the end of the
   license term, for each such EA that licensee's authorization will
   terminate automatically without Commission action for those geographic
   portions of its license in which the licensee is not providing service.
   Such licensee may also be subject to enforcement action, including
   forfeitures. In the event that a licensee's authority to operate in a
   license area terminates automatically without Commission action, such
   areas will become available for reassignment pursuant to the procedures
   in paragraph (j) of this section. In addition, a REAG licensee that
   provides signal coverage and offers service at a level that is below
   this end-of-term benchmark within any EA may be subject to license
   termination within that EA.

   (3) For licenses under paragraph (h), the geographic service area to be
   made available for reassignment must include a contiguous area of at
   least 130 square kilometers (50 square miles), and areas smaller than a
   contiguous area of at least 130 square kilometers (50 square miles)
   will not be deemed unserved.

   (i) WCS licensees holding EA authorizations for Block A in the 698–704
   MHz and 728–734 MHz bands, cellular market authorizations for Block B
   in the 704–710 MHz and 734–740 MHz bands, or EA authorizations for
   Block E in the 722–728 MHz band, if the results of the first auction in
   which licenses for such authorizations in Blocks A, B, and E are
   offered do not satisfy the reserve price for the applicable block, as
   well as EA authorizations for Block C1 in the 746–752 MHz and 776–782
   MHz bands, are subject to the following:

   (1) If a licensee holding a cellular market area or EA authorization
   subject to this paragraph (i) fails to provide signal coverage and
   offer service over at least 40 percent of the population in its license
   area by no later than June 13, 2013 (or within four years of initial
   license grant, if the initial authorization in a market is granted
   after June 13, 2009), the term of that license authorization will be
   reduced by two years and such licensee may be subject to enforcement
   action, including forfeitures. In addition, such licensee that provides
   signal coverage and offers service at a level that is below this
   interim benchmark may lose authority to operate in part of the
   remaining unserved areas of the license. For purposes of compliance
   with this requirement, licensees should determine population based on
   the most recently available U.S. Census Data.

   (2) If a licensee holding a cellular market area or EA authorization
   subject to this paragraph (i) fails to provide signal coverage and
   offer service over at least 75 percent of the population in its license
   area by the end of the license term, that licensee's authorization will
   terminate automatically without Commission action for those geographic
   portions of its license in which the licensee is not providing service,
   and those unserved areas will become available for reassignment by the
   Commission. Such licensee may also be subject to enforcement action,
   including forfeitures. In the event that a licensee's authority to
   operate in a license area terminates automatically without Commission
   action, such areas will become available for reassignment pursuant to
   the procedures in paragraph (j) of this section. In addition, such a
   licensee that provides signal coverage and offers service at a level
   that is below this end-of-term benchmark may be subject to license
   termination. For purposes of compliance with this requirement,
   licensees should determine population based on the most recently
   available U.S. Census Data.

   (3) For licenses under paragraph (i), the geographic service area to be
   made available for reassignment must include a contiguous area of at
   least 130 square kilometers (50 square miles), and areas smaller than a
   contiguous area of at least 130 square kilometers (50 square miles)
   will not be deemed unserved.

   (j) In the event that a licensee's authority to operate in a license
   area terminates automatically under paragraphs (g), (h), or (i) of this
   section, such areas will become available for reassignment pursuant to
   the following procedures:

   (1) The Wireless Telecommunications Bureau is delegated authority to
   announce by public notice that these license areas will be made
   available and establish a 30-day window during which third parties may
   file license applications to serve these areas. During this 30-day
   period, licensees that had their authority to operate terminate
   automatically for unserved areas may not file applications to provide
   service to these areas. Applications filed by third parties that
   propose areas overlapping with other applications will be deemed
   mutually exclusive, and will be resolved through an auction. The
   Wireless Telecommunications Bureau, by public notice, may specify a
   limited period before the filing of short-form applications (FCC Form
   175) during which applicants may enter into a settlement to resolve
   their mutual exclusivity, subject to the provisions of § 1.935 of this
   chapter.

   (2) Following this 30-day period, the original licensee and third
   parties can file license applications for remaining unserved areas
   where licenses have not been issued or for which there are no pending
   applications. If the original licensee or a third party files an
   application, that application will be placed on public notice for 30
   days. If no mutually exclusive application is filed, the application
   will be granted, provided that a grant is found to be in the public
   interest. If a mutually exclusive application is filed, it will be
   resolved through an auction. The Wireless Telecommunications Bureau, by
   public notice, may specify a limited period before the filing of
   short-form applications (FCC Form 175) during which applicants may
   enter into a settlement to resolve their mutual exclusivity, subject to
   the provisions of § 1.935 of this chapter.

