[Federal Register Volume 64, Number 29 (Friday, February 12, 1999)]
[Rules and Regulations]
[Pages 7113-7127]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-3464]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 73
[CS Docket No. 98-201; FCC 99-14]
Satellite Delivery of Broadcast Network Signals under the
Satellite Home Viewer Act
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: In response to petitions for rulemaking filed by the National
Rural Telecommunications Cooperative (NRTC) and EchoStar Communications
Corporation (Echostar) in connection with the Satellite Home Viewer
Act, this Report and Order amends the Commission's rules to provide a
procedure for measuring television signal strength at an individual
location, such as a household. The Report and Order also endorses a
model to predict signal intensity at individual households. The
intended effect is to better identify those households that are
``unserved,'' for purposes of the SHVA.
EFFECTIVE DATE: February 12, 1999.
FOR FURTHER INFORMATION CONTACT: Donnie Fowler at (202) 418-7200 or via
internet at dfowler@fcc.gov.
SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's
Report and Order, FCC 99-14, CS Docket No. 98-201, adopted February 1,
1999 and released February 2, 1999. The full text of this Notice is
available for inspection and copying during normal business hours in
the FCC Reference Center, 445 12th Street, SW, Washington, DC 20554, or
may be purchased from the Commission's copy contractor, International
Transcription Service (``ITS''), (202) 857-3800, 1231 20th Street, NW,
Washington, DC 20036, or may be reviewed via internet at http://
www.fcc.gov/Bureaus/Cable/News__Releases/1999/nrcb8022.html>. For
copies in alternative formats, such as braille, audio cassette or large
print, please contact Sheila Ray at ITS.
Paperwork Reduction Act
The requirements adopted in this Report and Order have been
analyzed with respect to the Paperwork Reduction Act of 1995 (the
``1995 Act'') and found to impose new or modified information
collection requirements on the public. The Commission has requested
Office of Management and Budget (``OMB'') approval, under the emergency
processing provisions of the 1995 Act (5 CFR 1320.13), of the
information collection requirements contained in this Report and Order.
OMB Approval Number: 3060-0863.
Title: Satellite Delivery of Network Signals to Unserved Households
for Purposes of the Satellite Home Viewer Act.
Type of Review: Revision of a currently approved collection.
Respondents: Business and other for-profit entities.
Annual Number of Respondents: 848.
Estimated Time Per Response: 30 minutes.
Frequency of Response: On occasion.
Total Annual Burden to Respondents: 125,000 hours.
Total Annual Cost to Respondents: $12,500.
Needs and Uses: The information gathered as part of Grade B signal
strength tests will be used to indicate whether consumers are
``unserved'' by over-the-air network signals. The written records of
test results will be made after testing and predicting the strength of
a television station's signal. Parties impacted by the test results
will be consumers; parties using the written test results will
primarily be the satellite and broadcasting industries.
Title: Satellite Delivery of Network Signals to Unserved Households
for Purposes of the Satellite Home Viewer Act.
Synopsis of Report and Order
Introductory Background
1. In this proceeding, we address an issue involving the television
broadcast industry, the direct-to-home satellite industry, and
consumers who subscribe to satellite carriers for their video
programming. Over nine million households subscribe to satellite
carriers, and roughly one third of these subscribers pay an additional
subscription fee to receive broadcast network programming via
satellite. Broadcasters contend that many of these broadcast network
subscribers, as well as many potential subscribers, are not eligible
under the 1988 Satellite Home Viewer Act (``SHVA'') to receive such
programming using their home satellite service.
2. The broadcast television industry has the right, through the
Copyright Act and private contracts, to control the distribution of the
national and local programming that it transmits. In 1988, Congress
adopted the SHVA as an amendment to the Copyright Act in order to
protect the broadcasters' interests while simultaneously enabling
satellite carriers to provide broadcast programming to those satellite
subscribers who are unable to obtain broadcast network programming
over-the-air. (17 U.S.C. 119 (1998), the SHVA
[[Page 7114]]
is part of a copyright law.) Congress considered these subscribers to
be ``unserved'' by their local stations (to be considered ``unserved,''
the SHVA also requires that the household not have subscribed to cable
in the previous 90 days). A Miami federal district court has recently
acted to enforce this law by issuing two nationwide injunctions
requiring the satellite carriers to terminate network service to as
many as 1 million subscribers by February 28, 1999 and to more than 1
million additional subscribers by April 30, 1999. Many satellite
subscribers have contacted the Commission to express concern over this
imminent termination of service and have asked for the Commission's
assistance to reduce the impact of the court's injunctions. The
broadcast industry has urged the Commission not to take any action that
will undermine the court's decision or harm broadcasters and,
consequently, the viewers who rely on local broadcast stations. Two
satellite carriers, the National Rural Telecommunications Cooperative
(``NRTC'') and EchoStar Communications Corporation (``EchoStar''),
filed petitions for rulemaking with the Commission asking us to amend
our rules to help those subscribers who face termination.
3. In response, the Commission issued a Notice of Proposed Rule
Making, Satellite Delivery of Network Signals to Unserved Households
for Purposes of the Satellite Home Viewer Act, (``NPRM'') on November
17, 1998 (63 FR 67439, December 17, 1998), and announced that it
expected to complete this rulemaking before the first wave of satellite
subscribers have their network programming via satellite terminated at
the end of February, 1999. As stated in the NPRM, the Commission's
statutory authority under the SHVA is limited so that, regardless of
action by the Commission, most of the satellite subscribers affected by
the injunction are likely to have their satellite-delivered network
programming discontinued. The court has determined that the vast
majority of subscribers are not within the scope of Congress' copyright
authorization because they are able to receive broadcast network
programming over-the-air.
4. The Commission's role in this matter originates in a provision
in the SHVA that links the definition of ``unserved households'' to a
Commission definition of television signal strength known as ``Grade B
intensity.'' The critical question under the SHVA and in this
rulemaking is whether a household is able to receive a television
signal of this strength.
5. The goal of this rulemaking is to identify more accurately, and
consistent with the SHVA, those consumers who can and cannot receive
their local broadcast network stations over-the-air. The Commission's
actions advance this goal, but cannot satisfy every consumer who wants
to receive broadcast network stations via satellite. Congress has
granted the Commission only limited authority to act in this area. We
have also sought to promote competition among multichannel video
programming distributors, to the extent possible under the SHVA, and we
have considered the role that local broadcasters play in their
communities. Increasing competition among MVPDs was not an express goal
of Congress in enacting the SHVA however. Several members of Congress,
however, have recently suggested that changes to the statute could help
open markets and provide consumers with more choices. Through hundreds
of e-mails, letters, and phone calls, consumers have expressed
frustration at being unable to choose a satellite service that provides
broadcast network stations, although it is unclear how many of these
consumers do receive terrestrially delivered broadcast signals of Grade
B intensity.
6. To give the satellite industry, broadcast industry, and
consumers a uniform method for determining the signal strength a
household actually receives, the Commission in this Order adopts a
method for measuring Grade B signal strength at individual households.
The measurement rule takes effect upon publication in the Federal
Register. The expedited effective date for this rule is warranted in
light of the permanent injunction scheduled to take effect on February
28, 1999, which will affect 700,000-1,000,000 satellite subscribers. To
the extent parties may seek the court's permission to use the new
measurement methodology promulgated in this Order, as well as the
prediction model endorsed by the Commission, the expedited effective
date will facilitate the court's review of such requests. The
Commission has requested permission from the Office of Management and
Budget for expedited clearance for the Paperwork Reduction Act. We
expect that this rule will provide the uniformity and certainty needed
to eliminate many of the controversies that currently surround
compliance with the SHVA. We believe, consistent with what commenters
on all sides of this issue have requested, that the measurement
methodology is practical, reasonably accurate, and relatively
inexpensive.
7. In this Order the Commission also endorses a computer model to
predict whether a household is likely to be able to receive a signal of
the required strength. Although the Commission does not have the
authority to mandate use of this model in connection with the SHVA,
this recommendation gives the broadcast and satellite industries, as
well as consumers, a means of determining eligibility for satellite-
delivered network service that minimizes the need for on-site testing.
The predictive model is familiar to the broadcast and satellite
industries and is publicly available for use at this time. It should
provide a degree of dependability and assurance that will alleviate
some of the confusion and cost that has contributed to consumer
dissatisfaction.
8. This Order, therefore, addresses three major issues. First, we
consider whether we can and should change the definition of a signal of
Grade B intensity. We decline to do so in this proceeding. Second, we
consider and adopt a standardized method for measuring the strength of
television signals at individual locations. Third, we consider
endorsing a method for predicting the strength of television signals at
individual locations that could be used in place of actually taking
measurements. The prediction method that we endorse could be used to
create an accurate evidentiary presumption of acceptable television
service or lack of service. Importantly, the effect of this Order is
not to increase the number of unserved households that already exist,
nor to reduce the size of local stations' markets by subtracting
viewers who are able to receive their signal. Rather, we have developed
measurement and prediction tools that more accurately identify those
households that are truly unserved within the meaning of the SHVA.
A. The Satellite Home Viewer Act
9. In the SHVA, Congress created a limited exception to the
exclusive programming copyrights enjoyed by television networks and
their affiliates because it recognized that some households were unable
to receive network station signals directly over the air. The exception
is a narrow compulsory copyright license (17 U.S.C. 119(d)(2)) that
direct-to-home (DTH) satellite video carriers may use to provide
certain television network stations to subscribers who live in
``unserved households.'' The SHVA was originally adopted in 1988 to
cover satellite service via C-Band before ``direct broadcast
satellite'' (``DBS'') existed. Congress amended the SHVA in 1994 when
DBS was just reaching the market. After DBS was introduced in
[[Page 7115]]
mid-1994, it gained 6.5 million subscribers in the first 32 months.
Currently, direct-to-home (``DTH'') satellite services, which include
C-Band, DBS, and medium power Ku-band services, have more than nine
million subscribers. The success of the DBS industry benefits consumers
by providing greater choice among multi-channel video programming
distributors (``MVPD''). However, as the number of satellite
subscribers has increased, so has the tension that is inherent in the
SHVA regarding those who are eligible to receive network programming
via satellite and those who are not.
