[Federal Register Volume 66, Number 196 (Wednesday, October 10, 2001)]
[Rules and Regulations]
[Pages 51594-51598]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-25305]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 27

[WT Docket No. 99-168; CS Docket No. 98-120; MM Docket No. 00-39; FCC 
01-258]


Clearing of the 740-806 MHz Band; Conversion to Digital 
Television

AGENCY: Federal Communications Commission.

ACTION: Final rule; petitions for reconsideration.

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SUMMARY: In this document, the Commission resolves petitions for 
reconsideration and clarification of the Third Report and Order of this 
proceeding. The Commission generally affirms the decisions it reached 
in that proceeding, although it makes certain adjustment to the rules 
and policies adopted in this proceeding and the related digital 
television proceeding to broadcasters and new licensees in the 746-806 
MHz band. The Commission also rejects arguments by a petitioner seeking 
to reverse its decisions on interference issues, and clarifies certain

[[Page 51595]]

aspects of the applicable interference standards.

DATES: Effective October 10, 2001.

FOR FURTHER INFORMATION CONTACT: William Huber of the Auctions and 
Industry Analysis Division at (202) 418-0660 (voice), (202) 418-7233 
(TTY), e-mail: [email protected].

SUPPLEMENTARY INFORMATION: This is a summary of an Order on 
Reconsideration of the Third Report and Order (``Order on 
Reconsideration'') in WT Docket No. 99-168, adopted on September 7, 
2001 and released on September 17, 2001. The full text of this document 
is available for public inspection and copying during regular business 
hours at the FCC Reference Information Center, Portals II, 445 12th 
Street, SW, Room CY-A257, Washington, DC, 20554. This document may also 
be purchased from the Commission's duplicating contractor, Qualex 
International, Portals II, 445 12th Street, SW, Room CY-B402, 
Washington, DC, 20554, telephone 202-863-2893, facsimile 202-863-2898, 
or via e-mail [email protected].

