[Federal Register Volume 80, Number 151 (Thursday, August 6, 2015)]
[Rules and Regulations]
[Pages 46824-46847]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-19281]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 73

[GN Docket No. 12-268; FCC 15-69]


Expanding the Economic and Innovation Opportunities of Spectrum 
through Incentive Auctions

AGENCY: Federal Communications Commission.

ACTION: Final rule; petition for reconsideration.

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SUMMARY: In this Second Order on Reconsideration, the Commission 
addresses petitions for reconsideration of our Order adopting rules to 
implement the broadcast television spectrum incentive auction. Based on 
the rules we adopted in the Incentive Auction R&O, we are now 
developing the detailed procedures necessary to govern the auction 
process. As we have stated before, our intention is to begin accepting 
applications to participate in the incentive auction in the fall of 
2015, and to start the bidding process in early 2016. We issue this 
Order now in order to provide certainty for prospective bidders and 
other interested parties in advance of the incentive auction. We 
largely affirm our decisions in the Incentive Auction R&O, although we 
make certain clarifications and modifications in response to issues 
raised by the petitioners.

DATES: Effective September 8, 2015, except for the amendment to Sec.  
73.3700(c)(6) which contains new or modified information collection 
requirements that have not been approved by Office of Management and 
Budget (OMB). The Federal Communications Commission will publish a 
document in the Federal Register announcing the effective date.

[[Page 46825]]


FOR FURTHER INFORMATION CONTACT: Aspasia Paroutsas, (202) 418-7285, or 
by email at [email protected], Office of Engineering and 
Technology.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Second 
Order on Reconsideration in GN Docket No. 12-268, FCC 15-69, adopted on 
June 17, 2015 and released on June 19, 2015. 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 email to 
[email protected] or call the Consumer & Governmental Affairs Bureau at 
202-418-0530 (voice), 202-418-0432 (tty).

Synopsis of Second Order on Reconsideration

1. Market Variation

    1. We deny ATBA's and the Affiliates Associations' petitions for 
reconsideration of the decision to accommodate market variation as 
necessary in the 600 MHz Band Plan. First, Affiliates Associations 
argue that we ``should consider focusing resources on recovering 
sufficient spectrum in the most constrained markets to allow a truly 
national plan, even if that means accepting a lower spectrum clearing 
target.'' We disagree. Because the amount of UHF spectrum recovered 
through the reverse auction and the repacking process depends on the 
extent of broadcaster participation and other factors in each market, 
we must have the flexibility to accommodate market variation. We agree 
with CTIA that market variation is essential to avoiding the ``lowest 
common denominator'' effect of establishing nationwide spectrum 
offerings based only on what is available in the most constrained 
market despite the availability of more spectrum in the vast majority 
of the country. Allowing for market variation also will enable us to 
ensure that broadcasters have ample opportunity to participate in the 
reverse auction in markets where interest is high.
    2. Second, we disagree with ATBA's claim that accommodating market 
variation will result in reclaiming and repurposing more spectrum than 
for which there is demand. The purpose of accommodating market 
variation is to prevent constrained markets from decreasing the amount 
of repurposed spectrum that will be available in most areas nationwide, 
not to increase the amount that is repurposed in areas that lack 
broadcaster participation and/or demand from wireless carriers. 
Further, the Middle Class Tax Relief and Job Creation Act of 2012 
(``Spectrum Act'') ensures a voluntary, market-based auction by 
requiring the forward auction to raise enough proceeds to satisfy the 
minimum proceeds requirements--in particular, the winning bids of 
reverse auction participants--before licenses can be reassigned or 
reallocated. In other words, the Commission cannot repurpose any 
spectrum through the incentive auction process unless there is 
sufficient demand for the spectrum from wireless carriers participating 
in the forward auction. While ATBA expresses concern about displacement 
of LPTV stations in rural and underserved areas where they claim demand 
for wireless spectrum will be minimal, there are critical advantages to 
having a generally consistent band plan, including limiting the amount 
of potential interference between broadcast and wireless services and 
helping wireless carriers achieve economies of scale when deploying 
their new networks. Accordingly, the Commission must recover spectrum 
in rural areas as well as urban ones. As we noted in the Incentive 
Auction R&O, however, ``[i]n no case will we offer more spectrum in an 
area than the amount we decide to offer in most markets nationwide.''
    3. As we explained in the Incentive Auction R&O, 79 FR 48442, 
August 15, 2014, we fully recognize the advantages of a generally 
consistent band plan. Nevertheless, the flexibility to accommodate a 
limited amount of market variation is absolutely necessary to address 
the challenges associated with the 600 MHz Band Plan. In affirming this 
threshold decision, we make no determination on the issues related to 
market variation, including how much market variation to accommodate, 
on which we sought comment in the Incentive Auction Comment PN. We will 
resolve those issues in the forthcoming Incentive Auction Procedures 
PN. Accordingly, we decline to address the Affiliates Associations' 
request for clarification regarding issues related to market variation. 
Likewise, NAB's arguments that market variation will unnecessarily 
complicate the auction are untimely because we have not yet adopted the 
final auction procedures. We likewise decline to address the timing and 
status of auction and repacking software, as these matters will be 
addressed in the Incentive Auction Procedures PN.

2. Guard Bands

    4. We deny ATBA's and Free Access' petitions to reconsider the size 
of the guard bands. We also deny Free Access' petition to reconsider 
incorporating remainder spectrum into the 600 MHz guard bands. First, 
we agree with Google/Microsoft and WISPA that the guard bands adopted 
in the Incentive Auction R&O are permitted under the Spectrum Act. As 
Google/Microsoft and WISPA point out, ATBA and Free Access apply an 
incorrect standard for determining guard band size. In the Incentive 
Auction R&O, we specifically rejected suggestions that the 
``technically reasonable'' standard in the statute requires us to 
restrict guard bands to ``the minimum size necessary'' to prevent 
harmful interference. The Spectrum Act clearly permits the Commission 
to establish ``technically reasonable'' guard bands in the 600 MHz 
Band. Petitioners provide no basis to revisit our interpretation of the 
``technically reasonable'' standard set forth in the Incentive Auction 
R&O.
    5. Second, ATBA claims that the record does not support adopting 
guard bands larger than three megahertz. This claim is without merit. 
Most commenters supported guard bands within the size range we adopted, 
with some commenters recommending much larger guard bands. Furthermore, 
the guard bands are tailored to the technical properties of the 600 MHz 
Band under each spectrum recovery scenario, as well as to the unique 
goals of the incentive auction. Our technical analysis, provided in the 
Technical Appendix of the Incentive Auction R&O, corroborated our 
conclusion that the guard bands adopted are technically reasonable to 
prevent harmful interference.
    6. Third, ATBA claims that the Commission is improperly using the 
auction as a ``means to reallocate spectrum'' from licensed services to 
unlicensed services. We disagree. As discussed above, the Spectrum Act 
allows us to establish ``technically reasonable'' guard bands to 
protect against harmful interference. We considered a number of factors 
in creating the guard bands, including the technical properties of the 
600 MHz Band, the need to accommodate different spectrum recovery 
scenarios (because we will not know in advance of the auction how much 
spectrum will be repurposed), the need to generate sufficient forward 
auction proceeds, and the problems that would be associated with 
auctioning ``remainder spectrum.'' Therefore, we reject the argument 
that we are sizing the guard bands solely to facilitate unlicensed use. 
The fact that the Spectrum Act allows us to make guard bands available 
for unlicensed use does not mean that we are reallocating spectrum from 
licensed services to unlicensed use.

[[Page 46826]]

    7. Additionally, we deny Free Access' petition to reconsider 
incorporating remainder spectrum into the 600 MHz guard bands. In the 
Incentive Auction R&O, we determined that adding remainder spectrum to 
the guard bands would enhance interference protection for licensed 
services and avoid unduly complicating the bidding procedures. Further, 
incorporating the remainder spectrum creates guard bands that, under 
every band plan scenario, are no larger than ``technically 
reasonable.'' Because the guard bands we establish by incorporating the 
remainder spectrum will be no larger than ``technically reasonable,'' 
we have complied with the requirements of the Spectrum Act.

