[Federal Register Volume 66, Number 23 (Friday, February 2, 2001)]
[Proposed Rules]
[Pages 8774-8775]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-2753]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 100

[IB Docket 98-21; FCC 00-426]


Non-Conforming Use of Direct Broadcast Satellite Service Spectrum

AGENCY: Federal Communications Commission.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Federal Communications Commission is evaluating the rules 
and regulations governing the Direct Broadcast Satellite service. Since 
the Notice of Proposed Rulemaking was adopted in 1998, new issues have 
arisen concerning non-conforming use of the spectrum allocated to the 
Direct Broadcast Satellite service. This Public Notice seeks comment on 
this additional issue.

DATES: Comments may be filed on or before March 5, 2001; Reply Comments 
may be filed on or before March 14, 2001.

ADDRESSES: Electronic comments may be filed using the Commission's 
Electronic Comment Filing System (ECFS). Comments filed through the 
ECFS can be sent as an electronic file via Internet to http://www.fcc.gov/e-file/ecfs.html. All other filings must be sent to Office 
of the Secretary, Federal Communications Commission, 445 12th St., SW., 
rm. TW-A325, Washington, DC 20554.

FOR FURTHER INFORMATION CONTACT: Selina Khan of the International 
Bureau at 202-418-7282.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Public 
Notice in IB Docket No. 98-21, FCC 00-426 (released December 8, 2000).
    On February 26, 1998, the Commission released a Notice of Proposed 
Rulemaking \1\ (Part 100 Notice) seeking comment on its proposal to 
integrate the direct broadcast satellite (``DBS'') service rules 
incorporated in part 100 of the Commission's rules into part 25 
(Satellite Communications) and to streamline and eliminate any 
unnecessary DBS rules. In addition, the Commission sought comment on 
its proposal to apply the revised part 1 general auction rules to DBS 
and eliminate separate DBS auction rules. By applying the parts 1 and 
25 application processing and licensing procedures to the DBS service, 
the Commission seeks to simplify procedures applicable to DBS, 
eliminate unnecessary paperwork, and harmonize the DBS licensing 
process with the licensing processes for other satellite services.
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    \1\ See In re Policies and Rules for the Direct Broadcast 
Satellite Service, Notice of Proposed Rulemaking, IB Docket No. 98-
21, 63 FR 11202 (March 6, 1998), 13 FCC Rcd. 6907 (1998) (Part 100 
Notice).
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    The Commission received significant comment on the issues raised in 
this proceeding. Since that time, however, another issue has arisen as 
a result of the continuing evolution of the DBS industry. In 
particular, the public has made inquires about other potential uses of 
DBS spectrum. Accordingly, by this Public Notice, the Commission seeks 
to augment the record in the Part 100 Notice on this issue. 
Specifically, we seek additional comment on the issue of non-conforming 
uses of DBS spectrum. Under the current policy, a DBS operator must 
begin DBS operations within five years of receipt of its license, but 
may otherwise make unrestricted use of the spectrum prior to expiration 
of the five-year period. After this initial five-year period, a DBS 
licensee ``may continue providing non-DBS service during the remainder 
of the life of its first satellites (presuming its license is renewed) 
only on those transponders on which [it] continues to provide DBS 
service, and that non-DBS use cannot exceed fifty percent of each 24-
hour day on any such transponder.'' \2\ In accordance with this policy, 
the Commission has stated that it would consider continuing ``to permit 
some degree of non-conforming use of DBS satellites during future 
generations given the circumstances prevailing at that time.'' \3\
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    \2\ Petition of United States Satellite Broadcasting Company, 
Inc. for Declaratory Ruling Regarding Permissible Uses of the Direct 
Broadcast Satellite Service, 1 FCC Rcd 977 (1996 USSB Declaratory 
Ruling) at para. 13. See also In the Matter of Rules and Policies 
for the Direct Broadcast Satellite Service, 60 FR 65587 (December 
20, 1995), 11 FCC Rcd 9712 (1995) (DBS Auction Order) at para. 17.
    \3\ USSB Declaratory Ruling, supra n. 2. at para. 13.
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    The Commission established its ``non-conforming use'' policy in a 
series of three decisions: (1) 1986 USSB Declaratory Ruling; \4\ (2) 
1991 Potential Uses of DBS Order; \5\ and (3) 1995 DBS Auction 
Order.\6\ This policy, which was adopted when DBS was still in its 
infancy, was intended to provide DBS operators with a source of early 
revenues that could, in turn, help operators meet the very high up-
front costs of launching a DBS system and reduce the risk of monetary 
loss if the DBS service proved unsuccessful. The Commission has since 
recognized that DBS is no longer in its early stages.\7\ Rather, it is 
an established competitor to cable. Consequently, we question whether 
the original justification for the non-conforming use policy continues 
to be valid. In addition, we ask for comment on whether there are now 
other reasons to continue and perhaps even expand the non-conforming 
use policy. For example, advances in technology, ability to compete 
with cable services, and new service offerings, may warrant revisiting 
this policy.
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    \4\ See generally USSB Declaratory Ruling, supra n. 2.
    \5\ In the Matter of Potential Uses of Certain Orbital 
Allocations by Operators in the Direct Broadcast Satellite Service, 
6 FCC Rcd 2581 (1991) (1991 Potential Uses of DBS Order).
    \6\ See DBS Auction Order, supra n. 2 at para. 17; See also In 
the Matter of Revision of Rules and Policies for the Direct 
Broadcast Satellite Service, Notice of Proposed Rulemaking, 60 FR 
55822 (November 3, 1995), 11 FCC Rcd 1297 (1995).
    \7\ See, e.g. Part 100 Note.
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    By this Public Notice, we request comment on non-DBS services. 
Specifically, we seek comment on whether we should eliminate, relax, or 
maintain time or other restrictions on satellite uses of DBS spectrum. 
We seek comment on the appropriateness of such restrictions before and 
after the initial five years of the license term, particularly at those 
orbital locations in the western arc that are currently under-utilized. 
Commenters should address whether permitting flexible use of DBS 
spectrum will enhance or impede competition in the multi-channel video 
programming distribution (MVPD) market. Commenters should address the 
types of non-DBS services likely to be provided, and whether these 
services could result in corresponding benefits to MVPD or other 
competition. We also request comment on whether we should limit other 
uses to the fixed-satellite service (FSS), as permitted by the U.S. 
Table of Frequency Allocations.\8\ Moreover, if we allow non-conforming 
uses of DBS spectrum, should we require those services to conform to 
the interference criteria associated with DBS, the primary service. We 
note that two DBS licensees are providing full and robust DBS from 
locations capable of serving the contiguous United States

