[Federal Register Volume 69, Number 116 (Thursday, June 17, 2004)]
[Rules and Regulations]
[Pages 33869-33871]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-12945]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 74

[ET Docket No. 01-75; FCC 04-104]


Revision of Broadcast Auxiliary Services

AGENCY: Federal Communications Commission.

ACTION: Final rule; denial of application for review of decision.

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SUMMARY: This document addresses the application for review filed by 
the Society of Broadcast Engineers, Inc. The Application responds to 
the denial of SBE's request for a second stay of the rules for 
coordination of fixed aural and video stations in the Broadcast 
Auxiliary Service (BAS) adopted in the Report and Order. The Commission 
affirms the Office of Engineering and Technology's (OET) Order (Denial 
Order) denying SBE's request (Second Request) seeking an additional 
six-month stay of the effective date of those rules. The Commission 
agrees with OET's determination that an additional stay of the BAS 
coordination rules is not in the public interest. The Commission denies 
SBE's application for review.

FOR FURTHER INFORMATION CONTACT: James Miller, Office of Engineering 
and Technology, (202) 418-7351.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Order 
adopted April 21, 2004, and released May 4, 2004. The full text of this 
document 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. The full text may also be downloaded at: www.fcc.gov. 
Alternative formats are available to persons with disabilities by 
contacting Brian Millin at (202) 418-7426 or TTY (202) 418-7365.

Summary of the Memorandum Opinion and Order

    1. The Order denies the application for review (Application) filed 
by the Society of Broadcast Engineers, Inc. (SBE) who was seeking a 
second stay of the rules for coordination of fixed aural and video 
stations in the BAS adopted in the Report and Order, 68 FR 12744, March 
17, 2003. In the Report and Order, the Commission adopted coordination 
procedures for fixed Aural BAS stations operating on frequencies above 
944 MHz and fixed Television BAS stations operating on frequencies 
above 2110 MHz under part 74 of the rules. The Commission adopted these 
procedures to conform the coordination procedures for fixed BAS, and 
Cable Television Relay Service (CARS) under parts 74 and 78, with those 
already in effect for Fixed Microwave Services (FS) under Sec.  
101.103(d) of the rules. It found that the FS procedures were 
appropriate for fixed BAS and CARS, stating that uniform procedures for 
bands shared among these services are necessary to promote spectrum 
efficiency and to minimize the possibility of harmful interference. 
Because these procedures were already in effect for Aural and TV BAS 
stations in the bands 6425-6525 MHz and 17700-19700 MHz, the new rules 
only affected fixed BAS in the bands 944-952 MHz (950 MHz), 2450-2583.5 
MHz (2.5 GHz), 6875-7125 MHz (7 GHz), and 12700-13250 MHz (13 GHz).
    2. During the six-month stay, SBE requested a blanket waiver of 
application fees for BAS applications filed to provide information 
missing from the ULS, in order to encourage the filing of such 
applications. On September 3, 2003, the FCC's Office of Managing 
Director (OMD) dismissed SBE's request for relief and denied the 
request for waiver, stating that the Commission may only consider such 
requests filed by individual applicants pertaining to their own 
applications in accordance with Sec.  1.1117, and, moreover, that SBE 
had not established good cause for a waiver of application fees.
    3. SBE sought a further stay of the Commission rules on October 1, 
2003. In its Second Request, SBE generally reiterated the reasons set 
forth in its Initial Request and argued for an additional six-month 
stay. SBE provided updated figures suggesting that approximately 50% of 
fixed stations in the 7 GHz and 13 GHz bands do not have receive site 
coordinates listed in the ULS. SBE noted that many BAS licensees had 
waited for a determination of the outcome of its fee waiver request 
before filing applications to provide the receive site information. SBE 
stated that it had publicized the September 3, 2003, denial of the 
waiver request and had taken more aggressive steps to urge BAS 
licensees to complete and correct the license record for their 
facilities, but that the initial six-month stay had proven 
insufficient. SBE requested the additional six months as a ``final 
opportunity'' for BAS licensees to supply the information. The National 
Spectrum Managers Association (NSMA), in its Opposition to the

[[Page 33870]]

