[Federal Register Volume 69, Number 129 (Wednesday, July 7, 2004)]
[Rules and Regulations]
[Pages 40791-40794]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-15005]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 73

[ET Docket No. 00-11; FCC 04-76]


Establishment of an Improved Model for Predicting the Broadcast 
Television Field Strength Received at Individual Locations

AGENCY: Federal Communications Commission.

ACTION: Final rule; denial of reconsideration.

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SUMMARY: This document addresses two petitions for reconsideration of 
the First Report and Order, filed by EchoStar Satellite Corporation and 
the National Association of Broadcasters and Association for Maximum 
Service Television, Inc. The petitions for reconsideration challenge 
the process the Commission used to establish values for signal loss 
quantities in the predictive model, the particular signal loss values 
adopted, and our antenna height assumptions. The petitions also raise 
issues concerning the independence of persons who may be designated to 
conduct on-site reception tests, procedures to follow in determining 
when to test, and requirements for notification of parties as to the 
time and place of planned tests. The Commission denies the petitions 
for reconsideration.

FOR FURTHER INFORMATION CONTACT: Ron Chase, Office of Engineering and 
Technology, (202) 418-1378, or Harry Wong, Office of Engineering and 
Technology, (202) 418-2437.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's 
Memorandum Opinion and Order adopted March 31, 2004, and released May 
25, 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, Best Copy and Printing, Inc., 445 
12th Street, SW., Room, CY-B402, Washington, DC 20554. The full text 
may also be downloaded at: http://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 Memorandum Opinion and Order denies the petitions. The 
issues raised in the petitions for

[[Page 40792]]

reconsideration of the First Report and Order, 65 FR 36639, June 9, 
2000, fall into two categories. First are questions regarding the 
predictive model we established. EchoStar Satellite Corporation 
(EchoStar) questions on legal grounds the process that we used to 
establish values for the signal loss quantities added to the 
``Individual Location Longley Rice'' (ILLR) model, contending that we 
relied unjustifiably on a study incompletely represented in the record 
of the proceeding. Both EchoStar and the National Association of 
Broadcasts and Association for Maximum Service Television, Inc. (NAB/
MSTV) request that the Commission change some of the values assigned to 
these signal loss quantities. NAB/MSTV also asks that we revise the 
standard values of receiving antenna heights used in the ILLR model. 
Second are questions regarding implementation of the on-site testing 
procedures contained in the statute. Both EchoStar and NAB/MSTV raise 
questions regarding how to assure the reliability of on-site tests and 
the independence of persons conducting them. EchoStar also asks that we 
determine whether an expedited procedure for completing on-site testing 
comports with the statute. EchoStar's proposal is opposed by NAB/MSTV.

