[Federal Register Volume 75, Number 248 (Tuesday, December 28, 2010)]
[Rules and Regulations]
[Pages 81491-81498]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-32694]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 73

[ET Docket No. 06-94; FCC 10-195]


Digital Television Signals Pursuant to the Satellite Home Viewer 
Extension and Reauthorization Act of 2004

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this document the Commission amends its rules to include 
measurement procedures for determining the strength of a digital 
broadcast television (DTV) signal at any specific location. These 
procedures will be used for determining whether households are eligible 
to receive distant DTV network signals retransmitted by satellite 
carriers, pursuant to the provisions of the Satellite Television 
Extension and Localism Act of 2010 (STELA).

DATES: Effective January 27, 2011, except for amendment to Sec.  
73.686(e), which contains information collection requirements that are 
not effective until approved by the Office of Management and Budget. 
The Commission will publish a document in the Federal Register 
announcing the effective date for that amendment.

FOR FURTHER INFORMATION CONTACT: Ira Keltz, Office of Engineering and 
Technology, (202) 418-0616, e-mail: [email protected], TTY (202) 418-
2989.

ADDRESSES: Federal Communications Commission, 445 12th Street, SW., 
Washington, DC 20554.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Report 
and Order, ET Docket No. 06-94, FCC 10-195, adopted November 22, 2010 
and released November 23, 2010. The full text of this document is 
available for inspection and copying during normal business hours in 
the FCC Reference 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: www.fcc.gov.
    People with Disabilities: To request materials in accessible 
formats for people with disabilities (braille, large print, electronic 
files, audio format), send an e-mail to [email protected] or call the 
Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-
418-0432 (tty).

Summary of Report and Order

    1. In accordance with the provisions of the STELA, the Commission 
amends its rules to include measurement procedures for determining the 
strength of a digital broadcast television (DTV) signal at any specific 
location. These procedures will be used for determining whether 
households are eligible to receive distant DTV network signals 
retransmitted by satellite carriers, pursuant to the provisions of the 
Satellite Television Extension and Localism Act of 2010 (STELA). The 
Report and Order implements DTV signal measurement procedures proposed 
in the Commission's Notice of Proposed Rulemaking (SHVERA NPRM), 75 FR 
46885, August 4, 2010, and Further Notice of Proposed Rulemaking (STELA 
FNRPM) in this proceeding with minor modifications. The rules adopted 
herein were developed based on our recommendations in the SHVERA Report 
and comments received in response to the SHVERA NPRM and the STELA 
FNPRM. They largely rely on existing proven methods the Commission has 
already established for measuring analog television signal strength at 
any individual location, as set forth in Sec.  73.686(d) of the 
existing rules, but include modifications as necessary to accommodate 
the inherent differences between analog and digital TV signals. The new 
digital signal measurement procedures include provisions for the 
location of the measurement antenna, antenna height, signal measurement 
method, antenna orientation and polarization, and data recording.
    2. On December 2004, Congress enacted the Satellite Home Viewer 
Extension and Reauthorization Act of 2004 (SHVERA), which amended the 
Copyright Act and the Communications Act to further aid the 
competitiveness of satellite carriers and expand program offerings for 
satellite TV subscribers while protecting localism. The SHVERA included 
new provisions for distant digital signal reception and amended section 
339 of the Communications Act and section 119 of the Copyright Act to 
provide three methods by which a subscriber can establish eligibility 
to receive such signals. First, a subscriber would be eligible to 
receive the distant digital signal of a particular network if his or 
her household was predicted by the Satellite Home Viewer Act (SHVA) 
ILLR model to be unserved by the over-the-air analog signal of any 
affiliate of that network (not necessarily the local affiliate). 
Second, a subscriber whose household was predicted to be served by a 
local station's analog signal could request an on-site signal strength 
test to determine if his or her household is unable to receive that 
station's digital signal. Third, a satellite subscriber could receive 
distant digital signals if the television network station granted a 
waiver to allow satellite retransmission of the relevant network from a 
distant station.
    3. Section 204 of the SHVERA also directed the Commission to 
conduct an inquiry regarding whether the Commission's digital TV signal 
strength standards and signal measurement procedures for determining if 
a household is ``unserved'' by local signals should be revised. Section 
204 of SHVERA further directed the Commission to provide Congress with 
a Report on its findings and recommendations for any revisions that 
might be necessary for implementing DTV measurement standards and 
procedures. Pursuant to this requirement, the Commission issued a 
Notice of Inquiry and, on December 8, 2005, issued the SHVERA Report to 
Congress that, in relevant part, stated that the Commission generally 
believes that the digital television measurement procedures should be 
similar to the Commission's current procedures for measuring the field 
strength of analog television stations in Sec.  73.686(d) of the rules, 
but with certain modifications to address the differences between 
analog and digital TV signals. The Commission also stated that no 
changes are needed to the digital television field strength standards 
and/or planning factors for

[[Page 81492]]

