[Federal Register Volume 60, Number 220 (Wednesday, November 15, 1995)]
[Rules and Regulations]
[Pages 57365-57368]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-28118]



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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 21 and 74

[MM Docket No. 94-131 and PP Docket No. 93-253, FCC 95-445]


Filing Procedures in Multipoint Distribution Service and in the 
Instructional Television Fixed Service, Including Electronic Filing and 
Competitive Bidding

AGENCY: Federal Communications Commission.

ACTION: Final rule; petition for reconsideration.

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SUMMARY: This document addresses issues raised on reconsideration of 
the Multipoint Distribution Service (MDS) Report and Order, which 
modified the MDS application process and established competitive 
bidding procedures to select among mutually exclusive applicants for 
MDS. This proceeding is intended to resolve the issues presented in the 
petitions for reconsideration filed on various aspects of the MDS 
Report and Order. Clarification is needed in order to expedite the 
auction of the MDS spectrum, intended to enhance the delivery of 
wireless cable to the public.

EFFECTIVE DATE: November 15, 1995.

FOR FURTHER INFORMATION CONTACT:
Charles Dzeidzic at (202) 418-1604, Sharon Bertelsen at (202) 416-0892, 
Jerrianne Timmerman at (202) 416-0881, Video Services Division, Mass 
Media Bureau.


[[Page 57366]]

SUPPLEMENTARY INFORMATION: The Memorandum and Order on Reconsideration 
addresses petitions for reconsideration filed in response to the MDS 
Report and Order, released June 30, 1995, summarized at 60 FR 36524 
(July 17, 1995), which modified the MDS application process and 
established competitive bidding procedures for MDS. Thirteen petitions 
for reconsideration on various aspects of the MDS Report and Order were 
filed with the Commission. Petitioners include the Wireless Cable 
Association, Bell Atlantic, Pacific Telesis-Cross Country Wireless, 
Instructional Telecommunications Foundation, Network for Instructional 
Television, Trans Video Communications, as well as a number of 
individual wireless cable or Instructional Television Fixed Service 
(ITFS) operators.
    The petitioners raise numerous legal and technical issues. Under 
the competitive bidding procedures established in the MDS Report and 
Order, a geographic licensing plan was developed under which the 
Commission would allot one MDS authorization for each of the 487 Basic 
Trading Areas (BTAs) and six additional BTA-like geographic areas. The 
BTA authorization holder would be able to construct and license 
facilities to provide wireless cable service on any usable MDS channels 
within the BTA, and would have preferred rights to the available ITFS 
frequencies and lease agreements within the BTA. The MDS Report and 
Order required the BTA authorization holder to protect currently 
authorized and previously proposed MDS stations, known as 
``incumbents,'' as well as the receive sites of ITFS systems, against 
harmful interference. In the Report and Order, the Commission also 
provided certain preferences for small businesses participating in the 
auction, established a five year build-out requirement for the BTA 
authorization holders, and established procedures to allow partitioning 
of the BTA.
    Petitioners generally praised the Commission's efforts to 
facilitate the development of wireless cable services. However, 
petitioners asked for reconsideration or clarification of certain 
Commission rules and policies adopted in the MDS Report and Order. The 
Commission granted certain aspects of the petitions for 
reconsideration, most notably those requesting elimination of the BTA 
authorization holder's right of first refusal regarding new ITFS lease 
agreements. In addition, the Commission raised one issue, regarding 
unjust enrichment to prevent abuse of the partitioning rules, on its 
own motion.
    The complete text of the rule changes follows. The complete text of 
the Memorandum and Order on Reconsideration is also available for 
inspection and copying during normal business hours in the FCC 
Reference Center, Room 239, at the Federal Communications Commission, 
1919 M Street, NW., Washington, DC 20554, and it may be purchased from 
the Commission's copy contractor, International Transcription Service, 
Inc., 2100 M Street, NW., Suite 140, Washington, DC 20037, (202) 857-
3800.
    These rule changes will become effective immediately upon their 
publication in the Federal Register. Pursuant to 5 U.S.C. 553(d)(3) the 
Commission found good cause to have the rule amendments take effect 
immediately upon publication in the Federal Register. The MDS auction 
is scheduled to commence on November 13, 1995. The revised rules need 
to be effective in less than 30 days so that the auction may take place 
as scheduled and bidders are fully informed of the rules prior to the 
auction.

