[Federal Register Volume 60, Number 220 (Wednesday, November 15, 1995)]
[Rules and Regulations]
[Pages 57365-57368]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-28118]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 21 and 74
[MM Docket No. 94-131 and PP Docket No. 93-253, FCC 95-445]
Filing Procedures in Multipoint Distribution Service and in the
Instructional Television Fixed Service, Including Electronic Filing and
Competitive Bidding
AGENCY: Federal Communications Commission.
ACTION: Final rule; petition for reconsideration.
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SUMMARY: This document addresses issues raised on reconsideration of
the Multipoint Distribution Service (MDS) Report and Order, which
modified the MDS application process and established competitive
bidding procedures to select among mutually exclusive applicants for
MDS. This proceeding is intended to resolve the issues presented in the
petitions for reconsideration filed on various aspects of the MDS
Report and Order. Clarification is needed in order to expedite the
auction of the MDS spectrum, intended to enhance the delivery of
wireless cable to the public.
EFFECTIVE DATE: November 15, 1995.
FOR FURTHER INFORMATION CONTACT:
Charles Dzeidzic at (202) 418-1604, Sharon Bertelsen at (202) 416-0892,
Jerrianne Timmerman at (202) 416-0881, Video Services Division, Mass
Media Bureau.
[[Page 57366]]
SUPPLEMENTARY INFORMATION: The Memorandum and Order on Reconsideration
addresses petitions for reconsideration filed in response to the MDS
Report and Order, released June 30, 1995, summarized at 60 FR 36524
(July 17, 1995), which modified the MDS application process and
established competitive bidding procedures for MDS. Thirteen petitions
for reconsideration on various aspects of the MDS Report and Order were
filed with the Commission. Petitioners include the Wireless Cable
Association, Bell Atlantic, Pacific Telesis-Cross Country Wireless,
Instructional Telecommunications Foundation, Network for Instructional
Television, Trans Video Communications, as well as a number of
individual wireless cable or Instructional Television Fixed Service
(ITFS) operators.
The petitioners raise numerous legal and technical issues. Under
the competitive bidding procedures established in the MDS Report and
Order, a geographic licensing plan was developed under which the
Commission would allot one MDS authorization for each of the 487 Basic
Trading Areas (BTAs) and six additional BTA-like geographic areas. The
BTA authorization holder would be able to construct and license
facilities to provide wireless cable service on any usable MDS channels
within the BTA, and would have preferred rights to the available ITFS
frequencies and lease agreements within the BTA. The MDS Report and
Order required the BTA authorization holder to protect currently
authorized and previously proposed MDS stations, known as
``incumbents,'' as well as the receive sites of ITFS systems, against
harmful interference. In the Report and Order, the Commission also
provided certain preferences for small businesses participating in the
auction, established a five year build-out requirement for the BTA
authorization holders, and established procedures to allow partitioning
of the BTA.
Petitioners generally praised the Commission's efforts to
facilitate the development of wireless cable services. However,
petitioners asked for reconsideration or clarification of certain
Commission rules and policies adopted in the MDS Report and Order. The
Commission granted certain aspects of the petitions for
reconsideration, most notably those requesting elimination of the BTA
authorization holder's right of first refusal regarding new ITFS lease
agreements. In addition, the Commission raised one issue, regarding
unjust enrichment to prevent abuse of the partitioning rules, on its
own motion.
The complete text of the rule changes follows. The complete text of
the Memorandum and Order on Reconsideration is also available for
inspection and copying during normal business hours in the FCC
Reference Center, Room 239, at the Federal Communications Commission,
1919 M Street, NW., Washington, DC 20554, and it may be purchased from
the Commission's copy contractor, International Transcription Service,
Inc., 2100 M Street, NW., Suite 140, Washington, DC 20037, (202) 857-
3800.
