[Federal Register Volume 60, Number 79 (Tuesday, April 25, 1995)]
[Rules and Regulations]
[Pages 20241-20247]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-10024]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 74
[MM Docket No. 93-24, FCC 95-51]
Experimental, Auxiliary, and Special Broadcast and Other Program
Distributional Services; ITFS Filing Window
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: This Report and Order adopts a window filing procedure for the
processing of applications for new Instructional Television Fixed
Service (ITFS) stations and major changes to existing stations. It
further adopts rules affecting the four-channel rule, receive site
interference protection, the protected service area, and other aspects
of ITFS operation. The Report and Order responds to the comments
received in response to the Notice of Proposed Rulemaking in this
proceeding. Notice of Proposed Rulemaking in MM Docket No. 93-24,
(Notice), Order and Further Notice of Proposed Rulemaking in MM Docket
No. 93-24 (Further Notice). The action is required to hasten ITFS and
wireless cable service to the public by streamlining the processing of
ITFS applications.
EFFECTIVE DATE: Upon approval of the Office of Management and Budget of
a modified FCC Form 330 to effectuate the modifications approved in
this Report and Order. The FCC will published a document announcing the
effective date in the Federal Register when OMB approval is imminent.
FOR FURTHER INFORMATION CONTACT:
Paul R. Gordon, Mass Media Bureau, Policy and Rules Division, (202)
739-0773.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Report
and Order in MM Docket No. 93-24, adopted and released on February 7,
1995. The complete text of this Report and Order is available for
inspection and copying in the FCC Reference Center (room 239) at the
Federal Communications Commission, 1919 M St., NW, Washington, DC
20554, and may also be purchased from the Commission's copying
contractor, International Transcription Service, at (202) 857-3800,
2100 M St., NW, Suite 140, Washington, DC 20037.
Synopsis of Report and Order
1. By this Report and Order, the Commission adopts rules that will
increase the efficiency of our processing of applications for new ITFS
stations, major amendments to such applications, and major changes to
existing stations. The Commission also considers additional proposals
intended to increase the efficiency, and curtail potential abuse, of
the application processes.
2. During the past decade, applicants for new ITFS stations or
major changes in existing stations have been subject to an A/B cut-off
procedure. This procedure involves placing the first application(s)
accepted for filing and determined to be substantially complete on a
public notice called an ``A'' cut-off list. This list notifies the
public that the application has been accepted and gives interested
parties 60 days to file competing applications or petitions to deny. An
applicant placed on the ``A'' cut-off list is required to make any
major changes to its proposal before the end of the ``A'' cut-off
period. After the ``A'' period expires, the staff places all
substantially complete applications which were filed during that period
and found to be mutually exclusive with any listed ``A'' application on
a ``B'' list. This list notifies the public that the specified
applications have been accepted for filing, and it provides 30 days for
the filing of petitions to deny or minor amendments to those
applications.
3. The telecommunications environment has changed substantially
since 1985, when the Commission instituted this procedure. Also, in
more than 90% of recently filed applications, ITFS licensees plan to
lease their excess channel capacity to wireless cable operators, who
almost always pays for the construction of the ITFS facilities. These
changes have fostered a substantial increase in the rate of
applications filed for new ITFS stations or major changes in existing
stations, creating a significant backlog of applications. Therefore, in
the Notice of Proposed Rulemaking in this proceeding, 58 FR 12011
(March 2, 1993), we proposed a filing window procedure for the
acceptance of applications, to allow us to better control the flow of
applications and to improve processing efficiency.
4. Pursuant to our proposal, we would accept applications for new
facilities and applications for major changes in existing facilities
only during limited periods (or ``windows''). We would place
applications filed in the window that were not mutually exclusive with
any other application, and that were found to be acceptable for filing,
on a proposed grant list. We would then provide the immediately
following 30 days for the submission of petitions to deny. Uncontested
applications would then be granted, if in the public interest. With
regard to mutually exclusive applications, we would similarly give 30-
day Public Notice for the submission of petitions to deny. Thereafter,
we would evaluate those applications under the existing comparative
selection process. Any applications currently tendered but not yet
placed on an ``A'' cut-off list would be treated as having been filed
and cut off as of the close of the first filing window.
5. Currently, simply to allow the release of an ``A'' cut-off list,
each application must undergo a substantive engineering analysis upon
filing. No applications are granted or denied in this stage of
processing. Subsequently, after the ``B'' cut-off period, each
[[Page 20242]] application undergoes a second technical analysis in
order to determine whether it is grantable. Because each of these
analyses requires significant resources, eliminating the duplicative
step would substantially improve processing efficiency.
