NAF, et al. vigorously oppose adoption of the Notice as proposed. The proposed rules virtually replicate the 2002 Petition by Progeny LMS, LLC (Progeny Petition), which attracted considerable opposition from a broad cross-section of industry groups. Other than the continued failure of the L-LMS Band -- a risk reflected in the absurdly low prices the licenses brought at auction -- the NPRM offers no justification for adopting the proposal.

To the contrary, an objective reading of the facts creates the inescapable conclusion that circumstances since 2002 have made the Progeny Petition Proposals even more objectionable and contrary to the public interest. The 900 MHz band has become ever more intensely used by Part 15 "unlicensed" devices ranging from such prosaic but useful and ubiquitous devices as meter readers, to competitive last mile broadband solutions, to critical emergency response equipment. By contrast, the L-LMS licensees have largely failed to complete buildouts and offer service. Further, as the NPRM itself observes, numerous other technologies provide similar, or even superior, service of the kind initially envisioned for L-LMS.

Few licensees, however, seem less worthy of the Commission's sudden charity than the M-LMS licensees. The licensees acquired the licenses for a pittance in 1999, fully aware of all of the rules and limitations of the service. When the licensees failed to meet the specified buildout requirements, the Commission responded by extending their deadlines. Further failure on the part of the licensees has brought only additional rewards in the form of further extensions and proposals to expand the licensees' spectrum rights at the expense of those using the band intensely and efficiently. The Commission appears to have completely abandoned the comprehensive, forwardlooking approach painstakingly arrived at by the Spectrum Policy Task Force in favor of a return to its discredited practice of encouraging licensees to speculate and game the Commission's rules. This undermines the efficiency of the Commission's spectrum management policies and encourages speculation as licensees increasingly treat Commission obligations such as buildout requirements and service limitations as suggested guidelines the Commission will modify on request rather than as rules they must obey.

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