[[Page 8775]]

(CONUS), but that locations in the western portion of the orbital arc 
that are not capable of serving the East Coast are under-utilized. 
Commenters should address whether a flexible use policy will help 
ensure that these western locations are used more efficiently. 
Commenters should address whether we should apply a flexible use policy 
to all of the orbit locations available for DBS service or only to the 
western orbital locations. Commenters should also address whether and 
to what extent permitting other use of DBS spectrum will impact the 
Commission's geographic service rules.\9\ Finally, if we apply a 
flexible use policy to all U.S. orbit locations, should we apply this 
policy to foreign licensed facilities that are permitted to serve the 
U.S. (i.e. those satellite systems licensed in Argentina and 
Mexico).\10\ Commenters should support their views with concrete 
analysis and documentation.
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    \8\ 47 CFR 2.106.
    \9\ 47 CFR 100.53.
    \10\ See Protocol Concerning the Transmission and Reception of 
Signals from Satellites for the Provision of Direct-to-Home 
Satellite Services in the United States of America and United 
Mexican States (November 8, 1996), Article VI; Agreement Between the 
Government of the Argentine Republic Concerning the Provision of 
Satellite Facilities and the Transmission and Reception of Signals 
to and from Satellites for the Provision of Satellite Service to 
Users in the United States of America and the Republic of Argentina 
(June 5, 1998), Article VI.
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Procedural Matters

    Pursuant to Secs. 1.415 and 1.419 of the Commission's rules, 47 CFR 
1.415, and 1.419, interested parties may file Supplemental Comments, 
limited to the issues addressed in this Public Notice, no later than 
March 5, 2001. Supplemental Reply Comments must be filed no later than 
March 14, 2001. In view of the pendency of this proceeding, we expect 
to adhere to the schedule set forth in this Public Notice and do not 
contemplate granting extensions of time. Comments should reference IB 
Docket No. 98-21 and should include the FCC number shown on this Public 
Notice. Comments may be filed using the Commission's Electronic Comment 
Filing System (ECFS).\11\ Comments filed through the ECFS can be sent 
as an electronic file via Internet to http://www.fcc.gov/e-file/ecfs.html. In completing the transmittal screen, parties responding 
should include their full name, mailing address, and the applicable 
docket number, IB Docket 98-21. Parties who choose to file by paper 
must file an original and four copies of each filing. If more than one 
docket or rulemaking appear in the caption of this proceeding, 
commenters must submit two additional copies for each additional docket 
or rulemaking number. All filings must be sent to the Commission's 
Secretary, Magalie Roman Salas. Office of the Secretary, Federal 
Communications Commission, 445 12th St., SW., rm. TW-A325, Washington, 
DC 20554. One copy of all comments should also be sent to the 
Commission's copy contractor. Copies of all filings are available for 
public inspection and copying during regular business hours at the FCC 
Reference Information Center, Portals II, 445 12th Street, SW., 
Washington, DC 20554, telephone 202-857-3800, facsimile 202-857-3805.
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    \11\ See Electronic Filing of Documents in Rulemaking 
Proceeding, 63 FR 24121 (May 1, 1998).
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    In the Part 100 Notice, the Commission presented an Initial 
Regulatory Flexibility Analysis,\12\ as required by the Regulatory 
Flexibility Act (RFA).\13\ If commenters believe that the proposals 
discussed in this Public Notice require additional RFA analysis, they 
should include a discussion of these issues in their Supplemental 
Comments.
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    \12\ Part 100 Notice, 13 FCC Rcd at 6907.
    \13\ See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601 et seq., has 
been amended by the Contract With America Advancement Act of 1996, 
Public Law No. 104-121, 110 Stat. 847 (1996) (CWAAA). Title II of 
the CWAAA is the Small Business Regulatory Enforcement Fairness Act 
of 1996 (SBREFA).
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    For ex parte purposes, this proceeding continues to be a ``permit-
but-disclose'' proceeding, in accordance with Sec. 1.1200(a) of the 
Commission's rules, and is subject to the requirements set forth in 
Sec. 1.1206(b) of the Commission's rules.

Federal Communications Commission.
Magalie Roman Salas,
Secretary.
[FR Doc. 01-2753 Filed 2-1-01; 8:45 am]
BILLING CODE 6712-01-P