6. The Commission concludes that a window filing system, as
enhanced by an electronic filing and processing system as proposed in
our outstanding MDS rulemaking proceeding, 59 FR 63743 (Dec. 9, 1994),
would serve the public interest. A window filing procedure would allow
us to better control the flow of applications and it would prevent
speculators from filing against applicants that had appeared on an
``A'' cut-off list.
7. A 60-day Public Notice period before each filing window will
provide potential applicants adequate notice and opportunity to prepare
their applications. As most commenters observe, this is the same period
within which parties currently have to file an application in response
to an ``A'' cut-off list. The window shall remain open for at least
five business days. This period, when combined with the 60-day public
notice, will provide all potential applicants time to prepare their
applications.
8. Potential inefficiencies caused by the submission of a large
number of applications during a national (as opposed to a regional)
window are significantly diminished by our likely adoption of the
electronic filing system for ITFS applications. A regional window would
unfairly require educators not located within the relevant area to
delay their educational plans. Finally, a national window will allow
all interested parties to commence or continue their ITFS and MDS plans
as soon as possible. This will provide the certainty of an imminent
filing opportunity to all wireless cable entities, not just those
within a restricted geographic area.
9. Frequency. Some commenters support a fixed schedule, arguing
that this would allow educators to plan their proposals in advance of
the Public Notice. They also advocate the non-discretionary opening of
a window at least once each quarter, asserting that frequent filing
periods are necessary to avoid unduly delaying the licensing of ITFS
facilities that are essential to the growth of the wireless cable
industry. However, we have never before utilized a window filing system
with ITFS, and we therefore believe that we should take a more cautious
approach as we structure the window filing system. The rate of the
submission of applications could vary significantly in the future, and
a fixed requirement could quickly and unpredictably become
counterproductive or impracticable to meet. Also, we intend to open
filing windows as frequently as is consistent with our goals of
efficient and expeditious processing.
10. Amendments. Some commenters propose that, after a filing window
closes, the Commission should prohibit amendments that demonstrate
eligibility, improve comparative standing, or seek rule waivers.
Currently, they claim, many applicants impose an unnecessary burden on
the Commission by filing such amendments, such as requests for waiver
of the four-channel-per-market rule, Sec. 74.902(d) of the Commission's
rules, 47 CFR 74.902(d).
11. We agree that amendments that pertain either to improving
comparative standing or to establishing eligibility, as set forth in
Secs. 74.913(b) and 74.932(a) of the Commission's Rules, respectively,
47 CFR 74.913(b) and 74.932(a) should not be filed outside the window
period. Similarly, we shall prohibit the filing of amendments to a
facility's proposed technical operations, including amendments to add
any receive sites, outside the window. Such engineering amendments
often require a time-consuming re-analysis by the staff of the
amendment's effects on other applications and thus delay the processing
of all pending applications. However, with the two exceptions noted
above, such delay is not inherent in non-engineering amendments,
including requests for waiver of the four-channel rule, and we will
consequently permit their filing.
12. We make a narrow exception to the window filing system. NTIA
rules require a party seeking a grant to have already filed its
application with the Commission, and those requests are subject to an
annual deadline. Accordingly, in order not to obstruct these grants, we
shall allow the tendering of applications that rely upon NTIA funding
during the 30 days preceding the annual deadline. They shall be
considered as having been filed during the current or immediately
subsequent window, whichever is appropriate.
13. In response to several commenters, we decline generally to
exempt the filing of major change applications from the window filing
process, and, as discussed above, we similarly decline to exempt
amendments with similar effects. By definition, such changes can
substantially impact both existing and proposed facilities.
Accordingly, for the purpose of the window filing procedure, they
should be treated the same as applications for new facilities. However,
consistent with existing practice, we shall continue to make a narrow
exception for amendments to pending applications that would resolve
mutually exclusive applications without creating any additional
interference. We will accept such amendments at any time, and we shall
provide a 30-day period for the submission of petitions to deny those
amendments. We believe that this will most efficiently bring new or
improved service to the public. Further, to encourage market
settlements, we shall now allow licensees of existing facilities to
submit at any time applications for major changes, as long as the
changes are essential components of a settlement involving mutually
exclusive applications.
14. The Commission declines to adopt several other exceptions that
the commenters propose. These rules would significantly disrupt the new
window filing system, while promoting no public interest that is not
already being served by the filing procedure or other ITFS rules.