Synopsis of the Order on Reconsideration of the Third Report and 
Order

    1. By the Order on Reconsideration, the Commission resolves 
petitions for reconsideration and clarification of the Third Report and 
Order in this proceeding (``Upper 700 MHz Third Report and Order''), 66 
FR 10204 (February 14, 2001). The Commission generally affirms the 
decisions it reached in the Upper 700 MHz Third Report and Order, 
although it makes certain adjustments to the rules and policies adopted 
in this proceeding and the related digital television (``DTV'') 
proceeding to accommodate the implementation of voluntary band-clearing 
agreements among incumbent broadcasters and new licensees in the 746-
806 MHz (``Upper 700 MHz'') band, which is currently occupied by TV 
Channels 60-69. The Commission also rejects arguments by a petitioner 
seeking to reverse our decisions on interference issues, and clarifies 
certain aspects of the applicable interference standards.
    2. The Commission has received three petitions for reconsideration 
of the Upper 700 MHz Third Report and Order. One petition was filed by 
Spectrum Clearing Alliance (``SCA''), which is led by Paxson 
Communications Corporation and joined by a number of other broadcasters 
having existing analog TV operations on Channels 60-69 as well as by 
other parties interested in band clearing. SCA stated in its petition 
that it is developing a comprehensive, private band-clearing plan that 
would be a ``definitive framework for clearing the 700 MHz band.'' SCA 
asserted that the adoption by the Commission of certain procedural and 
DTV policy changes would facilitate early clearing and provide 
certainty to prospective bidders that the Channel 59-69 spectrum will 
be cleared by a certain date. One signatory of the SCA Petition, 
Spectrum Exchange Group, LLC (``Spectrum Exchange''), which has 
expressed an interest in serving as an intermediary to facilitate SCA's 
clearing scheme, also filed a separate petition in support of the SCA 
plan.
    3. The Association for Maximum Service Television, Inc. (``MSTV'') 
also filed a petition, primarily seeking reconsideration of our 
decision in the Upper 700 MHz Third Report and Order not to adopt a new 
``no interference'' standard that would prohibit any new involuntary 
interference to existing licensees. MSTV also sought clarification of 
the appropriate interference standard to be used for protection of DTV 
allotments and facilities from modified analog operations. Finally, 
MSTV requested that the Commission rule out the possibility that other 
types of band-clearing policies might be adopted in the future and 
express ``an unqualified commitment to voluntary band clearing.''
    4. DTV Construction Deadlines For Single-Channel Broadcasters. The 
Commission initially adopted a DTV construction schedule that requires 
rapid build-out of digital broadcast facilities, among other reasons, 
to ``ensure that recovery of broadcast spectrum occurs as quickly as 
possible.'' The DTV construction deadlines are set forth in 
Sec. 73.624(d) of the Commission's rules. According to the remaining 
deadlines, those commercial television broadcasters that have not yet 
constructed their authorized digital facilities must do so by May 1, 
2002, and noncommercial broadcasters must complete their DTV facilities 
by May 1, 2003. Consistent with this plan, the Upper 700 MHz Third 
Report and Order stated that, if a broadcaster is left with only a 
single analog allotment as a result of a voluntary band-clearing 
agreement, it must convert to DTV by the deadline set forth in 
Sec. 73.624(d).
    5. SCA sought reconsideration of the Commission's decision in the 
Upper 700 MHz Third Report and Order to require broadcasters that are 
left with a single channel as a result of a band-clearing arrangement 
to comply with the current DTV construction deadlines. In its petition, 
SCA requested that the Commission permit an incumbent broadcaster 
participating in an arrangement that clears an allotment in the 
Channels 59-69 band and leaves that broadcaster with only a single 
channel to remain in analog operation beyond the DTV construction 
deadline and to convert to digital at any time during the DTV 
transition. In a subsequent ex parte submission, SCA proposed that such 
single-channel broadcasters be permitted to continue to operate in 
analog ``until December 31, 2005 or when 70% of the television 
households in their markets are capable of receiving digital broadcast 
signals over-the-air.''
    6. Upon review of the arguments presented, the Commission agrees 
that a broadcaster that gives up one of its channels to accommodate 
band clearing should have the flexibility to convert to DTV at a later 
stage in the transition period.
    7. The Commission finds that the DTV conversion process as a whole 
will not be significantly retarded by affording this limited group of 
broadcasters the flexibility to complete their digital conversion at a 
later date. Under the policy the Commission adopts today, if a 
broadcaster gives up one of its channels to accommodate band clearing 
(pursuant to Commission authorization), that single-channel broadcaster 
may continue to operate in analog until December 31, 2005. Moreover, if 
such single-channel broadcaster seeks an extension of this deadline and 
is able to demonstrate that less than 70% of the television households 
in its market are capable of receiving digital broadcast signals, the 
Commission will presume that such request is in the public interest. 
Because the number of Channel 59-69 stations is small and because 
stations with low viewership may be more likely to give up their second 
allotment, extending the DTV construction deadline for these single-
channel broadcasters should not have a significant effect on the 
broadcast industry's ability to meet the 85% consumer penetration 
target set forth in section 309(j)(14)(B) of the Act. Thus, the 
Commission finds that the benefits of relief from the upcoming DTV 
construction deadline for this group of broadcasters outweigh the 
potential risk that such limited relief may delay the DTV transition.
    8. Interference Protection Standards. The Upper 700 MHz Third 
Report and Order confirms our intention to review license modification 
applications associated with band-clearing arrangements under 
established DTV protection criteria. Among those criteria are 
provisions that specifically allow

