[Federal Register Volume 69, Number 109 (Monday, June 7, 2004)]
[Rules and Regulations]
[Pages 31745-31751]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-12708]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 25 and 101

[ET Docket No. 98-206; RM-9147; RM-9245; DA 04-1554]


Amendment of the Commission's Rules Governing Multichannel Video 
Distribution and Data Service in the 12.2-12.7 GHz Band

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: On April 11, 2002, the Commission adopted rules to establish 
technical, service and licensing rules governing Multichannel Video 
Distribution and Data Service (MVDDS) in the 12 GHz band. Because an 
error was made in the publication of the final rules, this document 
contains correcting amendments to the final rules that were published 
in the Federal Register. This document also updates Sec.  101.1417 to 
reflect the Commission's reorganization of the Wireless 
Telecommunications Bureau in 2003.

DATES: Effective on June 7, 2004.

FOR FURTHER INFORMATION CONTACT: Jennifer Mock, Broadband Division, 
Wireless Telecommunications Bureau at (202) 418-2487.

SUPPLEMENTARY INFORMATION: The Federal Communications Commission 
published in the Federal Register final rules, 67 FR 43031, (June 26, 
2002), in the above captioned proceeding (Memorandum Opinion and Order 
and Second Report and Order). In six rules related to MVDDS, there were 
errors in the version published in the Federal Register. This document 
corrects them to conform to the rules adopted by the Commission on 
April 11, 2002, and released on May 23, 2002, in addition to amendments 
to the rules subsequently adopted by the Commission. The subsequent 
rule changes were adopted by the Commission and published in the 
Federal Register in 68 FR 4953, (January 31, 2003), (Report and Order 
in WT Dkt. 00-19), 68 FR 16446, April 4, 2003, (Third Memorandum 
Opinion and Order); 68 FR 42610, (July 18, 2003), (Third Report and 
Order); 68 FR 43942, (July 25, 2003), (Fourth Memorandum Opinion and 
Order); 68 FR 34336, (June 9, 2003), (Second Memorandum Opinion and 
Order); as well as in errata released on July 31, 2003 (18 FCC Rcd 
15310), and August 14, 2002 (17 FCC Rcd 15849).
    The rules require correction as follows:
     In section 25.208(o)(1) and (2), negative signs must be 
inserted to precede numbers at the beginning of each paragraph.
     Section 101.105 must be revised to conform to the adopted 
version of the rule and to correct other editorial errors.
     Section 101.111 must be revised because the instruction 
published at 68 FR 43946 (Fourth MO&O revisions to Sec.  101.111) 
neglected to reflect revisions to this rule that were published in the 
Federal Register, 68 FR 4956, (January 31, 2003).
     Section 101.1412 must be revised to conform to the adopted 
version of the rule, which applies the cable cross-ownership rule where 
a particular percentage of households that subscribe to one or more 
Multichannel Video Program Distributors (MPVDs) within the MVDDS 
operator's license area.
     The title of Sec.  101.1421 must be revised to conform to 
the title appearing in the Table of Contents.
     Section 101.1440(f) requires revision to conform to the 
adopted version of the rule, specifically clarifying circumstances 
under which a modification to an MVDDS station would trigger 
requirements to protect DBS receivers.
    In this document, revisions to Sec. Sec.  25.208, 101.105, and 
101.111, reflect the specific revisions. The rules in part 101, subpart 
P (Sec. Sec.  101.1401-101.1440) are republished in their entirety for 
clarity; however, only Sec. Sec.  101.1412, 101.1421, and 101.1440 
require editorial correction. In addition, Sec.  101.1417 requires a 
nonsubstantive update to reflect the Commission's reorganization of the 
Wireless Telecommunications Bureau, effective November 13, 2003, under 
which the relevant duties of the former Public Safety and Private 
Wireless Division were assumed by the Broadband Division. See 
Reorganization of the Wireless Telecommunications Bureau, Order, 18 FCC 
Rcd 25414 (2003). Because we are publishing the Order, DA 04-1554 (rel. 
May 28, 2004), the Erratum, DA 04-336 (rel. Feb. 9, 2004), 19 FCC Rcd 
2355 (WTB BD 2004) will not be published in the Federal Register.

Procedural Matters

    Any impact as defined by the Paperwork Reduction Act of 1995 (PRA), 
Public Law 104-13, the Congressional Review Act (CRA), and the 
Regulatory Flexibility Act of 1980, as amended (RFA) was addressed at 
the time of adoption and release of the Memorandum Opinion and Order 
and Second Report and Order, FCC 02-116, adopted on April 11, 2002, and 
released on May 23, 2003, 67 FR 43031 (June 26, 2002). Therefore, the 
PRA, CRA and RFA requirements have already been fulfilled for these 
rules.