Proposals to Improve the Application Process
15. As argued by the commenters, and noted in the Further Notice,
the goals of the proposed window filing procedure could be maximized if
we at the same time enacted additional rules that would increase its
efficiency. Therefore, we set forth several proposals, many initially
advanced by the commenters, that were intended to improve service to
the public or otherwise enhance processing efficiency. Our analysis of
each of the proposals will be affected by two factors. First, as noted
above, is the proposed electronic filing and processing system for ITFS
applications, which would diminish the negative impact that a large
number of applications has had on our processing in the past. Second,
implementation of the proposals adopted herein and strict enforcement
of our existing rules will, we believe, eliminate many of the
inefficiencies and alleged abuses of the existing processing system.
Financial Qualifications
16. Proposal. Currently, applicants are required to certify their
financial ability or their reliance upon NTIA funding. In response to
the Notice, two commenters proposed to require applicants or their
prospective wireless cable lessees to submit with their applications
proof of their financial ability to construct. In the Further Notice,
59 FR 35665 (July 13, 1994) we postulated that such a
[[Page 20243]] requirement might deter a significant number of ITFS
speculators. We also asked whether we should require separate financial
documentation for each station applied for, and whether we should
require the wireless cable lessee to submit the documentation when it
is paying for construction of the facilities.
17. The record does not indicate that our reliance on applicant
certification has been ill-placed. Further, we believe that the
submission of detailed financial information would in practice neither
increase processing efficiency nor deter abuse. Collecting the data
would impose significant costs on the wireless cable lessee, regardless
of whether the supporting documents were kept on hand by the educator
or submitted to the Commission. We believe that a sound analysis of all
of the incoming detailed financial submissions would consume a great
deal of the staff's time, severely slowing the rate of processing.
Conversely, any reliance on the documents without our own rigorous
independent analysis would enable us to detect only a small proportion
of potential abuse.
18. A financially unqualified educator would generally not be able
to complete construction within the prescribed period. Because that
educator would then need an extension of time within which to
construct, it would have to submit an appropriate application to the
Commission, explaining the reasons for its delay in construction. Thus,
we already have a process in place by which we can monitor and assess
ITFS licensees' progress in constructing their authorized facilities
and forestall any dilatory conduct on their part. Should it become
necessary in the future, we can revise this process accordingly.
Application Caps
19. We now address two proposals, raised in response to the Notice
by the Educational Parties: (1) To impose a cap of 25 applications
associated with the same wireless cable entity, including any entity
with direct or indirect common ownership or control; and (2) to limit
an individual nonlocal ITFS entity to filing no more than three to five
applications during a window. To support this restriction, the
Educational Parties argued that nonlocal applicants often work with
wireless cable entities as frequency speculators. The overwhelming
majority of interested commenters oppose the adoption of either type of
cap.
20. To suddenly impose limits on the number of applications that
particular parties may be affiliated with would slow both ITFS and
wireless cable development. Further, it would artificially constrain
MDS operators' business decisions as to the number of ITFS channels
needed to establish economically viable wireless cable operations.
Also, we can deter the speculation complained of by the less
restrictive process of analyzing construction extension applications,
as noted above.
Assignment of Unbuilt Facilities
21. In the Further Notice, we proposed to formalize our current
practice of limiting the allowable consideration for the assignment of
authorizations for unbuilt ITFS facilities to out-of-pocket expenses,
as we do with broadcast construction permits. Our stated goal was to
diminish the incentive of frequency speculators to submit applications
for authorizations that they intend to later assign for profit. Every
commenter addressing this issue supports the proposal, agreeing that it
would help deter abuse. We agree that this limitation, applicable to
broadcast construction permits, will have similar deterrent effects on
frequency speculation in the ITFS service, and we shall therefore adopt
it.
Excess Capacity Lease Terms
22. Proposal and Comments. Our existing policy does not authorize
an educator to execute a lease agreement the term of which extends
beyond the end of the educator's license term. Consequently, depending
on how many years remain in the term, there may be situations in which
our policy would prohibit a lease agreement to extend beyond one or two
years. At most, MDS operators can have contractual access to ITFS
channels for no more than ten years, the length of a full license
period. Some commenters propose that we modify our policy to allow
parties to negotiate lease agreements whose terms extend beyond the end
of the license term, to demonstrate to potential investors their long-
term channel access. The proposal is unopposed.