These rule changes will become effective immediately upon their
publication in the Federal Register. Pursuant to 5 U.S.C. 553(d)(3) the
Commission found good cause to have the rule amendments take effect
immediately upon publication in the Federal Register. The MDS auction
is scheduled to commence on November 13, 1995. The revised rules need
to be effective in less than 30 days so that the auction may take place
as scheduled and bidders are fully informed of the rules prior to the
auction.
List of Subjects
47 CFR Part 21
Communications common carriers, Communications equipment, Reporting
and recordkeeping requirements, Television.
47 CFR Part 74
Television broadcasting.
Federal Communications Commission.
William F. Caton,
Acting Secretary.
Rule Changes
Parts 21 and 47 of Chapter I of Title 47 of the Code of Federal
Regulations are amended as follows:
PART 21--DOMESTIC PUBLIC FIXED RADIO SERVICES
1. The authority citation for Part 21 continues to read as follows:
Authority: Secs. 1, 2, 4, 201-205, 208, 215, 218, 303, 307, 313,
314, 403, 404, 410, 602; 48 Stat. 1064, 1066, 1070-1073, 1076, 1077,
1080, 1082, 1083, 1087, 1094, 1098, 1102, as amended; 47 U.S.C. 151,
154, 201-205, 208, 215, 218, 303, 307, 313, 314, 403, 602; 47 U.S.C.
552, 554.
2. Section 21.2 is amended by revising the definitions for ``BTA
service area'' and ``Partitioned service area'' to read as follows:
Sec. 21.2 Definitions.
* * * * *
BTA service area. The area within the boundaries of a BTA to which
a BTA authorization holder may provide Multipoint Distribution Service.
This area excludes the protected service areas of incumbent MDS
stations and previously proposed and authorized ITFS facilities,
including registered receive sites.
* * * * *
Partitioned service area (PSA). The area within the coterminous
boundaries of one or more counties or other geopolitical subdivisions,
drawn from a BTA, to which an authorization holder may provide
Multipoint Distribution Service or the area remaining in a BTA upon
partitioning any portion of that BTA. This area excludes the protected
service areas of incumbent MDS stations and previously proposed and
authorized ITFS stations, including registered receive sites.
3. Section 21.15(g) is revised to read as follows:
Sec. 21.15 Technical content of applications.
* * * * *
(g) Except for applications in the Multipoint Distribution Service
filed on or after September 15, 1995, each application in the Point-to-
Point Radio, Local Television Transmission and Digital Electronic
Message Service (excluding user stations) proposing a new or
replacement antenna (excluding omni-directional antennas) shall include
an antenna radiation pattern showing the antenna power gain
distribution in the horizontal plane expressed in decibels, unless such
pattern is known to be on file with the Commission in which case the
applicant may reference in its application the FCC-ID number that
indicates that the pattern is on file with the Commission. Multipoint
Distribution Service applicants who filed applications on or after
September 15, 1995 must provide related information in completing an
MDS long-form application.
* * * * *
4. Section 21.42(d) is revised to read as follows:
Sec. 21.42 Certain modifications not requiring prior authorization.
* * * * *
(d) Licensees may correct erroneous information on a license which
does not involve a major change (i.e., a change that would be
classified as a major amendment as defined by Sec. 21.23) without
obtaining prior Commission approval by filing a completed FCC Form 494,
or for the Multipoint Distribution Service licensees, by filing the MDS
long-form application.
[[Page 57367]]
5. Section 21.902 is amended by revising paragraph (g)(1) to read
as follows:
Sec. 21.902 Frequency interference.
* * * * *
(g)(1) All interference studies prepared pursuant to paragraph (c)
of this section must be served on all licensees, conditional licensees,
and applicants for the stations required to be studied by this section.
This service must include a copy of the FCC application and occur on or
before the date the application is filed with the Commission.
* * * * *
6. Section 21.904 is amended by redesignating paragraph (c)(2) as
paragraph (c)(3) and adding new paragraph (c)(2) to read as follows:
Sec. 21.904 Transmitter power.