List of Subjects in 47 CFR Parts 25 and 101

    Communications common carriers, Communications equipment, Radio.

Federal Communications Commission.
Andrew S. Fishel,
Managing Director.

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. 154, 301, 302, 303, 307, 309 and 332, unless 
otherwise noted.


0
2. Section 25.208 is amended by revising paragraphs (o)(1) and (2) to 
read as follows:


Sec.  25.208  Power flux density limits.

* * * * *
    (o) * * *
    (1) -158 dB(W/m2) in any 4 kHz band for angles of 
arrival between 0 and

[[Page 31746]]

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.
* * * * *

PART 101--FIXED MICROWAVE SERVICES

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

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

0
4. Section 101.105 is amended by revising paragraph (a)(4) and 
paragraph (d) introductory text to read as follows:


Sec.  101.105  Interference protection criteria.

    (a) * * *
    (4) 12.2-12.7 GHz band. (i) To accommodate co-primary NGSO FSS 
earth stations in the 12.2-12.7 GHz band, the PFD of an MVDDS 
transmitting system must not exceed -135 dBW/m2 in any 4 kHz 
band at a reference point at the surface of the earth at a distance 
greater than 3 kilometers from the MVDDS transmitting antenna.
    (ii) To accommodate co-primary Direct Broadcast Satellite Service 
earth stations, an MVDDS transmitting system must not exceed the EPFD 
levels specified in paragraph (a)(4)(ii)(B) of this section at any DBS 
subscriber location in accordance with the procedures listed in Sec.  
101.1440 of this part.
    (A) Definition of equivalent power flux density: The equivalent 
power flux density (EPFD) is the power flux density produced at a 
direct broadcast service (DBS) receive earth station, taking into 
account shielding effects and the off-axis discrimination of the 
receiving antenna assumed to be pointing at the appropriate DBS 
satellite(s) from the transmitting antenna of a multichannel video 
distribution and data service (MVDDS) transmit station. The EPFD in 
dBW/m2 in the reference bandwidth is calculated using the 
following formula:
[GRAPHIC] [TIFF OMITTED] TR07JN04.000


Where:

Pout = Total output power of the MVDDS transmitter (watts) 
into antenna
Gm ([thetas]m,[phis]m = Gain of the MVDDS antenna 
in the direction of the DBS earth station
Ge ([thetas]e,[phis]e = Gain of the 
earth station in the direction of the MVDDS antenna
I = Interference scaling factor for the earth station (1 dB for MVDDS 
transmitters employing the modulation discussed in Section 3.1.5 of the 
MITRE Report (i.e., a QPSK modulated signal passed through a square-
root raised cosine filter). For other modulation and filtering schemes, 
the interference scaling factor can be measured using the procedures 
described in Appendix A of the MITRE Report available at http://www.fcc.gov/oet/info/mitrereport/mitrereport_4_01.pdf).
Ge,max = Maximum gain of the DBS earth station
d = the distance between the MVDDS transmitting antenna and the DBS 
earth station (meters)

    (B) Regional equivalent power flux density levels:

    (1) -168.4 dBW/m2/4kHz in the Eastern region consisting 
of the District of Columbia and the following states: Maine, New 
Hampshire, Vermont, Massachusetts, Rhode Island, Connecticut, New York, 
New Jersey, Pennsylvania, Delaware, Maryland, Virginia, West Virginia, 
Kentucky, Tennessee, North Carolina, South Carolina, Georgia, Alabama, 
Mississippi, Louisiana, and Florida;
    (2) -169.8 dBW/m2/4kHz in the Midwestern region 
consisting of the following states: Ohio, Michigan, Indiana, Wisconsin, 
Illinois, Minnesota, Iowa, Missouri, Arkansas, South Dakota, Nebraska, 
Kansas, Oklahoma, and Texas;
    (3) -171.0 dBW/m2/4kHz in the Southwestern region 
consisting of the following states: Wyoming, Colorado, New Mexico, 
Utah, Arizona, Nevada, and California (south of 37[deg] North 
Latitude);
    (4) -172.1 dBW/m2/4kHz in the Northwestern region 
consisting of the following states: Washington, Oregon, California 
(north of 37[deg] North Latitude), Idaho, Montana, North Dakota, 
Alaska, and Hawaii.
    (iii) Except for public safety entities, harmful interference 
protection from MVDDS stations to incumbent point-to-point 12 GHz fixed 
stations is not required. Incumbent point-to-point private operational 
fixed 12 GHz stations, except for public safety entities, are required 
to protect MVDDS stations under the process described in Sec.  
101.103(d) of this part.
* * * * *
    (d) Effective August 1, 1985, when a fixed station that conforms to 
the technical standards of this subpart (or, in the case of the 12,200-
12,700 MHz band, for an incumbent non-MVDDS station or a direct 
broadcast satellite station) receives or will receive interference in 
excess of the levels specified in this section as a result of an 
existing licensee's use of non-conforming equipment authorized between 
July 20, 1961 and July 1, 1976, and the interference would not result 
if the interfering station's equipment complied with the current 
technical standards, the licensee of the non-conforming station must 
take whatever steps are necessary to correct the situation up to the 
point of installing equipment which fully conforms to the technical 
standards of this subpart. In such cases, if the engineering analysis 
demonstrates that:
* * * * *