3. Band Plan Technical Considerations

    8. We dismiss, and on alternative and independent grounds, we deny 
Artemis' petition for reconsideration. We agree with Mobile Future that 
Artemis should have raised its arguments previously, and that not doing 
so is grounds for dismissing its petition. While Artemis asserts it 
could not have made its claims before because it was still in the 
process of testing when the Incentive Auction R&O was issued, Artemis 
concedes that it has been developing its technology for over a decade. 
It has not shown why it was unable to raise these facts and arguments 
before adoption of the Incentive Auction R&O. Furthermore, during the 
course of the proceeding, the Wireless Bureau released a Band Plan PN, 
which provided sufficient detail about the band plans under 
consideration (including both FDD and TDD options) to allow Artemis to 
comment on those that could potentially impact its technology. In 
addition to the original comment cycle, we released a number of 
supplemental public notices on key issues, and received additional ex 
parte filings until the Sunshine Notice took effect and the Incentive 
Auction R&O was adopted. Even if, as Artemis claims, it was still 
testing its technology when the Incentive Auction R&O was issued, it 
has not adequately explained why it could not have raised its claims 
regarding the need for minimum spectrum efficiency requirements or 
about the alleged advantages of TDD earlier. Accordingly, we find that 
grant of the Artemis petition is not warranted under section 
1.429(b)(1) because it does not ``relate to events which have occurred 
or circumstances which have changed since the last opportunity to 
present such matters to the Commission.'' Artemis also appears to 
justify its petition on the grounds that it ``could not anticipate the 
final technical details of the 600 MHz plan until the Incentive Auction 
R&O was published,'' or that ``no one could have known that TDD was so 
highly efficient for high-order multiplexing,'' or that it is ``new 
knowledge'' that pCell and high-order spatial multiplexing are more 
efficient with TDD or can achieve LTE-compatible high spectrum 
efficiency gains. Although it has not explicitly asserted that 
reconsideration is warranted under section 1.429(b)(2) of our rules, 
Artemis would not succeed on this claim. Artemis has not demonstrated 
that the facts underlying its petition could not reasonably have been 
known prior to our adoption of the Incentive Auction R&O, particularly 
given that we specifically sought comment on a possible TDD framework 
(among other band plans) in both the Incentive Auction NPRM and in a 
Band Plan PN. Furthermore, Artemis has not explained why it lacked the 
knowledge to file an ex parte with the Commission concerning spectral 
efficiency after it publicly announced its pCell technology, which was 
prior to the adoption of the Incentive Auction R&O.
    9. But even if its petition had been appropriately filed at this 
juncture, we would deny it on alternative and independent grounds 
because we also find that Artemis has failed to demonstrate that its 
petition to modify the 600 MHz band plan to allow TDD warrants 
reconsideration under the public interest prong of the rule. As Mobile 
Future points out, we already considered whether to adopt a TDD-based 
framework for the Band Plan, ``and chose to adopt an FDD-based plan 
after the proposal received overwhelming support in the record.'' 
Furthermore, we disagree with Artemis' claim that because we evaluated 
FDD against TDD ``in light of [then] current technology,'' Artemis' 
findings on the spectral efficiencies of its technology compel us to 
reconsider our decision. Artemis has not established that it is in the 
public interest to reconsider our decision and modify our FDD Band Plan 
to allow for TDD-based operation on the description of its technology. 
Artemis' arguments for adopting a TDD framework for the 600 MHz Band 
are not independent arguments for the adoption of TDD. Rather, Artemis 
argues that to achieve high spectral efficiency, carriers must use 
technology like its technology, which works most effectively with TDD 
networks. In fact, Artemis admits its technology can work in an FDD 
environment, just not as efficiently. Furthermore, as we noted above, 
in deciding on a paired uplink and downlink Band Plan supporting an 
FDD-based framework, we weighed a number of technical factors, 
including ``current technology, the Band's propagation characteristics, 
and potential interference issues present in the band,'' as well as 
considering our central goal of allowing market forces to determine the 
highest and best use of spectrum, our desire to support a simple 
auction design, and five key policy goals. Further, we declined to 
allow a mix of TDD and FDD in the 600 MHz Band because it ``would 
require additional guard bands and increase the potential for harmful 
interference both within and outside the Band.'' In arguing that TDD is 
preferable to FDD, Artemis fails to address the vast majority of the 
factors we considered in adopting the 600 MHz Band Plan. In short, 
Artemis has not proven that it is in the public interest to reconsider 
our 600 MHz Band Plan and grant it the relief it seeks. In its ex parte 
filing, Artemis raises some additional points to support its arguments. 
To the extent these are not mere unsupported assertions, we find they 
are not new arguments, but ones that have already been raised by 
commenters in the underlying record and already considered in reaching 
our conclusions in the Incentive Auction R&O.
    10. In addition, we find Artemis has failed to demonstrate that it 
would be in the public interest to grant its petition for 
reconsideration to implement spectrum efficiency standards in the 600 
MHz Band. We agree with CTIA that for the 600 MHz Band, spectrum 
efficiency rules ``are unprecedented, are not required under the 
Spectrum Act, and are unnecessary.'' The Commission has generally found 
it unnecessary to implement spectrum efficiency standards for auctioned 
spectrum bands because the competitive bidding process itself is 
considered an effective tool for promoting efficient spectrum use. 
Moreover, consistent with the Spectrum Act's directive, we have adopted 
``flexible use'' service rules for the 600 MHz Band. Flexible use 
allows licensees to pursue any technology most expedient for achieving 
their operational goals in responding to marketplace pressures and 
consumer demand. In mobile broadband spectrum bands similar to the 600 
MHz Band where the Commission has followed a policy of ``flexible 
use,'' the Commission has not adopted spectrum efficiency standards. 
Rather, in cases where the Commission has adopted spectrum efficiency 
standards, it has done so because those spectrum bands were not subject 
to competitive bidding and/or the licenses granted were non-exclusive, 
shared spectrum licenses.

[[Page 46827]]

Indeed, as CTIA notes, the 600 MHz technical rules ``are modeled after 
requirements in other spectrum bands that have allowed spectrum to be 
put to its highest and best use and promote the public interest . . . 
[and] have proven highly successful, and there is no basis to depart 
from this framework in the 600 MHz band.'' We agree. We note that, 
although we do not find it necessary to mandate these requirements, 
licensees can voluntarily choose to use Artemis' technology or similar 
technology to improve their spectral efficiency.

