[Federal Register Volume 68, Number 143 (Friday, July 25, 2003)]
[Rules and Regulations]
[Pages 43942-43946]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-19090]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 25 and 101

[ET Docket No. 98-206; RM-9147; RM-9245; FCC 03-97]


Order To Deny Petitions for Reconsideration of MVDDS Technical 
and Licensing Rules in the 12 GHz Band

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this document the Commission affirms the technical rules 
and procedures dealing with sharing of

[[Page 43943]]

spectrum between Multichannel Video Distribution and Data Service 
(MVDDS) and Direct Broadcast Satellite (DBS) and Non-geostationary 
(NGSO) fixed satellite service (FSS) in the 12.2-12.7 GHz band that the 
Commission adopted in the Memorandum Opinion and Order and Second 
Report and Order (Second R&O). The Commission also affirms the 
dismissal of the pending license applications to provide terrestrial 
service in the 12.2-12.7 GHz band. The Commission takes these actions 
in the course of addressing the petitions for reconsideration that were 
filed in response to the Second R&O in this proceeding. The Commission 
amends or clarifies certain rule sections, but otherwise denies the 
petitions for reconsideration. The adoption of the amended rules and 
the disposition of the petitions for reconsideration will facilitate 
initiation of MVDDS in the 12.2-12.7 GHz band.

DATES: Effective August 25, 2003, except Sec.  25.146 which contains 
information collection requirements that have not been approved by OMB. 
The Federal Communications Commission will publish a document in the 
Federal Register announcing the effective date. Written comments on the 
new and/or modified information collection(s) must be submitted by the 
public, Office of Management and Budget (OMB) and other interested 
parties on or before September 23, 2003.

FOR FURTHER INFORMATION CONTACT: Gary Thayer, Office of Engineering and 
Technology, (202) 418-2290, TTY (202) 418-2989, e-mail: 
[email protected]; Jennifer Burton, Wireless Telecommunications Bureau, 
(202) 418-7581, TTY (202) 418-7581, e-mail [email protected]. For 
additional information concerning the information collections contained 
in this document, contact Les Smith at (202) 418-0217, or via the 
Internet at [email protected].

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Fourth 
Memorandum Opinion and Order, ET Docket No. 98-206, FCC 03-97, adopted 
April 22, 2003, and released April 29, 2003. The full text of this 
Commission decision is available on the Commission's Internet site at 
http://www.fcc.gov. It is available for inspection and copying during 
normal business hours in the FCC Reference Information Center, Room CY-
A257, 445 12th Street, SW., Washington, DC 20554. The complete text of 
this document also may be purchased from the Commission's copy 
contractor, Qualex International, 445 12th Street, SW., Room, CY-B402, 
Washington, DC 20554. Alternative formats are available to persons with 
disabilities by contacting Brian Millin at (202) 418-7426 or TTY (202) 
418-7365. File comments with the Office of the Secretary, a copy of any 
comments on the information collection contained herein should be 
submitted to Les Smith, Federal Communications Commission, Room 1-A804, 
445 12th Street, SW., Washington, DC 20554 or via the Internet to 
[email protected], and to Kim A. Johnson, OMB Desk Officer, Room 
10236 NEOB, 725 17th Street, NW., Washington, DC 20503 or via the 
Internet to Kim [email protected].