List of Subjects

47 CFR Part 21

    Communications common carriers, Communications equipment, Reporting 
and recordkeeping requirements, Television.

47 CFR Part 74

    Television broadcasting.

    Federal Communications Commission.
William F. Caton,
Acting Secretary.

Rule Changes

    Parts 21 and 47 of Chapter I of Title 47 of the Code of Federal 
Regulations are amended as follows:

PART 21--DOMESTIC PUBLIC FIXED RADIO SERVICES

    1. The authority citation for Part 21 continues to read as follows:

    Authority: Secs. 1, 2, 4, 201-205, 208, 215, 218, 303, 307, 313, 
314, 403, 404, 410, 602; 48 Stat. 1064, 1066, 1070-1073, 1076, 1077, 
1080, 1082, 1083, 1087, 1094, 1098, 1102, as amended; 47 U.S.C. 151, 
154, 201-205, 208, 215, 218, 303, 307, 313, 314, 403, 602; 47 U.S.C. 
552, 554.

    2. Section 21.2 is amended by revising the definitions for ``BTA 
service area'' and ``Partitioned service area'' to read as follows:


Sec. 21.2  Definitions.

* * * * *
    BTA service area. The area within the boundaries of a BTA to which 
a BTA authorization holder may provide Multipoint Distribution Service. 
This area excludes the protected service areas of incumbent MDS 
stations and previously proposed and authorized ITFS facilities, 
including registered receive sites.
* * * * *
    Partitioned service area (PSA). The area within the coterminous 
boundaries of one or more counties or other geopolitical subdivisions, 
drawn from a BTA, to which an authorization holder may provide 
Multipoint Distribution Service or the area remaining in a BTA upon 
partitioning any portion of that BTA. This area excludes the protected 
service areas of incumbent MDS stations and previously proposed and 
authorized ITFS stations, including registered receive sites.
    3. Section 21.15(g) is revised to read as follows:


Sec. 21.15  Technical content of applications.

* * * * *
    (g) Except for applications in the Multipoint Distribution Service 
filed on or after September 15, 1995, each application in the Point-to-
Point Radio, Local Television Transmission and Digital Electronic 
Message Service (excluding user stations) proposing a new or 
replacement antenna (excluding omni-directional antennas) shall include 
an antenna radiation pattern showing the antenna power gain 
distribution in the horizontal plane expressed in decibels, unless such 
pattern is known to be on file with the Commission in which case the 
applicant may reference in its application the FCC-ID number that 
indicates that the pattern is on file with the Commission. Multipoint 
Distribution Service applicants who filed applications on or after 
September 15, 1995 must provide related information in completing an 
MDS long-form application.
* * * * *
    4. Section 21.42(d) is revised to read as follows:


Sec. 21.42  Certain modifications not requiring prior authorization.

* * * * *
    (d) Licensees may correct erroneous information on a license which 
does not involve a major change (i.e., a change that would be 
classified as a major amendment as defined by Sec. 21.23) without 
obtaining prior Commission approval by filing a completed FCC Form 494, 
or for the Multipoint Distribution Service licensees, by filing the MDS 
long-form application.

[[Page 57367]]

    5. Section 21.902 is amended by revising paragraph (g)(1) to read 
as follows:


Sec. 21.902  Frequency interference.

* * * * *
    (g)(1) All interference studies prepared pursuant to paragraph (c) 
of this section must be served on all licensees, conditional licensees, 
and applicants for the stations required to be studied by this section. 
This service must include a copy of the FCC application and occur on or 
before the date the application is filed with the Commission.
* * * * *
    6. Section 21.904 is amended by redesignating paragraph (c)(2) as 
paragraph (c)(3) and adding new paragraph (c)(2) to read as follows:


Sec. 21.904  Transmitter power.