purposes of determining whether a household is eligible to receive 
retransmitted distant network television signals.
    4. The Commission subsequently adopted the SHVERA NPRM, 75 FR 
46885, August 4, 2010, in which it proposed measurement standards for 
digital television signals as recommended in the SHVERA Report. The 
Commission specified that it would rely on the proposed DTV measurement 
procedures for evaluating DTV signal strength pending the adoption of 
final rules. These interim procedures have been in effect since 
adoption of the SHVERA NPRM in April, 2006, and to date the Commission 
has not received any reports of problems or difficulties with their 
use.
    5. The Satellite Television Extension and Localism Act of 2010 
(STELA) retains the SHVERA framework of three methods for establishing 
subscriber eligibility to receive distant digital signals: Predictive 
model; on-site testing; and waiver. Following the STELA's enactment, 
the Commission adopted the STELA FNPRM to address provisions of the 
STELA regarding the second method, digital signal measurement 
procedures. The Commission explained in the STELA FNPRM that the STELA 
raised three new issues not addressed in the SHVERA NPRM: (1) Which 
station signals are to be measured; (2) what type of antenna is to be 
used in performing on-location testing; and (3) which program stream 
from a station in the local market is to be measured. The Commission 
sought comment on these issues and more generally to refresh the record 
in response to the SHVERA NPRM.
    6. Stations to be Tested. The Commission adopts its proposal that 
measurements for distant network signal eligibility only include 
stations located within the same DMA as the satellite subscriber's 
household. The STELA differs from the SHVIA and SHVERA in that it 
specifies that only ``local'' stations, i.e., stations located within 
the same DMA as the subscriber's household, are to be considered in 
determining a subscriber's eligibility. Under the SHVIA, Congress 
defined an ``unserved household,'' with respect to a particular 
television network, to mean ``a household that-- cannot receive * * * 
an over-the-air signal of a primary network station affiliated with 
that network * * *'' This definition was not altered in the SHVERA. 
However, in the STELA, Congress modified the definition of an 
``unserved household'' to mean a household that ``cannot receive * * * 
an over-the-air signal containing the primary stream, or * * * the 
multicast stream, originating in that household's local market and 
affiliated with that network * * *'' Under the rules for analog TV 
measurements, a testing entity had to measure the signals of all 
stations affiliated with a specific network. However, under the STELA, 
a testing entity is to consider only the signals of those network-
affiliated stations that are located in the same DMA as the satellite 
subscriber. Thus, the Commission proposed in the STELA FNPRM to modify 
its proposed rules for measurement of DTV signals for purposes of 
determining eligibility for delivery of distant network signals by 
satellite providers to incorporate this change. The Commission did not 
receive any comment on this issue and accordingly adopts its proposals 
without change. The Commission noted that, consistent with section 
204(b)(2) of the STELA, this rule change could reduce burdens on both 
testers and consumers as fewer stations would need to be tested, 
potentially resulting in lower costs for consumers and saving time.
    7. Indoor Measurements. The Commission adopted its proposal to 
continue to rely on an outdoor signal intensity test for purposes of 
determining subscriber eligibility to receive distant network signals. 
The current measurement rules for analog signals specify the use of an 
outdoor antenna, consistent with the provisions of the SHVERA. The 
STELA modified the statute's wording to replace the term 
``conventional, stationary, outdoor rooftop receiving antenna'' with 
the term ``antenna.'' In light of the amended statutory language, we 
invited comment on the potential use of moveable indoor antennas in our 
digital signal measurement procedures, but for several reasons declined 
to propose rules for indoor measurements. First, in the SHVERA Report, 
the Commission concluded that many factors, including the performance 
expected of an indoor antenna, the placement of the antenna, and the 
location within a structure or room where the antenna is located make 
it difficult to develop an indoor television signal measurement 
procedure that will provide accurate, reliable and repeatable results. 
There are no standard models or planning factors for indoor reception, 
and in particular there is no standard antenna specification for such 
reception. The wide variation in indoor viewing situations makes it 
difficult to specify a standard model that meaningfully relates to any 
typical indoor viewing location. In addition, the performance of indoor 
antennas available to consumers varies significantly. Second, signal 
strengths typically vary significantly at different locations within a 
room and in different rooms such that it is not apparent where the 
measurement antenna should be placed. In light of these considerations, 
the Commission requested comments in the STELA FNPRM on alternative 
approaches for making eligibility determinations in situations where 
consumers are not able to use an outdoor antenna to receive local 
television signals. It also noted that the signal intensity standard in 
Sec.  73.622(e)(1), which specifies the signal level that constitutes 
service, assumes an outdoor antenna, as it relies on the methodology of 
the Commission's OET Bulletin No. 69, which in turn relies on the DTV 
planning factors, including an outdoor antenna The Commission is not 
persuaded by the Broadcasters' assertion that the STELA requires the 
Commission to continue to rely on an outdoor antenna for conducting 
measurements. Instead, it believes that the change in statutory 
language simply affords that Commission latitude to consider all types 
of antennas. As observed in the SHVERA Report, the Commission has 
always assumed that households will use the type of antenna that they 
need to achieve service; if an indoor antenna is insufficient for a 
particular household, it will generally rely on a rooftop antenna. 
Nothing in the STELA reflects that Congress wished to alter that 
assumption. On the contrary, the STELA specifies use of the digital 
television signal strength standard in Sec.  73.622(e)(1) of the rules, 
which is derived from the assumptions in the digital television 
planning factors set forth in OET Bulletin No. 69, including the 
assumption of use of an outdoor antenna. The Commission does not 
believe that Congress would have incorporated this assumption into the 
STELA if it intended use of an indoor antenna standard.
    8. The Commission also finds that continued use of an outdoor 
antenna standard for signal strength measurements is the best means of 
achieving the directives for digital TV signal strength measurements 
set forth in the STELA. The STELA specifies use of the digital 
television signal strength standard in Sec.  73.622(e)(1) of the rules 
as the threshold metric against which to compare measurements to 
determine whether households are ``served'' or ``unserved.'' That 
signal strength standard is important because it serves to define the 
service boundary or ``service contour'' of a digital television station 
and the threshold at which a

[[Page 81493]]