Summary of the Fourth Memorandum Opinion and Order

    1. DBS Issues. In this Fourth Memorandum Opinion and Order (Fourth 
MO&O), the Commission affirms that the four regional EPFD limits and 
the 14 dBm EIRP limit adopted for MVDDS operation constitute objective 
standards that will prevent harmful interference to DBS as defined by 
Sec.  2.1 of the Commission's rules and will provide certainty that, 
along with other reasonable procedures that were adopted, can be 
discerned and relied upon by DBS operators. The Commission declines to 
adopt higher EIRP and EPFD limits for rural areas because the adopted 
standards are sufficiently conservative to protect DBS in general 
application while preserving the flexibility for each MVDDS provider to 
make its own business decisions about what type of transmission system 
best suits its needs.
    2. The Commission affirms that the rules and procedures adopted in 
the Second R&O, (ET Docket No. 98-206), 67 FR 43031, June 26, 2002 
comply with the legislative history and provisions of the Rural Local 
Broadcast Signal Act (RLBSA) and the Satellite Home Viewer Protection 
Act (SHVIA) \1\ that prohibit harmful interference to DBS. The 
Commission finds that, under the powers granted by the Communications 
Act, it was proper to define interference standards in terms of EPFD 
and EIRP limits on MVDDS that it concluded would prevent harmful 
interference to DBS. The Commission further finds that the adoption of 
these standards complies with the Administrative Procedure Act (APA) 
because they were developed through the usual notice and comment rule 
making process.
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    \1\ Satellite Home Viewer Improvement Act Of 1999 (SHVIA)/Rural 
Local Broadcast Signal Act (RLBSA). See Public Law 106-113, 113 
STAT. 1501, 1501A-544 TO 101A-545, Act of Nov. 29, 1999 (enacting 
S.1948, including the SHVIA and RLBSA. Titles I and II of the 
Intellectual Property and Communications Omnibus Reform Act of 
1999).
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    3. The Commission affirms that the rules and procedures adopted in 
the Second R&O do not violate other Commission rules or international 
radio regulations, and are consistent with the regulatory history of 
DBS and FS allocations in the 12 GHz band because MVDDS, unlike 
previous FS operations, is designed to coexist with DBS and because the 
adopted rules and procedures will prevent harmful interference to DBS.
    4. The Commission affirms the self-mitigation responsibilities 
adopted in the Second R&O for new DBS receivers and finds that they are 
consistent with the primary status of DBS because, due to their modest, 
effective and infrequently required nature, they strike an appropriate 
public interest balance that will result in more efficient spectrum 
utilization and will facilitate compliance with the non-harmful 
interference provisions of the statutes while allowing initiation of a 
new service.
    5. The Commission finds that adequate notice was given for the 
computer model used to derive the EPFD limits on MVDDS, and that the 
various inputs for this model--including using a 10% increase in DBS 
unavailability as a starting point rather than as a hard limit, the 
``double averaging'' of EPFDs, and the decision not to include ``wing 
satellites''--are reasonable and supported by the evidence of record 
particularly in light of the deficiencies or impracticalities involved 
in other models that were considered.
    6. The Commission affirms that the ``safety valve'' rule, as 
written, is sufficiently specific and is a useful tool to ensure that 
MVDDS operations fully protect DBS. Consistent with past practice, the 
Commission notes that in many cases it has provided opportunities for 
licensees to petition for adjustments to rules (outside the waiver 
process) without specifying in exacting detail how such a filing should 
be made.
    7. The Commission affirms its decision to require that MVDDS 
conduct a site survey as specified in Sec.  101.1440(b) of the 
Commission's rules and finds that, in conjunction with other adopted 
procedures, it has provided sufficient detail and specificity--similar 
in nature to the broad good-faith-based guidelines that have proven to 
be both workable and beneficial in other proceedings--that the 
Commission concludes will protect DBS customers in this proceeding.

[[Page 43944]]