0
5. 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 
or to an absolute power of less than -13 dBm/1MHz is not required.) 
where:
A = Attenuation (in decibels) below the mean output power level.
P = Percent removed from the center frequency of the transmitter 
bandwidth.
B = Authorized bandwidth in MHz.

    Note:
    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. 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.


* * * * *

[[Page 31747]]


0
6. Part 101, subpart P is revised to read as follows:

Subpart P--Multichannel Video Distribution and Data Service Rules 
for the 12.2-12.7 GHz Band

Sec.
101.1401 Service areas.
101.1403 Broadcast carriage requirements.
101.1405 Channeling plan.
101.1407 Permissible operations for MVDDS.
101.1409 Treatment of incumbent licensees.
101.1411 Regulatory status and eligibility.
101.1412 MVDDS eligibility restrictions for cable operators.
101.1413 License term and renewal expectancy.
101.1415 Partitioning and disaggregation.
101.1417 Annual report.
101.1421 Coordination of adjacent area MVDDS stations.
101.1423 Canadian and Mexican coordination.
101.1425 RF safety.
101.1427 MVDDS licenses subject to competitive bidding.
101.1429 Designated entities.
101.1440 MVDDS protection of DBS.


Sec.  101.1401  Service areas.

    Multichannel Video Distribution and Data Service (MVDDS) is 
licensed on the basis of Designated Market Areas (DMAs). The 214 DMA 
service areas are based on the 210 Designated Market Areas delineated 
by Nielsen Media Research and published in its publication entitled 
U.S. Television Household Estimates, September 2002, plus four FCC-
defined DMA-like service areas.
    (a) Alaska--Balance of State (all geographic areas of Alaska not 
included in Nielsen's three DMAs for the state: Anchorage, Fairbanks, 
and Juneau);
    (b) Guam and the Northern Mariana Islands;
    (c) Puerto Rico and the United States Virgin Islands; and
    (d) American Samoa.


Sec.  101.1403  Broadcast carriage requirements.

    MVDDS licensees are not required to provide all local television 
channels to subscribers within its area and thus are not required to 
comply with the must-carry rules, nor the local signal carriage 
requirements of the Rural Local Broadcast Signal Act. See Multichannel 
Video and Cable Television Service Rules, Subpart D (Carriage of 
Television Broadcast Signals), 47 CFR 76.51-76.70. If an MVDDS licensee 
meets the statutory definition of Multiple Video Programming 
Distributor (MVPD), the retransmission consent requirement of section 
325(b)(1) of the Communications Act of 1934, as amended (47 U.S.C. 
325(b)(1)) shall apply to that MVDDS licensee. Any MVDDS licensee that 
is an MVPD must obtain the prior express authority of a broadcast 
station before retransmitting that station's signal, subject to the 
exceptions contained in section 325(b)(2) of the Communications Act of 
1934, as amended (47 U.S.C. 325(b)(2)). Network nonduplication, 
syndicated exclusivity, sports blackout, and leased access rules shall 
not be imposed on MVDDS licensees.


Sec.  101.1405  Channeling plan.

    Each license shall have one spectrum block of 500 megahertz per 
geographic area that can be divided into any size channels. 
Disaggregation is not allowed.


Sec.  101.1407  Permissible operations for MVDDS.

    MVDDS licensees must use spectrum in the 12.2-12.7 GHz band for any 
digital fixed non-broadcast service (broadcast services are intended 
for reception of the general public and not on a subscribership basis) 
including one-way direct-to-home/office wireless service. Mobile and 
aeronautical services are not authorized. Two-way services may be 
provided by using other spectrum or media for the return or upstream 
path.


Sec.  101.1409  Treatment of incumbent licensees.