station's service is considered to be available in areas within that 
service contour. That standard, in turn, is premised on use of an 
outdoor antenna through the digital television planning factors set 
forth in OET Bulletin No. 69. To provide for meaningful comparisons 
between that standard and digital TV signal strength measurements, the 
Commission finds that it is appropriate to specify use of an outdoor 
antenna, so that the signals whose strengths are being measured have 
the same qualities as the signal specified in the standard.
    9. Multicast Signals. The Commission adopted its tentative 
conclusion not to make any special provisions for multicast signals in 
our modified digital signal strength measurement procedures. The 
Commission's tentative conclusion in the STELA FNPRM was based on the 
recognition that the testing protocol measures a station's signal at 
the subscriber location and that all program streams are equally 
available on a signal. Whether the station's signal includes one or 
more program streams or networks does not necessitate a change in the 
test employed because the presence of multiple streams has no bearing 
on the signal intensity or receivability, i.e., the bit stream of a 
single TV signal can be decoded into multiple program streams, but 
there is only a single TV signal to measure. The Commission stated its 
belief that the tester, the satellite carrier and the network affiliate 
involved in the conduct of the test will be able to identify the 
network affiliates in the broadcast signal. If the signal is found to 
be available at the subscriber location at the requisite intensity, 
then any and all of the networks in that signal will likewise be 
available. If the station's signal is not found to be present at the 
requisite intensity, the subscriber will be unserved with respect to 
any and all networks broadcast on the streams in that signal, unless 
the subscriber receives a signal of sufficient strength from another 
local station affiliated with the same network or networks. Only the 
Broadcasters commented on our tentative proposal, stating that 
multicast streams should be treated equally. Accordingly, the 
Commission adopted its tentative conclusion not to make any special 
provisions for multicast signals.
    10. DTV Signal Measurement Procedures. The Commission adopted the 
proposal in the SHVERA NPRM to continue using the same rules for 
measuring DTV signals as the Commission uses for measuring analog TV 
signals, with the modifications identified. Under the current rules, 
measurements are to be made as close as possible to the specific site 
where the household's receiving antenna is located or in the case when 
there is no receiving antenna at the site, measurements are to be made 
at locations as close as possible to a reasonable and likely spot for 
the antenna. Further, the current rules require that five cluster 
measurements be taken, each at least 3 meters apart, and if possible, 
the first testing point should be the center of a square whose corners 
are the four other locations. EchoStar commented that these 
requirements make good sense and provide a fair degree of flexibility 
to the tester to adapt to the subscriber's location. However, EchoStar 
asked for clarification that it is not necessary to choose locations in 
the shape of a square, but only that the testing locations be as close 
as possible to the likely antenna site. Similarly DirecTV and Dish 
Network argue in response to the STELA NPRM that the current cluster 
measurement is needlessly involved. As an alternative, they state that 
the locations should be in an area encompassed by a square, circle, or 
semicircle, as possible, with 3 meter separation and with one 
measurement in the center representing the nominal television receive 
location. No other parties commented on this issue. The Commission 
clarifies that the existing rule provides that measurements should be 
made in the form of a square ``if possible,'' but does not require that 
the square pattern be used. Testers have always had the flexibility to 
adjust the measurement locations in order to conduct them in a safe and 
economically feasible manner while still obtaining the most accurate 
measurements possible. Thus, the Commission does not believe any 
additional clarification or change on this issue is necessary. The 
Commission also adopted its proposal that measurements of DTV signals 
be taken by elevating the antenna to 6.1 meters (20 feet) above the 
ground for one story buildings and to 9.1 meters (30 feet) above the 
ground for structures taller than one story. Again, this procedure is 
identical to the current rules for analog TV signal measurements and is 
consistent with the DTV planning factors. EchoStar, arguing that this 
height requirement may lead to lengthy tests as the antenna has to be 
raised, lowered and reset repeatedly, asks that the Commission allow 
measurements to be made at a lower height and then corrected to reflect 
the signal strength at 20 or 30 feet. It suggests that such a change 
may increase the pool of qualified testers who have the necessary 
equipment to conduct signal strength tests. In opposition, the 
Broadcasters assert that the rationale underlying the Commission's 
height rules--to simulate the roof-top antenna mount of a 20 foot one-
story house, or a 30 foot tall two-story house--applies equally to 
digital and analog signals. The Commission agrees with the 
Broadcasters. This rule was devised as a way to account for most 
households in the country while maintaining an easy-to-administer 
standard and the Commission is not persuaded that it should modify it 
now. Further, no evidence was presented showing that a reduction in the 
required antenna height requirement would significantly increase the 
pool of available testers.
    11. Measurement Instrumentation. The Commission adopted rules 
requiring that the tests measure the integrated average power over the 
signal's entire 6 megahertz bandwidth and recommending that the 
measurement instrumentation use an intermediate frequency (i.f.) 
bandwidth of 100 kilohertz unless the instrumentation is specifically 
designed to use an alternative i.f. bandwidth. Additionally, the rules 
continue to require testers to use good engineering practice, including 
proper choice and use of instrumentation to ensure accurate results. 
The Commission had proposed that the tests measure the integrated 
average power over the signal's entire 6 megahertz bandwidth, and that 
the intermediate frequency (i.f.) bandwidth of the measuring 
instrumentation be no greater than 6 megahertz so that the measurement 
method would conform to the format of the DTV signal. Commenters 
unanimously agreed with our proposal to measure total integrated power 
over the 6 megahertz bandwidth, but Broadcasters sought more 
specificity regarding the restriction of the i.f. bandwidth. They 
stated that a large i.f. bandwidth, such as 6 megahertz, could produce 
inaccurate results and recommended that the Commission require an i.f. 
bandwidth of less than 100 kHz. The Commission does not believe the 
Broadcaster's concern is significant as most measurements could not be 
taken using a 6 megahertz i.f. bandwidth because such a setting is not 
available on most measurement instruments. While we believe most 
instruments are capable of i.f. bandwidth settings of 100 kHz or less, 
some may not have this capability, which could potentially reduce the 
number of parties that have the equipment needed to perform these 
measurements. Further, measurement instruments with an i.f. bandwidth 
greater than 100 kHz can yield accurate