    8. The Commission affirms the 45-day DBS response time specified in 
Sec.  101.1440(d)(2) of the Commission's rules, because it provides a 
reasonable balance between the needs of DBS licensees to ensure 
protection of their customers before MVDDS begins operation while 
affording MVDDS licensees the ability to initiate service on a 
reasonably expeditious basis. Further, the Commission concludes that 
DBS customers are protected once MVDDS begins operation because the 
MVDDS provider must correct interference or cease operation if it 
causes harmful interference to or exceeds the permitted EPFD limits to 
a DBS customer of record.
    9. The Commission amends Sec.  101.1440(e) of the rules to clarify 
the responsibility of DBS licensees in regard to future DBS receive 
antenna installations. The Commission recognizes that Sec.  101.1440(e) 
of the rules adopted in the Second R&O appears to require a DBS 
licensee to oversee all future DBS receive antenna installations, which 
they currently may not do. It was not intent of the Commission to alter 
these arrangements. Rather, the Commission only expects a DBS licensee 
to provide information that they deem necessary so that other entities 
installing DBS receive antennas may take into account the presence of 
MVDDS operations. Typically, this information could be conveyed with 
installation guidelines for DBS equipment.
    10. The Commission amends Sec.  101.1440(d)(2) of the rules to 
allow DBS providers to identify--instead of all DBS customers of 
record--only those new DBS customers of record that they believe would 
receive harmful interference from the proposed MVDDS transmitter during 
the 30-day period specified in the rule. The Commission takes this 
action to address petitioners' concern regarding the possible uses to 
which other parties could put such information.
    11. The Commission declines to adopt a methodology for measuring 
EPFD values in the field because any measurement techniques that might 
be described would artificially limit the flexibility of the licensees 
to perform these measurements, and could seemingly prohibit the use of 
a technique that is satisfactory for this purpose.
    12. Concerning dispute resolution procedures, the Commission 
clarifies that an MVDDS transmitter can be turned on after expiration 
of the 90-day period specified in Sec.  101.1440 of the rules. The 
Commission believes that the adopted EPFD contour methodology will 
reduce disputes to a minimum, and this time frame will ensure that 
licensees participate in conflict resolution in good faith.
    13. The Commission affirms its decision to dismiss the pending 
applications of Broadwave Network, LLC (Northpoint), PDC Broadband 
Corporation (Pegasus), and Satellite Receivers, Ltd. (SRL) because the 
original Ku-band Cut-Off Notice did not provide adequate notice for all 
entities interested in filing applications for licenses to provide 
terrestrial services in the 12 GHz band. The Commission further finds 
that its decision to dismiss the pending applications is consistent 
with the LOCAL TV Act because there is no evidence that Congress 
explicitly ordered the Commission to limit terrestrial applications in 
this band to those already on file and validated by independent 
testing.
    14. The Commission finds that the rules and procedures adopted in 
the Second R&O do not violate the Administrative Procedure Act (APA) 
because the decisions were fully explained and rationally based upon 
all the information in the record and, therefore, are not arbitrary, 
capricious or contrary to law.
    15. The Commission finds that the adoption of the Second R&O did 
not violate the provisions of the Government in the Sunshine Act 
(Sunshine Act) because the item was not adopted at an open meeting as 
defined by the Act and that, therefore, the Sunshine Act is not 
applicable.
    16. The Commission dismisses, as repetitious, the petitions for 
reconsideration to the extent that they challenge the underlying 
decision in the First Report and Order, 66 FR 10601, February 16, 2001, 
and Further Notice of Proposed Rulemaking, 66 FR 7607, January 24, 
2001, in this proceeding to authorize MVDDS in the 12 GHz band, and to 
the extent they challenge the determination made in the memorandum 
opinion and order portion of the Second R&O that MVDDS is authorized on 
a primary, rather than secondary, non-harmful interference basis as to 
DBS.
    17. The Commission denies as not ripe, because it relies upon 
purely speculative conjecture, a petition for reconsideration that 
asserts that DBS providers might at some time in the future suffer a 
``regulatory taking'' as the result of being required to increase 
satellite power to overcome MVDDS interference.
    18. NGSO FSS Issues. The Commission affirms the -135 dBW/m\2\/4kHz 
PFD limit at 3 km, and the 10 km separation rules for MVDDS because 
they provide reasonable interference protection to NGSO FSS and strike 
a reasonable balance between affording the first in service provider 
with easier and better use of the band while not unduly precluding 
deployment by the later-in provider. The Commission affirms its finding 
that an alternate NGSO FSS protection scheme proposed by one petitioner 
is unduly complex and provides no benefit over the adopted limits.
    19. The Commission amends Sec.  25.139(a) to reflect that the 
information NGSO FSS licensees are required to provide MVDDS should be 
construed narrowly and that only information necessary to achieve the 
required 10 km separation under Sec.  25.139(b) needs to be provided.
    20. The Commission clarifies the NGSO FSS low-angle PFD limit of 
Sec.  25.208(o) for MVDDS protection. The limit will be treated in a 
manner consistent with the rules for NGSO FSS and BSS sharing where 
validation (i.e., ``hard limit'') and operational (i.e., can be 
exceeded so long as they are not exceeded into an operational receiver) 
EPFD limits were adopted. The low-angle PFD limit adopted by the 
Commission in the Second R&O for MVDDS protection is therefore intended 
to be an operational limit which means that it does not need to be met 
in all cases so long as it is not exceeded into an operational MVDDS 
receiver. To clarify this intent, the Commission modifies Sec.  25.146 
to add paragraph (g) to specify that the required technical showing 
shall demonstrate the NGSO FSS system is capable of meeting the limits 
specified in Sec.  25.208(o). The Commission also amends Sec.  
25.208(o) to require that the specified power flux density shall not be 
exceeded into an operational MVDDS receiver.
    21. The Commission clarifies the MVDDS emission mask by amending 
the footnote immediately after the definition of ``B'' in Sec.  
101.111(a)(2)(i) to add the proviso that the emission mask only applies 
at the 12.2-12.7 GHz band edges and does not restrict MVDDS 
channelization bandwidths within the band.
    22. Paperwork Reduction Act Analysis: This Fourth Memorandum 
Opinion and Order contains a new or modified information collections. 
This Commission, as part of its continuing effort to reduce paperwork 
burdens, invites the general public and the Office of Management and 
Budget to comment on the information collections contained in the 
Fourth Memorandum Opinion and Order, as required by the Paperwork 
Reduction Act of 1995,