23. Discussion. The wireless cable industry requires substantial
equity investment in order to become a viable competitor in the video
marketplace. However, potential financiers are likely to exercise
caution before investing in an MDS system, where there is uncertain
long-term availability of the ITFS channels that provide the basic
capacity for that system. Authorizing lease agreements that extend
beyond the end of the license term would reduce the anxiety of
potential investors that the MDS entity would shortly lose four
channels, crippling the entire system. The increased confidence of
investors will significantly accelerate the development of the wireless
cable industry and provide competition to wired cable. Hence, we are
revising our policy to permit an educator, if it chooses, to execute a
10-year lease agreement without regard to the duration of the
educator's current license term. ITFS lease agreements that extend
beyond the end of the license term must note that such an extension is
contingent on the renewal of the educator's license.
Application of the Four-Channel Rule
24. Proposal. We seek to provide as many educators as possible with
the opportunity to operate ITFS systems that meet their educational
needs. Consequently, the four-channel limitation rule generally limits
an ITFS licensee to four channels for use in a single area of
operation. However, we have never clearly and formally defined what
constitutes an ``area of operation.'' The Further Notice proposed to
adopt the staff's informal policy of considering a single area of
operation for this purpose to extend no farther than 20 miles from the
transmitter site. Many commenters supported such a mileage-based
proposal, while others preferred one based on predicted interference.
25. Discussion. We adopt the 20-mile standard. Our experience has
demonstrated that this standard is efficient and easily understood and
implemented. Determining a station's area of operation by use of the
interference approach would require a considerable amount of technical
analysis by the staff. As a consequence, adoption of this proposal
could inordinately slow processing and delay service to the public. We
recognize that any mileage standard will be imprecise, because there
will always be educators that serve sites beyond the designated
distance. However, the bright-line test we are adopting today has the
important advantage of being easy for applicants to comprehend and
apply. Further, the Commission staff can process applications far more
efficiently using this standard. Moreover, staff, educators, and
wireless cable entities are extremely familiar with this standard,
having utilized it for a number of years.
Protected Service Areas
26. Proposal. The Further Notice also solicited comment on a
proposed change in the application of protected service areas for
wireless cable lessees. Currently, we provide a 15-mile interference
protection for a service area regardless of receive site locations, but
solely at the request of the ITFS [[Page 20244]] applicant or licensee.
The Further Notice observed that an applicant for new facilities often
requests and receives interference protection that restricts an
existing licensee lacking such protection from pursuing certain
modifications to its facilities. At the same time, an existing facility
that has not requested such protection, upon learning that an
application for a nearby operation has been filed, often requests
interference protection and possibly obstructs the new applicant. We
therefore proposed to apply interference protection only prospectively,
making it effective solely with regard to applications filed after the
protection request. We asked commenters whether our proposal would
sufficiently diminish the disruption and delay resulting from the
current system. We also asked commenters to address a specific
application of the proposed rule: If two applications are (1) submitted
during the same filing window, (2) otherwise grantable, and (3)
mutually exclusive only because both applicants request a protected
service area, we proposed to consider them as mutually exclusive. Most
commenters addressing the proposal express support.
27. Discussion. We conclude that the public interest will be served
by adoption of the proposal to apply protected service area protection
only prospectively. Adoption of the proposal will diminish disruption
to existing and proposed facilities. Only one commenter expressed
opposition to the proposed specific application of the rule involving
mutual exclusivity, and we shall adopt it, with a slight exception.
There is no public interest benefit in protecting an uninhabitable
area. To do so would needlessly restrict neighboring facilities, unduly
depriving the area of both ITFS and wireless cable programming. Thus,
if an applicant shows that interference will occur solely over water,
we shall not consider the applications to be mutually exclusive.
However, in order to avoid future conflicting interpretations and
confusion, we will not extend the exception to cover any area in which
no subscribers or potential subscribers would be affected by the
interference.
Receive Site Interference Protection
28. Proposal. The Commission's rules currently provide interference
protection to an educator's receive sites, regardless of their distance
from the transmitter. The Further Notice cited instances in which
interference protection was requested for receive sites apparently
beyond an educational institution's reasonable coverage area. We stated
in the Further Notice that such requests could be an abuse of our
processes, designed to artificially increase the service area of the
wireless cable lessee. We also opined that eliminating this practice
would significantly increase the efficiency of our processing of
applications, thereby hastening service to the public. We tentatively
concluded that an educational institution is generally unlikely to
reasonably serve a receive site located more than 35 miles from the
transmitter. Thus, absent a showing of unique circumstances, we
proposed to protect only those receive sites 35 miles or less from the
transmitter. Further, we proposed that an applicant not be able to
claim basic eligibility for a license by use of any receive site more
than 35 miles from the transmitter. With regard to the 35-mile standard
generally, the commenters are nearly evenly divided.