A. ILLR Predictive Model

    2. Process Used to Establish Values for Signal Loss Quantities. 
EchoStar asserts that we failed to comply with the Administrative 
Procedure Act in our implementation of the ILLR model by basing our 
decision on materials not contained in the record of the proceeding. 
Specifically, EchoStar states that we established values for signal 
loss quantities in the ILLR model based on the results of a study 
submitted in the joint comments of NAB/MSTV that was unaccompanied by 
underlying measurement data. It contends that the underlying 
measurement data had not been made part of the public record prior to 
the First Report and Order. It argues that we should not have accepted 
the results of the NAB/MSTV study without independent verification of 
the path loss calculations, and suggests that our decisions with regard 
to signal loss quantities may be in error since there is nothing in the 
record to indicate that we independently verified the statistical 
analysis of the NAB/MSTV study. EchoStar states that there is a 
possibility that the ILLR calculations made by NAB/MSTV contain an 
inherent bias. To test this possibility, it engaged the engineering 
firm of Hammett and Edison (H&E) to repeat the calculations for a few 
of the approximately 1000 individual locations analyzed by the NAB/MSTV 
study, and it asserts that variations in the results obtained by H&E 
demonstrate the unreliability of the NAB/MSTV data.
    3. Contrary to EchoStar's assertions, our determinations of signal 
loss quantities for the ILLR were reasonably derived and complied fully 
with the provisions of the APA. The signal loss values we established 
for use in the ILLR model were derived by our own further analysis of 
both the NAB/MSTV study and another study by Rubinstein that similarly 
involved a large number of actual measurements of radio field 
intensity. The NAB/MSTV study was described and its results analyzed in 
the joint comments and reply comments of NAB/MSTV, submitted in 
response to the initial Notice of Proposed Rulemaking, 65 FR 4923, 
February 2, 2000. Our decision in the First Report and Order found that 
the technical assumptions and analytical methods described in both 
study reports were accurate representations of how the underlying data 
had been examined. The methodologies used in the NAB/MSTV and the 
Rubinstein studies are similar, and in both cases were clearly 
described so that we were able to determine their applicability and the 
validity of their results. We were thus able to assess the significance 
of the tabulated results without repeating the calculations. We did in 
fact verify that no apparent bias was introduced from the individual 
measurement locations selected in the NAB/MSTV study. We also 
determined that the measurement data and signal strength predictions 
were organized into clearly defined and non-overlapping categories, and 
that this organization of data was significant with respect to the type 
of conclusions sought. These are ordinary steps in the review of 
engineering and scientific studies, and we did not deem it necessary to 
relate routine activities of this nature in the text of the First 
Report and Order.
    4. Moreover, the underlying raw data for the NAB/MSTV study, 
consisting of about 1000 measurements of signal intensity at individual 
locations, have been publicly available since well before the initial 
Notice of Proposed Rulemaking. About half of these measurements were 
placed in evidence in the matter of CBS et al. v. PrimeTime24, U.S. 
District Court, Southern District of Florida, Case No. 96-3650-CIV-
Nesbitt. The remainder are contained in a report of field tests 
comparing digital and analog television transmission submitted to an 
FCC advisory committee. In sum, the data has now been filed in the 
record in this proceeding, and EchoStar has, in fact, reviewed and 
utilized the raw data in its arguments, as further discussed in the 
following paragraph. Thus, the provisions of the APA have been 
satisfied.
    5. Finally, the Commission observes that the H&E analysis of the 
data fails to support EchoStar's assertion that there was an underlying 
bias in the NAB/MSTV submission. The differences between the H&E 
calculations and those of the NAB/MSTV study are due to the fact that 
they are made by different implementations of the ILLR model. The NAB/
MSTV study's calculations were made by the ILLR computer program 
currently in general use for purposes of the SHVIA under arrangements 
that satellite carriers, including EchoStar, have made with 
Decisionmark Corporation, an independent agent. Moreover, the 
differences that do occur do not indicate a bias, since the H&E study 
found some values of path loss higher and some lower than those 
calculated by NAB/MSTV. Of the five calculations made by H&E, three 
predicted a higher signal level than those calculated by Decisionmark, 
and two lower.
    6. Values Assigned to Signal Loss Quantities. In the SHVIA, 
Congress requires us to prescribe an improved model for reliably 
predicting the ability of individual locations to receive signals of 
grade B intensity. The SHVIA further requires that we ``ensure that 
such model takes into account terrain, building structures, and other 
land cover variations.'' EchoStar argues that, since Congress directs 
us to take buildings and other land cover variations into account, we 
failed to comply with the statutory mandate by setting some of the 
signal loss quantities to zero. It urges that the ILLR model 
incorporate, without reduction in magnitude, all the values derived 
from the Rubinstein study, as proposed in the initial Notice of 
Proposed Rulemaking.
    7. Our analysis, based on the results of both studies, led us to 
give the value zero to the signal loss quantities associated with all 
VHF channels and to reduce the proposed values of those associated with 
UHF channels. The specific values we assigned as signal loss quantities 
provide ILLR predictions accurately reflecting the results of actual 
field testing. We did not ignore these losses, but rather made a 
considered determination that the most accurate ILLR predictions for 
VHF stations under certain groundcover conditions, including buildings, 
are made by setting the corresponding loss values to zero. Thus, we 
have taken the factors directed by Congress into consideration, and we