[[Page 43945]]

Public Law 104-13. Public and agency comments are due September 23, 
2003.

Final Regulatory Flexibility Certification

    23. The Regulatory Flexibility Act of 1980, as amended (RFA),\2\ 
requires that a regulatory flexibility analysis be prepared for notice-
and-comment rule making proceedings, unless the agency certifies that 
``the rule will not, if promulgated, have a significant economic impact 
on a substantial number of small entities.'' \3\ The RFA generally 
defines the term ``small entity'' as having the same meaning as the 
terms ``small business,'' ``small organization,'' and ``small 
governmental jurisdiction.'' \4\ In addition, the term ``small 
business'' has the same meaning as the term ``small business concern'' 
under the Small Business Act.\5\ A ``small business concern'' is one 
which: (1) Is independently owned and operated; (2) is not dominant in 
its field of operation; and (3) satisfies any additional criteria 
established by the Small Business Administration (SBA).\6\
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    \2\ The RFA, see 5 U.S.C. 601--612, has been amended by the 
Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 
Public Law 104-121, Title II, 110 Stat. 857 (1996).
    \3\ 5 U.S.C. 605(b).
    \4\ 5 U.S.C. 601(6).
    \5\ 5 U.S.C. 601(3) (incorporating by reference the definition 
of ``small-business concern'' in the Small Business Act, 15 U.S.C. 
632). Pursuant to 5 U.S.C. 601(3), the statutory definition of a 
small business applies ``unless an agency, after consultation with 
the Office of Advocacy of the Small Business Administration and 
after opportunity for public comment, establishes one or more 
definitions of such term which are appropriate to the activities of 
the agency and publishes such definition(s) in the Federal 
Register.''
    \6\ 15 U.S.C. 632.
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    24. Under the amended rules adopted in the Fourth Memorandum 
Opinion and Order, DBS licensees are required to provide the MVDDS 
licensee with a list of only those new DBS customer locations that have 
been installed in the 30-day period following the MVDDS notification 
and that the DBS licensee believes may receive harmful interference or 
where the prescribed equivalent power flux density (EPFD) limits may be 
exceeded. This requirement is less burdensome than the rule adopted in 
the Second R&O \7\ that required disclosure of all DBS customer 
locations under similar circumstances. Furthermore, under the amended 
rules, DBS licensees are required to provide merely the information 
deemed necessary by DBS licensees to enable others to take into account 
the presence of MVDDS transmitters. This requirement is less burdensome 
than the rule adopted in the Second R&O that imposed direct 
responsibility on DBS licensees for proper siting of future DBS 
receivers to take into account the presence of MVDDS.
    25. Licensees of NGSO FSS systems are required to submit, ninety 
days prior to the initiation of service to the public, a technical 
showing that demonstrates that they are capable of meeting low-angle 
radiation limits specified in Sec.  25.208(o) of the Commission's rules 
for the 12.2-12.7 GHz band. Finally, licensees of NGSO FSS systems are 
required under the amended rules to ensure that the PFD limit is not 
exceeded into an operational MVDDS receiver. Taken together, these 
requirements are less burdensome than those adopted in the Second R&O 
because they merely require a showing that the NGSO FSS system is 
capable of meeting (instead of demonstrating the system has factually 
met) the specified technical limits, and because the PFD limit need 
only be met into operational, rather than all, MVDDS receivers.
    26. These changes are deregulatory because they lessen compliance 
requirements. Therefore, we certify that the requirements of the Fourth 
Memorandum Opinion and Order will not have a significant economic 
impact on a substantial number of small entities.
    27. The Commission will send a copy of the Fourth Memorandum 
Opinion and Order, including a copy of this Final Regulatory 
Flexibility Certification, in a report to Congress pursuant to the 
Congressional Review Act.\8\ In addition, the Fourth Memorandum Opinion 
and Order and this final certification will be sent to the Chief 
Counsel for Advocacy of the SBA.\9\
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    \7\ Second R&O, 17 FCC Rcd 9614 (2002).
    \8\ See 5 U.S.C. 801(a)(1)(A).
    \9\ See 5 U.S.C. 605(b).
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Ordering Clauses