29. Discussion. We acknowledge the concerns of some commenters that
educators may at times serve receive sites beyond the proposed
boundary. In fact, however, under the proposed rule, a licensee could
protect two receive sites that were as far as 70 miles apart, depending
on the location of the transmitter. Thus, we find that the 35-mile
standard is not unduly restrictive, and we adopt the proposal as it
regards both interference protection and basic eligibility for receive
sites not more than 35 miles from the transmitter. However, we will
waive the rule for a particular site if an applicant can demonstrate
that it is located within the educator's reasonable coverage area.
Major Modifications
30. Proposal. We turn now to our proposal to reclassify certain
types of modifications to existing ITFS facilities. As stated in the
Further Notice, we have classified these as either major or minor,
attaching different procedural rules to each. In the Further Notice, we
expressed our belief that our consideration of certain changes as minor
does not realistically take into account the impact that they would
have on the facilities in question, nearby facilities, or proposed
facilities. Consequently, we proposed to reclassify as a major change
any application involving: (1) Any polarization change; (2) the
addition of any receive site that would experience interference from
any licensee or applicant on file prior to the submission of the
application; (3) an increase in the EIRP in any direction by more than
1.5 dB; (4) an increase of 25 feet or more in the transmitting antenna
height; or (5) any change that would cause interference to any
previously proposed application or existing facility. We additionally
proposed to formalize our policy of considering proposals to relocate a
facility's transmitter site by ten miles or more as a major change. We
also proposed to exempt from the new rule any change that would resolve
mutually exclusive applications without creating new frequency
conflicts. Most of the commenters that addressed this issue generally
supported the proposal. Also, the supporting comments assert that the
adoption of the MDS modification rules would be desirable, due to the
technical and regulatory relationship that exists between the two
services.
31. Discussion. Our experience, as supported by many of the
comments, warrants the need to modify the current classification system
to increase processing efficiency, and we do not believe that the
reclassification of certain amendments as major will diminish
processing efficiency. Also, adoption of the MDS classification system
would not be appropriate. Its definition of a major change is
significantly broader than that previously used or now adopted for
ITFS. However, the MDS rolling one-day filing window is structured to
accommodate such an expansive definition, and it does not significantly
restrict the submission of applications to change existing facilities.
The ITFS window filing system, on the other hand, is not compatible
with such an expansive classification that would needlessly restrict
the filing of many ITFS technical modifications. Thus, we shall
classify as major any application involving: (1) Any polarization
change; (2) an increase in the EIRP in any direction by more than 1.5
dB; (3) an increase of 25 feet or more in the transmitting antenna
height; and (4) relocation of a facility's transmitter site by ten
miles or more. We shall, however, accept such applications at any time,
if their grant would resolve mutually exclusive applications without
creating new conflicts. Adoption of the proposal will significantly
expedite the processing of ITFS applications.
32. We do not incorporate into the new rule two types of changes
that we had earlier listed: (1) The addition of any receive site that
would experience interference from any licensee or applicant on file
prior to the submission of the application; and (2) any change that
would cause interference to any previously proposed application or
existing facility. By eliminating the cut-off system, the window filing
system will prevent parties from requesting changes that are mutually
exclusive with a tendered but not yet cut-off
application. [[Page 20245]]
Reasonable Assurance of Receive Sites
33. Proposal. The Further Notice requested comment on how best to
ensure the accuracy of each applicant's list of receive sites. We seek
to deter applicants from listing receive sites that have in fact not
agreed to participate in the proposed ITFS system. We therefore
proposed requiring a letter of assurance from the applicant, listing
each receive site's contact person, title, and telephone number. Most
interested commenters support a stricter requirement than we proposed,
and two commenters oppose the proposal in any form. Supporters argue
that for adequate deterrence, we should require a verification letter
from an authorized official of each receive site listed in an
application.
34. Discussion. To better ensure the accuracy of receive site lists
submitted both by local and nonlocal applicants, we adopt a modified
version of the proposal. Processing efficiency will be enhanced because
the additional data would allow for rapid confirmation of a site's
participation. However, requiring a separate letter of verification
from each receive site would involve the submission of potentially
dozens of separate letters. We believe, though, that we can expedite
processing to the same degree on the application form: where we already
ask for information about each of the applicant's receive sites, we
shall simply add a column asking for a contact person's name, title,
and telephone number. The contact person should be the person (or one
of the people) responsible for implementation of the ITFS program at
that receive site.
