[Federal Register Volume 60, Number 137 (Tuesday, July 18, 1995)]
[Rules and Regulations]
[Pages 36737-36740]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-17373]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 21
[Gen. Docket No. 90-54, Gen. Docket No. 80-113; FCC 95-231]
Multipoint Distribution Service, Multichannel Multipoint
Distribution Service, Instructional Television Fixed Service, Private
Operational-Fixed Microwave Service, and Cable Television Relay Service
AGENCY: Federal Communications Commission.
ACTION: Final rule; order on reconsideration.
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SUMMARY: This Second Order on Reconsideration decides issues raised by
a petitioner concerning the previous Order on Reconsideration, 56 FR
57596 (Nov. 13, 1991), which reevaluated a number of issues decided in
the Report and Order, 55 FR 46006 (Oct. 31, 1990); Erratum, 55 FR 46513
(Nov. 5, 1990). The Order on Reconsideration and Report and Order were
adopted to further enhance wireless cable service as a viable
competitor in the multichannel video entertainment marketplace, by
revising the rules governing the various microwave radio channels that
can be used collectively to provide wireless cable service. The Second
Order on Reconsideration modifies and clarifies some decisions made in
the Order on Reconsideration. Rule changes include revision to the
definition of the protected service area for Multipoint Distribution
Service (MDS) stations, the deadline for service by MDS applicants and
authorized cochannel and adjacent-channel Instructional Television
Fixed Service (ITFS) stations and the deadline for ITFS stations to
file petitions to deny for MDS applications. Clarifications were also
made concerning transmitter frequency offset when proposed in an MDS
applications as an interference abatement technique and adoption of the
same calendar day cut-off rule.
EFFECTIVE DATE: October 1, 1995, except the revision of Section
21.902(d) will become effective September 18, 1995.
FOR FURTHER INFORMATION CONTACT:
Lynne Milne, Mass Media Bureau, 202-416-0883.
SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's
Second Order on Reconsideration in Gen. Dockets 90-54 and 80-113,
adopted June 15, 1995, and released June 21, 1995. The complete text of
this Second Order on Reconsideration is available for inspection and
copying during normal business hours in the FCC Reference Center, Room
239, 1919 M Street NW., Washington, DC. The complete text also may be
purchased from the Commission's copy contractor, International
Transcription Service, Inc. (ITS, Inc.), at Suite 140, 2100 M Street
NW., Washington, DC 20037 (202-857-3800).
Paperwork Reduction Statement
The Commission has submitted the following information collection
requirements to the Office of Management and Budget for review and
clearance under the Paperwork Reduction Act, as amended (44 U.S.C.
3501, et seq.).
Title: Amendment of Parts 21, 43, 74, 78, and 94 of the
Commission's Rules Governing Use of the Frequencies in the 2.1 and 2.5
GHz Bands Affecting: Private Operational-Fixed Microwave Service,
Multipoint Distribution Service, Multichannel Multipoint Distribution
Service, Instructional Television Fixed Service, and Cable Television
Relay Service.
OMB Number: 3060-XXXX.
Action: New and modified collections.
Respondents: Businesses (including small businesses); individuals
or households.
Frequency of Response: On occasion.
1. Section 21.902(d).
(a) Additional Engineering Studies due to Expansion of MDS
Stations' Protected Service Areas.
Estimated Annual Burden: 700 responses; 3150 hours on total
industry, 4.5 hours each.
(b) Maps for Waiver Requests of MDS Protected Service Area.
Estimated Annual Burden: 10 responses; 10 hours on total industry, 1
hour each.
(c) Additional Cable Waivers due to Protected Service Area
Expansion Affecting Cable-MDS Prohibitions. Estimated Annual Burden: 10
responses; 10 hours on total industry, 1 hour each.
(2) Section 21.902(i).
(a) ITFS Station Interference Protection Through Service of
Complete MDS Application. Estimated Annual Burden: 350 responses; 175
hours on total industry, 0.5 hour each.
(b) ITFS Station Interference Protection Through Petitions to Deny,
Estimated Annual Burden: 5 responses; 10 hours on total industry, 2
hours each.
Estimated public reporting burdens for the collections of
information are indicated above.
These estimates include the time for reviewing instructions,
searching existing data sources, gathering and maintaining the data
needed, and completing and reviewing the collections of information.
Send comments regarding these burden estimates or any other aspect of
the collections of information, including suggestions for reducing the
burden to the Federal Communications Commission, Records Management
Branch, Room 234, Paperwork Reduction Project, Washington, DC 20554,
and to the Office of Management and Budget, Paperwork Reduction
Project, Washington, DC 20503.