10. The term ``unserved household,'' as relevant here, is defined
by SHVA as a household that: ``cannot receive, through the use of a
conventional outdoor rooftop receiving antenna, an over-the-air signal
of grade B intensity (as defined by the Federal Communications
Commission) of a primary network station affiliated with that
network.'' (17 USC 119(d)(10(A)). The SHVA is enforced through private
actions filed in the federal court system. In such actions, the
satellite carrier has the burden of proving ``that its secondary
transmission of a primary transmission by a network station is for
private home viewing to an unserved household.''
11. The Satellite Home Viewer Act limits the compulsory copyright
license to ``unserved'' households, reflecting Congress'' intent to
protect the role of local broadcasters in providing free, over-the-air
television to American families. Localism has been a central principle
of broadcast policy since the Radio Act of 1927. Broadcasters must
serve their communities by providing programming (e.g., news, weather,
and public affairs) to meet the needs and interests of those
communities. Congress was concerned that without some copyright
protection, the economic viability of those local stations affiliated
with national networks might be jeopardized, thus undermining one
source of local information.
12. The SHVA has two purposes: (1) to make broadcast network
programming via satellite available to those households beyond the
reach of a local affiliate, and (2) to protect the integrity of the
copyrights that make possible the existing free, over-the-air national
network/local affiliate broadcast distribution system. This Order
addresses, within the boundaries of the Commission's authority, the
conflicts that arise between these dual purposes.
Grade B Contours and Signal Intensity
13. The Grade B signal intensity standard, which is the key to the
SHVA's definition of ``unserved households'' in Section 119(d)(10)(A),
is a Commission-defined measure of the strength of a given television
station's over-the-air signal. This standard was developed in the early
days of television as a key component of the Commission's channel
allotment protocol. Generally, if a household receives a television
signal of Grade B intensity, it should receive an acceptable television
picture at least 90% of the time. More specifically, Grade B represents
a field strength that is strong enough, in the absence of man-made
noise or interference from other stations, to provide a television
picture that the median observer would classify as ``acceptable'' using
a receiving installation (antenna, transmission line, and receiver)
typical of outlying or near-fringe areas.
14. The Grade B values (which represent the required field strength
in dB above one micro-volt per meter) are defined for each over-the-air
television channel in Section 73.683 of the Commission's rules. There
are also Grade A and ``city grade'' field strength values, which
represent stronger signals. Because they are stronger, Grade A contour
and city grade service are generally found closer to a station's
transmitter (47 C.F.R. 73.683 and 73.685):
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Grade B dBu Grade A dBu City Grade dBu
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Channels 2-6.................................................... 47 68 74
Channels 7-13................................................... 56 71 77
Channels 14-69.................................................. 64 74 80
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The Grade B values assume that the antenna used to receive the
signal has a 6 db gain for channels 2-13 and an antenna with a 13 db
gain for channels 14-83. Section 73.684 contains the Commission's
``traditional'' methodology for predicting station service coverage,
and Section 73.686 describes a procedure for making field strength
measurements to determine the likelihood that a signal is available in
an area or community. Section 73.622(e) describes different values for
evaluating field strength in connection with digital television (DTV)
service.
15. The Commission developed the Grade B standard in the 1950s and
has used it in a variety of contexts, many of which were not envisioned
at the time it was created. The primary purpose for creating the Grade
B standard was to estimate the extent of a television station's
coverage area. Grade B service areas, or contours, are still used for
this purpose and predict that the best 50% of locations along the outer
edge of a contour should get an acceptable television picture at least
90% of the time. When a particular location receives a signal of Grade
B intensity 50% of the time, it is, in fact, receiving a signal strong
enough to provide an acceptable television picture 90% of the time. The
use of the Grade B construct for determining whether an individual
household is unserved under the SHVA was not at issue when the standard
was created, although it is the primary issue in this rulemaking and
related lawsuits.
The PrimeTime 24 Lawsuits
16. The most far-reaching lawsuit between satellite carriers and
broadcasters over the unserved households definition is in the United
States District Court for the Southern District of Florida. In that
litigation, CBS, Inc. et al. v. PrimeTime 24 Joint Venture (9 F.Supp.2d
1333 (S.D. FL., May 13, 1998)), the plaintiff television networks (CBS
and Fox) and several affiliates brought a copyright infringement action
against PrimeTime 24, a satellite carrier, for retransmitting distant
network programming to satellite dish owners in violation of the SHVA.
The plaintiffs alleged that PrimeTime 24 distributed the signals of
distant network-affiliated television broadcast stations by satellite
to subscribers that were not ``unserved households'' within the meaning
of the SHVA.
17. Finding that PrimeTime 24 willfully violated the SHVA, the
court issued a preliminary and, later, a permanent injunction ordering
PrimeTime 24 not to deliver CBS or Fox television network programming
to any customer that does not live in an unserved household. The court
concluded that ``the great majority'' of
[[Page 7116]]
PrimeTime 24's subscribers are capable of receiving at least a signal
of Grade B intensity using a conventional outdoor rooftop antenna.
According to the court, PrimeTime 24 has ``simply ignored'' the
objective Grade B signal standard in signing up ``unserved'' customers
and had failed to meet its statutory burden of proving that its
subscribers were eligible for network service via satellite.
18. The court outlined methods for predicting and measuring signal
intensity for identifying unserved households and required PrimeTime 24
to use them. Specifically, PrimeTime 24 was enjoined from providing CBS
or Fox network programming ``to any customer within an area shown on
Longley-Rice propagation maps, created using Longley-Rice Version 1.2.2
in the manner specified by the Federal Communications Commission
(``FCC'') in OET Bulletin No. 69, as receiving a signal of at least
grade B intensity of a CBS or Fox primary network station, without
first either (i) obtaining the written consent of the affected
station(s) * * * or (ii) providing the affected station(s) with copies
of signal intensity tests showing that the household cannot receive an
over-the-air signal of grade B intensity as defined by the FCC from any
station of the relevant network.'' (See CBS et al. v. Primetime 24,
Permanent Injunction, slip op. at 2.) The court ruled that the signal
intensity test requires at least 15 days advance notice to each
affected station and outlined a specific procedure that the tester must
follow at each household within a station's area, as predicted by the
Longley-Rice map. The court also imposed the SHVA's ``loser pays''
regime on the testing procedure, whereby the loser to a challenge of a
subscriber's eligibility pays the costs of the test.
19. The preliminary injunction is scheduled to take effect on
February 28, 1999, and the permanent injunction is scheduled for April
30, 1999. The preliminary injunction could result in the termination of
network signals to the estimated 700,000 to one million subscribers
nationwide who subscribed to PrimeTime 24 after the networks filed
their lawsuit on March 11, 1997. The permanent injunction, which
applies to the PrimeTime 24 customers who subscribed before March 11,
1997, could affect an additional 1.5 million subscribers nationwide.
The total number of PrimeTime 24 subscribers affected could therefore
reach 2.2-2.5 million.
20. In a similar lawsuit, a Raleigh, North Carolina, federal
district court ruled against PrimeTime 24 and in favor of a local ABC
affiliate (ABC, Inc. v. PrimeTime 24, 17 F.Supp.2d 467 (M.D. N.C., July
16, 1998)). The court issued a permanent injunction on August 19, 1998
that applies to all subscribers living within the affiliate's predicted
Grade B contour of the affiliate's transmitting tower. The court found
that the SHVA defines unserved households and Grade B using objective
standards, and stated, ``PrimeTime's screening procedures have
systematically substituted a subjective inquiry into the quality of the
picture on a potential subscriber's television set for any signal
strength showing. PrimeTime has ignored or turned a blind eye to the
necessity of objective signal strength testing and thus willfully or
repeatedly provides network programming to subscribers under SHVA.''
(See ABC, Inc. v. PrimeTime 24, 1998 WL 544297, *2.) The court found a
``pattern and practice of willful or repeated copyright infringement''
and therefore enjoined transmission within the ``locality or region''
as is provided for in the enforcement provisions of the statute.
PrimeTime 24 has provided network services to as many as 35,000
households in the ABC affiliate's Raleigh/Durham market. At the time of
the court's decision, PrimeTime 24 continued to serve more than 9,000
subscribers within the affiliate's Grade B contour.
21. Several other lawsuits have been filed by both broadcasters and
satellite carriers. In Amarillo, Texas, an NBC affiliate has sued
PrimeTime 24 in federal district court in a case that still awaits
judgment. In Denver, Colorado, EchoStar filed suit against CBS, Fox,
NBC, and ABC on October 19, 1998 in federal district court. EchoStar
has asked the court to find that the Commission has never endorsed a
particular model for predicting or measuring Grade B intensity for the
purposes of the SHVA. Echostar wants the court to declare that a
viewer's own opinion of the quality of his or her signal is adequate
for determining whether that home is unserved under the SHVA, and asks
the court to endorse a predictive model for identifying served
households such that 95% of households receive a Grade B signal 95% of
the time with a 50% degree of confidence. The networks followed
EchoStar's action by countersuing in Miami. No decisions have been
issued in either EchoStar case.
The NRTC and EchoStar Petitions
22. In its petition for rulemaking, the NRTC, a distributor of
DirecTV DBS service, has asked the Commission to adopt, exclusively for
purposes of interpreting the SHVA, a new definition of ``unserved''
that includes all households located outside a Grade B contour
encompassing a geographic area in which 100 percent of the population
receives over-the-air coverage by network affiliates 100 percent of the
time using readily available, affordable receiving equipment. EchoStar,
which is a provider of DBS service, urges the Commission in its
petition to adopt a prediction model to locate unserved households.
EchoStar endorses a model that predicts an area where 99 percent of
households receive a Grade B signal 99 percent of the time with a 99
percent confidence level. EchoStar also urges adoption of a methodology
for measuring signal strength that more closely reflects the signal
that a viewer's television set actually receives. It argues that a
number of flaws exist in the current measurement and prediction
processes when they are used for purposes of the SHVA. After receiving
comment on these Petitions, the Commission issued the NPRM in this
proceeding.