    28. Pursuant to sections 4(i), 302, 303(e) 303(f), 303(g), 303(r) 
and 405 of the Communications Act of 1934, as amended, 47 U.S.C. 
154(i), 302, 303(e), 303(f), 303(g) and 405, the petitions for 
reconsideration filed by Pegasus Broadband Corporation, MDS America, 
Inc., EchoStar Satellite Corporation and DIRECTV, Inc., SkyBridge 
L.L.C., SES Americom, Inc., and Satellite Broadcasting and 
Communications Association Are denied.
    29. Parts 25 and 101 of the Commission's rules are amended as 
specified in the rule changes, effective August 25, 2003, except Sec.  
25.146 which contains information collection requirements which have 
not been approved by the Office of Management and Budget (``OMB''). The 
Commission will publish a document in the Federal Register announcing 
the effective date. This action is taken pursuant to sections 4(i), 
303(c), 303(f), 303(g) 303(r) and 309(j) of the Communications Act of 
1934, as amended, 47 U.S.C. 154(i), 303(c), 303(f), 303(g), 303(r) and 
309(j).
    30. It is further ordered that the proceeding in ET Docket No. 98-
206 is terminated.

List of Subjects

47 CFR Part 25

    Communications common carriers, Communications equipment, Radio, 
Reporting and recordkeeping requirements, Satellites, Securities, and 
Telecommunications.

47 CFR Part 101

    Communications equipment, Radio, and Reporting and recordkeeping 
requirements.

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

Final Rules

0
For the reasons discussed in the preamble, the Federal Communications 
Commission amends 47 CFR parts 25 and 101 as follows:

PART 25--SATELLITE COMMUNICATIONS

0
1. The authority citation for part 25 continues to read as follows:

    Authority: 47 U.S.C. 701-744. Interprets or applies Sections 4, 
301, 302, 303, 307, 309 and 332 of the Communications Act, as 
amended. 47 U.S.C. Sections 154, 301, 302, 303, 307, 309, and 332, 
unless otherwise noted.


0
2. Section 25.139 is amended by revising paragraph (a) to read as 
follows:


Sec.  25.139  NGSO FSS coordination and information sharing between 
MVDDS licensees in the 12.2 GHz to 12.7 GHz band.

    (a) NGSO FSS licensees shall maintain a subscriber database in a 
format that can be readily shared with MVDDS licensees for the purpose 
of determining compliance with the MVDDS transmitting antenna spacing 
requirement relating to qualifying existing NGSO FSS subscriber 
receivers set forth in Sec.  101.129 of this chapter. This information 
shall not be used for purposes other than set forth in Sec.  101.129 of 
this chapter. Only sufficient information to determine compliance with 
Sec.  101.129 of this chapter is required.
* * * * *

[[Page 43946]]


0
3. Section 25.146 is amended by redesignating paragraphs (g) through 
(m) as paragraphs (h) through (n) and by adding a new paragraph (g) to 
read as follows.


Sec.  25.146  Licensing and operating authorization provisions for the 
non-geostationary satellite orbit fixed-satellite service (NGSO FSS) in 
the bands 10.7 GHz to 14.5 GHz.