    Terrestrial private operational fixed point-to-point licensees in 
the 12.2-12.7 GHz band which were licensed prior to MVDDS or NGSO FSS 
satellite stations are incumbent point-to-point stations and are not 
entitled to protection from harmful interference caused by later MVDDS 
or NGSO FSS entrants in the 12.2-12.7 GHz band, except for public 
safety stations which must be protected. MVDDS and NGSO FSS operators 
have the responsibility of resolving any harmful interference problems 
that their operations may cause to these public safety incumbent point-
to-point operations in the 12.2-12.7 GHz band. Incumbent public safety 
terrestrial point-to-point licensees may only make minor changes to 
their stations without losing this protection. This does not relieve 
current point-to-point licensees of their obligation to protect BSS 
operations in the subject frequency band. All point-to-point 
applications, including low-power operations, for new licenses, major 
amendments to pending applications, or major modifications to existing 
licenses for the 12.2-12.7 GHz band are no longer accepted except for 
renewals and changes in ownership. See Sec.  1.929 of this chapter for 
definitions of major and minor changes.


Sec.  101.1411  Regulatory status and eligibility.

    (a) MVDDS licensees are permitted to provide one-way video 
programming and data services on a non-common carrier and/or on a 
common carrier basis. MVDDS is not required to be treated as a common 
carrier service unless it is providing non-Internet voice and data 
services through the public switched network.
    (b) MVDDS licensees in the 12.2-12.7 GHz band are subject to the 
requirements set forth in Sec.  101.7.
    (c) Any entity, other than one precluded by Sec. Sec.  101.7 and 
101.1412, is eligible for authorization to provide MVDDS under this 
part. Authorization will be granted upon proper application filing in 
accordance with the Commission's rules.


Sec.  101.1412  MVDDS eligibility restrictions for cable operators.

    (a) Eligibility for MVDDS license. No cable operator, nor any 
entity owning an attributable interest in a cable operator, shall have 
an attributable interest in an MVDDS license if such cable operator's 
service area significantly overlaps the MVDDS license area, as 
``significantly overlaps'' is defined in paragraph (e) of this section.
    (b) Definition of cable operator. For the purposes of paragraph (a) 
of this section, the term ``cable operator'' means a company that is 
franchised to provide cable service, as defined in 47 CFR 76.5(ff) of 
this chapter, in all or part of the MVDDS license area.
    (c) For the purpose of this section, the term ``MVPD household'' 
refers to a household that subscribes to one or more Multichannel Video 
Program Distributors (MVPDs), as defined in 47 CFR 76.1000(e) of this 
chapter.
    (d) Waiver of restriction. Upon completion of the initial award of 
an MVDDS license, a cable operator may petition for a waiver of the 
restriction on eligibility based upon a showing that changed 
circumstances or new evidence indicate that no significant likelihood 
of substantial competitive harm will result from the operator retaining 
an attributable interest in the MVDDS license.
    (e) Significant overlap with service area. For purposes of 
paragraph (a) of this section, significant overlap occurs when a cable 
operator's subscribers in the MVDDS license area make up thirty-five 
percent or more of the MVPD households in that MVDDS license area.
    (f) Definition of attributable interest. For purposes of paragraph 
(a) of this section, an entity shall be considered to have an 
attributable interest in a cable

[[Page 31748]]

operator or MVDDS licensee pursuant to the following criteria:
    (1) A controlling interest shall constitute an attributable 
interest. Controlling interest means majority voting equity ownership, 
any general partnership interest, or any means of actual working 
control (including negative control) over the operation of the entity, 
in whatever manner exercised.
    (2) Any general partnership interest in a partnership;
    (3) Partnership and similar ownership interests (including limited 
partnership interests) amounting to 20 percent or more of the total 
partnership interests, calculated according to both the percentage of 
equity paid in and the percentage of distribution of profits and 
losses;
    (4) Any stock interest amounting to 20 percent or more of the 
outstanding voting stock of an entity;
    (5) Any voting or non-voting stock interest, amounting to 20 
percent or more of the total outstanding stock of an entity;
    (6) Stock interests held in trust that exceed the limit set forth 
in paragraph (f) of this section shall constitute an attributable 
interest of any person who holds or shares the power to vote such 
stock, of any person who has the sole power to sell such stock, and, in 
the case of stock held in trust, of any person who has the right to 
revoke the trust at will or to replace the trustee at will. If the 
trustee has a familial, personal, or extra-trust business relationship 
to the grantor or the beneficiary, the stock interests held in trust 
shall constitute an attributable interest of such grantor or 
beneficiary, as appropriate.