Analysis
23. The SHVA's concern with adequate television signal intensity at
individual households, rather than across broad areas, is central to
this rulemaking. This important distinction leads us to consider
measurement and prediction methodologies that have a different purpose
from the methodologies for determining Grade B service areas. The
definition of an unserved household as ``a household that cannot
receive * * * a signal of Grade B intensity'' most logically refers to
television signal reception at an individual household and reflects a
concern for individual viewers that is not at issue in most
applications of the Grade B standard. Moreover, when Congress created
the limited compulsory license, it clearly intended to help individual
consumers who are unable to receive an acceptable, over-the-air
television picture. In a report accompanying the 1994 reauthorization
of the SHVA, the House stated that ``households that cannot receive
over-the-air broadcasts or cable can be supplied with television
programming via home satellite dishes.'' The Senate, in its 1994
report, stated that the restriction on satellite delivery of network
signals refers to ``subscribers [who] are unable to receive the signal
of a particular network.'' And when originally adopted in 1988, the
House stated, ``The distribution of network signals is restricted to
unserved households; that is, those that are unable to receive an
adequate over-the-air signal.''
[[Page 7117]]
The Commission's Role and Responsibility Under the SHVA
24. The NPRM raised issues regarding the scope of the Commission's
authority to conduct this rulemaking and involve itself in matters
related to the SHVA. The comments reflect a wide range of opinion
regarding the Commission's authority to act.
25. Questions concerning the Commission's role and responsibility
with respect to this matter arise on two levels. Several commenters
assert the Commission should elaborate on the objectives of the SHVA or
change its administration to help satellite carriers become more
competitive with cable television systems. While increased competition
among service providers is an important and longstanding goal of the
Commission, we cannot make it a primary goal of this proceeding. The
SHVA is a copyright law designed to balance owners' and users' rights.
It is not a communications law with an express purpose of increasing
competition among MVPDs. The SHVA is primarily administered by the
Copyright Office and enforced by the federal courts, and contains the
basic Congressional decisions regarding how and to whom satellite
distributed network broadcast signals are made available. We may not
change the policy behind the law, nor may we go beyond two terms
Congress used in defining ``unserved households.'' First, Congress
explicitly incorporated the Grade B standard into the definition, so
only Congress may consider the use of another measure. Second, the law
demands that a consumer be unable to receive a television signal
``using a conventional outdoor rooftop antenna'' before qualifying as
unserved. We may not change that requirement, nor may consumers ignore
it.
26. In addition, there are questions about the Commission's
specific authority to interpret and amend the Grade B standard, whether
for all purposes or only for the SHVA. We continue to believe, as the
NPRM preliminarily concluded, that the Commission has the authority to
change the definition of a signal of Grade B intensity as a general
matter.
27. We conclude that Congress did not freeze the Grade B rules in
place when it enacted the SHVA. Congress gave the Commission a
continuing role when it defined ``unserved households'' as those that
cannot receive ``an over-the-air signal of Grade B intensity (as
defined by the Commission).'' When it incorporated Grade B into the
definition of ``unserved households,'' Congress did not incorporate
specific values, such as the dBu levels the Commission uses in section
73.683. Moreover, nothing in the SHVA itself or its legislative history
indicates that Congress intended to freeze the value of Grade B when it
passed the law in 1988 or when it renewed it in 1994. When Congress has
chosen to freeze Commission regulations for other purposes, it has
explicitly done so. For example, Congress expressly referenced rules
``in effect on April 15, 1976'' when it froze in place regulations
relating to copyright compulsory licensing. No such reference exists
here. Case law also supports the proposition that the meaning of
``signal of Grade B intensity'' was not frozen when the SHVA was
enacted. For example, the Supreme Court has held that ``[i]t is of
course not true that whenever Congress enacts legislation using a word
that has a given administrative interpretation it means to freeze that
interpretation in place.'' (Lukhard v. Reed, 481 U.S. 368, 379 (1989)).
The Supreme Court reasoned that if legislation so constrained an
agency's ability to conduct rulemaking under its enabling legislation,
then ``the result would be to read into the grant of express
administrative powers an implied condition that they were not to be
exercised unless, in effect, the Congress had consented. We do not
believe that such impairment of the administrative process is
consistent with the statutory scheme which the Congress has designed.''
(Helvering v. Wilshire, 308 U.S. 90, 101 (1939).)
28. Although we conclude that the Commission has the authority to
modify Grade B intensity values for all purposes, we believe that it is
significant that Congress tied the SHVA compulsory license to the
Commission's Grade B standard, which was and is used for a multiplicity
of purposes. We think Congress' use of the widely used Grade B standard
in the SHVA indicates that we should not adopt a separate Grade B
intensity standard for purposes of the SHVA alone. Moreover, additional
considerations also lead us to conclude that it would be inadvisable to
adopt a separate Grade B standard for SHVA purposes. As discussed
below, a second set of signal strength values, also called ``Grade B
signal intensity,'' is likely to create confusion for the broadcast
industry and others affected by Commission regulations.
Defining a Signal of Grade B Intensity
29. The SHVA uses an objective standard to determine whether a
household is ``unserved'' and thus permitted to receive broadcast
network signals via satellite. SHVA's criterion is whether the
household can receive ``through the use of a conventional outdoor
rooftop receiving antenna, an over-the-air signal [of a particular
network station] of grade B intensity (as defined by the Federal
Communications Commission).'' By incorporating the objective Grade B
signal intensity standard into the SHVA, Congress declined to account
for viewers' individual subjective opinions about the quality of their
television reception, as well as the adequacy of the household's
existing antenna. Use of the Grade B signal intensity standard in the
SHVA both invites and limits the Commission's involvement with this
statute. The reference to Grade B signal intensity ``as defined by the
Federal Communications Commission'' brings the Commission's rules and
our interpretations of our rules into play. But, by using Grade B
signal intensity to define unserved, the SHVA also limits what the
Commission can do to address any drawbacks to this standard. The Grade
B signal intensity values were used in the SHVA as an available
objective benchmark for determining whether a household is ``served.''
While those values may have proven difficult to apply in practice as
the sole standard for determining whether a household is unserved, this
is the standard in the statute and must be employed here when
distinguishing served and unserved households.
30. The Commission's rules define values for Grade B signal
intensity in connection with authorizing television stations and the
stations' service areas or ``contours.'' It was not, however, created
for evaluating picture quality in individual households. Rather, the
system was developed to address the very different and difficult
problem of creating station service areas and to determine the proper
allocation of television channels in the early days of television. (See
Television Broadcast Service, Third Notice of Further Proposed Rule
Making, 16 FR 3072 (1951) and Sixth Report and Order, 41 FCC 148
(1952).) The Commission created two ``grades of service.'' The
specifications for ``Grade A'' and ``Grade B'' service were established
so that ``a quality acceptable to the median observer is expected to be
available for at least 90 percent of the time at the best 70 percent of
receiver locations at the outer limits of [Grade A] service. In the
case of Grade B service the figures are 90 percent of the time and 50
percent of the locations.'' The service areas were established to
effectuate the Commission's stated twofold purpose ``to provide
television service, as far as possible, to all people of the United
[[Page 7118]]
States and to provide a fair, efficient and equitable distribution of
television broadcast stations to the several states and communities.''
The signal intensity values (also referred to as ``field strengths'')
were determined based on certain assumptions, which differ for the
Grade A service area, which is urban and suburban, and the Grade B
service area, which is rural. For example, the type of receiving
antenna assumed for Grade A service is smaller than the receiving
antenna assumed for Grade B, and the terrain assumed for Grade A
differs from that assumed for B.
31. The ``acceptable quality'' contemplated in these early
Commission Orders was based on quality levels developed by the
Television Allocation Study Organization (``TASO''). TASO used data
from actual viewers. These viewers were shown television pictures and
were asked to rate them on a scale from 1 (excellent) to 6 (unusable).
Level 3, on which the Grade B service level was based, was defined as
``(Passable)--The picture is of acceptable quality. Interference is not
objectionable.'' Based on the results of viewer ratings, a specific
signal (or carrier) to noise ratio at the television receiver was found
to be associated with the grade 3 level--that is, a level of signal
that the median observer identified as acceptable. In association with
this level of acceptable quality, and with the primary goal of creating
service areas with minimal interference and maximum coverage, the
Commission developed assumptions, generally described as planning
factors, regarding the environment in which viewing would take place.
Assumptions were made as to the quality of the television receiver used
focusing on the amount of electrical noise created in the tuner, the
signal losses that take place in the wire connection from the receiver
to the antenna, the nature (gain, directionality, and height) of the
antenna to be used, and the amount of electrical noise in the
environment that the signal would have to overcome to be viewable.
Because radio signal propagation varies over time, certain statistical
assumptions were built into the definitions used, including the
assumption that the signal in question would be of acceptable quality
to the median observer at least 90 percent of the time.
32. The comments submitted by the satellite industry and consumers
urge vigorously that for many people the existing Grade B signal
intensity values do not equate to truly acceptable picture quality. The
first attack on the existing standards has to do with the possibility
that viewers' expectations as to signal quality have increased over
time. If this were the case, a stronger signal would be needed to
produce a picture that would now be regarded as acceptable. Although
there is some speculation in the comments that viewer expectations have
indeed changed, no current study documents this or replicates the
initial TASO study that correlated viewer judgments of television
picture quality with specific signal levels. In response to contentions
that the current values for Grade B signal intensity are erroneous
because they were based on viewer evaluations of monochrome images, we
note that the planning factors established in April 1952 (Doc. 8736)
were revisited in 1959 by TASO, which was established in response to a
Commission request to study the technical principles which should be
applied in television channel allocations. TASO studied these issues
for two years, used 21 inch monochrome and color television sets, and
essentially confirmed the same carrier to noise ratio as was
established earlier. Research on subjective evaluations of television
pictures may show that viewers have raised their level of expected
performance, but the results of any subjective testing are dependent on
the testing methodology and conditions. Many of the recent tests were
conducted by cable television sponsors using viewers who may have
expected to pay for these better pictures.
33. In addition to suggesting that viewer expectations are
different, it is also argued that radio frequency noise in outlying
areas has increased so that rural areas are today more akin to urban
areas of the 1950's, that the typical household now has multiple
television receivers necessitating antenna lead splitters that increase
line loss, and that antenna gain figures (particularly in the UHF
frequencies) should be re-evaluated. We believe that the technology of
receivers and antennas has kept pace with changing consumer
expectations and with increased noise. Thus, it is necessary to
consider the totality of changes that have taken place over the past
fifty years. In the 1950s low cost electronic technology at television
frequencies was hard to find. Therefore, the planning factors had to be
set low enough to ensure that television sets could be affordable by
the public. The noise figure used in the planning factors serves as a
good example. The noise figure is a measure of the amount of electronic
noise produced by the components in the television. This must be added
to the signal budget just like man-made noise and must be overcome to
produce a passable picture. In the 1950s, the television tuner
technology consisted of low cost noisy tubes and attached components.