Request for Extension of Temporary Stay (Opposition), opposed an 
additional stay, asserting that the institution of new coordination 
procedures would best satisfy SBE's concerns about appropriate 
interference analysis, whereas delay would not address or satisfy SBE's 
concerns about database completeness and accuracy. NSMA argued that the 
opportunity for response in the coordination process would most 
effectively generate interaction and data sharing and address SBE's 
concerns. NSMA conceded that the database inaccuracies could lead to 
inaccurate interference analysis before the notification is initiated, 
but emphasized that the bilateral process would address the possibility 
of missing or inaccurate BAS path information. SBE, in its reply to the 
Opposition, asserted that NSMA's experience with the more accurate 
databases used by the FS under part 101 was not relevant in evaluating 
the additional time needed to address deficiencies with Aural and TV 
BAS information in the ULS. SBE objected to NSMA's suggestion that the 
coordination under the new rules could proceed by relying on responses 
from broadcasters contacted to address potential missing or inaccurate 
BAS information as suggested by NSMA. However, SBE stated in its reply 
that it would be reasonable to proceed with the new coordination rules 
if, after an additional six months, the database was still inaccurate.
    4. OET applied the Commission's four-part test for evaluating stay 
requests and issued its Denial Order, 18 FCC Rcd 21134, (2003), denying 
SBE's Second Request for stay, finding it was not warranted, and 
ordering that the coordination rules would go into effect on October 
16, 2003. In applying the four-part test, OET considered whether: the 
stay would likely succeed on its merits; irreparable harm would be 
suffered if a stay was not granted; other interested parties would be 
harmed if the stay were granted; and the public interest would favor 
granting of the stay. OET concluded that while the database concerns 
raised again by SBE might remain a concern, there was no indication 
that additional time would cure these issues. OET noted that licensees 
had already had nearly one year since the rules were first adopted and 
released until the expiration of the first stay. Moreover, OET noted 
that licensees had six weeks from notice of the waiver denial to the 
end of the stay to file or correct information for the ULS. OET 
concluded that the database issues would not seriously affect the 
efficacy of the coordination process and harm licensees subject to 
these rules. Finally, OET found that further delay in the application 
of the coordination procedures would not be in the public interest, 
because it would unnecessarily delay the efficiency and protection 
benefits offered by these procedures.
    5. The Commission deny SBE's request to review and reverse the 
Denial Order, because any remaining concerns to resolve database 
inaccuracies do not warrant further delay of the benefit of the rules. 
In the application for review, SBE urges review of the Denial Order, 
arguing that a further stay of the coordination rules is warranted 
because, contrary to OET's conclusions in the Denial Order, an 
additional six-month extension would cure existing database issues, and 
prior coordination under the adopted rules cannot proceed until the 
database inaccuracies are corrected. SBE, while acknowledging that 
licensees were not required to wait for the resolution of the request 
for a blanket waiver of application fees for BAS applications, argues 
that licensees' delay in complying with the Report and Order until the 
resolution of the fee waiver request on September 3, 2003 was 
reasonable. SBE also argues that although OET pointed out in its Denial 
Order that the coordination rules adopted in the Report and Order were 
released to the public on November 13, 2002, the rules were not 
published in the Federal Register until March 17, 2003. Finally, SBE 
argues that the Commission cannot conclude that there is any benefit or 
efficiency to be gained from letting the coordination rules take effect 
under the present circumstances. No comments were filed in response to 
the application for review.
    6. The Commission disagree with SBE and, thus, deny its Application 
to reverse the Denial Order. Commission rules require that applications 
for review concisely and plainly state the questions presented for 
review with reference, where appropriate, to the findings of fact or 
conclusions of law and which of the five factors identified by the 
rules warrant Commission consideration. SBE asserts that OET made 
various erroneous factual conclusions. However, we find no ``erroneous 
finding as to any important or material question of fact,'' or other 
factor that warrants review. We agree with the substantive conclusions 
of OET stated in the Denial Order, and find that OET correctly 
determined that granting SBE's Second Request for stay was not 
warranted. OET correctly concluded that the request was not likely to 
prevail on the merits; that irreparable harm was not likely to result 
if the stay was denied; and that the public interest did not favor 
granting the stay, and it properly denied the request.
    7. The Commission believes that, while further improvements of the 
database are desirable, as raised by SBE in its Application, there is 
no indication that additional time would result in the resolution of 
the inaccuracies complained of, nor that a need is demonstrated by the 
likelihood of irreparable harm if these issues are not resolved prior 
to the coordination rules coming into effect. SBE acknowledges in its 
reply comments to its Second Request that even if the Commission should 
grant additional time, there is a possibility database inaccuracies 
would remain unresolved. It further agrees that at some point the 
coordination rules should enter into effect, irrespective of any 
remaining database inaccuracies. This admission is counter to SBE's 
arguments that additional time would cure the remaining database 
inaccuracies. Further, SBE's admission that the rules should go into 
effect even if the inaccuracies are not completely resolved (whether on 
October 16, 2003 or six months later) supports our conclusion that OET 
correctly found that the efficacy of the coordination rules need not be 
seriously impacted by possible database inaccuracies. Moreover, whereas 
OET found that the potential benefit of database corrections weighed 
favorably in the context of a brief delay in the implementation of our 
rules and an anticipated improvement in the database, we note that the 
grant of additional extensions would result in a lengthy period of time 
between the adoption and effectiveness of the new coordination 
procedures, with little apparent benefit to be derived, based on our 
experience with the last stay. Whereas OET may have considered the 
probable effect of the initial extension of time in a light most 
favorable to SBE, we are not obliged to do so, and activity during the 
six-month stay confirms that the case has not been made for any further 
delay.
    8. SBE raises the issue of whether it was reasonable for licensees 
to wait on a determination of SBE's blanket fee waiver request before 
addressing database inaccuracies. We find this concern is not material 
and does not warrant review of the Denial Order. OET correctly states 
that licensees were not barred from taking steps to address the 
database inaccuracies during the initial six-month stay until the fee 
waiver request was resolved, because if the fee waiver was granted 
their application fees would have been refunded. In any event, the 
grant or denial of the blanket fee waiver would not have cured the 
issues that were argued to support the