Synopsis of Second Order on Reconsideration
1. This Second Order on Reconsideration modifies and clarifies some
decisions made in the previous
[[Page 36738]]
Order on Reconsideration, 56 FR 57596 (Nov. 13, 1991), which
reevaluated a number of issues decided in the Report and Order, 55 FR
46006 (Oct. 31, 1990); Erratum, 55 FR 46513 (Nov. 5, 1990), which had
revised rules governing MDS and ITFS stations. The rule revisions were
made to simplify MDS rules, promote competition for cable television
systems by wireless cable systems,\1\ and facilitate the imminent
transition from analog to digital compression technology of these
microwave stations.
\1\ A wireless cable system uses a combination of MDS 1, 2, E, F
or H channels, or ITFS excess capacity to distribute video
entertainment programming to subscribers. (MDS Channel 2A with only
4 MHz lacks sufficient bandwidth to transmit a standard television
signal which requires 6 MHz.) It is possible for commercial
companies to apply for a limited number of ITFS channels under
prescribed circumstances. Second Report and Order in Docket No. 90-
54, 6 FCC Rcd 6792, 6801-06 (1991). We do not restate the background
of the term ``wireless cable'' here; interested parties may consult
the Wireless Cable Order, 5 FCC Rcd 6410 (1990). Use of the term
``wireless cable'' does not imply that MDS, ITFS or wireless cable
constitute ``cable'' service for any statutory or regulatory
purpose. See Definition of a Cable Television System, 5 FCC Rcd
7638, 7639-41 (1990) (the definition of a cable television system
does not include transmissions such as MDS), vacated on other
grounds sub nom. Beach Communications, Inc. v. FCC, 965 F.2d 1103
(D.C. Cir. 1992), rev'd, 113 S.Ct. 2096 (1993).
2. After examining the issues raised in a petition for
reconsideration, it was decided to modify the shape and size of each
MDS station's protected service area, as defined at 47 CFR 21.902(d).
Formerly, this was a 710 square mile area. (For an MDS station with an
omnidirectional antenna, the 710 square miles is a circle with a radius
of 15 miles.) Now, each MDS station's protected service area will be a
circle with a radius of 35 miles.
3. However, a very narrow exception was adopted to this 35-mile
circle protected service area definition. The exception applies only
to: (1) modification applications filed after the effective date of the
expansion to a 35-mile circle protected service area; (2) to MDS
stations which were authorized or for which there was an application
pending on or before the effective date of this expanded protected
service area rule; and (3) to the interference analysis of the
protected service area of an MDS station which was authorized or for
which there was an application pending on or before the effective date
of the revision to Section 21.902(d). The exception to the 35-mile
circle protected service area allows such a modification application's
interference analysis to exclude, from the desired station's 35-mile
circular protected service area, the area defined by the intersection
of the predicted 45 dB desired-to-undesired signal ratio contour line
associated with the modification applicant's previously authorized
station and the 35-mile circle boundary of the desired station.
However, the modification application: (1) cannot increase the size of
the geographic area suffering harmful interference, and (2) cannot
cause harmful interference to any new portion of the desired station's
protected service area. The exception also does not apply to any point
within the desired station's current 710 square mile protected service
area. No proposal will be allowed which would cause existing stations
to adapt to additional interference. Moreover, waiver request made in
MDS modification applications filed for ITFS market settlements will be
considered.
4. Unless these two exceptions apply, any modification applications
or applications for new MDS stations filed after the effective date for
the revision to Section 21.902(d), or amendments thereto, must use the
expanded 35-mile circle definition of a protected service area,
including the winners of competitive bidding procedures. Also, each
modification application for an authorized MDS station filed after the
effective date of the expanded protected service area rule, which
requests a waiver of the expanded protected service area definition of
Section 21.902(d), must contain: (1) a waiver request and waiver
justification pursuant to 47 C.F.R. Sec. 21.19, and (2) a map, 8\1/2\
by 11 inches, depicting the boundary of the 45 dB desired-to-undesired
signal ratio contour, which clearly states the mileage at each radial,
measured at one degree intervals, for 360 degrees, of the protected
service area boundary from the desired station's transmitter site
coordinates.
5. The expansion of the MDS station's protected service area may
affect the prohibitions of Section 21.912 against ownership or leasing
interests, direct or indirect, by cable television companies, or
affiliates, in MDS stations when there is an overlap between the MDS
station's protected service area and the cable company's service area.
With the expansion of the MDS station protected service area, it is
possible that some cable television companies, or affiliates, now might
be barred, that formerly compiled with Section 21.912. Although the
further restriction on cable television companies serves one of the
primary purposes of the rule and the statutory restrictions of 47 USC
553(a)(2), to enhance cable competition by a wireless cable company as
an alternative choice for consumers, a blanket waiver was granted until
June 1, 1996 to cable companies with newly-prohibited interests in an
MDS station.