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results if used properly. Accordingly, the Commission amended it's 
proposal to recommend, but not require an i.f. bandwidth of 100 kHz.
    12. The Commission also adopted its remaining proposals regarding 
measurement procedure: To use a shielded transmission line; to match 
the antenna impedance to the transmission line at all frequencies 
measured; to employ a suitable balance when an unbalanced line is used; 
to measure transmission line loss for each frequency; to use a 
horizontally polarized antenna; and to orient the testing antenna so 
that its maximum gain (over an isotropic antenna) faces the strongest 
signal coming from the transmitter being tested. All of these 
procedures are identical to those currently used for analog TV 
measurement. No parties commented on these proposals. The Commission 
continues to believe that these procedures are appropriate for 
measurement for digital television signals and thus, it adopts them as 
proposed.
    13. Measurement Antenna. The Commission adopted rules to provide 
testers flexibility to choose either a half-wave dipole or a gain 
antenna when conducting DTV measurements. In the SHVERA NPRM, the 
Commission proposed to allow use of either type of antenna for testing 
the signal strength of DTV signals. In making this proposal, the 
Commission recognized that both of these types of antennas are 
permitted for analog TV signal measurements. Under this regime, the on-
site tester will have flexibility to determine the best antenna to 
employ when conducting field strength measurements.
    14. The Commission rejects the Broadcasters' arguments against use 
of dipole antennas. Half-wave dipole antennas and gain antennas each 
have various advantages and disadvantages. For accuracy, half-wave 
dipole antennas generally must be retuned for each frequency when 
making measurements. However, half-wave dipole antennas can be 
calibrated easily and reliably. Gain antennas do not require retuning 
and can boost the signal in the direction they are pointed while 
reducing interfering signals from other directions. On the other hand, 
gain antennas can be a little more difficult to calibrate precisely and 
maintain in calibration. The Commission continues to believe that both 
half-wave dipole and gain antennas will provide reliable, accurate test 
results, so long as the tester is diligent and takes care to ensure 
that good engineering practice is followed, as required by the rules. 
Both types of antennas are permitted for testing analog signals and the 
Commission will similarly permit both for measuring digital signals. 
Thus, each tester, based on experience, availability of equipment, and 
local conditions, will be permitted to decide which antenna would be 
best for measuring digital TV signals.
    15. Weather. The Commission adopts its proposal to prohibit digital 
television signal strength measurements being made during inclement 
weather. Inclement weather can generally be defined as unfavorable 
atmospheric conditions such as, but not limited to heavy rainfall, 
snowfall accumulation, high windspeed, or any combination thereof. As 
the Commission noted in making this proposal, while in general weather 
conditions do not have an appreciable effect on the reception of 
broadcast television signals, heavy precipitation and the movement of 
major weather fronts through the measurement area could impact the 
signal strength measurements. No commenter objected to this proposal 
and the Commission adopted it as proposed.
    16. Data Recording. The Commission adopts its proposal to apply the 
same recording requirements for DTV signal strength measurements as are 
used for analog measurements. In general, the existing rules require 
that the recorded data contain a list of calibrated equipment along 
with a description of the calibration, a description of the 
environment, such as topography, vegetation, buildings, etc., as well 
as the location and value of the actual measurements. There were no 
objections to this proposal and the Commission adopted the rules in 
this regard as proposed.
    17. Other Matters. EchoStar observes that the Commission's rules 
define the digital television service area as the noise-limited contour 
based on criteria that the specified signal level is predicted to be 
exceeded at 50% of the locations, 90% of the time (using F(50,90) 
curves and the Longley-Rice terrain prediction model). EchoStar 
proposes that the time variability factor be adjusted from 90% to 50% 
(i.e. to the F(50, 50) level) for comparison to a median measured 
value. Similarly, DirecTV and Dish Network state that the Commission 
should either develop a conversion factor or use a standard method such 
as Rayleigh, which describes an increase in necessary power from the 
mean to 99% of 20dB. The comments do not state how this conversion 
would be used, but the Commission presumes it would be intended as a 
correction factor to reduce the measured signal strength value. The 
Commission notes that it rejected this same request in the SHVERA 
Report and that EchoStar has not provided any new information regarding 
this issue. Accordingly, the Commission will not make any adjustments 
to the signal strength standard.
    18. Finally, in the SHVERA NPRM, we asked if there are steps the 
Commission can take in this proceeding that will facilitate or enhance 
tester competence and availability. The Commission did not receive any 
suggestions on this issue. As noted, the Commission has provided 
flexibility for the conduct of DTV measurement tests, such as the rules 
requiring good engineering practice, which provides for testers to use 
antennas and measurement instrumentation with which they are familiar 
to endure accurate results. The Commission believes that by bestowing 
this flexibility to testers, it will maximize the number of qualified 
testers available.

Procedural Matters

    19. Final Regulatory Flexibility Analysis: As required by the 
Regulatory Flexibility Act of 1980, as amended (``RFA'') \1\ an Initial 
Regulatory Flexibility Analysis (``IRFA'') was incorporated in the 
Notice of Proposed Rulemaking (NPRM) to this proceeding.\2\ The 
Commission sought written public comment on the proposals in the NPRM, 
including comment on the IRFA. The Commission received no comments on 
the IRFA. This present Final Regulatory Flexibility Analysis (``FRFA'') 
conforms to the RFA.\3\
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    \1\ See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601 et. seq., has 
been amended by the Small Business Regulatory Enforcement Fairness 
Act of 1996 (``SBREFA''), Public Law No. 104-121, Title II, 110 
Stat. 847 (1996). The SBREFA was enacted as Title II of the Contract 
With America Advancement Act of 1996 (``CWAAA'').
    \2\ Implementation of the Satellite Home Viewer Extension and 
Reauthorization Act of 2004, 20 FCC Rcd 2983, Appendix C (2005) 
(NPRM).
    \3\ See 5 U.S.C. 604.
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    A. Need for and Objectives of the Report and Order. This Report and 
Order (``R&O'') adopts rules to implement procedures for determining 
the strength of a digital broadcast television (DTV) signal at any 
specific location. These rules implement our recommendations for DTV 
measurement procedures presented in the Commission's Report to Congress 
(SHVERA Report) pursuant to section 204(b) of the Satellite Home Viewer 
Extension and Reauthorization Act of 2004 (SHVERA).\4\ The rules 
provide procedures to determine whether households are eligible to 
receive