    Note to paragraph (f)(6): Waivers may be granted upon an 
affirmative showing: That the interest holder has less than a fifty 
percent voting interest in the licensee and there is an unaffiliated 
single holder of a fifty percent or greater voting interest; that 
the interest holder is not likely to affect the local market in an 
anticompetitive manner; that the interest holder is not involved in 
the operations of the licensee and does not have the ability to 
influence the licensee on a regular basis; and that grant of a 
waiver is in the public interest because the benefits to the public 
of common ownership outweigh any potential anticompetitive harm to 
the market.

    (7) Debt and interests such as warrants and convertible debentures, 
options, or other interests (except non-voting stock) with rights of 
conversion to voting interests shall not constitute attributable 
interests unless and until conversion is effected.
    (8) An interest in a Limited Liability Company (LLC) or Registered 
Limited Liability Partnership (RLLP) amounting to 20 percent or more, 
shall constitute an attributable interest of each such limited partner.
    (9) Officers and directors of a cable operator, an MVDDS licensee, 
or an entity that controls such cable operator or MVDDS licensee, shall 
be considered to have an attributable interest in such cable operator 
or MVDDS licensee.
    (10) Ownership interests that are held indirectly by any party 
through one or more intervening corporations or other entities shall be 
determined by successive multiplication of the ownership percentages 
for each link in the vertical ownership chain and application of the 
relevant attribution benchmark to the resulting product, except that, 
if the ownership for any interest in any link in the chain exceeds 50 
percent or represents actual control, it shall be treated as if it were 
a 100 percent interest.
    (11) Any person who manages the operations of a cable operator or 
an MVDDS licensee pursuant to a management agreement shall be 
considered to have an attributable interest in such cable operator or 
MVDDS licensee, if such person or its affiliate has authority to make 
decisions or otherwise engage in practices or activities that 
determine, or significantly influence:
    (i) The nature or types of services offered by such entity;
    (ii) The terms upon which such services are offered; or
    (iii) The prices charged for such services.
    (12) Any person or its affiliate who enters into a joint marketing 
arrangement with a cable operator, an MVDDS licensee, or an affiliate 
of such entity, shall be considered to have an attributable interest in 
such cable operator, MVDDS licensee, or affiliate, if such person or 
its affiliate has authority to make decisions or otherwise engage in 
practices or activities that determine:
    (i) The nature or types of services offered by such entity;
    (ii) The terms upon which such services are offered; or
    (iii) The prices charged for such services.
    (g) Divestiture. Any cable operator, or any entity owning an 
attributable interest in a cable operator, that would otherwise be 
barred from acquiring an attributable interest in an MVDDS license by 
the eligibility restriction in paragraph (a) of this section, may be a 
party to an MVDDS application (i.e., have an attributable interest in 
the applicant), and such applicant will be eligible for an MVDDS 
license, pursuant to the divestiture procedures set forth in paragraphs 
(g)(1) through (g)(6) of this section.
    (1) Divestiture shall be limited to the following prescribed means:
    (i) An MVDDS applicant holding an attributable interest in a cable 
operator may divest such interest in the cable company.
    (ii) Other MVDDS applicants disqualified under paragraph (a) of 
this section, will be permitted to:
    (A) Partition and divest that portion of the existing service area 
that causes it to exceed the overlap restriction in paragraph (a) of 
this section, subject to applicable regulations of state and local 
governments; or
    (B) Partition and divest that portion of the MVDDS geographic 
service area that exceeds the overlap restriction in paragraph (a) of 
this section.
    (iii) Divestiture may be to an interim trustee if a buyer has not 
been secured in the required period of time, as long as the MVDDS 
applicant has no interest in or control of the trustee and the trustee 
may dispose of the license as it sees fit.
    (2) The MVDDS applicant shall certify as an exhibit to its short 
form application that it and all parties to the application will come 
into compliance with paragraph (a) of this section.
    (3) If such MVDDS applicant is a successful bidder in an auction, 
it must submit with its long-form application a signed statement 
describing its efforts to date and future plans to come into compliance 
with the eligibility restrictions in paragraph (a) of this section.
    (4) If such an MVDDS applicant is otherwise qualified, its 
application will be granted subject to a condition that the applicant 
shall come into compliance with the eligibility restrictions in 
paragraph (a) within ninety (90) days of final grant of such MVDDS 
license.
    (5) An MVDDS applicant will be considered to have come into 
compliance with paragraph (a) of this section if:
    (i) In the case of the divestiture of a portion of an MVDDS license 
service area, it has successfully completed the assignment or transfer 
of control of the requisite portion of the MVDDS geographic service 
area.
    (ii) In all other cases, it has submitted to the Commission a 
signed certification that it has come into compliance with paragraph 
(a) of this section by the following means, identified in such 
certification:
    (A) By divestiture of a disqualifying interest in a cable operator, 
identified in terms of the interest owned, the owner of such interest 
(and, if such owner is