Today, this technology has progressed to modern solid state components
that produce lower set noise. Thus, although many developments have
taken place since the standards were first adopted, it is not clear
that increases in the values involved are warranted.
34. We conclude that the record in this proceeding provides an
inadequate basis for changing the Grade B signal intensity values
either generally or for purposes of the SHVA specifically. First, the
evidence in the record suggests that some of the environmental and
technical changes that have taken place trend in opposite directions
and tend to cancel each other out. The Commission has examined the
adequacy of the Grade B standard on several occasions since it was
adopted in the 1950s, and in each case has decided not to make changes.
35. Second, we do not believe that we have the authority to create
a special Grade B solely for the purpose of the SHVA, nor do we believe
this is an advisable approach to take. Establishing another set of
values, also called Grade B, is likely to create confusion for the
broadcast industry. It would risk harm to the network/affiliate
relationship by creating an implication that another, different Grade B
definition might be more suitable for other situations that are not
contemplated in this proceeding. In addition, raising the values for
Grade B such that they would equal or exceed the Grade A values may
require reevaluation of the Grade A values, as well. The significant
and widespread ramifications of changing these definitions demand that
we have a more complete and conclusive record, and more time to
evaluate the record, than we have in this rulemaking.
36. Finally, some commenters raise concerns regarding the ability
of the existing standard to address interference and other signal
impairments. Although we are not changing the Grade B values, it is
important to note that as a matter of general policy we agree that the
Grade B standard incorporated by Congress into the SHVA implicitly
includes within the definition a signal that is, in fact, viewable and
not one so impaired by interference as to be degraded below the
``acceptable to the median'' observer level. While such problems can be
identified by qualified engineering personnel through actual
observations, this is not a matter, as satellite commenters in this
proceeding acknowledge, that can be resolved by simply adjusting the
dBu levels involved. No readily usable mechanism
[[Page 7119]]
for addressing this matter through changed definitions has been
identified in the comments.
Measuring Television Signal Intensity at Individual Locations
37. For the SHVA to function more effectively, a relatively low
cost, accurate, and reproducible methodology for measuring the presence
of a Grade B intensity signal at an individual household is especially
important. Individual testing is the key mechanism under the SHVA for
proving that a specific household is unserved and, therefore, eligible
to receive satellite delivery of network affiliated television
stations. The Commission's rules include a method for measuring signal
intensity for describing a station's service area or for propagation
analysis, but they have not included a method for measuring signal
intensity at a discrete location, such as an individual household. The
method created in this Order and included in the Commission's rules
balances accuracy, affordability, and simplicity.
38. The Commission's current signal measurement method, requiring a
so-called 100-foot mobile run, is inadequate for the purposes of the
SHVA. The method typically involves a truck with a 30-foot antenna that
takes continuous measurements as it travels a distance of 100 feet (47
CFR 73.686(b)(2)). Under Commission rules, the antenna must be rotated
to the best receiving position, and engineers must record factors that
might affect signal intensity, such as topography, height and type of
vegetation, buildings, obstacles, and weather conditions. If overhead
obstacles prevent a 100-foot run, a cluster of five measurements may be
taken at locations within 200 feet of each other. Testing can cost
several hundred dollars each time it is performed--an expensive
proposition for a satellite company or a consumer who wants to prove
that a household is unserved by over-the-air signals. When multiplied
over hundreds of households in a station's service area, the cost may
become prohibitive and may preclude many truly unserved consumers from
receiving broadcast network service. Mitigating the costs of the
procedure, without sacrificing the integrity of the testing results, is
an important goal of the new signal measurement methodology.
39. In addition to the difficulties inherent in the existing
measurement test, many of its assumptions do not hold in individual
situations. The purpose of the procedure currently specified in the
rules is not to determine the receivability of a signal at a single
spot, but to determine, through measurements at a series of grid
intersections over a community, the nature of service to the community.
Thus, the current procedure has limited use in measuring signal
intensity at individual locations. For example, many homes do not have
antennas 30 feet above the ground, especially if they are one-story
homes. The definition of unserved household only describes reception
over a conventional outdoor rooftop receiving antenna, so requiring
measurements on a 30-foot antenna may not reflect what is
``conventional'' at all locations around the country. Finally,
requiring tests and a 100-foot mobile run ignores the fact that homes
are stationary and that reception may vary considerably over a mobile
run on a nearby street.
40. Because the SHVA is concerned with adequate television signals
at individual households, it is entirely proper that the Commission, as
the originator of the Grade B standard, develop an objective way to
measure whether or not that standard exists at a particular location.
In short, the methodology requires a tester to make at least five
measurements in a cluster as close as possible to the location being
tested. The median value of the measurements will be the signal
intensity at the location. In deciding on which measurement methodology
to adopt, we examined the following factors, discussed in detail
below--the type of testing antenna and equipment, where and how many
measurements should be taken, the effect of time and weather on signal
strength, the height the testing antenna should be raised, the
orientation of the testing antenna, and what information should be
recorded. (See rule section, 47 CFR 73.686(d).)
41. Regarding the preparation for measurements, we considered the
kind of testing antenna that should be used and conclude that a tuned
half-wave dipole is the best choice. (A dipole is a wire or telescoping
metallic antenna consisting of two straight collinear conductors of
equal length separated by a small gap where the transmission line is
attached. The ``rabbit ears'' on a television set are a type of
dipole.) The dipole is widely available, inexpensive, and simple to
use. In situations where definite readings are required, it has
advantages over gain antennas that are difficult to characterize
(calibrate) over a wide range of frequencies. Although dipole antennas
are susceptible to interference from signals other than the one being
measured, the cluster measurements that we require will mitigate those
effects.
42. We considered where the signal measurements should be taken--on
the roof, in the yard, as close as possible to the house, in the
driveway, or at the nearest public road. We conclude that the
measurements should be taken in a cluster as close as possible to a
reasonable and likely spot for the receiving antenna. In doing so, we
do not require testers to climb up to the roof or trespass on property
where they are denied permission to enter. Although we recognize, as
the satellite carriers argue, that measurements taken at the television
receiver would most accurately reflect the picture that a consumer
watches, such an approach would be inconsistent with the intent of the
SHVA, which requires the use of an outdoor rooftop antenna.
Measurements at the television receiver are inappropriate for
determining the ambient signal intensity available at a household's
roof.
43. We considered how many measurements are necessary and conclude
that at least five measurements must be taken, each at a pre-determined
spot. Multiple readings are necessary because a single reading may give
misleading results. Reflections from surrounding objects could cause a
reading to be either higher or lower than normal. Multiple readings
will tend to mitigate these effects. The spots must be chosen before
measurements are taken to prevent gaming of the results. They must be a
minimum distance of three meters from each other, an appropriate
spacing to enable reasonably accurate results. To help ensure the
objectivity of the tests, we suggest that, if possible, the first
testing point should be chosen as the center point of an imaginary
square whose corners are the four other spots. The tester shall
calculate and report the median of the measurements (in units of dBu)
as the measurement results. For purposes of the SHVA, this median
measurement will determine whether a household is unserved. If signals
of more than one transmitter (e.g., more than one television station)
are being tested, the tester shall use the same spots for all the
measurements.
44. Regarding measurement procedure, we believe that a one-time
measurement is sufficient to determine the signal intensity at
individual locations. Satellite carriers and broadcasters appear to
agree with this conclusion. We recognize that several measurements over
time may determine even more accurately the actual signal intensity at
individual locations, but we have sought to create a testing
methodology that is both accurate, practical, and relatively
inexpensive.
[[Page 7120]]
45. We require the tester to measure the field strength of the
visual carrier with a calibrated instrument with a bandwidth of at
least 450 kHz, but no greater than one megahertz. The tester must
perform an on-site calibration of the instrument in accordance with the
manufacturer's specifications. The instrument must accurately indicate
the peak amplitude of the synchronizing signal. The tester must use a
shielded transmission line between the testing antenna and the field
strength meter. The tester must match the antenna impedance to the
transmission line, and, if using an unbalanced line, employ a suitable
balun. Finally, the tester must account for the transmission line loss
for each frequency being measured.
46. We considered the effect that time and weather have on signal
strength. Generally, neither time nor steady-state conditions of
weather have an appreciable effect on broadcast television frequencies.
However, in inclement weather or when major weather fronts are moving
through the measurement area, some noticeable consequence may result.
The tester should not take measurements at such times.
47. We considered the effect that signal interference has on the
strength of the primary signal being measured. We have not found an
easily reproducible, practical or cost-effective objective process for
measuring interference that impairs reception. Adding expense and
complication to the testing methodology would be inconsistent with our
goal of creating a practical and economical measurement method. While
we recognize that interference can make signals unviewable at a given
location, and thus ideally issues of this nature should be reviewed as
part of the standard measurement process, the only current way to
include these factors is for all interested parties to undertake a
common subjective evaluation at the test site and make a common
judgment on the issue. In the absence of a common subjective judgment,
it remains necessary to rely on the standard process that does not take
this factor into account. Because common testing cannot be required and
because it would add expense to the testing procedure, we believe it
would be highly desirable for the parties to develop procedures to
address these concerns through waivers or impartial testing personnel.
This is especially desirable in those situations where interference is
predicted or expected to exist. As discussed below, because all sides
acknowledge that interference affects picture quality and because the
Longley-Rice prediction model is capable of considering interference in
its predictions, we include interference in the version of Longley-Rice
that we endorse in this proceeding. In situations where interference is
predicted, it is not illogical to give some precedence to the
prediction involved since interference can be reliably predicted and
should be confirmable by on-site observation, even if not recordable
using the standard test procedure. Moreover, where local broadcasters
are aware of interference, we expect they will be willing to
acknowledge its effects. We believe that the intent of the SHVA will be
better realized if parties consider interference when classifying
households as served or unserved, and we encourage the engineering
community to focus on this issue to improve objective measurement
techniques.