[[Page 81495]]

distant DTV network signals retransmitted by satellite communications 
providers. In December 2004, Congress enacted the Satellite Home Viewer 
Extension and Reauthorization Act of 2004,\5\ pursuant to which, the 
Commission conducted an Inquiry \6\ (SHVERA Inquiry) and on December 9, 
2005, released the SHVERA Report. In relevant part, the SHVERA Report 
stated that the Commission intended to conduct a rulemaking proceeding 
to specify procedures for measuring the field strength of digital 
television signals at individual locations.\7\ The Report also stated 
that the digital television measurement procedures should be similar to 
the current procedures for measuring the field strength of analog 
television stations in Sec.  73.686(d) of the rules, but with certain 
modifications to address the differences between analog and digital TV 
signals.\8\
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    \4\ See SHVERA Report, supra n.1.
    \5\ See id.
    \6\ See In the Matter Of Technical Standards For Determining 
Eligibility For Satellite-Delivered Network Signals Pursuant To The 
Satellite Home Viewer Extension and Reauthorization Act, ET Docket 
No. 05-182, Notice of Inquiry, 20 FCC Rcd. 9349 (2005), (SHVERA 
Inquiry).
    \7\ See SHVERA Report, supra. note 4.
    \8\ Id.
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    Wherever possible, the adopted digital signal strength measurement 
procedures rely on the existing, proven methods the Commission has 
established for measuring analog television signal strength at any 
individual location.\9\ We also note that the SHVERA statute provided 
that testing of digital signal strength for this purpose could have 
begun as early as April 30, 2006.\10\
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    \9\ See generally, 47 CFR 73.686(d).
    \10\ 47 U.S.C. 339(a)(2)(D)(vii) provides trigger dates for 
testing. Generally, subscribers in the top 100 television markets 
will be able to request a digital signal strength test after April 
30, 2006 and subscribers in other markets will be able to request a 
test after July 15, 2007. Only network stations that have received a 
tentative digital channel designation that is the same as such 
stations' current digital channel, or that have lost interference 
protection, are subject to the April 30, 2006 commencement date for 
signal strength testing. Network stations in the top 100 markets 
without tentative channel designations on their DTV channels, as 
well as all network stations not in the top 100 markets, will be 
subject to signal strength testing beginning July 15, 2007, unless 
the Commission grants the station a waiver. 47 U.S.C. 
339(a)(2)(D)(vii)(I)(aa)(bb).
    Waiver requests by stations subject to the testing commencement 
date of April 30, 2006 were required to be submitted by November 30, 
2005. To be grantable, waiver requests must provide ``clear and 
convincing evidence that the station's digital signal coverage is 
limited due to the unremediable presence of one or more of the 
following: (1) The need for international coordination or approvals; 
(2) clear zoning or environmental legal impediments; (3) force 
majeure; (4) the station experiences a substantial decrease in its 
digital signal coverage area due to the necessity of using a side-
mounted antenna; (5) substantial technical problems that result in a 
station experiencing a substantial decrease in its coverage area 
solely due to actions to avoid interference with emergency response 
providers; or (6) no satellite carrier is providing the 
retransmission of the analog signals of local network stations under 
section 338 in the local market.'' The Act further provides that 
``under no circumstances may such a waiver be based upon financial 
exigency.'' Waiver requests by stations subject to the testing 
commencement date of July 15, 2007 had to be submitted to the 
Commission no later than February 15, 2007. See Public Notice DA No. 
05-2979 (rel. Nov. 17, 2005). See generally, 47 U.S.C. 
339(a)(2)(D)(vii)-(viii).
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    B. Summary of Significant Issues Raised by Public Comments in 
Response to the IRFA. There were no comments filed that specifically 
addressed the IRFA.
    C. Description and Estimates of the Number of Small Entities to 
Which the Rules Adopted in this Notice may apply. The RFA directs 
agencies to provide a description of and, where feasible, an estimate 
of the number of small entities that will be affected by the proposed 
rules.\11\ The RFA generally defines the term ``small entity'' as 
having the same meaning as the terms ``small business,'' ``small 
organization,'' and ``small governmental jurisdiction.''\12\ In 
addition, the term ``small business'' has the same meaning as the term 
``small business concern'' under the Small Business Act.\13\ 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).\14\
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    \11\ 5 U.S.C. 603(b)(3), 604(a)(3).
    \12\ Id. 601(6).
    \13\ 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 terms which are appropriate to the activities of 
the agency and publishes such definitions(s) in the Federal 
Register.''
    \14\ 15 U.S.C. 632.
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    The rules adopted in this Report and Order modify previous 
proposals to measure the strength of digital television signals at any 
particular location, as a means of determining whether any particular 
household is ``unserved'' by a local DTV network station and is 
therefore eligible to receive a distant DTV network signal 
retransmitted by a Direct Broadcast Satellite (DBS) service provider. 
Therefore, DBS providers will be directly and primarily affected by the 
proposed rules, if adopted. In addition, rules adopted will also 
directly affect those local digital television stations that broadcast 
network programming. Therefore, in this FRFA, we consider, and invite 
comment on, the impact of the proposed rules on small digital 
television broadcast stations, small DBS providers, and other small 
entities. A description of such small entities, as well as an estimate 
of the number of such small entities, is provided in the following 
paragraphs.
    Nationwide, there are a total of approximately 29.6 million small 
businesses, according to the SBA.\15\ A ``small organization'' is 
generally ``any not-for-profit enterprise which is independently owned 
and operated and is not dominant in its field.'' \16\ Nationwide, as of 
2002, there were approximately 1.6 million small organizations.\17\ The 
term ``small governmental jurisdiction'' is defined generally as 
``governments of cities, towns, townships, villages, school districts, 
or special districts, with a population of less than fifty thousand.'' 
\18\ Census Bureau data for 2002 indicate that there were 87,525 local 
governmental jurisdictions in the United States.\19\ We estimate that, 
of this total, 84,377 entities were ``small governmental 
jurisdictions.'' \20\ Thus, we estimate that most governmental 
jurisdictions are small.
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    \15\ See SBA, Office of Advocacy, ``Frequently Asked 
Questions,'' http://web.sba.gov/faqs/faqindex.cfm?areaID=24 (revised 
Sept. 2009).
    \16\ 5 U.S.C. 601(4).
    \17\ Independent Sector, The New Nonprofit Almanac & Desk 
Reference (2002).
    \18\ 5 U.S.C. 601(5).
    \19\ U.S. Census Bureau, Statistical Abstract of the United 
States: 2006, Section 8, page 272, Table 415.
    \20\ We assume that the villages, school districts, and special 
districts are small, and total 48,558. See U.S. Census Bureau, 
Statistical Abstract of the United States: 2006, section 8, page 
273, Table 417. For 2002, Census Bureau data indicate that the total 
number of county, municipal, and township governments nationwide was 
38,967, of which 35,819 were small. Id.
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    Cable Television Distribution Services. The ``Cable and Other 
Program Distribution'' census category includes cable systems 
operators, closed circuit television services, direct broadcast 
satellite services, multipoint distribution systems, satellite master 
antenna systems, and subscription television services. Since 2007, 
these services have been defined within the broad economic census 
category of Wired Telecommunications Carriers; that category is defined 
as follows: ``This industry comprises establishments primarily engaged 
in operating and/or providing access to transmission facilities and 
infrastructure that they own and/or lease for the transmission of 
voice, data, text, sound, and video using wired telecommunications 
networks. Transmission facilities may be based on