[[Page 31749]]

not the applicant itself, the relationship of the owner to the 
applicant), the name of the party to whom such interest has been 
divested, and the date such divestiture was executed; or
    (B) By divestiture of the requisite portion of the cable operator's 
existing service area, identified in terms of the name of the party to 
whom such interest has been divested, the date such divestiture was 
executed, the name of any regulatory agency that must approve such 
divestiture, and the date on which an application was filed for this 
purpose with the regulatory agency.
    (6) If no such certification or application is tendered to the 
Commission within ninety (90) days of final grant of the initial 
license, the Commission may cancel or rescind the license 
automatically, shall retain all monies paid to the Commission, and, 
based on the facts presented, shall take any other action it may deem 
appropriate.


Sec.  101.1413  License term and renewal expectancy.

    (a) The MVDDS license term is ten years, beginning on the date of 
the initial authorization grant.
    (b) Application of a renewal expectancy is based on a showing of 
substantial service at the end of five years into the license period 
and ten years into the license period. The substantial service 
requirement is defined as a service that is sound, favorable, and 
substantially above a level of mediocre service which might minimally 
warrant renewal. At the end of five years into the license term and ten 
years into the license period, the Commission will consider factors 
such as:
    (1) Whether the licensee's operations service niche markets or 
focus on serving populations outside of areas serviced by other MVDDS 
licensees;
    (2) Whether the licensee's operations serve populations with 
limited access to telecommunications services; and
    (3) A demonstration of service to a significant portion of the 
population or land area of the licensed area.
    (c) The renewal application of an MVDDS licensee must include the 
following showings in order to claim a renewal expectancy:
    (1) A coverage map depicting the served and unserved areas;
    (2) A corresponding description of current service in terms of 
geographic coverage and population served or transmitter locations in 
the served areas; and
    (3) Copies of any Commission Orders finding the licensee to have 
violated the Communications Act or any Commission rule or policy and a 
list of any pending proceedings that relate to any matter described by 
the requirements for the renewal expectancy.


Sec.  101.1415  Partitioning and disaggregation.

    (a) MVDDS licensees are permitted to partition licensed geographic 
areas along county borders (Parishes in Louisiana or Territories in 
Alaska). Disaggregation will not be permitted by MVDDS licensees in the 
12.2-12.7 GHz band. ``Partitioning'' is the assignment of geographic 
portions of a license along geopolitical or other boundaries. 
``Disaggregation'' is the assignment of discrete portions or ``blocks'' 
of spectrum licensed to a geographic licensee or qualifying entity.
    (b) Eligibility. (1) Parties seeking approval for partitioning 
shall request from the Commission an authorization for partial 
assignment of a license pursuant to Sec.  1.948 of this chapter.
    (2) MVDDS licensees may apply to the Commission to partition their 
licensed geographic service areas to eligible entities and are free to 
partition their licensed spectrum at any time following the grant of a 
license.
    (3) Any existing frequency coordination agreements shall convey 
with the assignment of the geographic area or spectrum, and shall 
remain in effect for the term of the agreement unless new agreements 
are reached.
    (c) Technical standards. (1) Partitioning. In the case of 
partitioning, applicants and licensees must file FCC Form 603 pursuant 
to Sec.  1.948 of this chapter and list the partitioned service area on 
a schedule to the application.
    (2) The geographic coordinates must be specified in degrees, 
minutes, and seconds to the nearest second of latitude and longitude 
and must be based upon the 1983 North American Datum (NAD83).
    (d) Unjust enrichment. 12 GHz licensees that received a bidding 
credit and partition their licenses to entities not meeting the 
eligibility standards for such a bidding credit, will be subject to the 
provisions concerning unjust enrichment as set forth in Sec.  1.2111 of 
this chapter.
    (e) License term. The MVDDS license term is ten years, beginning on 
the date of the initial authorization grant. The license term for a 
partitioned license area shall be the remainder of the original 
licensee's license term as provided for in Sec.  101.1413.
    (f) Construction requirements. Applications requesting approval for 
partitioning must include a certification by each party stating that 
one or both parties will satisfy the construction requirement set forth 
in Sec.  101.1413. Failure by a party to meet its respective 
construction requirement will result in the automatic cancellation of 
its license without further Commission action.