48. We considered the height of a ``conventional outdoor rooftop
antenna'' so that the tester would know how high to raise the testing
antenna. There is evidence that signal intensity varies at different
heights above the ground, so the height of the testing antenna could
affect whether a household is deemed unserved. Because the SHVA relates
to actual ambient signal intensity at individual households, we believe
that the height of the individual home is significant and, therefore,
relevant when dictating the height of the testing antenna. In the
interest of simplicity and consistency, we do not require the tester to
raise the antenna to 5 feet above the height of the roof, which would
result in measurements taken at an endless variety of heights and would
increase dramatically the complexity of the testing and predictive
models. We also decline to require that the measurement be taken at 30
feet in all circumstances, primarily because many American homes are
one-story households that do not, and would not, erect a 30-foot
antenna. We conclude that the tester should raise the testing antenna
20 feet (6.1 meters) above the ground for one-story buildings and 30
feet (9.1 meters) above the ground for buildings taller than one-story.
This accounts for most households in the country, while maintaining an
easy-to-administer standard. For example, testers will not be required
to measure the height of each individual household and they will not
have to raise an unwieldy testing antenna that is higher than 30 feet.
The 20 foot/30 foot rule is also consistent with at least one agreement
between the broadcasters and satellite carriers regarding measuring
methodology. We recognize that many households are part of multiple
dwelling units (MDUs) that present special problems. We believe that
where households have access to a master antenna on the MDU's roof, the
test should be made there, if possible. If the MDU has no master
antenna, then the test should be made at the household (outside if
possible, on a balcony or patio) where the consumer might place a
conventional antenna. In some instances, particularly in MDUs taller
than three stories, the signal strength may be adequate inside the
unit, as with ``rabbit ears'' on the television itself. If the signal
intensity is stronger inside the unit, in these cases, the measurement
should be taken inside, near the television and using the prescribed
testing antenna. We note that MDU residents may require specialized
attention due to the differences inherent in large or tall multi-unit
buildings. The rulemaking record is largely directed to issues
affecting individual homes and does not contain sufficient detail on
the MDU issue to address every circumstance here.
49. We considered how the testing antenna should be oriented. The
maximum gain of the testing antenna (over an isotropic antenna) should
face the strongest signal coming from the transmitter whose signal is
being tested. If more than one station's signal is being measured, the
testing antenna should be oriented separately for each station. This
orientation is consistent with good engineering practice, with the
technique required by the Commission's signal measurement rules, and
with the PrimeStar/Netlink Agreement on determining eligible
households. It is also consistent with the Copyright Act, which defines
an unserved household in relation to an individual television station
rather than to all network affiliates in a market. Section 119(d)(10)
defines unserved household ``with respect to a particular television
network'' and states that such a household must be unable to receive
the signal of ``a primary network station affiliated with that
network.'' Based on this distinction, we believe that signal testers
should focus on individual stations. Because one of the primary
purposes of this Order is to provide a practical and reliable
measurement methodology, we include in the testing procedure the proper
orientation, which is essential to ensure the validity and integrity of
the signal intensity test.
50. Finally, we considered how to ensure the integrity of the
signal tests simply and with as little burden as possible. The tester
shall make and maintain a written record of the measurements that
includes several items--(i) a list of calibrated equipment
[[Page 7121]]
used in the field strength survey, which for each instrument, specifies
the manufacturer, type, serial number and rated accuracy, and the date
of the most recent calibration by the manufacturer or by a laboratory;
(ii) a detailed description of the calibration of the measuring
equipment, including field strength meters, measuring antenna, and
connecting cable; (iii) for each spot at the measuring site, all
factors which may affect the recorded field, such as topography, height
and types of vegetation, buildings, obstacles, weather, and other local
features; (iv) a description of where the cluster measurements were
made; (v) time and date of the measurements and signature of the person
making the measurements; (vi) for each channel being measured, a list
of the measured value of field strength (in units of dBu and after
adjustment for line loss and antenna factor) of the five readings made
during the cluster measurement process, with the median value
highlighted. We note that slight, unintentional departures from these
written procedures will not invalidate a test if there is no basis to
believe they affected the outcome.
Predicting Television Signal Intensity at Individual Locations
51. Although the SHVA appears to require actual signal measurements
when determining whether households are unserved, broadcasters and
satellite carriers often use a predictive model to avoid the costs and
difficulties associated with such on-site measurements. However, they
do not always agree on which model is most appropriate. Even when
parties use the same model, they often disagree on the factors that are
considered in that model. For example, different predictive models may
or may not account for the effects on signal strength of receiving
antenna height, vegetation, ground clutter, buildings, signal
interference, or multipathing. Additionally, predictive models may
account differently for variability in signal strength over time and
location, and may predict signal strength with varying levels of
confidence. Also, values for these parameters may be varied within some
predictive models.
Usefulness of Predictive Models
52. In the NPRM, we asked whether we could mandate a model for SHVA
purposes or merely endorse one. We conclude that predictive models can
be effective and helpful proxies for individual household measurements
and that we have the authority to develop and endorse a model for
making predictions of signal strength at individual locations. The
Commission has developed and used predictive models for determining
signal intensity in other contexts (e.g., determination of stations'
DTV service areas). Two prominent examples are the newer Longley-Rice
models and the procedure set forth in Section 73.684 of our Rules for
determining traditional Grade B contours using the radio propagation
curves for broadcast television set forth in Section 73.699. We believe
our position as the originator of the Grade B criterion qualifies us to
determine the effectiveness and accuracy of predictive models that
relate to it.
53. The difference in taking actual measurements at individual
households and using predictive models is significant, because
measurement requires time, money, and other resources that often
outweigh the benefits. For example, it may cost more for a satellite
company to take a measurement than it can recover through subscriber
and advertising fees. To avoid these costs, satellite providers may
have refused or terminated service to consumers who are actually
unserved. Additionally, satellite providers, broadcasters, and
consumers have often turned to predictive models that erroneously
permit some served households to receive satellite network service, or,
conversely, prevent some unserved households from being eligible to
receive network stations via satellite. When truly unserved households
are deemed ineligible for broadcast network service via satellite,
consumers are hurt and the SHVA's intent is thwarted. Likewise, when
served households are deemed eligible for satellite-delivered broadcast
network service, network affiliates are harmed and the SHVA's intent is
also thwarted. We believe the Commission's endorsement of a prediction
model will address some of the problems that consumers, as well as the
broadcast and satellite industries, encounter when following the SHVA.
We expect our endorsement to reduce conflicts regarding which model
satisfactorily predicts a household's true status as served or
unserved, and we hope that a single model makes it easy for consumers
to determine their eligibility for satellite-delivered broadcast
network service at the time they subscribe to a DTH satellite service
(at the point of sale).
54. We recognize that we speak only as the expert agency on the
Grade B construct, not as the primary enforcer of the SHVA. That role
belongs to the courts. We also acknowledge that we cannot change
satellite carriers' burden under the SHVA of proving that a household
is unserved, and use of the predictive model we endorse is
discretionary with the parties. While our predictive model need not
replace actual measurement, it could serve as a presumption of service
or lack of service for purposes of the SHVA. A presumption should make
administration of the unserved household rule easier and more cost-
effective for both consumers and the industries. Broadcasters and
satellite providers should be able to rely on a Commission-endorsed
model when deciding whether individual consumers are presumed to be
eligible to receive satellite-delivered network signals. Moreover, we
recommend that courts accept the model's predictions as sufficient to
show that a satellite service provider has carried its statutory burden
of showing that a household is unserved. We believe that such an
approach is consistent with the Miami federal court's use of one
variation of the Commission's Longley-Rice predictive methodology in
its injunctions. (CBS v. PrimeTime 24, Final Ruling, slip op. at 49 and
Permanent Injunction, slip op., at 2.) Finally, we recommend that the
rebuttable presumptions created by our model will be combined with in-
court and out-of-court ``loser pays'' mechanisms to help the SHVA
operate more smoothly. Such a loser pays scheme would require the loser
of any challenge to a predictive model's presumption to pay the costs
of an on-site test following the challenge.
Inadequacy of the Traditional Grade B Contour Methodology
55. In the NPRM, we sought comment on the application of existing
predictive models in the SHVA context, including our ``traditional''
Grade B contour methodology and the Longley-Rice predictive model. We
tentatively concluded that the Commission's traditional predictive
methodology for determining a Grade B contour is inappropriate for
predicting signal strength at individual locations. Our rules state
that this methodology is for three purposes only: (1) estimation of
coverage resulting from the selection of a particular transmitter site,
(2) problems of coverage related to 47 CFR 73.3555 (ownership
restrictions), and (3) determination of compliance with section
73.685(a) concerning minimum field strength over the principal
community. The traditional methodology predicts signal strength on the
basis of average terrain elevation along radial lines extending only
ten miles from a television station's transmitter. The traditional
methodology does not accurately reflect
[[Page 7122]]
all the topographic differences in a station's transmission area, and
explicitly does not account for interference from other signals. These
omissions make it an imperfect methodology for predicting whether an
individual household can receive an adequate signal.
Longley-Rice Point-to-Point Model for Digital Television
56. We noted in the NPRM that the Commission recently adopted, in
the digital television (DTV) proceeding, rules for analyzing TV service
areas using a point-to-point prediction method based on version 1.2.2
of the Longley-Rice propagation model. (See 47 CFR 73.622(e) and
Advanced Television Systems: Sixth Report and Order (``DTV Sixth Report
and Order''), 12 FCC Rcd 14588, 14672-76.) The Longley-Rice model used
for analysis of DTV and analog TV service in the DTV proceeding is
described in ``Longley-Rice Methodology for Evaluating TV Coverage and
Interference,'' OET Bulletin 69, Federal Communications Commission
(July 2, 1997) http://www.fcc.gov/oet/info/documents/bulletins/#69>.
Longley-Rice is the Commission's designated methodology for determining
where service is provided by a DTV station. We proposed that this
variation of Longley-Rice be used to determine Grade B service at
individual households. The Longley-Rice propagation model is the most
widely-used private means of predicting the existence of a signal of
Grade B intensity for SHVA purposes. Although it is similar to the
traditional method for determining a Grade B contour, Longley-Rice
improves the traditional model by adjusting the predictions for changes
in terrain (e.g., hills and valleys between the transmitter and the
house) along the entire path from the transmitter to the specified
receive site. Thus, while the Commission's traditional contour method
often results in smooth concentric circles surrounding a transmission
tower, the Longley-Rice method produces rougher outlines that more
precisely depict areas of coverage.
A Predictive Model for Individual Locations
57. The model we endorse is a version of Longley-Rice 1.2.2 that we
have adapted for predicting signal strength at individual locations.