[[Page 81496]]

a single technology or a combination of technologies. Establishments in 
this industry use the wired telecommunications network facilities that 
they operate to provide a variety of services, such as wired telephony 
services, including VoIP services; wired (cable) audio and video 
programming distribution; and wired broadband Internet services. By 
exception, establishments providing satellite television distribution 
services using facilities and infrastructure that they operate are 
included in this industry.'' The SBA has developed a small business 
size standard for this category, which is: All such firms having 1,500 
or fewer employees. To gauge small business prevalence for these cable 
services the Commission must, however, use current census data that are 
based on the previous category of Cable and Other Program Distribution 
and its associated size standard; that size standard was: All such 
firms having $13.5 million or less in annual receipts. According to 
Census Bureau data for 2002, there were a total of 1,191 firms in this 
previous category that operated for the entire year. Of this total, 
1,087 firms had annual receipts of under $10 million, and 43 firms had 
receipts of $10 million or more but less than $25 million. Thus, the 
majority of these firms can be considered small.
    Direct Broadcast Satellite (DBS) Service. DBS service is a 
nationally distributed subscription service that delivers video and 
audio programming via satellite to a small parabolic ``dish'' antenna 
at the subscriber's location. Because DBS provides subscription 
services, DBS falls within the SBA-recognized definition of Wired 
Telecommunications Carriers. However, as discussed above, the 
Commission relies on the previous size standard, Cable and Other 
Subscription Programming, which provides that a small entity is one 
with $13.5 million or less in annual receipts. Currently, only two 
operators--DirecTV and EchoStar Communications Corporation (EchoStar)--
hold licenses to provide DBS service, which requires a great investment 
of capital for operation. Both currently offer subscription services 
and report annual revenues that are in excess of the threshold for a 
small business. Because DBS service requires significant capital, the 
Commission believes it is unlikely that a small entity as defined by 
the SBA would have the financial wherewithal to become a DBS licensee. 
Nevertheless, given the absence of specific data on this point, the 
Commission acknowledges the possibility that there are entrants in this 
field that may not yet have generated $13.5 million in annual receipts, 
and therefore may be categorized as a small business, if independently 
owned and operated.
    Television Broadcasting. The rules and policies apply to television 
broadcast licensees and potential licensees of television service. The 
SBA defines a television broadcast station as a small business if such 
station has no more than $14 million in annual receipts.\21\ Business 
concerns included in this industry are those ``primarily engaged in 
broadcasting images together with sound.'' \22\ The Commission has 
estimated the number of licensed commercial television stations to be 
1,392.\23\ According to Commission staff review of the BIA/Kelsey, 
MAPro Television Database (``BIA'') as of April 7, 2010, about 1,015 of 
an estimated 1,380 commercial television stations \24\ (or about 74 
percent) have revenues of $14 million or less and thus qualify as small 
entities under the SBA definition. The Commission has estimated the 
number of licensed non-commercial educational (NCE) television stations 
to be 390.\25\ We note, however, that, in assessing whether a business 
concern qualifies as small under the above definition, business 
(control) affiliations \26\ must be included. Our estimate, therefore, 
likely overstates the number of small entities that might be affected 
by our action, because the revenue figure on which it is based does not 
include or aggregate revenues from affiliated companies. The Commission 
does not compile and otherwise does not have access to information on 
the revenue of NCE stations that would permit it to determine how many 
such stations would qualify as small entities.
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    \21\ See 13 CFR 121.201, NAICS Code 515120.
    \22\ Id. This category description continues, ``These 
establishments operate television broadcasting studios and 
facilities for the programming and transmission of programs to the 
public. These establishments also produce or transmit visual 
programming to affiliated broadcast television stations, which in 
turn broadcast the programs to the public on a predetermined 
schedule. Programming may originate in their own studios, from an 
affiliated network, or from external sources.'' Separate census 
categories pertain to businesses primarily engaged in producing 
programming. See Motion Picture and Video Production, NAICS code 
512110; Motion Picture and Video Distribution, NAICS Code 512120; 
Teleproduction and Other Post-Production Services, NAICS Code 
512191; and Other Motion Picture and Video Industries, NAICS Code 
512199.
    \23\ See News Release, ``Broadcast Station Totals as of December 
31, 2009,'' 2010 WL 676084 (F.C.C.)(dated Feb. 26, 2010) (Broadcast 
Station Totals); also available at http://www.fcc.gov/mb/.
    \24\ We recognize that this total differs slightly from that 
contained in Broadcast Station Totals, supra note 446; however, we 
are using BIA's estimate for purposes of this revenue comparison.
    \25\ See Broadcast Station Totals, supra note 239.
    \26\ ``[Business concerns] are affiliates of each other when one 
concern controls or has the power to control the other or a third 
party or parties controls or has the power to control both.'' 13 CFR 
121.103(a)(1).
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    In addition, an element of the definition of ``small business'' is 
that the entity not be dominant in its field of operation. We are 
unable at this time to define or quantify the criteria that would 
establish whether a specific television station is dominant in its 
field of operation. Accordingly, the estimates of small businesses to 
which rules may apply do not exclude any television station from the 
definition of a small business on this basis and are therefore over-
inclusive to that extent. Also as noted, an additional element of the 
definition of ``small business'' is that the entity must be 
independently owned and operated. We note that it is difficult at times 
to assess these criteria in the context of media entities and our 
estimates of small businesses to which they apply may be over-inclusive 
to this extent.
    Class A TV, LPTV, and TV translator stations. The rules and 
policies adopted in this Report and Order include licensees of Class A 
TV stations, low power television (LPTV) stations, and TV translator 
stations, as well as potential licensees in these television services. 
The same SBA definition that applies to television broadcast licensees 
would apply to these stations. The SBA defines a television broadcast 
station as a small business if such station has no more than $14 
million in annual receipts.\27\ Currently, there are approximately 537 
licensed Class A stations, 2,386 licensed LPTV stations, and 4,359 
licensed TV translators.\28\ Given the nature of these services, we 
will presume that all of these licensees qualify as small entities 
under the SBA definition. We note, however, that under the SBA's 
definition, revenue of affiliates that are not LPTV stations should be 
aggregated with the LPTV station revenues in determining whether a 
concern is small. Our estimate may thus overstate the number of small 
entities since the revenue figure on which it is based does not include 
or aggregate revenues from non-LPTV affiliated companies. We do not 
have data on revenues of TV translator or TV booster stations, but 
virtually all of these entities are also likely to have revenues of 
less than $14 million and thus may be categorized as small, except to 
the extent that revenues of affiliated non-translator or booster 
entities should be considered.
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    \27\ See 13 CFR 121.201, NAICS Code 515120.
    \28\ See Broadcast Station Totals, supra note 239.