Sec.  101.1417  Annual report.

    Each MVDDS licensee shall file with the Broadband Division of the 
Wireless Telecommunications Bureau of the Commission two copies of a 
report by March 1 of each year for the preceding calendar year. This 
report must include the following:
    (a) Name and address of licensee;
    (b) Station(s) call letters and primary geographic service area(s); 
and
    (c) The following statistical information for the licensee's 
station (and each channel thereof):
    (1) The total number of separate subscribers served during the 
calendar year;
    (2) The total hours of transmission service rendered during the 
calendar year to all subscribers;
    (3) The total hours of transmission service rendered during the 
calendar year involving the transmission of local broadcast signals; 
and
    (4) A list of each period of time during the calendar year in which 
the station rendered no service as authorized, if the time period was a 
consecutive period longer than 48 hours.


Sec.  101.1421  Coordination of adjacent area MVDDS stations.

    (a) MVDDS licensees in the 12.2-12.7 GHz band are required to 
develop sharing and protection agreements based on the design and 
architecture of their systems, in order to ensure that no harmful 
interference occurs between adjacent geographical area licensees. MVDDS 
licensees shall:
    (1) Engineer systems to be reasonably compatible with adjacent and 
co-channel operations in the adjacent areas on all its frequencies; and
    (2) Cooperate fully and in good faith to resolve interference and 
transmission problems that are present on adjacent and co-channel 
operations in adjacent areas.
    (b) Harmful interference to public safety stations, co-channel 
MVDDS stations operating in adjacent geographic areas, and stations 
operating on adjacent channels to MVDDS stations is prohibited. In 
areas where the DMAs are in close proximity, careful consideration 
should be given to power requirements and to the location, height, and 
radiation pattern of the transmitting and receiving antennas. Licensees 
are expected to cooperate fully in attempting to resolve problems of

[[Page 31750]]

potential interference before bringing the matter to the attention of 
the Commission.
    (c) Licensees shall coordinate their facilities whenever the 
facilities have optical line-of-sight into other licensees' areas or 
are within the same geographic area. Licensees are encouraged to 
develop operational agreements with relevant licensees in the adjacent 
geographic areas. Incumbent public safety POFS licensee(s) shall retain 
exclusive rights to its channel(s) within the relevant geographical 
areas and must be protected in accordance with the procedures in Sec.  
101.103. A list of public safety incumbents is attached as Appendix I 
to the Memorandum Opinion and Order and Second Report and Order, Docket 
98-206, released May 23, 2002. Please check with the Commission for any 
updates to that list.


Sec.  101.1423  Canadian and Mexican coordination.

    Pursuant to Sec.  2.301 of this chapter, MVDDS systems in the 
United States within 56 km (35 miles) of the Canadian and Mexican 
border will be granted conditional licenses, until final international 
agreements are approved. These systems may not cause harmful 
interference to stations in Canada or Mexico. MVDDS stations must 
comply with the procedures outlined under Sec.  101.147(p) and Sec.  
1.928(f)(1) and (f)(2) of this chapter until final international 
agreements concerning MVDDS are signed. Section 1.928(f) of this 
chapter states that transmitting antennas can be located as close as 
five miles (eight kilometers) of the border if they point within a 
sector of 160 degrees away from the border, and as close as thirty-five 
miles (fifty-six km) of the border if they point within a sector of 200 
degrees toward the border without coordination with Canada. MVDDS 
licensees shall apply this method near the Canadian and Mexican 
borders. No stations are allowed within 5 miles of the borders.


Sec.  101.1425  RF safety.

    MVDDS stations in the 12.2-12.7 GHz frequency band do not operate 
with output powers that equal or exceed 1640 watts EIRP and therefore 
will not be subject to the routine environmental evaluation rules for 
radiation hazards, as set forth in Sec.  1.1307 of this chapter.


Sec.  101.1427  MVDDS licenses subject to competitive bidding.

    Mutually exclusive initial applications for MVDDS licenses in the 
12.2-12.7 GHz band are subject to competitive bidding. The general 
competitive bidding procedures set forth in part 1, subpart Q of this 
chapter will apply unless otherwise provided in this subpart.


Sec.  101.1429  Designated entities.