A. Repacking the Broadcast Television Bands

1. Implementing the Statutory Preservation Mandate

a. OET-69 and TVStudy
    11. Use of TVStudy. In the Incentive Auction R&O, the Commission 
adopted the use of TVStudy software and certain modified inputs in 
applying the methodology described in OET-69 to evaluate the coverage 
area and population served by television stations in the repacking 
process. The Affiliates Associations seek reconsideration of those 
decisions, arguing that the Spectrum Act's reference to the methodology 
described in OET-69 prohibits the Commission from changing either the 
implementing software or inputs to the methodology.
    12. In addition, the Affiliates Associations, as well as Cohen, 
Dippell and Everist, P.C. (``CDE''), complain that the use of TVStudy 
produces different results than the old software, and that we failed to 
address in the Incentive Auction R&O potential losses in coverage area. 
CTIA, in its Opposition, supports the Commission's use of TVStudy to 
determine coverage area and population served of broadcast stations. We 
decline to consider at this time the Affiliates Associations' and CDE's 
requests. The arguments the Affiliates Associations and CDE raise are 
the subject of a recent decision by the United States Court of Appeals 
for the DC Circuit. We will take appropriate action regarding these 
arguments in a subsequent Order.
    13. Vertical Antenna Pattern. When the OET-69 methodology was 
developed, the regulatory framework for the digital transition of LPTV 
stations, including Class A stations, had not yet been established. The 
Commission subsequently amended its rules to allow for use of OET-69 to 
evaluate Class A stations. In so doing, the Commission determined that 
the assumed vertical antenna patterns for full power stations in Table 
8 of OET-69 were not appropriate for Class A stations because they 
could underestimate service and interference potential. The Commission 
adopted an assumption that the downward relative field strengths for 
digital Class A stations are double the values specified in Table 8 up 
to a maximum of 1.0. Thus, when processing digital Class A station 
applications, the Commission doubles the Table 8 values for purposes of 
predicting interference. In addition, the Commission's rules do not 
call for the use of any vertical pattern when predicting digital Class 
A coverage area. This distinction between full power and Class A 
stations is not reflected in the TVStudy software, which uses the same 
vertical antenna patterns for Class A and full power stations.
    14. Expanding Opportunities for Broadcasters Coalition (``EOBC'') 
urges the Commission to revise the vertical antenna pattern inputs for 
Class A stations in TVStudy to conform to the Commission's rules in 
order to avoid underestimating the coverage areas of a number of Class 
A stations. EOBC claims that revising the antenna pattern inputs in 
TVStudy will eliminate population losses that appear in the TVStudy 
results when compared with those of the legacy OET software. For 
example, EOBC indicates that TVStudy shows a 95.7 percent population 
loss for KSKT-CA which disappears when the correct inputs are used. No 
other commenters commented on EOBC's request.
    15. We agree with EOBC, and revise the vertical antenna pattern 
inputs for Class A stations in TVStudy to reflect the same values we 
use when evaluating Class A license applications. The Commission 
previously has determined that those vertical antenna pattern settings 
better represent the performance characteristics of antennas used by 
Class A stations and, therefore, we conclude that they will enable more 
accurate modeling of the service and interference potential of those 
stations during the repacking process. Therefore, TVStudy will use no 
vertical antenna pattern when calculating Class A stations' protected 
contours and will double the vertical antenna pattern values included 
in Table 8 of OET-69 (to a maximum value of 1.0) for calculating 
interference. We note that our modified approach will reduce or 
eliminate the differences in results that EOBC observed between TVStudy 
and tv process, the Media Bureau's application processing software.
    16. Power Floors. TVStudy uses minimum effective radiated power 
(``ERP'') values, or power floors, to replicate a television station's 
signal contours when conducting pairwise interference analysis in the 
repacking process. When TVStudy is used to conduct this analysis, it 
uses each station's specific technical parameters and a set of default 
configuration parameters. Its power floor for full power stations is 
set to one kilowatt for stations on low-VHF channels, 3.2 kilowatts for 
stations on high-VHF channels, and 50 kilowatts for stations on UHF 
channels. Similarly, its power floor for Class A digital TV stations is 
set to 0.07 kilowatts for stations on VHF channels and 0.75 kilowatts 
for stations on UHF channels. These power floors, which were 
established for full power stations during the digital television 
(``DTV'') transition, originally were intended to ensure that all 
stations would be able to provide service competitively within their 
respective markets prior to knowing the precise technical details about 
how their digital television stations would eventually be constructed. 
In other words, they were set high to protect stations' ability to 
``grow into'' the power level needed to replicate their analog service 
areas. In comparison, section 73.614 of our rules specifies a power 
floor of 100 watts for full power stations (our rules do not specify a 
power floor for Class A stations).
    17. EOBC observes that use of these power floors in TVStudy 
produces some anomalous results when replicating particular stations' 
contours on different channels in the context of the pairwise 
interference analysis. EOBC provides as an example a full power station 
licensed to operate on channel 18 with an ERP of 1.62 kW. When TVStudy 
replicates that station's contour on a different channel, it uses a 
minimum ERP of 50 kW, which makes the station appear more resistant to 
interference than it actually is. EOBC requests that the Commission 
either rationalize the use of power floors or eliminate them. No other 
commenters commented on EOBC's request.
    18. We will reduce the power floors in TVStudy to address the issue 
raised by EOBC. Specifically, we will reduce the power floors in 
TVStudy to 100 watts for full power stations and 24 watts for Class A 
stations. A 100 watt power floor for full power stations accords with 
our rules. Our rules do not provide for a minimum ERP for Class A 
stations, but we find that a 24 watt value is reasonable because it 
represents the lowest ERP of any Class A station currently licensed. We 
do not anticipate that these lower power floors will reduce our 
repacking flexibility significantly.
    19. The modified power floors we adopt will allow replication of 
stations'

[[Page 46828]]

existing coverage areas on different frequencies without artificially 
inflating their ERP values. Currently, when it replicates a television 
station's signal contour on a different channel, TVStudy assigns the 
station a default ERP value if the value necessary for replication is 
below the power floor. Because the default value exceeds the value 
actually required to replicate the station's contour, the use of power 
floors artificially inflates a station's predicted coverage area in 
such situations. The result is inaccuracy: The station's signal is 
predicted to be stronger than it actually would be, so TVStudy predicts 
coverage in areas that in fact would not receive service, and does not 
predict interference from undesired signals in other areas. Pursuant to 
EOBC's request, we adopt modified power floors to correct such 
inaccuracies.
    20. We decline to adopt EOBC's alternative request to eliminate the 
use of power floors in TVStudy. Power floors remain necessary with 
regard to stations presently operating with very low power levels. 
Otherwise, their assigned ERP values on new frequencies, particularly 
on lower frequencies, might be unreasonably low. For example, due to 
differences in signal propagation between VHF and UHF channels, the 
signal of a UHF station operating with a low power level could be 
replicated on a VHF channel with a power level of less than 10 watts or 
even a fraction of a watt. We are concerned that the signals of such 
stations within their service contours, in the event that they were 
assigned to new channels, might be so weak as to not be adequately 
receivable by the stations' existing viewers due to noise and other 
environmental considerations. Furthermore, if such stations are full 
power stations, their ERP values would not comply with the minimum 
specified in our rules.
b. Preserving Coverage Area
    21. We grant Disney's, Dispatch's, and CDE's requests for 
reconsideration regarding the preservation of coverage area and affirm 
that we will make all reasonable efforts to preserve the coverage areas 
of stations operating pursuant to waivers of HAAT or ERP, provided such 
facilities are otherwise entitled to protection under the Incentive 
Auction R&O. We agree with Disney, Dispatch, and CDE that there is no 
basis to deny a station protection for its existing coverage area in 
the repacking process merely because its licensed facilities were 
authorized pursuant to a waiver of our technical rules.
c. Preserving Population Served
    22. We dismiss Block Stations' Petition for Reconsideration of the 
approach we adopted. Under Commission rules, if a petition for 
reconsideration simply repeats arguments that were previously fully 
considered and rejected in the proceeding, it will not likely warrant 
reconsideration. We adopted Option 2 in the Incentive Auction R&O based 
on careful consideration of the record, and of the advantages and 
disadvantages of each of the options proposed. In particular, we 
concluded that ``Option 2 provides the most protection to television 
stations' existing populations served consistent with our auction 
design needs.'' We specifically declined to adopt Option 1 because it 
would not preserve service to existing viewers as of February 22, 2012, 
and because it would require analysis of interference relationships on 
an aggregate basis rather than on a pairwise basis. Block Stations 
provide no basis to revisit our analysis or reconsider our approach.

2. Facilities To Be Protected

a. Stations Affected by the Destruction of the World Trade Center
    23. We grant NBC Telemundo's request that we extend to WNJU the 
same discretionary repacking protection afforded to other stations 
affected by the destruction of the World Trade Center. Based on an 
examination of the record, we find that WNJU is similarly situated to 
the five other World Trade Center stations for which we already granted 
discretionary repacking protection. As with the other five stations 
affected by the destruction of the World Trade Center, we have 
permitted NBC Telemundo to elect protection by the Pre-Auction 
Licensing Deadline of either: (1) its licensed Empire State Building 
facilities or (2) proposed facilities at One World Trade Center. 
Providing NBC Telemundo with such flexibility will not significantly 
impact our repacking flexibility.
b. Pending Channel Substitution Rulemaking Petitions
    24. We deny the Bonten/Raycom and Media General Petitions. 
Petitioners claim that Congress intended for the Commission to grant 
the pending VHF-to-UHF petitions, but as we explained in the Incentive 
Auction R&O, the language in section 1452(g)(1)(B) is permissive. 
Section 1452(g)(1)(B) allows the Commission to reassign a licensee from 
VHF to UHF if either of the two statutory conditions in this provision 
is met, but it does not mandate such reassignment. If Congress intended 
to remove our discretion and require us to grant the pending VHF-to-UHF 
petitions, it would have explicitly provided that the Commission 
``shall'' reassign a licensee from VHF to UHF ``if'' a request for 
reassignment was pending on May 31, 2011. Petitioners offer no basis to 
revisit our interpretation.
    25. We disagree with petitioners' claims that the Commission 
disregarded the public interest benefits that would result from 
protecting the facilities requested in the pending petitions and 
overstated the impact on repacking flexibility. As we explained in the 
Incentive Auction R&O, the exercise of discretion to protect facilities 
beyond those required by the Spectrum Act requires a careful balancing 
of numerous factors. We applied those factors and found that there were 
minimal equities in favor of protecting the facilities requested 
because the petitioners had not acted in reliance on Commission grants, 
had not made any investment in constructing their requested facilities, 
and had not begun operating the proposed facilities to provide service 
to viewers. On the other hand, we explained that protecting the 
requested facilities would add new stations to the UHF Band and thereby 
encumber additional UHF spectrum. Petitioners offer no basis to alter 
this balancing. While they claim that the number of pending petitions 
is minimal and speculate that this will not ``significant[ly] effect'' 
repacking, they fail to acknowledge the minimal equities in favor of 
protecting proposed facilities that have not been constructed and are 
not serving viewers.
    26. Petitioners claim further that we should have weighed the 
benefits to the public of restoring over-the-air service to pre-DTV 
transition viewers that would purportedly result from their channel 
substitution requests. Declining to protect petitioners' proposed 
facilities in the repacking process, however, does not preclude grant 
of their petitions after conclusion of the repacking process. Despite 
petitioners' claim, we did not direct the Media Bureau to ``summarily 
dismiss'' the pending petitions without public comment. Rather, we 
directed the Media Bureau to dismiss any of these petitions for which 
issuance of an NPRM would not be appropriate, such as ``if the proposed 
facility would result in an impermissible loss of existing service'' or 
``the petition fails to make a showing as to why a channel change would 
serve the public interest.'' Dismissal of channel substitution 
petitions without issuing an NPRM under such circumstances is 
consistent with past