Called ``Individual Location Longley-Rice'' or ``ILLR,'' it is similar
to the point-to-point predictive model we established for digital
television (DTV) allocations. We believe ILLR is an accurate,
practical, and readily available model for determining signal intensity
at individual locations. ILLR has several characteristics, discussed in
detail below, which make it unique:
the time variability factor is 50% (when the time
variability factor for the predicted field strength is 50%, an
acceptable quality picture should be available 90% of the time) and the
confidence variability factor is 50%;
the model is run in individual mode;
terrain elevation is considered every 1/10 of a kilometer;
receiving antenna height is assumed to be 20 feet above
ground for one-story buildings and 30 feet above ground for buildings
taller than one-story;
land use and land cover (e.g., vegetation and buildings)
shall be included when an accurate method for doing so is developed;
where error codes appear, they shall be ignored and the
predicted value accepted or the result shall be tested with an on-site
measurement;
locations both within and beyond a station's Grade B
contour shall be examined.
58. We believe the ILLR can be used for predicting signal strength
for purposes of the SHVA as well as for other purposes that require
information about signal intensity at discrete locations. The model
would not supplant currently-existing approaches for depicting a field
strength contour or for describing a station's service area.
Specifically, the ILLR will not replace the current Commission rules
for field strength contours (47 CFR 73.683) or prediction of coverage
for non-SHVA purposes (47 CFR 73.684). In fact, the ILLR should not
affect a station's Grade B contour or service area, because areas are
irrelevant when predicting what signals exist at a particular location.
As both satellite carriers and broadcasters have recognized, a
predictive model for individual locations might identify unserved
households that lay within a station's Grade B contour or, likewise,
might identify served households outside a Grade B contour.
Importantly, our model should not increase or decrease the number of
truly unserved households. The ILLR model, like the on-site
measurement, will consider the signal of either the affiliate station
or its translator, as appropriate, to determine whether a household is
receiving adequate signal strength. The number of unserved households
remains finite under any single definition of Grade B intensity, and we
do not change that definition here. If a household is unserved in
reality, the ILLR prediction model will not change that situation.
Likewise, if a household is currently served, the prediction model will
not change it to an unserved household. A predictive model of any sort
simply reflects reality without actually testing or observing it, and
some are better than others at painting the most lifelike picture. The
ILLR corrects for the mistakes of less-appropriate and less-accurate
models by more precisely identifying households as served or unserved.
Time, Location, and Confidence Factors
59. Predictive models are inherently imperfect because they seek to
replicate reality without actually measuring or observing it. These
imperfections can be mitigated through statistical means and by varying
the ``ingredients,'' or factors, included in any particular model. For
example, although signals of Grade B intensity are defined as discrete
values measured in dBu, the intensity of broadcast signals at
particular locations and at particular times cannot be precisely
determined, regardless of the predictive method used.
60. One way to account for these factors is to build them directly
into signal strength values. The Grade B intensity levels are actually
median signal strengths--i.e., 50% of locations in a particular area
should receive a Grade B signal or higher at least 50% of the time.
However, this does not mean that 50% of the locations will receive an
acceptable picture only 50% of the time. The Grade B values have a
built-in time factor so that an acceptable picture is predicted at
least 90% of the time. For example, a signal strength of 41 dBu equals
an acceptable picture for channels 2-6. To ensure that a location
receives such a signal 90% of the time, the Grade B value for those
channels, 47 dBu, includes an extra time factor of 6 dBu. Thus,
although a location receiving a Grade B signal of 47 dBu will only get
that signal 50% of the time, that same location will receive a 41 dBu
signal 90% of the time.
61. Time, location, and confidence factors can also be built into
predictive models. However, it is often unnecessary to build an
additional factor into a predictive model to get the desired results.
For instance, the Grade B values already predict the existence of an
acceptable television picture at least 90% of the time, so the model
need only predict that a signal of Grade B intensity exists at least
50% of the time. Use of a higher time factor, such as 90%, would amount
to unnecessary double-counting. The Longley-Rice model used for DTV
allocations recognizes this and, therefore, incorporates the 50% time
factor into its calculations. Both broadcasters and satellite carriers
agree that this is also appropriate for purposes
[[Page 7123]]
of the SHVA. We therefore see no reason to change the number when
adapting Longley-Rice to the individual location context.
62. Although the parties generally agree that the time factor
should be 50%, they do not agree on the appropriate level for the
confidence factor. Confidence, in this context, is a way of expressing
how certain the model is that the predicted signal value is at least
that high. Importantly, it is not a reflection of how accurate the
model is. Longley-Rice has generally incorporated a 50% confidence
factor in its calculations. ``Confidence'' does not mean, as the word
might imply, that the model is more accurate. We believe that
increasing the ``confidence'' factor above 50% decreases errors of one
type and increases errors of another type. For example, if we use a
confidence factor of 90%, the model will ``search'' for a predicted
signal value at a particular location in which it has 90% confidence
that the value would, in reality, be that value or higher. The model
could predict a particular signal value, say 47 dBu, and be 85%
confident that the signal would be 47 dBu or higher in reality. Such a
high level of confidence means it would be very likely that the
location would get a 47 dBu signal. However, because the model is
searching for a value in which it has 90% confidence, it would not
predict 47 dBu and would continue searching. Eventually, the model
would find a signal value in which it has 90% confidence, say 45 dBu,
and deliver that as the result. Taking the example one step further,
consider a ``served'' household under the SHVA to be a household that
receives a signal of at least 47 dBu (the appropriate value for
channels 2-6). If the model predicts with 90% confidence that a signal
of at least 45 dBu exists, the 45 dBu household would be classified as
``unserved,'' even though it is very likely (85% confidence) that it
receives a signal of at least 47 dBu. We believe it would be
inconsistent with the SHVA to classify a household as unserved when a
model could predict it to be served with such a high degree of
confidence. Therefore, a confidence variability factor of 90% is
unsuitable for purposes of the SHVA because it overpredicts the number
of truly unserved households.
63. A predictive model that includes truly served households in an
unserved category, even temporarily, creates several undesired effects.
First, consumers could be confused and frustrated. If the model
overpredicts the number of unserved consumers, and those consumers
subscribe to network service via satellite, they will face
disappointment when the broadcaster forces termination of the broadcast
network service. Conversely, if the model underpredicts the number of
unserved consumers, they would be unjustly deprived of broadcast
network service via satellite. Second, the SHVA protects network
affiliates by making their served households off limits to satellite
delivery of broadcast networks. A 90% confidence factor for served
households would make many truly served households eligible for
satellite-delivered network service, contrary to the intent of the
SHVA. Third, if we endorse a model that underpredicts served
households, broadcasters would have a great incentive to challenge the
model's prediction by taking an actual measurement. Satellite carriers
would pursue testing when models consistently underpredict unserved
households. Either result would defeat the goal of endorsing a
predictive methodology upon which all parties can rely.
64. We have chosen to incorporate a 50% confidence factor in the
ILLR model because it neither overpredicts nor underpredicts served
households. A 50% confidence factor does not create a statistical bias
in favor of either satellite carriers or broadcasters. Rather, it
provides a median result that does not predictably err in one direction
or the other. We have sought to endorse a confidence factor that is
fair to both sides. Importantly, broadcasters have accepted the 50%
confidence factor in their pleadings and in their endorsement of the
DTV Longley-Rice model in the Miami court case. Similarly, SBCA's
engineering experts, Hatfield and Dawson, propose using a 50%
confidence factor in the TIREM model that they endorse. They explain
that when the confidence factor is 50%, the model predicts the median
situation and ``the user has no control over this statistical
variable.''
Individual Mode
65. The ILLR will operate in a so-called ``individual mode,''
reflecting an observer's point-of-view at a single location. In the
ILLR, location variability becomes effectively irrelevant because only
one location (e.g., a single household) is considered. The individual
mode merges location variability (the measurable or observable
differences between dissimilar locations) and so-called situational
variability (the small, often hidden, differences between similar or
identical locations) into the statistical confidence factor. One expert
on the issues, George Hufford, states:
In the individual mode, situation and location variability are
combined so that there remain this combined variability and time
variability. Here, the typical user would be the individual receiver
of a broadcast station for whom reliability means the time
availability, and confidence means the combined situation/location
variability.
Compare the ``broadcast mode,'' in which the DTV Longley-Rice model
operates, but which is inappropriate for the purposes of the SHVA. That
mode reflects the broadcaster's point-of-view when it is determining a
service area that includes many locations. The DTV allotment proceeding
utilized the broadcast mode because it was predicting the service areas
of the new DTV stations, not the status of individual households as
served or unserved by analog (NTSC) signals.
Terrain Elevation
66. Because the model seeks to predict signal intensity at
individual locations, the model we endorse considers terrain elevation
every \1/10\ of a kilometer. This distance is as precise as current
technology allows. It contrasts with the DTV Longley-Rice model that
considers terrain elevation every kilometer.
Antenna Height
67. The ILLR model approximates the height of the household whose
signal is being predicted. Current models presume an antenna height of
30 feet. The model we endorse, when used for purposes of the SHVA,
shall incorporate an antenna height of 20 feet for one story buildings
and 30 feet for buildings taller than one story, including MDUs. This
requirement is generally consistent with our conclusions about the
height a tester must raise a testing antenna when making actual, on-
site signal measurements. MDU residents may require specialized
attention due to their unusual circumstances, which will vary from
person to person and building to building.
Land Use and Land Cover
68. Satellite carriers and some other commenters argue that
vegetation and buildings affect signal intensity. Some broadcasters
agree that vegetation and buildings affect signal propagation, but
assert that the Longley-Rice model, as well as the Grade B planning
factors, already account for these effects.
69. We conclude that land use and land cover affect signal
intensity at individual locations and shall be used in the ILLR when an
appropriate application develops. The United States Geological Survey
maintains a Global Land Information System (``GLIS'')
[[Page 7124]]
database on land use and land cover indicating features such as
vegetation and man-made structures. (See http://edcwww.cr.usgs.gov/
Webglis/glisbin/glismain.pl>.) We believe that this information is both
credible and useful. We acknowledge that larger buildings are usually
found in urban areas and Congress expected that the SHVA would
primarily benefit rural consumers, but the definition of ``unserved''
is not explicitly limited to those consumers. The statute does not
impose a mileage limitation or distinguish between urban and rural
households. While we expect the model to include land use and land
cover, we are not aware of a standard means of including such
information in the ILLR that has been accepted by the technical and
scientific community. When an appropriate application has been
developed and accepted, this information will be included in the ILLR.