* * * * *
    (g) Operational power flux density, space-to-Earth direction, 
limits. Ninety days prior to the initiation of service to the public, 
the NGSO FSS system licensee shall submit a technical showing for the 
NGSO FSS system in the band 12.2-12.7 GHz. The technical information 
shall demonstrate that the NGSO FSS system is capable of meeting the 
limits as specified in Sec.  25.208(o). Licensees may not provide 
service to the public if they fail to demonstrate compliance with the 
PFD limits.
* * * * *

0
4. In Sec.  25.208, paragraph (n), which was added at 67 FR 43037, June 
26, 2002, is correctly designated as paragraph (o) and revised to read 
as follows:


Sec.  25.208  Power flux density limits.

* * * * *
    (o) In the band 12.2-12.7 GHz, for NGSO FSS space stations, the 
specified low-angle power flux-density at the Earth's surface produced 
by emissions from a space station shall not be exceeded into an 
operational MVDDS receiver:
    (1) 158 dB(W/m2) in any 4 kHz band for angles of arrival 
between 0 and 2 degrees above the horizontal plane; and
    (2) 158 + 3.33([delta] - 2) dB(W/m2) in any 4 kHz band 
for angles of arrival ([delta]) (in degrees) between 2 and 5 degrees 
above the horizontal plane.
    Note to paragraph (o):
    These limits relate to the power flux density, which would be 
obtained under assumed free-space propagation conditions.

PART 101--FIXED MICROWAVE SERVICES

0
5. The authority citation for part 101 continues to read as follows:

    Authority: 47 U.S.C. 154, 303.


0
6. Section 101.111 is amended by revising paragraph (a)(2)(i) to read 
as follows:


Sec.  101.111  Emission limitations.

    (a) * * *
    (2) * * *
    (i) For operating frequencies below 15 GHz, in any 4 KHz band, the 
center frequency of which is removed from the assigned frequency by 
more than 50 percent up to and including 250 percent of the authorized 
bandwidth: As specified by the following equation but in no event less 
than 50 decibels:

A = 35 + 0.8(P - 50) + 10 Log10 B. (Attenuation greater than 
80 decibels is not required.)
where:
    A = Attenuation (in decibels) below the mean output power level.
    P = Percent removed from the carrier frequency.
    B = Authorized bandwidth in MHz. MVDDS operations in the 12.2-12.7 
GHz band shall use 24 megahertz for the value of B in the emission mask 
equation set forth in this section. MVDDS operations in the 12.2-12.7 
GHz bands shall use 24 megahertz for the value of B in the emission 
mask equation set forth in this section. The emission mask limitation 
shall only apply at the 12.2-12.7 GHz band edges and does not restrict 
MVDDS channelization bandwidth within the band.
* * * * *

0
8. Section 101.1440 is amended by revising paragraph (d)(2) and (e) to 
read as follows.


Sec.  101.1440  MVDDS protection of DBS.

* * * * *
    (d) * * *
    (2) No later than forty-five days after receipt of the MVDDS system 
information in paragraph (d)(1) of this section, the DBS licensee(s) 
shall provide the MVDDS licensee with a list of only those new DBS 
customer locations that have been installed in the 30-day period 
following the MVDDS notification and that the DBS licensee believes may 
receive harmful interference or where the prescribed EPFD limits may be 
exceeded. In addition, the DBS licensee(s) could indicate agreement 
with the MVDDS licensee's technical assessment, or identify DBS 
customer locations that the MVDDS licensee failed to consider or DBS 
customer locations where they believe the MVDDS licensee erred in its 
analysis and could exceed the prescribed EPFD limit.
* * * * *
    (e) Beginning thirty days after the DBS licensees are notified of a 
potential MVDDS site in paragraph (d)(1) of this section, the DBS 
licensees are responsible for providing information they deem necessary 
for those entities who install all future DBS receive antennas on its 
system to take into account the presence of MVDDS operations so that 
these DBS receive antennas can be located in such a way as to avoid the 
MVDDS signal. These later installed DBS receive antennas shall have no 
further rights of complaint against the notified MVDDS transmitting 
antenna(s).
* * * * *
[FR Doc. 03-19090 Filed 7-24-03; 8:45 am]
BILLING CODE 6712-01-P