[[Page 46829]]

Bureau practice. For petitions that are not dismissed, we directed the 
Media Bureau to hold them in abeyance, rather than granting them now 
but leaving them unprotected in the repacking process. Petitioners do 
not dispute our conclusion that allowing VHF stations to move their 
existing service into the UHF Band on an unprotected basis pending the 
outcome of the repacking process presents a significant potential for 
viewer disruption if the station's operations in the UHF Band are 
displaced.
    27. We agree with petitioners that we could protect the requested 
facilities but preclude them from submitting UHF-to-VHF bids in the 
reverse auction, but this does not change our ultimate conclusion. 
Imposing such a condition would prevent the stations from demanding a 
share of incentive auction proceeds in exchange for relinquishing their 
newly granted rights, but would not mitigate the detrimental impact on 
our repacking flexibility of granting protection to the requested 
facilities. The detrimental impact protecting the proposed facilities 
would have on our repacking flexibility and fulfillment of auction 
goals outweighs the minimal equities in favor of protection.
    28. We also disagree with petitioners that their requests are 
similarly situated to the two VHF-to-UHF petitions that were filed 
before the Media Bureau's May 31, 2011 freeze, both of which resulted 
in an NPRM after that date, and were subsequently granted. As explained 
in the Incentive Auction R&O, the granted petitions involved materially 
different facts. In one case, the station's tower collapsed, a fact 
that does not apply to the petitioners. In the other case, the change 
to a UHF channel resulted in a significant population gain, a fact that 
likewise does not apply to the petitioners. Moreover, the granted 
petitions explained why expedited consideration was needed, whereas the 
petitioners failed to provide a timely explanation of such need. In 
addition, the granted petitions were granted before the Spectrum Act 
was passed. In contrast, further action on the pending petitions 
required consideration of a number of new issues raised by the statute, 
including issues that the Commission was considering in the pending 
rulemaking proceeding. Bonten/Raycom assert that the same 
considerations applied both before and after passage of the Spectrum 
Act because the Commission was aware that Congress was considering 
incentive auction legislation when the Media Bureau granted the two 
VHF-to-UHF petitions. At the time the Media Bureau acted on the two 
petitions, however, it was unknown whether or when Congress would pass 
legislation providing for an incentive auction, and there was no basis 
to predict that any future legislation would specifically address the 
pending VHF-to-UHF petitions.
    29. We also reject petitioners' claim that refraining from 
processing the pending petitions amounts to a retroactive freeze 
without notice. The May 31, 2011 freeze was issued at the Bureau level, 
and the Media Bureau's statement that it would ``continue its 
processing of [channel substitution] rulemaking petitions that are 
already on file'' is not binding on the Commission. In any event, the 
Bureau's statement was made before enactment of the Spectrum Act. To 
the extent the petitioners relied on the Bureau's freeze as entitling 
them to move into the UHF Band, such reliance was misplaced in light of 
Congress's subsequent passage of the Spectrum Act, which seeks to 
repurpose UHF spectrum for new uses and specifically addresses the 
pending VHF-to-UHF petitions. Indeed, despite the Media Bureau's 
statements in its May 31, 2011 freeze Public Notice, the Commission in 
the 2012 Incentive Auction NPRM analyzed section 1452(g)(1)(B) and put 
the pending VHF-to-UHF petitioners on notice that it proposed to 
refrain from acting on their petitions.
c. Out-of-Core Class A-Eligible LPTV Stations
    30. Background. The Community Broadcasters Protection Act of 1999 
(``CBPA'') provided certain qualifying LPTV stations with ``primary'' 
Class A status. The CBPA provided for a two-step process for obtaining 
a Class A license. First, by January 28, 2000, an LPTV licensee seeking 
Class A status was required to file a certification of eligibility 
certifying compliance with certain criteria. If the Commission granted 
the certification, the licensee's station became a ``Class A-eligible 
LPTV station.'' Second, a Class A-eligible LPTV station was required to 
file an application for a Class A license. While the CBPA prohibited 
the Commission from granting Class A status to LPTV stations operating 
on ``out-of-core'' channels (channels 52-69), it provided such stations 
with an opportunity to achieve Class A status on an in-core channel 
(channels 2-51).
    31. Although the Commission's rules implementing the CBPA were 
adopted in 2000, we explained in the Incentive Auction R&O that 
approximately 100 formerly out-of-core Class A-eligible LPTV stations 
had obtained an in-core channel but had not obtained a Class A license 
as of February 22, 2012. We determined that such stations are not 
entitled to mandatory preservation. We explained that the fact that 
such stations may obtain a Class A license after February 22, 2012 does 
not alter this conclusion because section 1452(b)(2) of the Spectrum 
Act mandates preservation of only the full power and Class A facilities 
that were actually in operation as of February 22, 2012. With one 
exception--KHTV-CD, Los Angeles, California--we also declined to 
exercise discretionary protection to preserve the facilities of such 
stations.
    32. Abacus Television (``Abacus'') and The Videohouse, Inc. 
(``Videohouse''), the licensees of formerly out-of-core Class A-
eligible LPTV stations that filed for and received Class A licenses 
after February 22, 2012, seek reconsideration of our decision not to 
protect Class A-eligible LPTV stations that did not hold Class A 
licenses as of February 22, 2012. They argue that they are entitled to 
preservation under the CBPA. They further claim that they are similarly 
situated to KHTV-CD, insofar as they have also allegedly taken steps to 
remove their secondary status in a timely manner, and therefore should 
be extended discretionary protection. Moreover, they argue that they 
are similarly situated to other stations the Commission elected to 
protect in the repacking process. In late-filed pleadings, the LPTV 
Spectrum Rights Coalition (``LPTV Coalition'') and Abacus dispute the 
number of formerly out-of-core Class A-eligible LPTV stations that did 
not hold Class A licenses as of February 22, 2012.
    33. Discussion. For reasons set forth below, we dismiss and 
otherwise deny the Abacus and Videohouse petitions. Asiavision, Inc. 
(``Asiavision'') and Latina Broadcasters of Daytona Beach, LLC 
(``Latina'') did not file timely Petitions for Reconsideration of the 
Incentive Auction R&O. Rather, in Oppositions, they present arguments 
similar to those raised in the Abacus and Videohouse Petitions as to 
why the Commission should have decided in the Incentive Auction R&O to 
protect their stations in the repacking process. We treat these 
pleadings as late-filed petitions for reconsideration and dismiss them. 
Asiavision and Latina did not seek a waiver of the deadline for seeking 
reconsideration. Moreover, to the extent Asiavision and Latina argue 
that the Commission should treat all similarly situated Class A 
stations the same if the Abacus and Videohouse Petitions are granted, 
their arguments are moot in light of our dismissal and denial of the 
Abacus and Videohouse Petitions. We will nonetheless treat

[[Page 46830]]