[[Page 40793]]

have followed its direction in the SHVIA by assigning values based on 
thorough analysis that make the ILLR model as accurate as possible, and 
reject EchoStar's contention in this regard.
    8. NAB/MSTV asks that we revise our assignment of signal loss 
quantities in the land use category ``open land.'' It argues that the 
values assigned to certain subcategories of open land should be zero, 
due to the reception conditions implied by their names. The specific 
subcategories identified by NAB/MSTV for loss values of zero are ``Dry 
Salt Flats,'' ``Beaches,'' and ``Bare Ground'' as named by the United 
States Geological Survey (USGS). While it is true that these names 
individually imply the absence of buildings and vegetation, they 
represent only 3 of the 10 subcategories in the group ``open land.'' 
This combination of USGS subcategories into the single category of 
``open land'' was at the core of the technical approach proposed in the 
initial Notice of Proposed Rulemaking and subsequently adopted in the 
First Report and Order. Following this technical approach, the NAB/MSTV 
study analyzed field measurements grouped in this larger category, 
rather than in the particular subcategories of ``Dry Salt Flats'', 
``Beaches'', and ``Bare Ground''. There is consequently no public 
record of an analysis to substantiate a zero loss value for the 
particular subcategories singled out in the NAB/MSTV petition for 
reconsideration. In the absence of specific reliable data, we will not 
change the values assigned to individual land use categories from those 
established in the Report and Order.
    9. Antenna Height Assumptions. NAB/MSTV also asks that we set the 
standard values of receiving antenna heights at 6.1 and 9.1 meters in 
place of the rounded values of 6 meters and 9 meters for two- and 
three-or-more-story buildings respectively. The receiving antenna 
height is a parameter of the ILLR model. We endorsed the Longley-Rice 
prediction procedure for the first time in the SHVA context in CS 
Docket No. 98-201, and recommended receiving antenna heights of 20 or 
30 feet in the Report and Order, 64 FR 7113, February 12, 1999, in that 
docket. Subsequently, in a technical appendix to the First Report and 
Order in the present proceeding, we converted to metric units using the 
whole numbers 6 and 9 meters. This practice matches the antenna height 
assumption of 9 meters used for analysis of DTV and analog TV service 
as described in ``Longley-Rice Methodology for Evaluating TV Coverage 
and Interference,'' OET Bulletin 69, Federal Communications Commission 
(July 2, 1997). We have found that ILLR predictions are generally not 
precise enough to distinguish between 6.1 or 9.1 m and the rounded 
values.
    10. Therefore, with regard to NAB/MSTV's request that the receiving 
antenna heights assumed for ILLR predictions be set at 6.1 and 9.1 m in 
place of the rounded values of 6 and 9 m, we find that the greater 
heights would not produce significantly different or more accurate 
field strength predictions. Accordingly, to maintain consistency with 
the 9 m value specified for receiving antenna height by OET Bulletin 
69, we will continue to specify the rounded values for use in the ILLR.