* * * * *
    (c) * * *
    (2) The interfered-with stations may increase it own power 
consistent with the rules; and
* * * * *
    7. Section 21.924 is amended by revising paragraph (c) to read as 
follows:


Sec. 21.924  Service areas.

* * * * *
    (c) The area within the boundaries of a BTA to which a BTA 
authorization holder may provide Multipoint Distribution Service 
excludes the protected service areas of any incumbent MDS stations and 
previously proposed and authorized ITFS facilities, including 
registered receive sites.
    8. Section 21.925(a)(2) is revised to read as follows:


Sec. 21.925  Applications for BTA authorizations and MDS station 
licenses.

    (a) * * *
    (2) For purposes of conducting competitive bidding procedures, 
short-form applications are considered to be mutually exclusive with 
each other if they were filed for, and specified, the same BTA service 
area.
* * * * *
    9. Section 21.929 is amended by designating the undesignated 
paragraph as paragraph (b), and adding a new paragraph (a) to read as 
follows:


Sec. 21.929  Authorization period for station licenses.

    (a)(1) A BTA authorization will be granted for a term of ten years, 
terminating ten years from the date of the Commission declared bidding 
closed in the MDS auction.
    (2) A BTA authorization shall automatically terminate without 
further notice to the licensee upon expiration of the ten-year license 
term unless prior thereto an application for renewal of such license 
has been filed with the Commission.
* * * * *
    10. Section 21.933 is revised to read as follows:


Sec. 21.933  Protected service areas.

    (a) The stations licensed to the holder of a BTA authorization 
shall have a protected service area that is coterminous with the 
boundaries of that BTA, subject to the exclusion of the 56.33 km (35 
mile) protected service area of incumbent MDS stations and of 
previously proposed and authorized ITFS facilities within that BTA, 
even if these protected service areas extend into adjacent BTAs. The 
protected service area also includes registered receive sites.
    (b) The stations licensed to the holder of a PSA authorization 
shall have a protected service area that is coterminous with the 
boundaries of the counties or other geopolitical subdivisions 
comprising the PSA, subject to the exclusion of the 56.33 km (35 mile) 
protected service area of incumbent MDS stations and of previously 
proposed and authorized ITFS facilities within that PSA, even if these 
protected service areas extend into adjacent BTAs. The protected 
service area also includes registered receive sites.
    11. Section 21.938 is amended by redesignating paragraphs (c) 
through (g) as (d) through (h) respectively, revising newly 
redesignated paragraphs (d) and (f), and adding new paragraph (c), to 
read as follows:


Sec. 21.938  BTA and PSA technical and interference provisions.

* * * * *
    (c)(1) ITFS applicants may locate a new station in an unused 
portion of a BTA or PSA where interference to a previously-proposed or 
authorized MDS station of a BTA or PSA authorization holder would not 
be predicted.
    (2) With respect to ITFS applications only and for purposes of 
determining the existence of harmful electromagnetic interference as 
caused to MDS stations licensed to BTA or PSA authorization holders by 
subsequently proposed ITFS stations within that BTA, MDS stations 
licensed to BTA and PSA authorization holders and will have a protected 
service area of 56.33 km (35 miles), centered on the antenna site of 
the MDS stations.
    (3) The 56.33 km (35 mile) protected service area afforded to a 
previously-proposed or authorized MDS station of a BTA or PSA 
authorization holder with respect to a subsequently proposed ITFS 
station is entitled to the interference protection standards of 
Sec. 21.902.
    (4) An ITFS station authorized before September 15, 1995 may be 
modified, provided the power flux density of that station does not 
exceed -73 dBw/m2 at locations along the 56.33 km (35 mile) circle 
centered on the then-existing transmitting antenna site or service area 
of collocated incumbent MDS station, as applicable.
    (d) Unless the affected parties have executed a written 
interference agreement in accordance with Sec. 21.937, it shall be the 
responsibility of a BTA or PSA authorization holder to correct at its 
expense any condition of harmful electromagnetic interference caused to 
authorized MDS service at locations within other BTAs or PSAs or within 
the 56.33 km (35 mile) protected service areas of authorized or 
previously proposed ITFS and MDS stations (incumbents), or at 
authorized or previously proposed ITFS receive sites.
* * * * *
    (f) The calculated free space power flux density from an MDS 
station, other than an incumbent MDS station, may not exceed -73 dBW/m2 
at locations on BTA or PSA boundaries for which there is an 
unobstructed signal path from the transmitting antenna to the boundary, 
unless the applicant has obtained the written consent of the 
authorization holder for the adjoining BTA or PSA.
* * * * *
    12. Section 21.960 is amended by revising paragraphs (b)(5)(i) and 
(d)(1)(i) to read as follows:


Sec. 21.960  Designated entity provisions for MDS.