these pleadings as informal comments. As an initial manner, petitioners 
offer no basis to revisit our conclusion that section 1452(b)(2) 
mandates preservation of only full power and Class A facilities that 
were actually in operation as of February 22, 2012. The only Class A 
facilities in operation as of February 22, 2012 were those that were 
licensed as Class A facilities on that date or were the subject of an 
application for a license to cover a Class A facility. The license to 
cover application signifies that the Class A-eligible LPTV station had 
constructed its facility and was operating consistent with the 
requirements applicable to Class A stations. We note that some Class A-
eligible LPTV stations filed prior to February 22, 2012 an application 
to convert an LPTV construction permit to a Class A construction 
permit. We refer to this application below as a ``Class A construction 
permit application.'' We clarify that a Class A-eligible LPTV station 
with an application for a Class A construction permit on file or 
granted as of February 22, 2012 is not entitled to mandatory 
protection. An application for a Class A construction permit seeks 
protection of facilities authorized in an LPTV construction permit. 
Grant of a construction permit standing alone, however, does not 
authorize operation of those facilities. Nonetheless, for the reasons 
discussed below, we exercise discretion to protect those stations that 
hold a Class A license today and that had an application for a Class A 
construction permit pending or granted as of February 22, 2012.
    34. Petitioners do not dispute that, on February 22, 2012, they 
were not Class A licensees nor did they have an application for a 
license to cover a Class A facility on file, and thus are not entitled 
to mandatory preservation. In declining to exercise discretionary 
protection for such stations, we explained that there were 
approximately 100 stations in this category and that protecting them 
would increase the number of constraints on the repacking process, 
thereby limiting our repacking flexibility. In late-filed pleadings, 
the LPTV Coalition and Abacus dispute the number of stations in this 
category. As an initial matter, we dismiss these filings as late-filed 
petitions for reconsideration, but will treat them as informal 
comments. The number of formerly out-of-core Class A-eligible LPTV 
stations that had not filed an application for a license to cover a 
Class A facility as of February 22, 2012 was readily available via CDBS 
station records before the deadline for filing Petitions for 
Reconsideration. Thus, there were no extraordinary circumstances 
precluding parties from presenting their arguments in a timely fashion. 
Accordingly, we deny Abacus's Petition for Leave to File Supplemental 
Reconsideration and the LPTV Coalition's Petition for Leave to Amend. 
We affirm the statement in the Incentive Auction R&O that there are 
approximately 100 formerly out-of-core Class A-Eligible LPTV stations 
that had not filed an application for a license to cover a Class A 
facility as of February 22, 2012. While the LPTV Coalition asserts that 
they have not been provided with a list of such stations, the stations 
falling in this category can be identified using the Consolidated 
Database System (``CDBS''). Parties have provided no data or analysis 
undermining our findings on the number of stations in this category.
    35. We also reject on alternative and independent grounds 
petitioners' claims that they are entitled to protection under the 
CBPA. As an initial matter, petitioners' claims are late. To the extent 
they believe they were entitled to issuance of a Class A license when 
they were assigned in-core channels, they should have objected several 
years ago when the Media Bureau issued their in-core construction 
permits without also issuing a Class A license. In any event, we reject 
petitioners' view. While petitioners note that the CBPA required the 
Commission to issue Class A licenses to out-of-core Class A-eligible 
LPTV stations ``simultaneously'' upon assignment of their in-core 
channels, in order to effectuate this requirement, such stations were 
``require[d] . . . to file a Class A application simultaneously'' with 
an application for an in-core construction permit. When petitioners 
filed for construction permits to move to in-core channels, however, 
they did not file an application for a Class A license or a Class A 
construction permit. Rather, it was not until January 2013 when 
petitioners first filed applications for a Class A authorization (i.e., 
either a Class A license or Class A permit), after they were assigned 
to in-core channels and after the enactment of the Spectrum Act. Under 
petitioners' view, the CBPA required the Commission to issue a Class A 
license when it assigned petitioners in-core channels, even though they 
had not yet submitted applications for a Class A authorization (either 
a license or permit). Yet the CBPA provides that the Commission shall 
issue a Class A license to an ``applicant for a class A license'' that 
is assigned a channel within the core, thereby requiring the station to 
have an application on file. Moreover, petitioners' view runs afoul of 
the Communications Act and the CBPA, both of which require the filing 
of an application before the Commission may issue a license.
    36. Petitioners also note language from the Class A R&O stating 
that the Commission ``will not impose any time limit on the filing of a 
Class A application by LPTV licensees operating on channels outside the 
core.'' This language declines to impose a deadline on the simultaneous 
filing of applications for an in-core LPTV construction permit and a 
Class A authorization. It does not endorse the filing of an application 
for a Class A authorization after filing an application for an in-core 
construction permit. As noted in the Incentive Auction R&O, the Media 
Bureau did grant the applications of some stations that filed 
applications for Class A authorizations after applying for or obtaining 
an in-core construction permit if otherwise consistent with the 
Commission's rules. As a general matter, however, stations that 
refrained from applying for a Class A authorization until after 
applying for or obtaining an in-core construction permit are not 
eligible for the simultaneous grant of a Class A authorization along 
with the grant of their in-core LPTV construction permit.
    37. While petitioners note that the CBPA requires the Commission to 
``preserve the service areas of low-power television licensees pending 
the final resolution of a class A application,'' this provision applies 
only ``pending the final resolution of a class A application.'' 
Petitioners, however, did not have applications for Class A licenses or 
Class A permits that were ``pending . . . final resolution'' on 
February 22, 2012, thus this provision of the CBPA does not apply.
    38. Petitioners also note language from the Class A R&O in which 
the Commission stated that it would ``commence contour protection for 
[out-of-core stations] upon issuance of a construction permit for an 
in-core channel.'' This language clarified that protection of a 
station's contour would not have to wait until the filing of an 
application for ``a license to cover construction'' of the in-core 
channel. To implement this approach, the Media Bureau required an out-
of-core Class A eligible LPTV station to file an FCC Form 346 for a 
construction permit for an in-core LPTV facility and, at the same time, 
an FCC Form 302-CA for a Class a construction permit. When petitioners 
filed an FCC Form 346, however, they did not file the FCC Form

[[Page 46831]]

302-CA and thus were not entitled to contour protection.
    39. Petitioners further claim that they are similarly situated to 
KHTV-CD, a formerly out-of-core Class A-Eligible LPTV station that 
filed an application for a license to cover a Class A facility after 
February 22, 2012 but to which we extended discretionary protection. As 
an initial matter, we dismiss petitioners' arguments on procedural 
grounds. The Incentive Auction NPRM squarely raised the question of 
which facilities to protect in the repacking process, proposing to 
interpret the Spectrum Act as mandating preservation only of full-power 
and Class A facilities that were licensed, or for which an application 
for license to cover was on file, as of February 22, 2012. Recognizing 
that it was not a Class A licensee as of February 22, 2012, KHTV-CD put 
forth in response to the Incentive Auction NPRM evidence demonstrating 
why it should be afforded discretionary protection. Like KHTV-CD, 
petitioners were not Class A licensees as of February 22, 2012. Unlike 
KHTV-CD, however, petitioners did not attempt to demonstrate in 
response to the Incentive Auction NPRM why they should be afforded 
discretionary protection. Rather, on reconsideration, petitioners for 
the first time attempt to explain why they also should be extended 
discretionary protection. They have not shown, however, why they were 
unable to raise these facts and arguments before adoption of the 
Incentive Auction R&O. Indeed, all of the evidence put forth by 
petitioners, including the date when they were granted a Class A 
license, preceded adoption of the Incentive Auction R&O. Accordingly, 
we dismiss petitioners' claims that they are entitled to discretionary 
protection because they rely on facts and arguments not presented to 
the Commission before the Incentive Auction R&O was adopted and 
petitioners have not attempted to demonstrate compliance with the 
exceptions for such filings found in section 1.429(b) of our rules.
    40. As an alternative and independent ground, we deny petitioners' 
claims that they are similarly situated to KHTV-CD. First, as described 
in the Incentive Auction R&O, KHTV-CD filed an application for a 
license to cover its Class A facility just two days after enactment of 
the Spectrum Act on February 22, 2012. By contrast, despite receiving 
in-core construction permits in 2009 (Videohouse) and 2012 (Abacus), 
petitioners did not file applications for licenses to cover their Class 
A facilities until January 2013, almost a year after enactment of the 
Spectrum Act. Second, KHTV-CD documented repeated efforts over the 
course of a decade to locate an in-core channel and convert to Class A 
status, including filing in July 2001 an initial application for a 
license to cover a Class A facility. By contrast, petitioners do not 
document any efforts to locate an in-core channel before 2009, almost a 
decade after passage of the CBPA. Third, beginning in 2001, KHTV-CD had 
either an application for a license to cover a Class A facility or an 
application for a Class A construction permit on file with the 
Commission in which it certified that it was meeting, and would 
continue to meet, all Class A operating requirements and applicable 
full power requirements. By contrast, petitioners did not make these 
certifications in an application filed with the Commission until 
January 2013. Petitioners vaguely assert that their service includes 
``locally produced, locally originated programming,'' but, unlike KHTV-
CD, they do not state, nor did they certify in an application filed 
with the Commission before January 2013, that they were meeting and 
would continue to meet, all Class A operating requirements and 
applicable full power requirements.
    41. We also reject petitioners' claim that they are similarly 
situated to stations in other categories the Commission elected to 
protect in the repacking process. As an initial matter, with the 
exception of new full power stations not licensed as of February 22, 
2012, all of the stations in these categories were full-power or Class 
A licensees as of February 22, 2012 and thus entitled to mandatory 
preservation, unlike petitioners, who remained LPTV licensees as of 
February 22, 2012. In the Incentive Auction R&O, we exercised 
discretion to protect certain modifications of these licensed full-
power or Class A facilities because the impact on repacking flexibility 
would be minimal while, on the other hand, there were significant 
equities in favor of preservation. We explained why the balance was 
different for formerly out-of-core Class A-eligible LPTV stations that 
had not filed applications for licenses to cover Class A facilities as 
of February 22, 2012. Petitioners offer no basis to revisit this 
balance.
    42. Based on examination of the record, we will exercise discretion 
to protect stations in addition to KHTV-CD that hold a Class A license 
today and that had an application for a Class A construction permit 
pending or granted as of February 22, 2012. We find that there are 
significant equities in favor of protection of these stations that 
outweigh the limited adverse impact on our repacking flexibility. By 
filing an application for a Class A construction permit prior to 
February 22, 2012, each of these stations documented efforts prior to 
passage of the Spectrum Act to remove their secondary status and avail 
themselves of Class A status. Under the Commission's rules, these 
stations were required to make the same certifications as if they had 
applied for a license to cover a Class A facility. Among other things, 
each was required to certify that it ``does, and will continue to, 
broadcast'' a minimum of 18 hours per day and an average of at least 
three hours per week of local programming and that it complied with 
requirements applicable to full-power stations that apply to Class A 
stations. Thus, prior to the enactment of the Spectrum Act, such 
stations had certified in an application filed with the Commission that 
they were operating like Class A stations. In addition, the licensees 
of these stations may not have known that the stations were not 
entitled to mandatory protection under the Spectrum Act. By contrast, 
as noted above, petitioners did not certify continuing compliance with 
Class A requirements in an application filed with the Commission until 
after the enactment of the Spectrum Act, and they had no justification 
for not seeking discretionary protection in response to the Incentive 
Auction NPRM.
    43. As requested by the LPTV Coalition, we clarify certain issues 
pertaining to those Class A stations that will not be protected in the 
repacking process. First, as explained in the Incentive Auction R&O, if 
such a station is displaced in the repacking process, it may file a 
displacement application during one of the filing opportunities for 
alternate channels. The Media Bureau has delegated authority to 
determine whether such stations should be permitted to file for a new 
channel along with priority stations or during the second filing 
opportunity. Second, such Class A stations are not eligible to 
participate in the reverse auction and thus may not submit channel 
sharing bids. We have recently proposed, however, to allow Class A 
stations to channel share outside of the auction context. Third, such 
stations are not eligible to receive reimbursement for relocation 
costs. The reimbursement mandate set forth in section 1452(b)(4) 
applies only to full power and Class A television licensees that are 
involuntarily ``reassigned'' to new channels in the repacking process 
pursuant to section 1452(b)(1)(B)(i). The unprotected Class A stations 
will not be protected in the repacking process, and thus will be not 
``reassigned under