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[[Page 81497]]

    D. Description of Projected Reporting, Recordkeeping and Other 
Compliance Requirements. The rules in this Report & Order establish 
procedures for measuring digital television signal strength at any 
specific location. These measurement procedures will be used as a means 
of determining whether households are eligible to receive distant DTV 
network signals retransmitted by DBS providers. These procedures are 
similar to the ones used for measuring analog television signal 
strength for like purposes, with only those revisions necessary to 
account for the difference between digital and analog signals. Section 
339(a)(2)(D)(vi) of the Communications Act (47 U.S.C. 339(a)(2)(D)(vi)) 
delineates when measurements are necessary and when the satellite 
communications provider, the digital television broadcast station, or 
the consumer is responsible for bearing their cost. No reporting 
requirement is proposed. We sought but did not receive comment on the 
types of burdens direct broadcast satellite service providers and 
digital television broadcast stations may face in complying with the 
proposed requirements. Entities, especially small businesses and, more 
generally, small entities are encouraged to quantify the costs and 
benefits of the proposed reporting requirements.
    E. Steps Taken to Minimize Significant Economic Impact on Small 
Entities, and Significant Alternatives Considered. The RFA requires an 
agency to describe any significant alternatives that it has considered 
in reaching its proposed approach, which may include the following four 
alternatives: (1) The establishment of differing compliance or 
reporting requirements or timetables that take into account the 
resources available to small entities; (2) the clarification, 
consolidation, or simplification of compliance or reporting 
requirements under the rule for small entities; (3) the use of 
performance, rather than design standards; and (4) an exemption from 
coverage of the rule, or any part thereof, for small entities.\29\
---------------------------------------------------------------------------

    \29\ See 5 U.S.C. 603(c).
---------------------------------------------------------------------------

    Since the adoption of analog television signal strength procedures 
in 1999, the number of analog TV signal strength measurements taken in 
order to determine household eligibility to receive distant analog TV 
network signals has been infrequent. For example, DIRECTV, in comments 
filed in ET Docket No. 05-182, Notice of Inquiry on Technical Standards 
for Determining Eligibility for Satellite-Delivered Network Signals 
Pursuant to the Satellite Home Viewer Extension and Reauthorization 
Act, 20 FCC Rcd 9349 (2005), stated that in the last five years only 
1400 DIRECTV subscribers received onsite tests to determine eligibility 
to receive distant network television signals. In that proceeding, both 
DIRECTV and EchoStar indicated that they generally declined to perform 
or arrange for a test and instead refused to offer distant signals when 
subscribers were predicted to be ``served'' and the relevant network 
stations refused to grant a waiver.
    As TV stations transition from analog transmissions to DTV, we 
anticipate that the combined number of analog and digital measurements 
will not increase substantially. This is because, as part of the DTV 
transition, television stations will be ceasing the transmission of 
analog signals and households seeking to receive retransmitted DTV 
network signals will not be seeking to receive analog signals. In other 
words, digital measurements will replace analog measurements. Also, as 
direct broadcast stations increasingly offer local-to-local service to 
households pursuant to SHVERA, those households will not be eligible to 
receive retransmitted distant signals and therefore DTV signal strength 
measurements for this purpose will not be necessary.
    Finally, the Report & Order will allow measurements to be taken 
using either a standard half-wave dipole antenna or a gain antenna with 
a known antenna factor for the channel(s) that are to be tested for 
digital measurements, this approach would allow the tester flexibility 
in performing the test while still providing for accurate results. The 
Report & Order does not require the use of a gain antenna only. 
Commenters provided information regarding differences in ease of use of 
gain antennas as compared to the use of half-wave dipole antennas. The 
Commission received comments on what rules it should propose, if any, 
that would address the apparent lack of qualified, independent testers 
to perform signal strength tests. Commenters indicated that there is no 
feasible regulatory solution to increasing the number of qualified 
testers available. No alternative methods that would reduce the cost of 
performing a test while retaining or improving on the accuracy of the 
proposed method was submitted.
    20. Report to Congress: The Commission will send a copy of the 
Report and Order, including this FRFA, in a report to be sent to 
Congress pursuant to the Congressional Review Act.\30\ In addition, the 
Commission will send a copy of the Report and Order, including this 
FRFA, to the Chief Counsel for Advocacy of the SBA.
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    \30\ See 5 U.S.C. 801(a)(1)(A).
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    21. Final Paperwork Reduction Act of 1995 Analysis. This document 
contains new or modified information collection requirements subject to 
the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. It will 
be submitted to the Office of Management and Budget (OMB) for review 
under section 3507(d) of the PRA. OMB, the general public, and other 
Federal agencies are invited to comment on the new or modified 
information collection requirements contained in this proceeding. In 
addition, we note that pursuant to the Small Business Paperwork Relief 
Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), we 
previously sought specific comment on how the Commission might 
``further reduce the information collection burden for small business 
concerns with fewer than 25 employees.'' In this present document, we 
have assessed the effects of our requirement that testers adhere to the 
data recording requirements of Sec.  73.686(e)(3) and described in 
paragraph 11, supra. of the Report and Order, and find that these 
requirements will not impose burdens to businesses with fewer than 25 
employees as we are adopting the identical data recording requirements 
that have been used for analog TV measurements for many years.