* * * * *
(c) * * *
(2) The interfered-with stations may increase it own power
consistent with the rules; and
* * * * *
7. Section 21.924 is amended by revising paragraph (c) to read as
follows:
Sec. 21.924 Service areas.
* * * * *
(c) The area within the boundaries of a BTA to which a BTA
authorization holder may provide Multipoint Distribution Service
excludes the protected service areas of any incumbent MDS stations and
previously proposed and authorized ITFS facilities, including
registered receive sites.
8. Section 21.925(a)(2) is revised to read as follows:
Sec. 21.925 Applications for BTA authorizations and MDS station
licenses.
(a) * * *
(2) For purposes of conducting competitive bidding procedures,
short-form applications are considered to be mutually exclusive with
each other if they were filed for, and specified, the same BTA service
area.
* * * * *
9. Section 21.929 is amended by designating the undesignated
paragraph as paragraph (b), and adding a new paragraph (a) to read as
follows:
Sec. 21.929 Authorization period for station licenses.
(a)(1) A BTA authorization will be granted for a term of ten years,
terminating ten years from the date of the Commission declared bidding
closed in the MDS auction.
(2) A BTA authorization shall automatically terminate without
further notice to the licensee upon expiration of the ten-year license
term unless prior thereto an application for renewal of such license
has been filed with the Commission.
* * * * *
10. Section 21.933 is revised to read as follows:
Sec. 21.933 Protected service areas.
(a) The stations licensed to the holder of a BTA authorization
shall have a protected service area that is coterminous with the
boundaries of that BTA, subject to the exclusion of the 56.33 km (35
mile) protected service area of incumbent MDS stations and of
previously proposed and authorized ITFS facilities within that BTA,
even if these protected service areas extend into adjacent BTAs. The
protected service area also includes registered receive sites.
(b) The stations licensed to the holder of a PSA authorization
shall have a protected service area that is coterminous with the
boundaries of the counties or other geopolitical subdivisions
comprising the PSA, subject to the exclusion of the 56.33 km (35 mile)
protected service area of incumbent MDS stations and of previously
proposed and authorized ITFS facilities within that PSA, even if these
protected service areas extend into adjacent BTAs. The protected
service area also includes registered receive sites.
11. Section 21.938 is amended by redesignating paragraphs (c)
through (g) as (d) through (h) respectively, revising newly
redesignated paragraphs (d) and (f), and adding new paragraph (c), to
read as follows:
Sec. 21.938 BTA and PSA technical and interference provisions.
* * * * *
(c)(1) ITFS applicants may locate a new station in an unused
portion of a BTA or PSA where interference to a previously-proposed or
authorized MDS station of a BTA or PSA authorization holder would not
be predicted.
(2) With respect to ITFS applications only and for purposes of
determining the existence of harmful electromagnetic interference as
caused to MDS stations licensed to BTA or PSA authorization holders by
subsequently proposed ITFS stations within that BTA, MDS stations
licensed to BTA and PSA authorization holders and will have a protected
service area of 56.33 km (35 miles), centered on the antenna site of
the MDS stations.
(3) The 56.33 km (35 mile) protected service area afforded to a
previously-proposed or authorized MDS station of a BTA or PSA
authorization holder with respect to a subsequently proposed ITFS
station is entitled to the interference protection standards of
Sec. 21.902.
(4) An ITFS station authorized before September 15, 1995 may be
modified, provided the power flux density of that station does not
exceed -73 dBw/m2 at locations along the 56.33 km (35 mile) circle
centered on the then-existing transmitting antenna site or service area
of collocated incumbent MDS station, as applicable.
(d) Unless the affected parties have executed a written
interference agreement in accordance with Sec. 21.937, it shall be the
responsibility of a BTA or PSA authorization holder to correct at its
expense any condition of harmful electromagnetic interference caused to
authorized MDS service at locations within other BTAs or PSAs or within
the 56.33 km (35 mile) protected service areas of authorized or
previously proposed ITFS and MDS stations (incumbents), or at
authorized or previously proposed ITFS receive sites.