* * * * *
    (b) * * *
    (5) * * *
    (i) If an eligible BTA authorization holder that utilizes 
installment financing under this paragraph seeks to assign or transfer 
control of its BTA authorization to an entity not meeting the 
eligibility standards for installment payments, the holder must make 
full payment of the remaining unpaid principal and any unpaid interest 
accrued through the date of assignment or transfer as a condition of 
approval. If an eligible BTA authorization holder that utilizes 
installment financing under this subsection seeks to partition, 
pursuant to Sec. 21.931, a portion of its BTA containing one-third or 
more of the population of the area within its control in the licensed 
BTA to an entity not meeting the eligibility standards for installment 
payments, the holder must 

[[Page 57368]]
make full payment of the remaining unpaid principal and any unpaid 
interest accrued through the date of partition as a condition of 
approval.
* * * * *
    (d) * * *
    (1) * * *
    (i) If a BTA authorization holder that utilizes a bidding credit 
under this paragraph seeks to assign or transfer control of its BTA 
authorization to an entity not meeting the eligibility standards for 
bidding credits, the authorization holder must reimburse the government 
for the amount of the bidding credit, plus interest at the rate imposed 
for installment financing at the time the authorization was awarded, 
before assignment or transfer will be permitted. If an eligible BTA 
authorization holder that utilizes a bidding credit under this 
paragraph seeks to partition, pursuant to Sec. 21.931, a portion of its 
BTA containing one-third or more of the population of the area within 
its control in the licensed BTA to an entity not meeting the 
eligibility standards for bidding credits, the authorization holder 
must reimburse the government for the amount of the bidding credit, 
plus interest at the rate imposed for installment financing at the time 
the authorization was awarded, before the partitioning will be 
permitted. The amount of the required reimbursement will be reduced 
over time. An assignment, transfer or partition in the first two years 
after issuance of the BTA authorization will result in a reimbursement 
of one hundred (100) percent of the value of the bidding credit; during 
year three, of seventy-five (75) percent of the bidding credit; in year 
four, of fifty (50) percent; in year five, twenty-five (25) percent; 
and thereafter, no reimbursement.
* * * * *
    13. Section 21.961 is amended by revising paragraph (b)(2) 
introductory text to read as follows:


Sec. 21.961  Definitions applicable to designated entity provisions.

* * * * *
    (b) * * *
    (2) Aggregation of gross revenues
* * * * *

PART 74--EXPERIMENTAL, AUXILIARY, AND SPECIAL BROADCAST AND OTHER 
PROGRAM DISTRIBUTIONAL SERVICES

    1. The authority citation for Part 74 continues to read as follows:

    Authority: Secs. 4, 303, 48 Stat. 1066, as amended; 47 U.S.C. 
154, 303, 554.

    2. Section 74.903 is amended by revising paragraph (b)(5) and by 
adding a sentence in paragraph (d) between the first and second 
sentence to read as follows:


Sec. 74.903  Interference.

* * * * *
    (b) * * *
    (5) An analysis of the potential for harmful interference within 
the protected service area, as defined in paragraph (d) of this 
section, of any authorized or previously proposed station(s) described 
in paragraph (d) of this section.
* * * * *
    (d) * * * Alternatively, an applicant, permittee, or licensee may 
select a 56.33 km (35 mile) circular protected area centered at the 
geographic latitude and longitude of the transmitting antenna site. * * 
*
* * * * *
[FR Doc. 95-28118 Filed 11-14-95; 8:45 am]
BILLING CODE 6712-01-M