[[Page 46832]]

[section 1452(b)(1)(B)(i)]'' as required to fall within section 
1452(b)(4).
d. LPTV and TV Translator Stations
(i) Repacking Protection
    44. We deny ATBA's, Mako's, and USTV's requests. ATBA's request is 
incompatible with our auction design: granting it would compromise the 
basic auction design principle of speed, which ``is critical to the 
successful implementation of the incentive auction.'' In addition, 
channel assignments will be provisional until the final TV channel 
assignment plan is established after the final stage rule is satisfied, 
so the analysis ATBA advocates during the reverse auction bidding 
process would not be useful in assessing the potential impact on LPTV 
service.
    45. Moreover, we cannot conclude that we must further analyze the 
potential impact of the incentive auction on the LPTV service before 
conducting the repacking process. As we explained in the Incentive 
Auction R&O, the Spectrum Act does not require protection of LPTV 
stations, which always have been subject to displacement by primary 
services. Although we have limited discretion to extend repacking 
protection beyond the requirements of the statute, we have done so only 
with respect to the facilities of ``broadcast television licensees'' as 
defined in the Spectrum Act, that is, full-power or Class A stations. 
Based on careful consideration of the factors relevant to our exercise 
of discretion, we declined to extend repacking protection to LPTV 
stations. Accordingly, we deny Free Access' claim that, for a given 
PEA, we cannot repurpose more spectrum than is vacant before the 
reverse auction or than is relinquished in the reverse auction, until 
all LPTV and translator stations are relocated. Such an approach would 
require protection of LPTV stations in the repacking process, which we 
decline to do for the reasons stated above and in the Incentive Auction 
R&O. Moreover, despite Free Access' claims, we have already rejected 
the argument that LPTV stations' spectrum usage rights are protected 
from taking by the Fifth Amendment. Nevertheless, recognizing the 
important services provided by the LPTV stations, we adopted a number 
of measures to mitigate the potential impact of the repacking process 
on LPTV stations, and initiated a separate proceeding to consider 
additional measures. In short, we have taken into consideration the 
potential impact of the repacking process on LPTV stations in this 
proceeding, and are not required to conduct additional analysis. For 
the same reasons, we reject ATBA's suggestion that we must consider the 
potential impact of LPTV displacement on the diversity of broadcast 
voices before carrying out the incentive auction. LPTV and TV 
translator stations have always been at risk of displacement by primary 
services, yet Congress provided specifically that the Spectrum Act does 
not alter that risk.
    46. We also disagree with Mako that our decision not to protect 
LPTV and TV translator stations in the repacking process ``altered'' 
LPTV and TV translator stations' spectrum usage rights in contravention 
of section 1452(b)(5). As explained in the Vacant Channel NPRM, we 
interpret section 1452(b)(5) as a rule of statutory construction, not a 
limit on the Commission's authority. In any event, LPTV and TV 
translator stations have always operated on a secondary basis with 
respect to primary licensees, which may be authorized and operated 
without regard to existing or proposed LPTV and TV translators. Any 
LPTV displacement as a result of the incentive auction, therefore, does 
not ``alter the spectrum usage rights of low power television 
stations.'' Mako counters that this is the first time that the LPTV 
industry ``will be subject to losing their station licenses.'' However, 
LPTV stations have always operated in an environment where they could 
be displaced from their operating channel by a primary user and, if no 
new channel assignment is available, forced to go silent. The potential 
impact of the repacking process is no different.
    47. We also disagree with Mako that displacement of an LPTV or TV 
translator station is a ``revocation'' requiring an order to show cause 
and a hearing. Displacement does not ``revoke'' LPTV or TV translator 
licenses for purposes of section 312 of the Act because it does not 
require termination of operations or relinquishment of spectrum usage 
rights; displacement requires only that LPTV and TV translator stations 
vacate the channel on which they are operating. Indeed, displacement is 
not even a license modification, as LPTV and TV translator stations may 
be displaced by primary services at any time.
    48. We also disagree with Mako's argument that the Commission's 
conclusion that the CBPA does not protect LPTV and TV translator 
stations vis-[agrave]-vis Class A stations during the repacking process 
cannot be justified based on the CBPA's ``fail[ure] to `anticipate' a 
broadcast television incentive auction would be held at some future 
point.'' This argument is based on a misreading of the Incentive 
Auction R&O. Our statutory interpretation in the Incentive Auction R&O 
was based on the fact section 336(f)(7)(B) ``grants LPTV and TV 
translator stations protection against changes to facilities proposed 
by Class A licenses,'' whereas channel reassignments in the repacking 
process will be carried out by the Commission; Class A licensees will 
neither initiate such reassignments nor have the right to protest the 
resulting license modifications. Our interpretation of the statutory 
language was not based on the fact that Congress could not have 
anticipated the incentive auction and the repacking process when it 
enacted the CBPA in 1999. Nevertheless, we note that our interpretation 
harmonizes the two statutes in a way that Mako's fails to do: reading 
section 336(f)(7)(B) to require the Commission to protect LPTV and TV 
translator stations vis-[agrave]-vis Class A stations would create 
tension with the statutory preservation mandate of section 1452(b)(2), 
which directs the Commission to make all reasonable efforts to preserve 
the coverage area and population served of Class A stations, not LPTV 
or TV translator stations.
    49. Finally, we also disagree with USTV that ``the FCC clearly 
erred when it failed to protect stations that Congress identified in 
the Digital Data Services Act (DDSA) for its LPTV data pilot project.'' 
In the DDSA, Congress created a project to allow 13 LPTV stations to 
begin operating with digital facilities prior to the adoption of 
digital rules for the low power television services. USTV maintains 
that Congress ``clearly expressed its intention that the 13 stations 
identified in the DDSA should be permitted to operate so that they can 
introduce digital data services on low-power TV spectrum.'' USTV 
further argues that ``the Spectrum Act did not repeal the DDSA or give 
the FCC authority to abrogate or ignore its provisions.'' Contrary to 
USTV's argument, stations authorized to operate under the terms of the 
DDSA remain secondary in nature under the Commission's rules, and 
nothing in the DDSA, the Commission's order implementing the DDSA, the 
Commission's rules, or the Spectrum Act mandates that DDSA stations be 
protected in the repacking process. Furthermore, as USTV points out, 
the pilot program never materialized, and there are no stations that 
are currently operating under the program to qualify even if we were to 
decide to extend discretionary protection to them.