6. In addition, the Second Reconsideration Order revises Section
21.902(i) by setting two deadlines earlier. Together, the earlier
deadlines reduce from 120 days to 30 days a delay in processing MDS
applications which propose locations within 50 miles of cochannel or
adjacent-channel authorized ITFS stations. As the result of
petitioner's request, the deadline for service by MDS applicants on
specified ITFS stations was changed to the date of filing of the MDS
application. In order to provide better identification and improved
notice to the affected ITFS licensee or construction permittee, the MDS
applicant must now serve a complete copy of its application, instead of
the few pages from the middle of the application which contain the ITFS
interference study. And, because the Commission adopted on June 15,
1995 in the Report and Order in MM Docket No. 94-131 rules for MDS
competitive bidding, deadlines for ITFS service were set for winners of
competitive bidding.
7. Pursuant to petitioner's request, authorized ITFS stations are
required to file petitions to deny for MDS applications by the 30th day
after public notice, instead of the 120th day after public notice. The
earlier deadline was adopted so that MDS applications can become ripe
for grant more quickly and MDS stations can begin operations as soon as
possible in order to provide competition for cable television systems.
8. Two issues which had been clarified in the previous Order on
Reconsideration were again the subject of clarifications in this Second
Order on Reconsideration. The Commission always intended to evaluate
involuntary MDS frequency offset proposals on a case by cases basis,
and no changes in frequency offset rules or policies were made in the
Second Order on Reconsideration. And, the order further clarifies that
the adoption of the same calendar day cut-off rule, Section 21.912, in
the Report and Order complies with the requirements of the
Administrative Procedure Act. No changes were made in Section 21.912 in
the Second Order on Reconsideration.
Regulatory Flexibility Act Analysis
1. Pursuant to the Regulatory Flexibility Act of 1980, 5 USC 605,
it is certified that the adopted rules will not have a significant
impact on a substantial number of small entities.
2. The Secretary shall send a copy of this Second Order on
Reconsideration, including the Final Regulatory Flexibility Analysis,
to the Chief
[[Page 36739]]
Counsel for Advocacy of the Small Business Administration, in
accordance with paragraph 603(a) of the Regulatory Flexibility Act
(Pub. L. No. 96-354, 94 Stat. 1164, 5 U.S.C. Section 601 et seq.
(1981)).
Ordering Clauses
1. For the reasons set forth above, Part 21 of the Commission's
Rules are hereby amended as discussed herein and as shown below. It is
further ordered that the rule changes set forth below will become
effective on October 1, 1995, except the revision of Section 21.902(d)
which will become effective September 18, 1995.
2. Accordingly, it is ordered that pursuant to the authority
contained in Sections 4(i) and 303(r) of the Communications Act of
1934, as amended, 47 USC 154(i) and 303(r), and Section 1.429(i) of the
Commission's Rules, 47 CFR Section 1.429(i), the Partial Petition for
Reconsideration filed in this proceeding is granted to the extent
indicated herein, and in all other respects is denied.
List of Subjects in 47 CFR Part 21
Communications common carriers, Domestic public fixed radio
services, Multipoint distribution service.
Federal Communications Commission.
William F. Caton,
Acting Secretary.
Amendatory Text
47 CFR Part 21 is amended as follows:
PART 21--DOMESTIC PUBLIC FIXED RADIO SERVICES
1. The authority citation for Part 21 continues to read as follows:
Authority: Secs. 1, 2, 4, 201-205, 208, 215, 218, 303, 307, 313,
314, 403, 404, 410, 602; 48 Stat. 1064, 1066, 1070-1073, 1076, 1077,
1080, 1082, 1083, 1087, 1094, 1098, 1102, as amended; 47 U.S.C. 151,
154, 201-205, 208, 215, 218, 303, 307, 313, 314, 403, 404, 602; 47
U.S.C. 552, 554.
2. 47 CFR 21.902 is amended by revising paragraphs (d)(1) and (i)
to read as follows:
Sec. 21.902 Frequency interference.
* * * * *
(d) (1) Subject to the limitations contained in paragraph (e) of
this section, each MDS station licensee shall be protected from harmful
electrical interference, as determined by the theoretical calculations,
within a protected service area of which the boundary will be 56.3255
kilometers (35 miles) from the transmitter site.
* * * * *
(i) (1) For each initial application for a new station, or
amendment thereto, or modification application, or amendment thereto,
proposing Multipoint Distribution Service (MDS) facilities on E, F or H
channels, filed on October 1, 1995 or thereafter, on the day the
application or amendment is filed, the applicant must prepare but is
not required to submit with its application or amendment, an analysis
demonstrating that operation of the MDS applicant's transmitter will
not cause harmful interference to each registered receive site of any
existing, cochannel or adjacent-channel, D, E, F, or G channel
Instructional Television Fixed Service (ITFS) station, licensed or with
a construction permit authorized on the day such MDS application is
filed, with an ITFS transmitter site within 50 miles of the coordinates
of the MDS station's proposed transmitter site.
