[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.
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[FR Doc. 95-17373 Filed 7-17-95; 8:45 am]
BILLING CODE 6712-01-M