Accreditation of Applicants
35. Proposal. While applicants seeking to construct a new ITFS
station must indicate their accreditation or that of the schools or
other institutions that intend to utilize the proposed ITFS service, we
noted in the Further Notice that the extent to which the specified
receive sites are being utilized by students from accredited
institutions is not called for. Accordingly, we proposed to require
applicants to state whether and by whom each listed receive site is
accredited. We also asked whether having only one proposed receive site
out of many as accredited defeats the fundamental purpose of ITFS: To
serve the educational needs of accredited institutions. Thus, we
invited commenters to address whether we should require a majority of
receive sites to be accredited in order for the application to be
grantable, or if we should deny interference protection for any
unaccredited receive site. The proposed changes are generally opposed
by the commenters. Many of them argue that receive sites are
increasingly being used for distance learning without regard to whether
they are accredited.
36. Discussion. The record does not demonstrate that serving one
accredited receive site among other unaccredited receive sites is
incompatible with serving the formal, for-credit educational needs of
students enrolled at accredited institutions, and we therefore decline
to adopt either proposal. To do otherwise would artificially restrict
those enrolled students' accessibility to formal ITFS educational
programming, while depriving others of worthwhile programming, such as
in-service training and instruction in special skills and safety
programs. As most commenters note, while the essential purpose of the
ITFS service is to provide formal educational programming to students
enrolled in accredited schools, colleges and universities, the
Commission has long recognized the value of transmitting ``other visual
and aural educational, instructional and cultural material to selected
receiving locations * * *'' 47 CFR 74.931(a)-(b). We find no evidence
on the record that persuades us to now significantly alter the existing
relationship between the provision of formal, for-credit educational
ITFS programming and the offering of other educational, instructional,
and cultural material, Indeed, we reaffirm our commitment to our
longstanding objective, one that permits ITFS licensees to transmit
educational and cultural programs for use in other than a classroom
setting or to persons other than students enrolled at accredited
institutions. However, we take this opportunity to modify and make
clearer our requirements regarding the need for further specification
with respect to the accreditation of the parties utilizing the proposed
ITFS services.
37. To attain eligibility, an ITFS applicant must, among other
things, be accredited in its own right and serve its own students or
serve accredited institutional or governmental organizations. It has
come to our attention that some applicants accredited in their own
right propose service only to receive sites which will not be used by
their own students. Such applicants do not satisfy the eligibility
requirements. They must, therefore, as Item 3 of Section II in the FCC
Form 330 now requires, indicate the name of the ``school/institution''
it will serve, the accreditation date and the accrediting agency or
organization. However, we have found, in processing applications, that
the name of the school or institution often does not match with any
receive site specified in Section VI of the Form 330. For ease of
processing, we shall require, for applicants accredited in their own
right and serving their own students, to identify in Section II, Item
3(a), the receive sites in Section VI which fall under their
jurisdiction. For other applicants, that is, those which are accredited
and not serving their own students and those applicants which are
unaccredited and establishing their eligibility by serving accredited
institutions, we shall require that they specify in Section II, Item
3(b), the receive sites belonging to or being used by the accredited
institution. This additional information will enable the staff and all
interested parties to immediately determine the accreditation status of
an applicant.
Other Proposals
38. Offset. The Further Notice proposed requiring the use of offset
when all affected transmitters are capable of handling frequency offset
stability requirements. This proposal is supported by most of the
commenters. However, we believe that voluntary agreements to utilize
frequency offsets better serve the public interest. The use of
frequency offsets represents a balancing of the need to prevent co-
channel interference with our desire to allow an increase in the number
of stations in a geographic area. As such, frequency offsets are not a
substitute for the standard of interference protection, a desired-to-
undesired signal ratio of 45dB, that our technical rules are designed
to ensure. Indeed, the efficacy of frequency offsets, which is not
universally acclaimed by the engineering society, is largely determined
by the exigencies of the situation at hand, requiring affected
applicants and licensees to engage in cooperative efforts to construct
and adjust their respective technical operations to successfully avail
themselves of this engineering technique, if possible. Under these
circumstances, we are not persuaded to require the mandatory
specification of frequency offsets.
39. Expedited Consideration of Applications. In the Further Notice,
we asked for comments on the Educational Parties and WCA's proposal
that we expedite consideration of certain ITFS applications in return
for the applicant's agreeing to an accelerated construction schedule.