B. On-Site Testing Procedures

    11. The SHVIA establishes a procedure that may extend to on-site 
testing when a subscriber is denied satellite retransmission of a 
distant network station as a result of a predictive determination. 
Specifically, the SHVIA prescribes two steps before a test is 
performed. The first is the waiver request. A subscriber who is denied 
satellite retransmission of the signal of a specific distant network 
station or stations based on a predictive determination may request a 
waiver from the local network affiliate. This request is to be made 
through the satellite service provider. In the event the local 
affiliate denies the waiver request, the second step is a request for 
an on-site test. Having been denied a waiver, the subscriber may 
submit, through the satellite provider, a request for an on-site test 
to determine whether the subscriber receives or does not receive a 
signal meeting the signal intensity standard. The satellite carrier and 
the network station must then select a qualified and independent person 
to conduct the test, following the procedures set out in the 
Commission's rules, and the test must be conducted within 30 days of 
the subscriber's request for a test. If the test verifies the 
subscriber's inability to receive the locally broadcast signal at the 
required minimum intensity, the subscriber thereby becomes eligible for 
satellite retransmission of the distant network station's signal.
    12. Independence of Persons Conducting Reception Tests. In its 
petition for reconsideration, the NAB/MSTV requests that we provide 
guidance about what is required for a signal intensity tester to be 
considered ``independent,'' and asks the Commission to rule that a 
tester can be considered independent only if he or she is not employed 
by and does not have a business relationship with any satellite 
carrier. It argues that satellite dish installers would be inclined to 
find customer premises unserved in the interest of the satellite 
carriers who recommend them and also in the interest of the customers 
paying for dish installation who wish to receive the distant network 
signals via satellite.
    13. The Commission declines to adopt NAB/MSTV's suggestion. In the 
First Report and Order, we appointed the American Radio Relay League 
(ARRL) as the independent and neutral entity that will designate the 
person or organization to conduct measurements if the satellite carrier 
and the network station are unable to agree on the selection of a 
tester. The Commission has selected an impartial, independent entity to 
designate qualified testers and we expect that the tester's 
professionalism and any track record regarding their impartiality will 
be taken into consideration. We appointed the ARRL specifically because 
we expect it to designate persons who can make judgments with 
appropriate expertise and objectivity, and no one has raised a question 
as to ARRL's capability to do so. We further note that a dish installer 
may also be the local installer of television antennas and hence have 
broader business interests than solely as a dish installer. Moreover, 
if we were to require that testers not have business relationships with 
any satellite carrier, and similarly with any broadcasters, application 
of the statute would be problematic, since many experienced technicians 
will have gained their technical qualifications partly through work 
performed for satellite companies or broadcasters. Thus, qualified 
persons may be unavailable in many localities if business relationships 
by themselves were a barrier.
    14. Rather than establishing a restrictive definition or finite 
list of testers that may be considered ``independent,'' we offer as 
guidance, for the satellite and broadcast industries as well as for the 
ARRL, examples of candidate testers who may be considered independent 
in the SHVIA context. We recommend that testers with a one-sided 
affiliation, either with satellite providers or broadcast stations, be 
avoided unless both parties affirmatively find the tester acceptable or 
no other qualified tester is available. For example, an employee of 
either the broadcaster or the satellite carrier involved in the dispute 
that gives rise to the need for a test would be the least independent 
candidate. A contractor or consultant whose business includes measuring 
signal reception for cellular

[[Page 40794]]

