Sec.  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  Sec. 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  Sec. 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  Sec. 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 February 17, 2013 (or within four years of initial license grant
   if the initial authorization in a market is granted after February 17,
   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
   February 17, 2013 (or within four years of initial license grant, if the
   initial authorization in a market is granted after February 17, 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 February 17, 2013 (or within four years of initial
   license grant, if the initial authorization in a market is granted after
   February 17, 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 February 17, 2013
   (or within four years of initial license grant if the initial authorization
   in a market is granted after February 17, 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 February 17, 2013 (or within four years of initial license grant, if
   the initial authorization in a market is granted after February 17, 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  Sec. 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  Sec. 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  Sec. 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
   February  17, 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 February 17, 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 February 17, 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 February 17, 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  Sec. 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  Sec. 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  Sec. 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  Sec. 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]

   Effective Date Note:   At  72 FR 48846 , Aug. 24, 2007,  Sec. 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  Sec. 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.