The stated purpose was to rapidly authorize facilities that would most
likely become part of an operating wireless cable system. Most
commenters are supportive of the proposal, although [[Page 20246]] they
disagree on the details of its implementation. Opponents of expedited
consideration argue that it would not in fact accelerate the
construction of viable MDS systems, because processing the likely high
number of requests would delay service to the public. We agree. Rapid
authorization of ITFS facilities is essential to providing unique
educational programming to greater numbers of people, and to
accelerating the ability of MDS systems to compete with wired cable
operators. The more rapid processing sought by the commenters will
likely be achieved by implementation of the filing window, as enhanced
by the proposed electronic filing and processing system and the other
modifications adopted in this proceeding Hence, we do not believe that
adoption of the commenters' proposal is warranted.
40. FAA Authorization. As mentioned in the Further Notice, we do
not grant or modify a license until the Federal Aviation Administration
(FAA) has determined that the proposed transmitter site and receive
sites will pose no hazard to air navigation. To prevent needless delay
in processing applications, we proposed to require applicants to inform
the Commission of the FAA's determination. The record clearly supports
our belief that enactment of this policy would speed processing at
minimal cost to applicants. Therefore, to expedite processing, we
require applicants to inform the Commission of the FAA's determination
on a timely basis.
41. Interference Studies. The Further Notice noted that applicants
frequently make technical claims that lack adequate supporting data. To
address this problem, we proposed requiring the submission of terrain
profiles and a quantitative analysis of any additional signal loss
calculated by using the Longley-Rice propagation model, Version 1.2.2,
in the point-to-point mode. Most of the commenters that addressed this
issue generally support the proposal, but advocate various exceptions
to the rule, allowing the use of less rigorous models under a variety
of circumstances.
42. Based on the information before us, we shall not adopt the
proposal. The record demonstrates that our concern will be met by the
submission of any valid profile maps or sufficient data that takes
terrain shielding into account and supports the validity of each claim,
regardless of whether the study involves the Model. Also, for each
instance where terrain shielding is relied upon to protect ITFS
facilities, applicants will be required to submit the quantitative
amount of signal attenuation, in dB, attributable to terrain shielding.
Any study must use generally acceptable engineering practices, and
applicants must state the specific model they have used in their
analysis.
43. Construction of Facilities. Some commenters express concern
that the Commission has extended construction periods for parties with
no intention to construct. Hence, they request strict guidelines for
granting such extensions. One proposes decreasing the period within
which an ITFS licensee must construct its facilities from 18 months to
12 months. It alleges that, if its proposal were adopted, frequency
speculators would quickly lose their licenses and their channels would
consequently become available during the next window. In both cases,
however, our existing rules already address these matters. We have set
forth the requirements an educator must meet in order to obtain an
extension of time within which to construct: (1) Construction is
complete and testing of the facilities has begun; (2) substantial
progress has been made; or (3) reasons clearly beyond the applicant's
control, which applicant has taken all possible steps to resolve, have
prevented construction. We have no specific evidence that these rules
have not operated sufficiently to prevent abuses by frequency
speculators. Therefore, we decline to modify the period of time to
construct.
Administrative Matters
A. Regulatory Flexibility Analysis
44. These rules are not major rules for the purposes of Executive
Order 12291 of February 17, 1981. As required by the Regulatory
Flexibility Act, it is hereby certified that these rules will not have
a significant impact on small business entities.
B. Final Regulatory Flexibility Analysis
45. Pursuant to the Regulatory Flexibility Act of 1980, 5 U.S.C.
605, it is certified that this decision will have an impact on ITFS
stations by establishing a window filing procedure for the processing
of such applications and applications for major changes to existing
ITFS stations, and by adopting rules affecting the four-channel ruleee,
receive site interference protection, the protected service area, and
other aspects of ITFS operation. As detailed in the full text of the
Report and Order, the Commission has attempted, wherever possible
within the statutory constraints, to establish regulations which, to
the extent possible, minimize the burdens of ITFS stations. The full
text of the Commission's final regulatory flexibility analysis may be
found in Appendix A of the full text of this Report and Order.
C. Ordering Clauses
46. It is ordered that this Report and Order is adopted.
47. It is further ordered that, pursuant to authority contained in
sections 4(i) and 303 of the Communications Act of 1934, as amended, 47
CFR 74 is amended as set forth below. The change to the rules adopted
in this Report and Order will become effective upon approval of the
Office of Management and Budget of a modified FCC Form 330 to
effectuate the modifications approved in this Report and Order.
48. It is further ordered that MM Docket No. 93-24 is terminated.
List of Subjects in 47 CFR Part 74
Television broadcasting, Instructional television fixed service.
Federal Communications Commission.
William F. Caton,
Acting Secretary.