(i) In the alternative, an applicant for an MDS station may submit
a statement from the ITFS licensee or construction permittee stating
that the ITFS licensee or construction permittee does not object to
operation of the MDS station.
(ii) In the alternative, an applicant for an MDS station may submit
an analysis demonstrating that there are no ITFS licensees or
construction permittees as described in paragraph (i)(1) of this
section within 50 miles of the coordinates of the proposed transmitter
site of the MDS station.
(2) For each application described in paragraph (i)(1) of this
section, the applicant must serve, by certified mail, return receipt
requested, on or before the day the application or amendment described
in paragraph (i)(1) of this section is initially filed with the
Commission, a copy of the complete MDS application or amendment,
including each exhibit and interference study, described in paragraph
(i)(1) of this section, on each ITFS licensee or construction permittee
described in paragraph (i)(1) of this section.
(3) For each application described in paragraph (i)(1) of this
section, the applicant must certify and file, with the application or
amendment, its certification of its compliance with the requirements of
paragraph (i)(2) of this section.
(4) For each application described in paragraph (i)(1) of this
section, the applicant must file, on or before the 30th day after the
application or amendment described in paragraph (i)(1) of this section
is initially filed with the Commission, a written notice which contains
the following:
(i) caption--ITFS Service Notice;
(ii) applicant's name, address, proposed service area and channel
group, and application file number, if known;
(iii) a list of each ITFS licensee and construction permittee
described in paragraph (i)(1) of this section;
(iv) the address of each ITFS licensee and construction permittee
described in paragraph (i)(1) of this section used for service; and
(v) a list of the date each ITFS licensee and construction
permittee described in paragraph (i)(1) of this section received a copy
of the complete application or amendment described in paragraph (i)(1)
of this section, or a notation of lack of receipt by the ITFS licensee
or construction permittee of a copy of the complete application or
amendment, on or before such 30th day, together with a description of
its efforts for receipt by each such licensee or construction permittee
lacking receipt of the application.
(5) The public notices described in paragraph (i)(6) of this
section are as follows:
(i) For initial applications for new MDS stations which participate
in a lottery, this public notice is the notice announcing the selection
of the applicant's application by lottery for qualification review.
(ii) For initial applications for new MDS stations which
participate in a competitive bidding process, this public notice is the
notice announcing the application of the winning bidder in the
competitive bidding process has been accepted for filing.
(iii) For initial applications for new MDS stations which do not
participate in a lottery or a competitive bidding process, this public
notice is the notice announcing that the applicant's application is not
mutually-exclusive with other MDS applications.
(iv) For MDS modification applications, this public notice is the
notice announcing that the modification application has been accepted
for filing.
(6) (i) Notwithstanding the provisions of Sections 1.824(c) and
21.30(a)(4), for each application described in paragraph (i)(1) of this
section, each ITFS licensee and each ITFS construction permittee
described in paragraph (i)(1) of this section may file with the
Commission on or before the 30th day after the public notice described
in paragraph (i)(5) of this section, a petition to deny the MDS
application.
(ii) Except for the requirements as to the filing time deadline,
this petition to deny must otherwise comply with the provisions of
Section 21.30.
(iii) In addition, this ITFS petition to deny must:
(A) identify the subject MDS application, including the applicant's
[[Page 36740]]
name, station location, channel group, and application file number;
(B) include a certificate of service demonstrating service on the
subject MDS applicant by certified mail, return receipt requested, on
or before the 30th day after the MDS public notice described in
paragraph (i)(5) of this section;
(C) include a demonstration that it made efforts to reach agreement
with the MDS applicant but was unable to do so;
(D) include an engineering analysis that operation of the proposed
MDS station will cause harmful interference to its ITFS station;
(E) include a demonstration, in those cases in which the MDS
applicant's analysis is dependent upon modification(s) to the ITFS
facility, that the harmful interference cannot be avoided by the
proposed substitution of new or modified equipment to be supplied and
installed by the MDS applicant, at no expense to the ITFS licensee or
construction permittee; and
(F) be limited to raising objections concerning the potential for
harmful interference to its ITFS station or concerning a failure by the
MDS applicant to serve the ITFS licensee or construction permittee with
a copy of the complete application or amendment described in paragraph
(i)(1) of this section.
(iv) The Commission will presume an ITFS licensee or construction
permittee described in paragraph (i)(1) of this section has no
objection to operation of the MDS station, if the ITFS licensee or
construction permittee fails to file a petition to deny by the deadline
prescribed in paragraph (i)(6)(1) of this section.
* * * * *
[FR Doc. 95-17373 Filed 7-17-95; 8:45 am]
BILLING CODE 6712-01-M