[[Page 33871]]

Initial Request, or relieved licensees from the need to prepare their 
applications. Whether or not licensees' application fees would have 
been refunded, those applications would presumably still have had to be 
prepared and filed to cure the database concerns. Moreover as OET 
indicated, even after the disposition of the blanket fee waiver, 
individual licensees could have filed their own requests for fee 
waivers, if a waiver of application fees was compelling. It seems 
prudent and reasonable that licensees electing to wait would have 
prepared for filing in anticipation of the resolution of the waiver 
request, and filed during the six week window remaining between the 
September 3, 2003, determination of SBE's fee waiver request and the 
last day of the stay, October 15, 2003. In fact, as OET notes, 
Commission records indicate the modest increase in the filing of 
applications for Aural and TV BAS modifications during the stay, 
possibly attributable to filings for completion and correction of 
receive site information, primarily occurred in the last month of the 
stay. We infer from this that even parties who waited prepared to file 
during the stay period, and in fact did complete filings to complete or 
correct receive site information, and that our actions taken in this 
proceeding to address licensees' filings to database inaccuracies have 
been appropriate but do not warrant further delay.
    9. The Commission agrees with OET that the continued existence of 
incomplete and inaccurate records in the ULS, while undesirable, is not 
fatally detrimental to the efficacy of coordination procedures nor 
otherwise likely to result in irreparable harm due to interference to 
existing facilities, as stated in the Stay Order, 68 FR 41284, July 11, 
2003. We agree with OET that coordination procedures using appropriate 
conservative default criteria, as discussed in the Stay Order, can 
proceed successfully even with incomplete or inaccurate database 
information. The procedures provide a practicable opportunity for all 
potentially affected parties to respond to the proposed coordination 
request to address missing or corrective information where needed, 
before the facilities are formally subject to an application. As the 
Denial Order clarified, consistent with the coordination requirement 
for full cooperation and reasonable effort among all parties in 
resolving potential conflicts, existing licensees have a responsibility 
to respond whenever a notification contains any omissions or errors 
regarding their facilities that could lead to potential interference. 
It will be the initiating party's responsibility to provide existing 
licensees with the complete information used to characterize the 
notified party's facilities for the engineering studies and analyses 
upon which the coordination is based. Further, where data is missing or 
incorrect in the notification, and the complete or corrective data is 
brought to the initiating party's attention via response, it will be 
the initiating party's responsibility to conduct any engineering 
studies and analyses required to reassess the impact on the existing 
facilities, as newly documented, and reinitiate coordination, as 
needed.
    10. Finally, in view of the above, the Commission agrees with OET 
that further delay in the application of the coordination procedures 
for Aural and TV BAS is not in the public interest, because it will 
unnecessarily delay the efficiency and protection benefits offered by 
these procedures. These new procedures afford all potentially affected 
existing licensees sufficient opportunity to respond to each proposal, 
and are sufficient to avert harmful interference to or from existing 
facilities. The effect of these rules will enable parties to identify 
complete and accurate information on existing facilities. Thus, while 
the initial stay was a reasonable response towards the goal of 
achieving a complete and accurate database, it now appears that further 
delay would not significantly advance that goal.
    11. As the Denial Order discussed, under these coordination rules, 
licensees can be expected to act in their own self-interest to avoid 
interference. The coordination process provides an opportunity for a 
potentially affected licensee to respond or otherwise provide 
corrective information regarding the consideration of its facilities, 
or the effect of the applicant's new facilities on its facilities. 
However, in the absence of such a response, the applicant will be 
deemed to have made reasonable efforts to coordinate and may file the 
application. The Commission recognizes that if the licensee's receive 
information in the database is incomplete or incorrect and the licensee 
fails to provide corrective information during coordination, there 
could result a grant of new facilities that could ultimately cause 
interference to an existing licensee. As indicated above, however, we 
believe that licensees will act in their own self-interest and ensure 
that the licensee's receive information in the database is complete and 
correct or provide complete and correct information in response to the 
applicant's notification.
    12. The Commission, therefore, also affirms the action taken in the 
Denial Order to encourage BAS licensees to file applications for minor 
modification where needed to complete receive site data that is missing 
in the ULS. The Commission will continue to allow the filing of such 
applications without frequency coordination, provided the application 
supplies only missing receive site data. Receive site data may include 
parameters such as site geographic coordinates, site elevation above 
mean sea level, and antenna height, beamwidth, gain, manufacturer, and 
model number. Further, the application must include a showing 
demonstrating that the station was licensed at a time when receive site 
information was not required, or documenting that the information now 
missing was previously licensed or provided under application to the 
FCC. The information provided must also be consistent with any data 
already in the database, such as transmit azimuth or receive site data. 
The filing of receive site information without coordination, where it 
is missing under circumstances as described above, is appropriate and 
will continue to be permitted.

Ordering Clauses

    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), the application for 
review filed by the Society of Broadcast Engineers is denied.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 04-12945 Filed 6-16-04; 8:45 am]
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