* * * * *
(f) The calculated free space power flux density from an MDS
station, other than an incumbent MDS station, may not exceed -73 dBW/m2
at locations on BTA or PSA boundaries for which there is an
unobstructed signal path from the transmitting antenna to the boundary,
unless the applicant has obtained the written consent of the
authorization holder for the adjoining BTA or PSA.
* * * * *
12. Section 21.960 is amended by revising paragraphs (b)(5)(i) and
(d)(1)(i) to read as follows:
Sec. 21.960 Designated entity provisions for MDS.
* * * * *
(b) * * *
(5) * * *
(i) If an eligible BTA authorization holder that utilizes
installment financing under this paragraph seeks to assign or transfer
control of its BTA authorization to an entity not meeting the
eligibility standards for installment payments, the holder must make
full payment of the remaining unpaid principal and any unpaid interest
accrued through the date of assignment or transfer as a condition of
approval. If an eligible BTA authorization holder that utilizes
installment financing under this subsection seeks to partition,
pursuant to Sec. 21.931, a portion of its BTA containing one-third or
more of the population of the area within its control in the licensed
BTA to an entity not meeting the eligibility standards for installment
payments, the holder must
[[Page 57368]]
make full payment of the remaining unpaid principal and any unpaid
interest accrued through the date of partition as a condition of
approval.
* * * * *
(d) * * *
(1) * * *
(i) If a BTA authorization holder that utilizes a bidding credit
under this paragraph seeks to assign or transfer control of its BTA
authorization to an entity not meeting the eligibility standards for
bidding credits, the authorization holder must reimburse the government
for the amount of the bidding credit, plus interest at the rate imposed
for installment financing at the time the authorization was awarded,
before assignment or transfer will be permitted. If an eligible BTA
authorization holder that utilizes a bidding credit under this
paragraph seeks to partition, pursuant to Sec. 21.931, a portion of its
BTA containing one-third or more of the population of the area within
its control in the licensed BTA to an entity not meeting the
eligibility standards for bidding credits, the authorization holder
must reimburse the government for the amount of the bidding credit,
plus interest at the rate imposed for installment financing at the time
the authorization was awarded, before the partitioning will be
permitted. The amount of the required reimbursement will be reduced
over time. An assignment, transfer or partition in the first two years
after issuance of the BTA authorization will result in a reimbursement
of one hundred (100) percent of the value of the bidding credit; during
year three, of seventy-five (75) percent of the bidding credit; in year
four, of fifty (50) percent; in year five, twenty-five (25) percent;
and thereafter, no reimbursement.
* * * * *
13. Section 21.961 is amended by revising paragraph (b)(2)
introductory text to read as follows:
Sec. 21.961 Definitions applicable to designated entity provisions.
* * * * *
(b) * * *
(2) Aggregation of gross revenues
* * * * *
PART 74--EXPERIMENTAL, AUXILIARY, AND SPECIAL BROADCAST AND OTHER
PROGRAM DISTRIBUTIONAL SERVICES
1. The authority citation for Part 74 continues to read as follows:
Authority: Secs. 4, 303, 48 Stat. 1066, as amended; 47 U.S.C.
154, 303, 554.
2. Section 74.903 is amended by revising paragraph (b)(5) and by
adding a sentence in paragraph (d) between the first and second
sentence to read as follows:
Sec. 74.903 Interference.
* * * * *
(b) * * *
(5) An analysis of the potential for harmful interference within
the protected service area, as defined in paragraph (d) of this
section, of any authorized or previously proposed station(s) described
in paragraph (d) of this section.
* * * * *
(d) * * * Alternatively, an applicant, permittee, or licensee may
select a 56.33 km (35 mile) circular protected area centered at the
geographic latitude and longitude of the transmitting antenna site. * *
*
* * * * *
[FR Doc. 95-28118 Filed 11-14-95; 8:45 am]
BILLING CODE 6712-01-M