    (a) Eligibility for small business provisions. (1) A very small 
business is an entity that, together with its controlling interests and 
affiliates, has average annual gross revenues not exceeding $3 million 
for the preceding three years.
    (2) A small business is an entity that, together with its 
controlling interests and affiliates, has average annual gross revenues 
not exceeding $15 million for the preceding three years.
    (3) An entrepreneur is an entity that, together with its 
controlling interests and affiliates, has average annual gross revenues 
not exceeding $40 million for the preceding three years.
    (b) Bidding credits. A winning bidder that qualifies as a very 
small business, as defined in this section, or a consortium of very 
small businesses may use the bidding credit specified in Sec.  
1.2110(f)(2)(i) of this chapter. A winning bidder that qualifies as a 
small business, as defined in this section, or a consortium of small 
businesses may use the bidding credit specified in Sec.  
1.2110(f)(2)(ii) of this chapter. A winning bidder that qualifies as an 
entrepreneur, as defined in this section, or a consortium of 
entrepreneurs may use the bidding credit specified in Sec.  
1.2110(f)(2)(iii) of this chapter.


Sec.  101.1440  MVDDS protection of DBS.

    (a) An MVDDS licensee shall not begin operation unless it can 
ensure that the EPFD from its transmitting antenna at all DBS customers 
of record locations is below the values listed for the appropriate 
region in Sec.  101.105(a)(4)(ii). Alternatively, MVDDS licensees may 
obtain a signed written agreement from DBS customers of record stating 
that they are aware of and agree to their DBS system receiving MVDDS 
signal levels in excess of the appropriate EPFD limits specified in 
Sec.  101.105(a)(4)(ii). DBS customers of record are those who had 
their DBS receive antennas installed prior to or within the 30 day 
period after notification to the DBS operator by the MVDDS licensee of 
the proposed MVDDS transmitting antenna site.
    (b) MVDDS licensees are required to conduct a survey of the area 
around its proposed transmitting antenna site to determine the location 
of all DBS customers of record that may potentially be affected by the 
introduction of its MVDDS service. The MVDDS licensee must assess 
whether the signal levels from its system, under its deployment plans, 
would exceed the appropriate EPFD levels in Sec.  101.105(a)(4)(ii) at 
any DBS customer of record location. Using EPFD calculations, terrain 
and building structure characteristics, and the survey results, an 
MVDDS licensee must make a determination of whether its signal level(s) 
will exceed the EPFD limit at any DBS customer of record sites. To 
assist in making this determination, the MVDDS provider can use the 
EPFD contour model developed by the Commission and described in 
Appendix J of the Memorandum Opinion and Order and Second Report and 
Order, ET Docket 98-206 or on the OET website at http://www.fcc.gov/oet/dockets/et98-206.
    (c) If the MVDDS licensee determines that its signal level will 
exceed the EPFD limit at any DBS customer site, it shall take whatever 
steps are necessary, up to and including finding a new transmit site, 
to ensure that the EPFD limit will not be exceeded at any DBS customer 
location.
    (d) Coordination between MVDDS and DBS licensees. (1) At least 90 
days prior to the planned date of MVDDS commencement of operations, the 
MVDDS licensee shall provide the following information to the DBS 
licensee(s):
    (i) Geographic location (including NAD 83 coordinates) of its 
proposed station location;
    (ii) Maximum EIRP of each transmitting antenna system;
    (iii) Height above ground level for each transmitting antenna;
    (iv) Antenna type along with main beam azimuth and altitude 
orientation information, and description of the antenna radiation 
pattern;
    (v) Description of the proposed service area; and
    (vi) Survey results along with a technical description of how it 
determined compliance with the appropriate EPFD level at all DBS 
subscriber locations.
    (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

[[Page 31751]]

analysis and could exceed the prescribed EPFD limit.
    (3) Prior to commencement of operation, the MVDDS licensee must 
take into account any new DBS customers or other relevant information 
provided by DBS licensees in response to the notification in paragraph 
(d)(1) of this section.
    (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).
    (f) In the event of either an increase in the EPFD contour in any 
direction or a major modification as defined in Sec.  1.929 of this 
chapter, such as the addition of an antenna, to an MVDDS station, the 
procedures of paragraphs (d) and (e) of this section and rights of 
complaint begin anew. Exceptions to this are renewal, transfer of 
control, and assignment of license applications.
    (g) Interference complaints. The MVDDS licensee must satisfy all 
complaints of interference to DBS customers of record which are 
received during a one year period after commencement of operation of 
the transmitting facility. Specifically, the MVDDS licensee must 
correct interference caused to a DBS customer of record or cease 
operation if it is demonstrated that the DBS customer is receiving 
harmful interference from the MVDDS system or that the MVDDS signal 
exceeds the permitted EPFD level at the DBS customer location.
[FR Doc. 04-12708 Filed 6-4-04; 8:45 am]
BILLING CODE 6712-01-P