We challenge interested parties to develop such an application that
more accurately reflects the signal intensity at an individual
location.
Interference
70. The Longley-Rice model as used in the DTV Allotment proceeding
is capable of predicting interference from nearby television stations.
We believe that the model we endorse, ILLR, should include signal
interference so that it will more accurately predict picture quality.
We acknowledge that interference is not formally included in the
measurement methodology we have established in this Order, primarily
because of the difficulties that would be created if we required
testers to attempt to measure for it. However, all sides have
acknowledged that interference affects picture quality, and we believe
that, in contrast to the measurement methodology, interference can be
reliably included in the predictive model, and so it is included to
provide more accurate results.
Error Codes
71. Some satellite carriers have argued strongly for alleviation of
the problems presented by error codes (KWX=3) that the Longley-Rice
model sometimes presents after analysis of signal intensity at
particular locations. Error codes result when the model makes a
prediction of signal intensity, but essentially rejects the prediction
for a reason that may or may not be significant. We conclude that a
party should either accept the prediction by ignoring the error code or
test the result with an on-site measurement. If the result is accepted
and is high enough to predict service, the household shall be
classified as served. If the result is low enough to predict lack of
service, the household shall be classified as unserved.
TIREM
72. Several satellite carriers have asked the Commission to endorse
the TIREM predictive model instead of Longley-Rice. The TIREM
methodology, jointly developed by the National Telecommunications and
Information Agency (NTIA) and the Joint Spectrum Center of the Defense
Department to test specific paths with complex geometry. We believe
that TIREM shows promise as a tool for predicting signal intensity at
individual locations, but we decline to endorse it at this time for
several reasons. NTIA has confirmed the concerns raised by some
commenters concerning the public availability of a standardized and
useful version of TIREM. For example, the NTIA states that the latest
version of TIREM may not be readily available outside of eligible
government agencies due to federal export restrictions. These
impediments to access and use would severely impede TIREM's usefulness
to the industries and to consumers. Further, there is not enough
information regarding which, if any, version would work best in the
SHVA context. We are unaware of any empirical information demonstrating
that publicly available applications of TIREM are substantively more
accurate than the ILLR. Indeed, the NTIA has run tests comparing the
publicly available version found on its Internet site with both the
Commission's traditional Grade B contour projections and a version of
Longley-Rice similar to ILLR. The NTIA created a chart of sample
contours for 16 designated market areas and accompanying maps that
suggest that, in many cases, TIREM Version 3 predicts a station service
area larger than the Commission's traditional Grade B contour.
73. In contrast to TIREM, the Commission has many years of
experience using and evaluating the Longley-Rice model. TIREM and
Longley-Rice consider the same factors: ``frequency, atmospheric
conditions, the electrical parameters of the earth, and the shape of
the terrain between the two points.'' The difference between the models
is the algorithm used to consider the factors. Neither model's source
code accounts for vegetation or buildings, but both models could be run
including this data, as ILLR will be. Further, we are increasing the
accuracy of the Longley-Rice model for the purpose of predictions for
individual locations by requiring that terrain elevations be examined
every one-tenth kilometer. In light of the significance and weight
conveyed by the Commission's endorsement of a particular model, we
believe that the ILLR model will provide most, if not all, of the same
benefits claimed for TIREM by its proponents while avoiding its current
potential flaws.
Loser Pays
74. The SHVA contains a ``loser pays'' mechanism that allows a
party to recover the cost of conducting a signal measurement at a
subscriber's household. (17 U.S.C. 119(a)(9).) At the present time, the
loser pays mechanism only applies when parties are in litigation. Under
the current law, if a broadcast network station questions whether a
subscriber is unserved, an actual measurement at the subscriber's
household may be conducted by either the satellite carrier or
broadcaster to determine eligibility. If a measurement shows that the
household is unserved, the broadcaster must pay the cost of the test.
Similarly, if the test shows that the household is served, the
satellite carrier must assume the cost of the test. From 1994 to 1996,
the SHVA had ``transitional rules'' that included a ``loser pays''
mechanism different from the one currently in effect. This ``loser
pays'' mechanism was not confined to the context of civil litigation.
75. In light of the Miami and Raleigh court findings that satellite
carriers have signed up millions of people who are served, it appears
that the loser pays mechanisms have not been effective in discouraging
the enrollment of ineligible subscribers. The record is unclear on the
reason for this failure, but anecdotal evidence suggests that both
satellite carriers and broadcasters are disinclined to conduct tests,
even when they are likely to win, because the tests could annoy their
customers and generate ill-will.
76. The loser pays mechanism is part of the SHVA, and the
Commission has no authority to change this mechanism or to promulgate
regulations that conflict with it. We believe that the Commission's
endorsement of a more reliable predictive model in this Order will
allow the existing loser pays mechanism in the SHVA to work more
effectively in civil actions.
Future Options
77. The resolution of the issues surrounding delivery of broadcast
network signals over satellite should not end with this Order. There
are several, often competing, public policies involved in the future
actions that we discuss below. The value of local broadcasting in this
country has been recognized time and again by Congress
[[Page 7125]]
and the Commission. Local television stations play a vital role in
delivering news, weather, and public affairs information to their local
communities. The growing competition between DBS and cable, however,
benefits consumers by giving them more choices to watch what they want
and by creating new and higher-quality services. DTH satellite carriers
have proven to be the most successful competitors to incumbent cable
companies, but they still serve only 9 million households, which is
only between 10% and 15% of the multichannel video programming market.
One significant reason consumers give for not considering satellite
programming service is the difficulty of getting seamless broadcast
network service. Congress has informally asked for our opinion on
options to improve the SHVA and Communications Act to better serve
consumers. In response to these requests, we identify some possible
changes Congress could consider. This list is not meant to be
exhaustive.
Local-into-Local
78. Congress could consider changes to copyright law to allow
satellite companies to provide local television stations to local
markets. Cable companies already do this, to their distinct advantage
vis a vis the satellite carriers. Broadcasters support local-into-local
legislation because they do not fear losing their audiences--and the
advertising dollars that follow. Some satellite carriers accept local-
into-local legislation because it gives them a limited right to provide
their subscribers with services those subscribers want. Local-into-
local satisfies consumers' demands for broadcast network service via
satellite without harming localism. Local-into-local also makes
satellite carriers more attractive to consumers, thus increasing their
competitive standing with cable companies. However, local-into-local
cannot provide the solution for every community in the immediate
future, due to limitations in the satellites' capacity to carry every
local channel. EchoStar recently predicted that with new spectrum, and
without full must-carry requirements, it will only be able to serve 20
major cities within the next three years. Those cities cover about half
the United States' population. Smaller cities would not be able to
receive service, even under the best scenario, for about 5 years.
Viewers who live in communities where local-into-local service is
unavailable will need other solutions, including DirecTV's practice of
selling over-the-air antennas with their satellite dishes. However, for
those that can receive local network stations via satellite, local-
into-local provides a partial solution that should address the needs of
consumers and the broadcast and satellite industries, as well as
promote competition to cable.
Change from the Grade B Signal Intensity Standard
79. We have noted that the Grade B signal intensity standard was
originally designed to depict a television station's service area, and
that it may not address all the factors that determine the quality of a
consumer's television picture. This is especially true if one assumes
that consumers have higher expectations for their television picture
than they did in the 1950s and that environmental changes increase the
effects of the factors that Grade B cannot easily address, such as
ghosting and signal interference. Although we believe that the Grade B
standard is still useful for determining signal strength and signal
intensity, there may be a better, but still objective, standard that
could be developed for identifying unserved households. The SHVA,
however, prevents the Commission from exploring an alternative standard
because it explicitly requires the use of Grade B to measure signal
intensity and determine whether a household is unserved. This
undertaking would demand considerable time and significant government
and industry resources.
90-Day Waiting Period
80. Before receiving satellite-delivered broadcast networks, the
SHVA requires an unserved consumer who subscribes to cable to terminate
that service and wait for 90 days. Once the cable service ends, the
consumer then would face 90 days with no acceptable network service--
nothing over cable, unattainable over-the-air, and not yet available
via satellite. This requirement discourages a potential satellite
consumer from terminating his or her cable service. We believe that
elimination of the waiting period should be considered.
Predictive Model and Loser Pays Mechanism
81. The ``loser pays'' mechanism in the SHVA holds promise for
helping to resolve or avoid the disputes that arise under the law, but
it currently applies only when the parties are engaged in civil
litigation over the eligibility of subscribing households to receive
broadcast network programming via satellite. We believe the loser pays
mechanism would be more effective if it also applied before litigation
commences and if used in conjunction with a predictive model.
Initially, we suggest that clear statutory acceptance of prediction
models for creating rebuttable presumptions of service or lack of
service would add certainty to the entire SHVA process. The ILLR
prediction model that we endorse in this Order will reduce mistakes
when predicting a household's status as served or unserved and will
therefore allow parties to be more confident in the predicted result
and less inclined to conduct or demand a test. A broadly applied loser
pays mechanism that allocates the cost of testing on the party in
error, in conjunction with this more reliable prediction model, would
likely give satellite carriers an economic incentive to avoid enrolling
consumers who are predicted to be served, and to discourage
broadcasters from challenging subscribers who are predicted as
unserved. Less testing means less burden and inconvenience for the
industries and consumers. Fewer challenges and disputes would reduce
the number of consumers who are angered and inconvenienced by the
operation of the SHVA.
Procedural Matters
82. To minimize possible confusion in connection with the
injunction scheduled to take effect on February 28, 1999, which will
affect more than 700,000 satellite subscribers, this Report and Order
will become effective upon publication in the Federal Register. We find
good cause exists under the Administrative Procedure Act (``APA'') to
have the rule adopted in this Report and Order take effect upon
publication in the Federal Register pursuant to section 553(d)(1) and
(3) of the APA. (See also 47 CFR 1.427(b).) We believe that making the
Report and Order and rule effective upon publication in the Federal
Register will eliminate any confusion should the court in CBS et al. v.
PrimeTime 24 wish to issue a supplemental order in light of the
conclusions in this Order.