   (3) The licensee will have one year from the date the new license is
   issued to complete its construction and provide signal coverage and
   offer service over 100 percent of the geographic area of the new
   license area. If the licensee fails to meet this construction
   requirement, its license will automatically terminate without
   Commission action and it will not be eligible to apply to provide
   service to this area at any future date.

   (k) WCS licensees holding authorizations in the spectrum blocks
   enumerated in paragraphs (g), (h), or (i), including any licensee that
   obtained its license pursuant to the procedures set forth in subsection
   (j), shall demonstrate compliance with performance requirements by
   filing a construction notification with the Commission, within 15 days
   of the expiration of the applicable benchmark, in accordance with the
   provisions set forth in § 1.946(d). The licensee must certify whether it
   has met the applicable performance requirements. The licensee must file
   a description and certification of the areas for which it is providing
   service. The construction notifications must include electronic
   coverage maps, supporting technical documentation and any other
   information as the Wireless Telecommunications Bureau may prescribe by
   public notice.

   (l) WCS licensees holding authorizations in the spectrum blocks
   enumerated in paragraphs (g), (h), or (i) of this section, excluding
   any licensee that obtained its license pursuant to the procedures set
   forth in subsection (j) of this section, shall file reports with the
   Commission that provide the Commission, at a minimum, with information
   concerning the status of their efforts to meet the performance
   requirements applicable to their authorizations in such spectrum blocks
   and the manner in which that spectrum is being utilized. The
   information to be reported will include the date the license term
   commenced, a description of the steps the licensee has taken toward
   meeting its construction obligations in a timely manner, including the
   technology or technologies and service(s) being provided, and the areas
   within the license area in which those services are available. Each of
   these licensees shall file its first report with the Commission no
   later than June 13, 2011 and no sooner than 30 days prior to this date.
   Each licensee that meets its interim benchmarks shall file a second
   report with the Commission no later than June 13, 2016 and no sooner
   than 30 days prior to this date. Each licensee that does not meet its
   interim benchmark shall file this second report no later than on June
   13, 2015 and no sooner than 30 days prior to this date.

   (m) The WCS licensee holding the authorization for the D Block in the
   758–763 MHz and 788–793 MHz bands (the Upper 700 MHz D Block licensee)
   shall comply with the following construction requirements.

   (1) The Upper 700 MHz D Block licensee shall provide a signal coverage
   and offer service over at least 75 percent of the population of the
   nationwide Upper 700 MHz D Block license area within four years from
   June 13, 2009, 95 percent of the population of the nationwide license
   area within seven years, and 99.3 percent of the population of the
   nationwide license area within ten years.

   (2) The Upper 700 MHz D Block licensee may modify, to a limited degree,
   its population-based construction benchmarks with the agreement of the
   Public Safety Broadband Licensee and the prior approval of the
   Commission, where such a modification would better serve to meet
   commercial and public safety needs.

   (3) The Upper 700 MHz D Block licensee shall meet the population
   benchmarks based on a performance schedule specified in the Network
   Sharing Agreement, taking into account performance pursuant to § 27.1327
   as appropriate under that rule, and using the most recently available
   U.S. Census Data. The network and signal levels employed to meet these
   benchmarks must be adequate for public safety use, as defined in the
   Network Sharing Agreement, and the services made available must include
   those appropriate for public safety entities that operate in those
   areas. The schedule shall include coverage for major highways and
   interstates, as well as such additional areas that are necessary to
   provide coverage for all incorporated communities with a population in
   excess of 3,000, unless the Public Safety Broadband Licensee and the
   Upper 700 MHz D Block licensee jointly determine, in consultation with
   a relevant community, that such additional coverage will not provide
   significant public benefit.

   (4) The Upper 700 MHz D Block licensee shall demonstrate compliance
   with performance requirements by filing a construction notification
   with the Commission within 15 days of the expiration of the applicable
   benchmark, in accordance with the provisions set forth in § 1.946(d) of
   this chapter. The licensee must certify whether it has met the
   applicable performance requirement and must file a description and
   certification of the areas for which it is providing service. The
   construction notifications must include the following:

   (i) Certifications of the areas that were scheduled for construction
   and service by that date under the Network Sharing Agreement for which
   it is providing service, the type of service it is providing for each
   area, and the type of technology it is utilizing to provide this
   service.

   (ii) Electronic coverage maps and supporting technical documentation
   providing the assumptions used by the licensee to create the coverage
   maps, including the propagation model and the signal strength necessary
   to provide service.