[[Page 51596]]

certain levels of de minimis interference from proposed DTV stations to 
nearby full-service TV and DTV facilities. Under our de minimis 
interference allowance, non-conforming DTV applications may be 
permitted where interference will affect less than two percent of the 
population served by another analog or DTV station (provided that no 
new interference may be caused to a station already predicted to 
receive interference from all other broadcasters to ten percent or more 
of its population). The Upper 700 MHz Third Report and Order rejected a 
proposal by MSTV and other broadcast interests seeking the adoption of 
a new ``no interference'' standard that would prohibit any new 
involuntary interference to existing licensees.
    9. MSTV sought reconsideration of this decision. The Commission 
disagrees with the premise of MSTV's argument, and affirms the policies 
announced in the Upper 700 MHz Third Report and Order. MSTV's argument 
is premised on its belief that issues associated with clearing of the 
Upper 700 MHz band are ``completely different'' from those of the DTV 
transition. MSTV fails to recognize that the process of clearing the 
Upper 700 MHz band has long been an integral part of the DTV transition 
process. For example, in the DTV Sixth Further Notice of Proposed Rule 
Making, 61 FR 43209 (August 21, 1996), the Commission stated that ``the 
recovery of spectrum continue[s] to be a key component of our 
implementation of DTV service.'' Contrary to MSTV's assertion, the 
policies outlined in the Upper 700 MHz Third Report and Order do not 
extend the de minimis interference protection criteria to a new or 
different problem. Rather, the Upper 700 MHz Third Report and Order 
simply clarified that DTV broadcasters participating in band-clearing 
arrangements could continue to benefit from the flexibility allowed 
under the DTV technical rules.
    10. In urging the Commission to clarify that the DTV two percent de 
minimis interference allowance does not extend to analog license 
modification applications, MSTV contended that the Upper 700 MHz Third 
Report and Order has created an ambiguity about the circumstances in 
which the DTV two percent de minimis interference limit applies. The 
Upper 700 MHz Third Report and Order did not change the interference 
standards for analog proposals to protect DTV service. Applicants 
seeking modifications of full-service analog TV stations may not cause 
any additional interference to DTV service, other than a 0.5% reduction 
in service population to account for rounding and calculation 
tolerances.
    11. DTV Replication Policy. One of the Commission's goals in 
designing the initial DTV Table of Allotments was to design DTV service 
areas that would, to the greatest extent possible, allow each 
broadcaster to provide DTV service to a geographic area that is 
comparable to its existing NTSC service area. This replication goal 
meant that each DTV channel allotment was chosen to best allow its DTV 
service to match the Grade B service contour of the NTSC station with 
which it was paired. Implicit in the replication goal is the 
Commission's expectation that DTV stations will eventually be 
constructed with ``full-replication'' facilities. In the initial stages 
of the DTV transition, each DTV facility will be entitled to 
interference protection to its existing and authorized DTV contour, as 
well as to its April 1997 NTSC Grade B service area. Although the 
Commission considered whether broadcasters should be required to 
replicate fully their analog service areas with DTV coverage, the 
Commission decided in its recent DTV Biennial Review Order, 66 FR 9973 
(February 13, 2001), not to require full replication of analog 
facilities with DTV. Instead, the Commission decided that it would 
``cease to give interference protection to [broadcasters'] unreplicated 
service area as of December 31, 2004.'' Thus, by December 31, 2004, 
commercial DTV licensees must either be on-the-air replicating their 
April 1997 NTSC Grade B service area or lose interference protection to 
the unreplicated portion of this service area outside the noise-limited 
signal contour.
    12. In its petition, SCA asserted that, where a broadcaster does 
not fully replicate for purposes of implementing a band-clearing 
arrangement, the Commission should not eliminate interference 
protection from unreplicated service areas at the end of 2004.
    13. The Commission decides to create a limited exception to the DTV 
replication use-or-lose policy for single-channel broadcasters that do 
not fully replicate (operate with their full allotted facilities) after 
implementing a band-clearing arrangement. As with its decision on DTV 
construction deadlines for single-channel broadcasters, the Commission 
believes that this approach is supported by the congressional plan for 
the transition of this spectrum to new public safety and commercial 
uses.
    14. In the DTV Biennial Review Order, the Commission chose not to 
require such replication so as ``to give broadcasters a measure of 
flexibility as they build their DTV facilities to collocate their 
antennas at common sites, thus minimizing potential local difficulties 
locating towers and eliminating the cost of building new towers.'' The 
Commission finds that it is consistent with the underlying intent of 
that policy to afford certain broadcasters relief from the DTV 
replication protection deadline. For instance, in connection with a 
band-clearing arrangement as discussed, it would be inconsistent with 
the intent of the replication policy to remove DTV replication 
protection at the end of 2004 from a single-channel broadcaster that 
has been permitted to continue its analog operations on a digital 
allotment until the end of 2005 (or perhaps later). Instead, in such a 
case, the Commission believes that a broadcaster that is left with a 
DTV single-channel allotment as a result of a band-clearing arrangement 
should retain the interference protection associated with that DTV 
allotment for a period of 31 months after beginning to transmit in 
digital. This period is equal to the period of interference protection 
for unreplicated areas that the Commission provided to all broadcasters 
in the DTV Biennial Review Order.
    15. Spectrum Clearing Alliance's Comprehensive Band-Clearing Plan. 
In the Upper 700 MHz Third Report and Order, the Commission found that 
``secondary auctions'' or other such comprehensive market-oriented 
band-clearing mechanisms could be used to facilitate efficient band 
clearing.
    16. SCA asserted that, with Spectrum Exchange and other 
broadcasters, it is currently in the process of developing a 
``comprehensive'' band-clearing plan that is intended to serve as a 
framework for clearing the Channel 59-69 band. In its petition, SCA 
asked for a certain level of Commission involvement in executing its 
plan, and outlined certain actions to be taken by the Commission to 
assist in publicizing SCA's band-clearing plan.
    17. The Commission acknowledges that there are strong public 
interest benefits favoring comprehensive band clearing. However, the 
Commission finds that additional involvement beyond its existing 
processes is not necessary to facilitate SCA's proposed private 
clearing arrangement (or any other comprehensive clearing plans). Under 
a voluntary, comprehensive band-clearing scheme established prior to 
the auction, bidders in the Commission's auction will be able to bid 
with some certainty that the spectrum will be cleared and avoid the