[[Page 46833]]

(ii) Measures To Assist LPTV and TV Translators
    50. We decline to grant ATBA's request that we reconsider our 
decision not to allow displaced LPTV stations to operate with 
alternative technical standards and non-broadcast type facilities. 
Although we are sympathetic to the objectives and concerns cited by 
ATBA and WatchTV, grant of ATBA's request would require the creation of 
new technical standards that, in turn, would require in-depth analysis 
and complete overhaul of the existing LPTV rules and policies. We 
conclude that such a supplementary project is infeasible in the 
incentive auction proceeding. We believe that ATBA's request is 
appropriately addressed in the rulemaking in MB Docket No. 03-185 that 
we initiated to address the potential impact of the incentive auction 
and the repacking process on the LPTV service. Indeed, we invited 
parties to raise such matters in that proceeding and many commenters 
have raised this issue there.
    51. We affirm our decision to grant a processing priority to 
displacement applications for DRTs. As we found in the Incentive 
Auction R&O, replacement translators are still an important tool for 
full power stations to replace service lost in the digital transition. 
Contrary to WatchTV's assertion, DTS may not work in all cases and 
digital TV boosters are not authorized by the rules. For these reasons, 
to ensure that television stations are able to restore service from DRT 
facilities that are displaced in the repacking process, we affirm our 
decision to give displacement applications for DRTs a displacement 
priority.
    52. In addition, we reject USTV's contention that we should have 
provided a displacement priority for the 13 LPTV stations. As indicated 
above, nothing in the DDSA or the Spectrum Act mandates priority 
treatment of DDSA stations in the repacking process, and the same 
applies to the post-auction transition. Moreover, there are no stations 
operating in the pilot program to qualify for such a priority even if 
we were to provide one.
e. Other Issues
    53. We dismiss and, on alternative and independent grounds, deny 
the ALF and Beach TV Petitions. As an initial matter, we dismiss the 
Petitions on procedural grounds. The Incentive Auction NPRM squarely 
raised the question of which facilities to protect in the repacking 
process and which stations would be eligible to participate in the 
reverse auction. On reconsideration, petitioners for the first time 
attempt to explain why they should be protected in the repacking 
process or allowed to participate in the reverse auction. They have not 
shown, however, why they were unable to raise these facts and arguments 
before adoption of the Incentive Auction R&O. Indeed, the evidence put 
forth by petitioners precedes the adoption of the Incentive Auction 
R&O. Accordingly, we dismiss the Petitions because they rely on facts 
and arguments not presented to the Commission before the Incentive 
Auction R&O was issued and petitioners have not attempted to 
demonstrate compliance with the exceptions for such filings found in 
section 1.429(b) of our rules.
    54. As an alternative and independent ground, we deny the Petitions 
because neither petitioner is a ``broadcast television licensee'' 
entitled to mandatory protection in the repacking process or eligible 
to participate in the reverse auction. Beach TV is the licensee of an 
LPTV station that has never filed an application for a Class A license. 
ALF is a mere applicant for a new full power television construction 
permit. While we determined that full power or Class A licensees that 
are the subject of non-final license validity proceedings or downgrade 
orders will be protected in the repacking process, and may participate 
in the reverse auction until the proceeding or order becomes final and 
non-reviewable, this treatment applies to stations that previously held 
full power or Class A licenses. Beach TV and ALF have never held such 
licenses. We reject ALF's claim that excluding it from the reverse 
auction denies it due process. To the extent that ALF believed there 
was unreasonable delay at any stage in the processing of its 
application, it had the opportunity to file a petition for writ of 
mandamus to compel agency action.
    55. We also dismiss Beach TV's request that we protect it in the 
repacking process as a matter of discretion. We explained in the 
Incentive Auction R&O the reasons for declining to extend discretionary 
protection to LPTV stations, such as Beach TV. As discussed above, we 
affirm that decision. In addition, as we stated above, we extended 
discretionary protection only to otherwise eligible ``broadcast 
television licensees,'' i.e., full power and licensed Class A stations. 
Moreover, despite its claim, Beach TV is unlike KHTV-CD, a formerly 
out-of-core Class A-eligible LPTV station that we elected to protect in 
the repacking process. Unlike Beach TV, KHTV-CD's eligibility for Class 
A status has never been in doubt and it holds a Class A license. 
Moreover, unlike Beach TV, KHTV-CD documented repeated efforts over the 
course of a decade to locate an in-core channel and convert to Class A 
status.

3. International Coordination

    56. We deny the requests for reconsideration by Affiliates 
Associations, Gannett, ATBA, Block, and CDE as they relate to 
international coordination. We must, of course, take Canadian and 
Mexican stations into account in determining the assignment of channels 
particularly in U.S. markets along the borders, but completion of 
border coordination is not a precondition to repacking as either a 
legal or practical matter. International coordination is an ongoing 
process which by its nature involves negotiation with sovereign nations 
whose actions the FCC does not control. The Commission is familiar with 
matters of international coordination, having dealt with similar issues 
every time it auctions new spectrum licenses. The Spectrum Act affords 
the FCC discretion regarding how to implement the coordination process, 
including the timing of that process. As CTIA points out, therefore, we 
reasonably interpreted the Spectrum Act as not imposing a temporal 
requirement on international coordination. Because we fully considered 
and rejected in the Incentive Auction R&O the arguments of Affiliates 
Associations and ATBA that the language of the Spectrum Act should be 
interpreted as requiring the Commission to complete international 
coordination prior to the auction or the repacking process, we dismiss 
these arguments on procedural grounds. Block Stations' request that we 
reconsider our statutory interpretation because the Spectrum Act does 
not require that the incentive auction be conducted right away lacks 
merit: delay in our schedule for conducting the incentive auction is 
not necessary and would disserve the public interest.
    57. We disagree with NAB that, if international coordination is not 
completed in advance of the auction, stations in border areas risk 
being forced to go dark. As discussed below, we expect to reach timely 
arrangements with Canada and Mexico that will enable us to carry out 
the repacking process in an efficient manner that is fully consistent 
with the requirements of the statute and our goals for the auction. As 
we explained in the Incentive Auction R&O, however, all that is 
required as a practical matter in order to carry out the repacking 
process in the border areas is a mutual understanding with Canada and 
Mexico

[[Page 46834]]