or land mobile radio services would be more suitable for conducting 
television signal intensity tests. A contractor who provides service in 
support of or who works for only broadcasters or satellite providers 
would be less independent than a contractor who provides services to 
neither or to both. In no event, however, should a tester receive 
compensation that is dependent upon the outcome of the particular test 
in question. We note in relation to these matters that the satellite 
provider and the local broadcast station may propose specific 
candidates to the ARRL for its consideration of their qualifications as 
well as independence. We recognize, however, that there can be 
circumstances, particularly in the smaller markets, in which the choice 
of qualified testers may be limited, and the parties, as well as ARRL, 
should show reasonable flexibility in applying the criteria. Finally, 
we expect that a tester that is initially agreed upon or determined by 
the ARRL to be qualified will conduct the test for which he or she has 
been designated without later objection by either party. That same 
tester could then be designated to conduct additional tests without 
further requalification unless a party raises a specific objection to 
his or her qualifications or practices.
    15. Event Sequence for On-Site Tests. In the First Report and 
Order, we described the statutory provisions for waivers and testing 
with respect to the eligibility of satellite service subscribers to 
receive distant signals. Essentially, if the ILLR predicts that a 
subscriber is ``served,'' the subscriber may submit a request for a 
waiver through the satellite carrier to the network station. If the 
network station grants the waiver, the subscriber is eligible to 
receive the distant station via satellite. The statute further provides 
that if the waiver is denied, the subscriber may submit a request for a 
test to the satellite carrier. The SHVIA's scheme contemplates that a 
waiver would be sought from a broadcaster, and a test requested if the 
waiver is denied, with the broadcaster paying for the test if the test 
demonstrates that the subscriber does not receive an adequate over-the-
air signal. This provides the broadcaster the opportunity to weigh the 
likelihood of an adequate signal against whether it wishes to incur the 
testing fee in the absence of an acceptable signal.
    16. EchoStar requests that in the interest of efficiency we find it 
permissible for satellite providers to cause field intensity 
measurements to be made prior to the formalities of waiver request and 
possible denial anticipated in SHVIA. Specifically, EchoStar would have 
a field strength test occur during the same appointment with a 
potential subscriber as the antenna installation. Opponents argue, 
however, that EchoStar's proposal does not follow the three-event 
sequence for the procedure established in the SHVIA involving a waiver 
request, waiver denial, and then a request for an on-site test. NAB/
MSTV further objects that EchoStar is proposing a ``secret'' test 
conducted by persons with ``a direct financial stake in the outcome.'' 
In reply, EchoStar explains that it is not proposing a secret test and 
that it proposes to use only an independent qualified tester, indeed, 
one that is examined and designated by the ARRL. Reiterating its 
concern for efficiency, EchoStar requests that we not preclude 
satellite service providers from conducting the test at an earlier 
stage in the process, ``before or as soon as the consumer is predicted 
to be ineligible.''
    17. While the procedure advocated by EchoStar may be more 
expeditious than the one established in the First Report and Order, and 
may provide the protections intended by the statute, it is not the 
procedure contemplated by the statute. The statute delineates a 
specific sequence of events preceding testing: waiver request, waiver 
denial, the subscriber's request for an on-site test, selection of a 
qualified tester by the satellite carrier and the network station, and 
then the on-site test, which the broadcaster must pay for if it 
establishes that the subscriber does not receive an adequate over-the-
air signal. As EchoStar's proposed procedure does not follow this 
temporal sequence specified in the statute, the Commission denies its 
request.
    18. We believe that EchoStar has raised a valid public interest 
concern with the efficiency of the process used to determine SHVIA 
eligibility. In this regard, we note that the Commission's call center 
has received numerous complaints from subscribers stating that their 
requests for on-site signal tests have been ignored or delayed 
continuously by both satellite carriers and broadcast stations. The 
statute demonstrates a concern for prompt resolution of reception 
controversies, as indicated in the thirty-day time limit for on-site 
testing. We note that the distant signal copyright protection 
provisions expire on December 31, 2004, and Congress is currently 
considering the extension of this provision of the SHVIA. Congress thus 
has the opportunity to adopt EchoStar's or any other modifications to 
these procedures when it enacts legislation to extend those provisions. 
In the interim, we are continuing to monitor the situation closely and 
expect that the satellite providers and local network affiliates will 
coordinate their efforts to implement the SHVIA provisions as Congress 
intended.
    19. Finally, NAB/MSTV has requested that the broadcaster be given 
10 days after a test notification to reconsider the waiver denial that 
led to the test request and to provide an opportunity for interested 
parties to observe the test. No party has advanced a persuasive reason 
why a broadcaster cannot make an adequately considered judgment when 
first presented with a waiver request. The independently determined 
qualifications of the tester should obviate the need to observe every 
test. Moreover, such a delayed second-chance procedure would seem, in 
fact, to provide a broadcaster with incentive to deny all waiver 
requests when first presented. Accordingly, this request by NAB is 
denied.

Ordering Clauses

    Pursuant to sections 1, 4(i), 4(j) of the Communications Act of 
1934, as amended, 47 U.S.C. 151, 154(i), and 154(j); Section 1008 of 
Pub. L. 106-113, 113 Stat. 1501, 1501A-526 to 1501A-545; and Section 
119(d)(10)(a) of the Copyright Act, 17 U.S.C. 119(d)(10)(a), the 
petitions for reconsideration submitted by EchoStar Satellite 
Corporation and by the National Association of Broadcasters and 
Association for Maximum Service Television, Inc. are denied.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 04-15005 Filed 7-6-04; 8:45 am]
BILLING CODE 6712-01-P