177. Statutory Requirements. In discussing any changes to the Table of Frequency Allocations, we seek specific comment on any special statutory conditions that may apply. Two particular statutory provisions are of special relevance here.
178. First, Congress recognized the potential benefits of flexible spectrum allocations and amended the Communications Act in 1997 to add section 303(y), which grants the Commission the authority to adopt flexible allocations if certain factors are met. We seek comment on how best to read Section 303(y) in light of the subsequent mandate of section 6401 to "allocate the spectrum described [therein] for commercial use." We also seek comment on whether any allocation changes, together with the proposed service rules, proposed or identified in this notice or by commenters would satisfy the four elements of section 303(y) of the Act.
179. Second, section 1062(b) of the National Defense Authorization Act for Fiscal Year 2000 requires that, if "in order to make available for other use a band of frequencies of which it is a primary user, the Department of Defense is required to surrender use of such band of frequencies, the Department shall not surrender use of such band of frequencies until . . . the [NTIA], in consultation with the [FCC], identifies and makes available to the Department for its primary use, if necessary, an alternative band or bands of frequencies as a replacement for the band to be so surrendered." Furthermore, current law requires that "the Secretary of Commerce, the Secretary of Defense, and the Chairman of the Joint Chiefs of Staff jointly certify . . . that such alternative band or bands provides comparable technical characteristics to restore essential military capability that will be lost as a result of the band of frequencies to be so surrendered." We seek comment on the extent to which any proposed allocation changes would meet these requirements.
IV. Order on Reconsideration (WT Docket Nos. 07-16 and 07-30)
180. In this Order on Reconsideration, we deny three petitions for reconsideration filed by McElroy Electronics Corporation (MEC), NetfreeUS, LLC (NetfreeUS), and Open Range Communications, Inc. (Open Range). All three petitions ask us to reverse the Commission's August 2007 decision that dismissed petitioners' March 2007 applications without prejudice. Those applications, which were filed before Congress passed the Spectrum Act, all sought authority to operate in the 2155-2175 MHz Band, which, as discussed above, is a portion of the 2155-2180 MHz Band that the Spectrum Act directed the Commission to allocate for commercial use and license through a system of competitive bidding subject to flexible-use service rules. We deny the petitions for the reasons set forth below.
181. Background. On May 5, 2006, M2Z filed an application to construct and operate a nationwide broadband wireless network in the 2155-2175 MHz band. In addition, M2Z filed a petition for forbearance on September 1, 2006, in which it requested that the Commission forbear from applying any rules, statutes, or policies that would block M2Z's application from being granted, including the competitive bidding provisions of section 309(j) of the Communications Act. On January 31, 2007, the Commission released a public notice stating that M2Z's application was accepted for filing pursuant to the Commission's general statutory authority under section 309 of the Communications Act--"rather than pursuant to an established framework of processing rules." However, the Commission stated that its "action does not imply any judgment or view about the merits of the [M2Z] Application, nor does it preclude a subsequent dismissal of the Application as defective under existing rules or under future rules that the Commission may promulgate by notice and comment rulemaking." The Commission also noted that "additional applications for spectrum in this band may be filed while the M2Z application is pending."