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delay and expense of complex post-auction bargaining.
    18. The Commission finds that the Order on Reconsideration, in 
addition to the existing public processes for considering modification 
applications and associated regulatory requests to implement band-
clearing agreements, should be sufficient to maximize the likelihood 
that all potential participants would have actual notice of an 
opportunity to participate in voluntary, comprehensive band-clearing 
arrangements, such as that being developed by SCA.
    19. Expedited Processing of Regulatory Requests. In the Upper 700 
MHz Third Report and Order, the Commission found it unnecessary to 
adopt a 60-day application processing deadline. SCA requested 
reconsideration of the decision not to adopt an explicit timeline. In 
light of the substantial public interest benefits associated with 
voluntary band-clearing agreements, the Commission delegates to the 
Mass Media Bureau authority to establish a 90-day processing period for 
band-clearing requests. The Commission concludes that an explicit time 
period would promote certainty in the clearing process.
    20. License modification applications necessary to implement band-
clearing arrangements would be granted at the end of the 90-day time 
period, unless the application is found to be defective, is opposed, or 
an integral request for waiver or other regulatory request cannot be 
granted. Upon notice to the applicant, the Mass Media Bureau could toll 
the 90-day deadline during the period in which an applicant is 
responding to a staff request for additional information. The Mass 
Media Bureau could also, upon notice to the applicant, extend the 
processing period if the caseload of regulatory requests associated 
with band-clearing arrangements makes it administratively impractical 
to complete processing within a 90-day period. The 90-day processing 
period would not apply to those applications that do not make a prima 
facie case of meeting the presumptions previously established in this 
proceeding for voluntary requests associated with band-clearing 
arrangements or that are not otherwise entitled to streamlined 
processing. Staff will regularly issue notice of modifications granted 
pursuant to this process.
    21. Proposal to Relax Waiver Policies. Our previous decisions in 
this proceeding have provided guidance on a number of aspects of the 
Commission's treatment of regulatory requests associated with band-
clearing arrangements. In regard to such regulatory requests, SCA 
proposed that the Commission adopt a ``relaxed waiver standard'' with 
respect to interference to Class A stations or where other requirements 
(e.g., city grade coverage) are not met.
    22. In light of the balance that the Commission has achieved among 
the various objectives in this proceeding, it declines to adopt a 
general ``relaxed waiver'' policy.
    23. Treatment of Pending Channel 59-69 Applicants. The Commission 
confirms that broadcasters with pending DTV applications will be 
permitted to benefit from band-clearing policies announced in this 
proceeding. The Commission finds no principled reason to distinguish 
between those broadcasters that have already been granted authority to 
operate in this band and those that have not yet received an 
authorization. Clearing of both pending applications and authorized 
facilities would serve the objectives of this proceeding.
    24. The Commission continues to believe that voluntary agreements 
between broadcasters and new wireless licensees should result in the 
effective clearing of the 700 MHz band, and find no basis for 
disturbing our announced policy.