Rules
Part 74 of title 47 of the Code of Federal Regulations is amended
as follows:
PART 74--EXPERIMENTAL AUXILIARY, AND SPECIAL BROADCAST DISTRIBUTION
SERVICES
1. The authority citation for part 74 continues to read as follows:
Authority: Secs. 4, 303, 48 Stat. 1066, as amended, 1082, as
amended; 47 U.S.C. 154, 303, unless otherwise noted. Interpret or
apply secs. 301, 303, 307, 48 Stat. 1081, 1082, as amended, 1083, as
amended; 47 U.S.C. 301, 303, 307.
2. Section 74.902 is amended by revising the second sentence of
paragraph (d)(1) to read as follows:
Sec. 74.902 Frequency assignments.
* * * * *
(d)(1) * * * An area of operation is defined as the area 20 miles
or less from the ITFS transmitter.* * *
* * * * *
3. Section 74.903 is amended by adding a new paragraph (a)(5), by
adding a final sentence to paragraph (e), and by adding a new paragraph
(f), to read follows:
Sec. 74.903 Interference.
(a) * * *
(5) No receive site more than 35 miles from the transmitter shall
be entitled to interference protection.
* * * * * [[Page 20247]]
(e) * * * Such protection shall be applied solely with regard to
applications filed subsequent to the request for a protected service
area.
(f) With respect to protected service area proposals, two
applications will be regarded as mutually exclusive if they are:
(1) Submitted during the same filing window;
(2) Otherwise grantable;
(3) Mutually exclusive only because either or both applicants
request a protected service area. However, if an applicant in such a
situation shows that the resulting interference would occur solely over
water, the applications will not be considered to be mutually
exclusive.
Sec. 74.910 [Amended]
4. Section 74.190 is amended by removing the entry Section
73.3564(a), (b) Acceptance of applications, and adding in its place,
73.3597(c)(2) Procedures on transfer and assignment applications.
5. Section 74.911 is amended by revising the third sentence of
paragraph (a)(1), and by revising paragraph (c) to read as follows:
Sec. 74.911 Processing of ITFS station applications.
(a) * * *
(1) * * * A major change for an ITFS station will be any proposal
to add new channels, change from one channel (or channel group) to
another, change polarization, increase the EIRP in any direction by
more than 1.5dB, increase the transmitting antenna height by 25 feet or
more, or relocate a facility's transmitter site by 10 miles or more.* *
*
* * * * *
(c)(1) New and major change applications for ITFS stations will be
accepted only on dates specified by the Commission. Filing periods will
be designated by the Commission in a Public Notice, to be released not
fewer than 60 days before the commencement of the filing period.
Qualified parties will have no fewer than 5 business days within which
to submit their applications. After termination of the filing period,
the Commission shall release a Public Notice with a list of
applications filed in the window and provide no fewer than 30 days for
the submission of petitions to deny. Uncontested applications that are
not mutually exclusive with any other application or licensed facility,
and are found to be acceptable, shall be granted. Mutually exclusive
applications shall be evaluated pursuant to the comparative selection
process set forth in Sec. 74.913 as herein amended.
(2) The requirements of this section apply to a wireless cable
entity requesting to be licensed on ITFS frequency pursuant to
Sec. 74.990. The application of such a wireless cable entity shall be
included in the Public Notice released after the termination of the
filing period.
* * * * *
6. Section 74.913 is amended by revising the first sentence of
paragraph (d)(1), and adding a new paragraph (d)(5), to read as
follows:
Sec. 74.913 Selection procedure for mutually exclusive ITFS
applications.
* * * * *
(d) * * *
(1) Enrollment will be considered as of the last date of the filing
window during which the applications were filed, as provided by
Sec. 74.911(c).* * *
* * * * *
(5) A receive site not receiving interference protection may not be
utilized by an applicant for tie-breaking purposes.
* * * * *
7. Section 74.932 is amended by adding a new paragraph (e), to read
as follows:
Sec. 74.932 Eligibility and licensing requirements.
* * * * *
(e) No receive site more than 35 miles from the transmitter site
shall be used to establish basic eligibility.
* * * * *
8. Section 74.991 is amended by revising the last two sentences of
paragraph (a) to read as follows:
Sec. 74.991 Wireless cable application procedures.
(a) * * * A wireless cable application for available instructional
television fixed service channels will be subject to Sec. 21.914 of
this chapter with respect to other wireless cable applicants, and to
the ITFS window filing period with respect to instructional television
fixed service applications. All lists of accepted applications for ITFS
frequencies, regardless of the nature of the applicant, will be
published as ITFS public notices.
* * * * *
[FR Doc. 95-10024 Filed 4-24-95; 8:45 am]
BILLING CODE 6712-01-M