Ordering Clauses

    22. Pursuant to sections 4(i), 4(j), 303 and 339 of the 
Communications Act of 1934, as amended, 47 U.S.C. 154(i), 154(j), 303 
and 339, and section 204 of the Satellite Home Viewer Extension and 
Reauthorization Act of 2004, codified at 47 U.S.C. 339(a)(2)(D)(vi), 
that this Report and Order is hereby adopted.
    23. Section 73.686(e) of the Commissions rules, is amended as set 
forth in Appendix A of the Report and Order. The rules adopted in this 
Report and Order contains information collection requirements subject 
to the Paperwork Reduction Act of 1995, Public Law 104-13, which will 
not be effective until approved by the Office of Management and Budget. 
The Federal Communications Commission will publish a document in the 
Federal Register announcing OMB approval and the effective date of the 
rules adopted herein.
    24. The Commission's Consumer and Governmental Affairs Bureau, 
Reference Information Center, shall send a copy of this Report and 
Order, including the Final Regulatory Flexibility Analysis, to the 
Government Accountability Office

[[Page 81498]]

pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

List of Subjects in 47 CFR Part 73

    Communications equipment, Reporting and recordkeeping requirements, 
Television.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.

Final Rules

0
For the reasons discussed in the preamble, the Federal Communications 
Commission amends 47 CFR part 73 as follows:

PART 73--RADIO BROADCAST SERVICES

0
1. The authority citation for part 73 continues to read as follows:

    Authority:  47 U.S.C. 154, 303, 334, 336 and 339.


0
2. Section 73.686 is amended by revising the heading of paragraph (d) 
and by adding a new paragraph (e) to read as follows:


Sec.  73.686  Field strength measurements.

* * * * *
    (d) NTSC--Collection of field strength data to determine NTSC 
television signal intensity at an individual location--cluster 
measurements--
* * * * *
    (e) DTV--Collection of field strength data to determine digital 
television signal intensity at an individual location--cluster 
measurements--(1) Preparation for measurements--
    (i) Testing antenna. The test antenna shall be either a standard 
half-wave dipole tuned to the center frequency of the channel being 
tested or a gain antenna provided its antenna factor for the channel(s) 
under test has been determined. Use the antenna factor supplied by the 
antenna manufacturer as determined on an antenna range.
    (ii) Testing locations--At the test site, choose a minimum of five 
locations as close as possible to the specific site where the site's 
receiving antenna is located. If there is no receiving antenna at the 
site, choose a minimum of five locations as close as possible to a 
reasonable and likely spot for the antenna. The locations shall be at 
least three meters apart, enough so that the testing is practical. If 
possible, the first testing point should be chosen as the center point 
of a square whose corners are the four other locations. Calculate the 
median of the five measurements (in units of dB[micro]) and report it 
as the measurement.
    (iii) Multiple signals--
    (A) If more than one signal is being measured (i.e., signals from 
different transmitters), use the same locations to measure each signal.
    (B) For establishing eligibility of a satellite subscriber to 
receive distant network signals, only stations affiliated with the 
network in question that are located in the same Nielsen Designated 
Market Area (DMA) as the test site may be considered and tested.
    (2) Measurement procedure. Measurements shall be made in accordance 
with good engineering practice and in accordance with this section of 
this chapter. At each measuring location, the following procedure shall 
be employed:
    (i) Testing equipment. Perform an on-site calibration of the test 
instrument in accordance with the manufacturer's specifications. Tune a 
calibrated instrument to the center of the channel being tested. 
Measure the integrated average power over the full 6 megahertz 
bandwidth of the television signal. The intermediate frequency of the 
instrument should be set to 100 kilohertz unless the instrument is 
specifically designed by the manufacturer to use an alternative i.f. 
setting. The instrument must be capable of integrating over the 
selected i.f. for the 6 megahertz channel bandwidth. Take all 
measurements with a horizontally polarized antenna. Use a shielded 
transmission line between the testing antenna and the field strength 
meter. Match the antenna impedance to the transmission line at all 
frequencies measured, and, if using an un-balanced line, employ a 
suitable balance. Take account of the transmission line loss for each 
frequency being measured.
    (ii) Weather. Do not take measurements during periods of inclement 
weather, including, but not limited to, periods of heavy rainfall, 
snowfall accumulation, high windspeed, or any combination thereof.
    (iii) Antenna elevation. When field strength is being measured for 
a one-story building, elevate the testing antenna to 6.1 meters (20 
feet) above the ground. In situations where the field strength is being 
measured for a building taller than one-story, elevate the testing 
antenna 9.1 meters (30 feet) above the ground.
    (iv) Antenna orientation. Orient the testing antenna in the 
direction which maximizes the value of field strength for the signal 
being measured. If more than one station's signal is being measured, 
orient the testing antenna separately for each station.
    (3) Written record shall be made and shall include at least the 
following:
    (i) A list of calibrated equipment used in the field strength 
survey, which for each instrument specifies the manufacturer, type, 
serial number and rated accuracy, and the date of the most recent 
calibration by the manufacturer or by a laboratory. Include complete 
details of any instrument not of standard manufacture.
    (ii) A detailed description of the calibration of the measuring 
equipment, including field strength meters, measuring antenna, and 
connecting cable.
    (iii) For each spot at the measuring site, all factors which may 
affect the recorded field, such as topography, height and types of 
vegetation, buildings, obstacles, weather, and other local features.
    (iv) A description of where the cluster measurements were made.
    (v) Time and date of the measurements and signature of the person 
making the measurements.
    (vi) For each channel being measured, a list of the measured value 
of field strength (in units of dB[mu] after adjustment for line loss 
and antenna factor) of the five readings made during the cluster 
measurement process, with the median value highlighted.

[FR Doc. 2010-32694 Filed 12-27-10; 8:45 am]
BILLING CODE 6712-01-P