Procedural Matters

A. Regulatory Flexibility Act and Paperwork Reduction Act

    25. Section 213 of the Consolidated Appropriations Act, 2000 states 
that the Regulatory Flexibility Act (as well as certain provisions of 
the Contract With America Advancement Act of 1996 and the Paperwork 
Reduction Act) shall not apply to the rules and competitive bidding 
procedures governing the frequencies in the 746-806 MHz band (currently 
used for television broadcasts on Channels 60-69). Because the policies 
and rules adopted in the Order on Reconsideration of the Third Report 
and Order relate only to assignments of those frequencies, no Final 
Regulatory Flexibility Analysis or Paperwork Reduction Analysis is 
necessary.

B. Alternative Formats

    26. Alternative formats (computer diskette, large print, audio 
cassette and Braille) are available to persons with disabilities by 
contacting Brian Millin at (202) 418-7426 (voice), TTY (202) 418-7365, 
or at [email protected]. The Order on Reconsideration of the Third Report 
and Order can also be downloaded at http://www.fcc.gov/Bureaus/Wireless/Orders/2001/index.html.
    27. For further information concerning the Order on Reconsideration 
of the Third Report and Order, contact William Huber of the Auctions 
and Industry Analysis Division at (202) 418-0660 (voice), (202) 418-
7233 (TTY), e-mail: [email protected], Wireless Telecommunications Bureau, 
Washington, DC 20554.

Ordering Clauses

    28. Pursuant to sections 1, 2, 4(i), 5(c), 7(a), 301, 302, 303, 
307, 308, 309(j), 309(k), 311, 316, 319, 324, 331, 332, 333, 336, 337, 
614, and 615 of the Communications Act of 1934, as amended, 47 U.S.C. 
151, 152, 154(i), 155(c), 157(a), 301, 302, 303, 307, 308, 309(j), 
309(k), 311, 316, 319, 324, 331, 332, 333, 336, 337, 614, and 615, the 
Consolidated Appropriations Act, 2000, Public Law Number 106-113, 113 
Stat. 2502, and Sec. 1.425 of the Commission's rules, 47 CFR 1.425, it 
is ordered that the Order on Reconsideration of the Third Report and 
Order is hereby adopted.
    29. It is further ordered that, pursuant to sections 1, 2, 4(i), 
and 303 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 
152, 154(i) and 303, and Sec. 1.429 of the Commission's rules, 47 CFR 
1.429, the Petition for Reconsideration filed by MSTV on March 16, 2001 
is denied, and the Petitions for Reconsideration filed by Spectrum 
Clearing Alliance and Spectrum Exchange Group, LLC on March 16, 2001 
are granted to the extent discussed herein.
    30. It is further ordered that authority is hereby delegated to the 
Mass Media Bureau to implement the policies for the introduction of new 
wireless services and to promote the early transition of incumbent 
analog television licensees to DTV service to the extent discussed 
herein.

List of Subjects in 47 CFR Part 27

    Communications common carriers, Radio.

Federal Communications Commission.
Magalie Roman Salas,
Secretary.
[FR Doc. 01-25305 Filed 10-9-01; 8:45 am]
BILLING CODE 6712-01-P