   (n) At the end of its license term, the Upper 700 MHz D Block licensee
   must, in order to renew its license, make a showing of its success in
   meeting the material requirements set forth in the Network Sharing
   Agreement as well as all other license conditions, including the
   performance benchmark requirements set forth in this section.

   (o) BRS and EBS licensees must make a showing of “substantial service”
   no later than May 1, 2011. Incumbent BRS licensees must file their
   “substantial service” showing with their renewal application.
   “Substantial service” is defined as service which is sound, favorable,
   and substantially above a level of mediocre service which just might
   minimally warrant renewal. Substantial service for BRS and EBS
   licensees is satisfied if a licensee meets the requirements of
   paragraph (o)(1) or (o)(2) of this section. If a licensee has not met
   the requirements of paragraph (o)(1) or (o)(2) of this section, then
   demonstration of “substantial service” shall proceed on a case-by-case
   basis. All substantial service determinations will be made on a
   license-by-license basis. Except for BTA licenses, BRS licensees must
   file their “substantial service” showing with their renewal
   applications. Failure by any licensee to meet this requirement will
   result in forfeiture of the license and the licensee will be ineligible
   to regain it.

   (1) A BRS or EBS licensee has provided “substantial service” by:

   (i) Constructing six permanent links per one million people for
   licensees providing fixed point-to-point services;

   (ii) Providing coverage of at least 30 percent of the population of the
   licensed area for licensees providing mobile services or fixed
   point-to-multipoint services;

   (iii) Providing service to “rural areas” (a county (or equivalent) with
   a population density of 100 persons per square mile or less, based upon
   the most recently available Census data) and areas with limited access
   to telecommunications services:

   (A) For mobile service, where coverage is provided to at least 75% of
   the geographic area of at least 30% of the rural areas within its
   service area; or

   (B) for fixed service, where the BRS or EBS licensee has constructed at
   least one end of a permanent link in at least 30% of the rural areas
   within its licensed area.

   (iv) Providing specialized or technologically sophisticated service
   that does not require a high level of coverage to benefit consumers; or

   (v) Providing service to niche markets or areas outside the areas
   served by other licensees.

   (2) An EBS licensee has provided “substantial service” when:

   (i) The EBS licensee is using its spectrum (or spectrum to which the
   EBS licensee's educational services are shifted) to provide educational
   services within the EBS licensee's GSA;

   (ii) the EBS licensee's license is actually being used to serve the
   educational mission of one or more accredited public or private
   schools, colleges or universities providing formal educational and
   cultural development to enrolled students; or

   (iii) the level of service provided by the EBS licensee meets or
   exceeds the minimum usage requirements specified in § 27.1214.

   (3) An EBS or BRS licensee may be deemed to provide substantial service
   through a leasing arrangement if the lessee is providing substantial
   service under paragraph (o)(1) of this section. The EBS licensee must
   also be otherwise in compliance with this Chapter (including the
   programming requirements in § 27.1203 of this subpart).

   (4) If the GSA of a licensee is less than 1924 square miles in size,
   and there is an overlapping co-channel station licensed or leased by
   the licensee or its affiliate, substantial service may be demonstrated
   by meeting the requirements of paragraph (o)(1) or (o)(2) of this
   section with respect to the combined GSAs of both stations.

   (5) If the GSA of a BTA authorization holder, is less than one-half of
   the area within the BTA for every BRS channel, substantial service may
   be demonstrated for the licenses in question by meeting the
   requirements of paragraph (o)(1) or (o)(2) of this section with respect
   to the combined GSAs of the BTA authorization holder, together with any
   incumbent authorizations licensed or leased by the licensee or its
   affiliates.

   [ 62 FR 9658 , Mar. 3, 1997, as amended at  65 FR 3146 , Jan. 20, 2000;  69 FR 5715 , Feb. 6, 2004;  71 FR 35189 , June 19, 2006;  72 FR 27709 , May 16,
   2007;  72 FR 48846 , Aug. 24, 2007;  72 FR 67578 , Nov. 29, 2007;  73 FR 26038 , May 8, 2008;  74 FR 8878 , Feb. 27, 2009]

   Effective Date Note:   At  72 FR 48846 , Aug. 24, 2007, § 27.14 was
   amended by revising (a), removing (f), redesignating (e) as new (f),
   and adding (e) and (g) through (n). At  72 FR 67578 , Nov. 29, 2007
   § 27.14 was corrected. This text contains information collection and
   recordkeeping requirements and will not become effective until approval
   has been given by the Office of Management and Budget.