Final Regulatory Flexibility Analysis
83. As required by the Regulatory Flexibility Act (``RFA'') an
Initial Regulatory Flexibility Analysis (``IRFA'') was incorporated
into the Notice of Proposed Rulemaking (``NPRM'') in this proceeding.
The Commission sought written public comment on the possible impact of
the proposed policies and rules on small entities in the NPRM,
including comments on the IRFA. This Final Regulatory Flexibility
Analysis (``FRFA'') in this Report and Order (``Order'') conforms to
the RFA.
[[Page 7126]]
Need for and Objective of the Rules
84. In this Order, the Commission responds to Petitions for
Rulemaking filed by the National Rural Telecommunications Cooperative
and EchoStar Communications Corporation requesting that the Commission
address the methods for determining whether a household is ``unserved''
by network television stations for purposes of the 1988 Satellite Home
Viewer Act (17 U.S.C. 119). Legal Basis
85. This Order is authorized under Sections 1, 4(i), 4(j) of the
Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), and
154(j) and Section 119(d)(10)(a) of the Copyright Act, 17 U.S.C.
119(d)(10)(a).
Summary of Significant Issues Raised by the Public Comments in
Response to the IRFA
86. Small Cable Business Association (SCBA) filed comments
regarding the possible impact of this proceeding on small cable
operators. SCBA contends that since small cable and satellite carriers
draw from the same customer base, any Commission action broadening the
``unserved'' household definition could adversely affect small cable
operators. SCBA contends that its members represent an important link
in the distribution of local programming, especially in rural areas,
and should not be overlooked in this proceeding. SCBA does not object
to satellite delivery of broadcast network signals, so long as
satellite providers are required to provide carriage of all broadcast
signals within a single community. National Association of Broadcasters
(NAB), and others, maintain that any expansion of unserved viewers
could have a substantial impact on television broadcast stations
serving smaller markets. The ability of these stations to purchase
programming and to serve their viewers would be impacted by lower
advertising revenues should the Commission's actions dramatically
expand the numbers of unserved households in their market place.
National Rural Telecommunications Cooperative urges the Commission to
revisit the conclusion in its IRFA that because small businesses do not
have the financial resources necessary to become DBS licensees, none
will be affected by the proposed action.
Description and Estimate of the Number of Small Entities To Which
the Rules Will Apply
87. The RFA directs the Commission to provide a description of and,
where feasible, an estimate of the number of small entities that will
be affected by the proposed action. The RFA defines the term ``small
entity'' as having the same meaning as the terms ``small business,''
``small organization,'' and ``small business concern'' under Section 3
of the Small Business Act (5 U.S.C. 604(a)(3). Under the Small Business
Act, a small business concern is one which: (1) is independently owned
and operated; (2) is not dominant in its field of operation; and (3)
satisfies any additional criteria established by the SBA (15 U.S.C.
632). The action taken in this Order will affect television
broadcasting licensees and DTH satellite operators.
88. Television Stations. The rules in this Order will apply to
television broadcasting licensees, and potential licensees of
television service. The SBA defines a television broadcasting station
that has no more than $10.5 million in annual receipts as a small
business. Television broadcasting stations consist of establishments
primarily engaged in broadcasting visual programs by television to the
public, except cable and other pay television services. Included in
this industry are commercial, religious, educational, and other
television stations. Also included are establishments primarily engaged
in television broadcasting and that produce taped television program
materials. Separate establishments primarily engaged in producing taped
television program materials are classified under another SIC number.
There were 1,509 television broadcasting stations operating in the
nation in 1992. That number has remained fairly constant as indicated
by the approximately 1,579 operating full power television broadcasting
stations in the nation as of May 31, 1998. In addition, as of October
31, 1997, there were 1,880 low power television broadcasting (``LPTV'')
broadcasting stations that may also be affected by our proposed rule
changes. For 1992 the number of television broadcasting stations that
produced less than $10.0 million in revenue was 1,155 establishments.
89. DBS and other DTH satellite operators. The Commission has not
developed a definition of small entities applicable to geostationary or
non-geostationary orbit fixed-satellite or DBS service applicants or
licensees. Therefore, the applicable definition of small entity is the
definition under the SBA rules applicable to Communications Services,
Not Elsewhere Classified. This definition provides that a small entity
is one with $11.0 million or less in annual receipts. The number of
employees working for a ``small entity'' must be 750 or fewer.
According to Census Bureau data, there are 848 firms that fall under
the category of Communications Services, Not Elsewhere Classified that
could potentially fall into the DTH category. Of those, approximately
775 reported annual receipts of $11 million or less and qualify as
small entities. The proposed action in this Order applies to entities
providing DTH service, including licensees of DBS services and
distributors of satellite programming. There are four licensees of DBS
services under Part 100 of the Commission's rules. Three of those
licensees are currently operational, and each of those licensees has
annual revenues in excess of the threshold for a small business.
Description of Projected Reporting, Record-keeping, and Other
Compliance Requirements
90. The rules adopted today impose no requirement to file any
information with the Federal Communications Commission. Parties who
choose to conduct individual household measurements are required to
reduce to memorialize their test observations and results.
Steps Taken to Minimize Significant Economic Impact on Small
Entities, and Significant Alternatives Considered
91. We believe that the rules we adopt today will have minimal
impact on small television stations' ability to serve the public. The
rule we adopt today has no impact on the number of viewers who are
``unserved'' or unable to receive the relevant television broadcast
stations' signals, thus mitigating any economic impact in the market
place. The rule will primarily affect DTH satellite operators, carriers
and distributors, as well as full power commercial stations that are
affiliates of national networks. The latter businesses generally do not
fall into the category of small entities. Any adverse effect on the
satellite industry is primarily the result of SHVA itself, and the
actions we take represent our efforts to maximize competition including
competition by small businesses consistent with faithfully interpreting
the Act.
Federal Rules that May Duplicate, Overlap, or Conflict with the
Proposed Rule Changes
92. None.
Ordering Clauses
93. It is ordered, pursuant to Sections 1, 4(i), 4(j) of the
Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), and
154(j); and Section 119(d)(10)(a) of the Copyright Act, 17 U.S.C.
119(d)(10)(a), the terms and rule
[[Page 7127]]
of this Report and Order are adopted. The amendments to 47 CFR 73.686
shall become effective upon date of publication of this Report and
Order in the Federal Register.
94. It is further ordered that the Commission's Office of Public
Affairs, Reference Operations Division, shall send a copy of this
Report and Order, including the Final Regulatory Flexibility Analysis,
to the Chief Counsel for Advocacy of the Small Business Administration
in accordance with paragraph 603(a) of the Regulatory Flexibility Act,
Pub. L. 96-354, 94 Stat. 1164, 5 U.S.C. 601 et seq. (1981).
List of Subjects in 47 CFR Part 73
Antenna, Measurement, Satellite, Signal, Television.
Federal Communications Commission.
Shirley S. Suggs,
Chief, Publications Branch.
Rule Changes
Part 73 of Title 47 of the Code of Federal Regulations is amended
to read as follows:
PART 73--[AMENDED]
1. The authority citation for Part 73 continues to read as follows:
Authority: 47 U.S.C. 154, 303, 334, 336.
2. Section 73.686 is amended by adding paragraph (d) to read as
follows:
Sec. 73.686 Field strength measurements.
* * * * *
(d) Collection of field strength data to determine television
signal intensity at an indvidual location--cluster measurements.
(1) Preparation for measurements.
(i) Testing antenna. The test antenna shall be a standard half-wave
dipole tuned to the visual carrier frequency of channel being measured.
(ii) Testing locations. At the location, choose a minimum of five
locations as close as possible to the specific site where the site's
receiving antenna is located. If there is no receiving antenna at the
site, choose the minimum of five locations as close as possible to a
reasonable and likely spot for the antenna. The locations shall be at
least three meters apart, enough so that the testing is practical. If
possible, the first testing point should be chosen as the center point
of a square whose corners are the four other locations. Calculate the
median of the five measurements (in units of dBu) and report it as the
measurement result.
(iv) Multiple signals. If more than one signal is being measured
(i.e., signals from different transmitters), use the same locations to
measure each signal.
(2) Measurement procedure. Measurements shall be made in accordance
with good engineering practice and in accordance with this section of
the Rules. At each measuring location, the following procedure shall be
employed:
(i) Testing equipment. Measure the field strength of the visual
carrier with a calibrated instrument with a bandwidth of at least 450
kHz, but no greater than one megahertz. Perform an on-site calibration
of the instrument in accordance with the manufacturer's specifications.
The instrument must accurately indicate the peak amplitude of the
synchronizing signal. Take all measurements with a horizontally
polarized dipole antenna. Use a shielded transmission line between the
testing antenna and the field strength meter. Match the antenna
impedance to the transmission line, and, if using an unbalanced line,
employ a suitable balun. Take account of the transmission line loss for
each frequency being measured.
(ii) Weather. Do not take measurements in inclement weather or when
major weather fronts are moving through the measurement area.
(iii) Antenna elevation. When field strength is being measured for
a one-story building, elevate the testing antenna to 6.1 meters (20
feet) above the ground. In situations where the field strength is being
measured for a building taller than one-story, elevate the testing
antenna 9.1 meters (30 feet) above the ground.
(iv) Antenna orientation. Orient the testing antenna in the
direction which maximizes the value of field strength for the signal
being measured. If more than one station's signal is being measured,
orient the testing antenna separately for each station.
(3) Written Record shall be made and shall include at least the
following:
(i) A list of calibrated equipment used in the field strength
survey, which for each instrument, specifies the manufacturer, type,
serial number and rated accuracy, and the date of the most recent
calibration by the manufacturer or by a laboratory. Include complete
details of any instrument not of standard manufacture.
(ii) A detailed description of the calibration of the measuring
equipment, including field strength meters, measuring antenna, and
connecting cable.
(iii) For each spot at the measuring site, all factors which may
affect the recorded field, such as topography, height and types of
vegetation, buildings, obstacles, weather, and other local features.
(iv) A description of where the cluster measurements were made.
(v) Time and date of the measurements and signature of the person
making the measurements.
(vi) For each channel being measured, a list of the measured value
of field strength (in units of dBu and after adjustment for line loss
and antenna factor) of the five readings made during the cluster
measurement process, with the median value highlighted.
[FR Doc. 99-3464 Filed 2-11-99; 8:45 am]
BILLING CODE 6712-01-P