as to how the repacking process in the U.S. will be conducted to 
protect border stations in all countries from interference, and the 
requisite information about the location and operating parameters of 
Canadian and Mexican stations that affect the assignment of television 
channels in the U.S. The mutual understanding that we anticipate 
reaching with Canada and Mexico regarding the technical criteria to be 
used in repacking will enable us to secure timely approval of 
individual channel assignments for U.S. stations after the auction. 
Accordingly, we are not persuaded that stations in border areas are at 
risk of going dark if coordination is not complete. In the unlikely 
event that a border station has not been able to complete construction 
on its new channel assignment by the end of the 36-month construction 
period, that station may request authorization to operate on temporary 
facilities as provided in the Incentive Auction R&O. We will make every 
reasonable effort to accommodate such requests.
    58. We also reject the other arguments of Affiliates Associations, 
CDE, and NAB regarding border stations. We are not persuaded that 
border stations face an unfair risk of being deprived of the 
opportunity for reimbursement in the event that the FCC cannot complete 
coordination prior to the incentive auction and the repacking process. 
In the event that international coordination is not completed prior to 
the commencement of the incentive auction, the reimbursement process we 
adopted in the Incentive Auction R&O will facilitate a smooth 
transition for border stations that provides a fair opportunity to 
obtain reimbursement. We fully intend to make initial allocations 
quickly to help broadcasters initiate the relocation process. If cases 
occur in which a broadcaster's move to a new channel is delayed because 
of international coordination, the delay need not jeopardize 
reimbursement. We expressly provided broadcasters the opportunity to 
receive initial allocations based on estimated reimbursement costs. We 
also afforded stations the flexibility to update their cost estimates 
if they experience a change in circumstances during the reimbursement 
period. Moreover, our process recognizes that construction for certain 
stations may run up against the end of the 36-month reimbursement 
period and therefore includes a final allocation, to be made based on 
actual costs incurred by a date prior to the end of the three-year 
period, in addition to a station's estimated expenses through the end 
of construction. For any relocating station, this final allocation will 
occur during the statutory reimbursement period, even if construction 
is not complete until after the end of the three-year reimbursement 
period. We believe this process will provide sufficient flexibility for 
any stations that encounter difficulties constructing new facilities 
located along the borders with Mexico and Canada. We explain in Section 
IV.C infra how the reimbursement process is designed to address 
problems or delays that may arise for stations in the post-auction 
transition process.
    59. While we regard the confidentiality of the ongoing government-
to-government incentive auction coordination discussions as critical to 
their ultimate success, there are indications that our ongoing 
coordination efforts are advancing our goal to reach mutual spectrum 
reconfiguration arrangements with Canada in a manner that is fully 
consistent with our statutory mandate and our goals for the auction. We 
note that on December 18, 2014, Industry Canada initiated a 
consultation (similar to a Notice of Proposed Rulemaking) that proposes 
a joint reconfiguration of the 600 MHz Band for mobile use. The 
Industry Canada consultation proposed to adopt the U.S. 600 MHz Band 
Plan framework and to commit to repurposing the same amount of spectrum 
as the U.S., as determined in the FCC's incentive auction. Moreover, 
Industry Canada's consultation also expressly states that Canada would 
have to make a decision on the harmonized band plan before the 
incentive auction in the U.S. The Industry Canada consultation also 
proposes harmonizing Canada's approach for developing a TV allotment 
plan with that of the U.S. It also recognizes the mutual benefits of a 
joint repacking that takes into consideration broadcasters on both 
sides of the border and ensures maximum benefits with minimum 
disruption of broadcast services, resulting in a more efficient 
reassignment of broadcasting channels and more spectrum being made 
available for mobile services in both countries. In light of the 
consultation, we anticipate that our coordination efforts will 
culminate in an arrangement that captures the mutual benefits to Canada 
and the U.S. of a harmonized 600 MHz Band Plan approach that will 
repurpose the spectrum for mobile broadband services and optimize 
television channel placement on both sides of the border.
    60. FCC staff also continues to collaborate closely with Mexico's 
Instituto Federal de Telecomunicaciones (IFT) on attaining a spectrum 
reconfiguration arrangement that would incorporate unified objectives 
regarding spectrum allocation and accommodate television broadcast and 
wireless services along the common border. As part of Mexico's 
constitutional reforms adopted in 2012, IFT is committed to completion 
of Mexico's DTV transition by the end of 2015. The FCC and IFT, through 
the established coordination process, are assigning Mexican DTV 
channels below channel 37 to the extent possible while also providing 
channels for the FCC to use in repacking. Considering the efforts and 
progress made by both Administrations towards developing a 
comprehensive solution that involves the best and future use of current 
television spectrum, we anticipate the eventual completion of an 
arrangement with Mexico that will enable us to carry out the repacking 
process in a manner fully consistent with the requirements of the 
statute and our goals for the auction. In any event, prior to the start 
of the incentive auction, we will release information regarding the 
Mexican stations and allotments that will need to be protected in the 
repacking.
    61. Finally, we reject ATBA's requests for reconsideration with 
regard to LPTV stations in the border areas. Contrary to ATBA's 
argument, the Spectrum Act places no special limits on displacement of 
LPTV licensees in border areas. ATBA notes that section 
1452(b)(1)(B)(i) provides that the Commission may, subject to 
international coordination, make ``reassignments'' of ``television 
channels,'' and argues that ``television channels'' should be read 
broadly to include LPTV stations. We reject this argument. As an 
initial matter, nothing in section 1452(b) ``shall be construed to 
alter the spectrum usage rights of [LPTV] stations,'' which as we have 
explained have never included protection from displacement by primary 
services. Moreover, while section 1452(b)(1)(B)(i) refers to the 
Commission's ``reassignment'' of ``television channels,'' the 
Commission will not be ``reassign[ing]'' the television channels of 
LPTV stations. Rather, LPTV stations may be displaced when broadcasters 
begin operations on their new channels post-repacking and required to 
locate new channels, but they will not be ``reassigned'' as that term 
is used in the Spectrum Act. Further, ATBA's concern regarding the risk 
of LPTV stations being subject to ``double-displacement and double-
builds'' is ill-founded. Our post-auction coordination process for 
relocating stations will require Canada's or

[[Page 46835]]

Mexico's concurrence before the Media Bureau issues a construction 
permit. Once a channel assignment has been coordinated with Canada or 
Mexico, it is unlikely that the relocating station will be subjected to 
another coordination.

B. Unlicensed Operations

1. Television Bands

    62. We dismiss Free Access' request. In the Incentive Auction R&O, 
the Commission indicated that it intended, following notice and 
comment, to designate one unused television channel following the 
repacking process for shared use by unlicensed devices and wireless 
microphones. The Commission stated that it sought to strike a balance 
between the interests of all users of the television bands, including 
the secondary broadcast stations and white space device operators, for 
access to the UHF TV spectrum. As indicated in the Incentive Auction 
R&O, the final decision on preserving one such television channel, and 
precisely how to do so, would follow additional notice and comment. 
Accordingly, we dismiss Free Access' challenge of the Commission's 
action on this issue in the Incentive Auction R&O given the absence of 
a final decision. On June 11, 2015, the Commission adopted the Vacant 
Channel NPRM proposing to take action to preserve a vacant television 
channel, following the repacking process, for use by both unlicensed 
white space devices and wireless microphones. This proceeding provides 
Free Access with an opportunity to express its concerns to the 
Commission on the proposal to preserve a television channel for use by 
unlicensed white space devices as well as wireless microphones.

2. Guard Bands and Duplex Gap

    63. We deny Qualcomm's request to reconsider the Commission's 
decision in the Incentive Auction R&O to permit unlicensed white space 
devices to operate in the guard bands and duplex gap. The Commission 
determined in the Incentive Auction R&O that the part 15 rules provide 
an ``appropriate and reliable framework for permitting low power uses 
on an unlicensed basis,'' while also recognizing that a further record 
would be necessary to establish the technical standards to govern such 
use in the guard bands and duplex gap. The Commission also emphasized 
that, ``consistent with the Spectrum Act, unlicensed use of the guard 
bands will be subject to the Commission's ultimate determination that 
such use will not cause harmful interference to licensed services.'' 
Subsequent to the Incentive Auction R&O, the Commission initiated a 
rulemaking proceeding to develop technical and operational rules to 
enable unlicensed devices to operate in the guard bands and duplex gap 
without causing harmful interference to licensed services. 
Specifically, on September 30, 2014, the Commission adopted the Part 15 
NPRM that proposed rules for unlicensed white space device operation in 
the TV bands, repurposed 600 MHz Band, guard bands (including the 
duplex gap), and on channel 37.
    64. We disagree with Qualcomm that the Commission's decision is 
arbitrary, capricious, or otherwise violates the APA. The procedure the 
Commission is following in this proceeding (first deciding to allow 
unlicensed use of certain frequency bands, and then proposing specific 
technical rules) is similar to the procedure the Commission followed in 
the TV white spaces proceeding (ET Docket No. 04-186). In that 
proceeding, the Commission decided to allow fixed unlicensed use of 
certain vacant channels in the TV bands, but did not have a sufficient 
record to adopt technical rules for such operation. It adopted the TV 
White Spaces First R&O and FNRPM that made the decision but did not 
adopt any technical rules. Along with this decision, the Commission 
included a further notice of proposed rulemaking portion proposing 
specific technical rules, which it followed subsequently with the TV 
White Spaces Second Incentive Auction R&O in which it adopted technical 
rules. Thus, there is precedent for the Commission's decision to decide 
first to permit unlicensed operations in a frequency band--in this case 
in the guard bands and duplex gap--subject to the subsequent 
proceedings to develop technical rules to allow such operation. 
Moreover, the Commission has broad authority to decide how best to 
manage its decision-making process. Also, we disagree that the 
Commission disregarded Qualcomm's filings alleging that unlicensed use 
of the guard bands and duplex gap would result in harmful interference 
to licensed services. The Commission considered them when making its 
decision, specifically recognizing that parties disagreed on certain 
assumptions in Qualcomm's technical analysis, and decided that these 
disagreements would be more appropriately addressed in the rulemaking 
proceeding that it initiated subsequent to the Incentive Auction R&O.
    65. We also disagree with Qualcomm's contention that unlicensed 
operations in the 600 MHz Band would destroy the fungibility of the 
licensed spectrum blocks and reduce their value. This argument is based 
on the premise that unlicensed operations in the guard bands and duplex 
gap will definitely cause harmful interference to licensed services in 
adjacent bands. As discussed above, we will not permit any unlicensed 
operations in the guard bands and duplex gap that will cause harmful 
interference to licensed services.

3. Channel 37

    66. Background. The current part 15 rules generally prohibit 
operation of unlicensed devices on channel 37. The Commission ceased 
certifying new unlicensed medical telemetry transmitters for operation 
on channel 37 when it established the WMTS as a licensed service under 
part 95, but it permits previously authorized medical telemetry 
equipment to continue operating on channel 37. The rules do not allow 
the operation of white space devices on channel 37. The Commission 
excluded white space devices from operating on channel 37 to protect 
the WMTS and the Radio Astronomy Service (``RAS'') since channel 37 is 
not used for TV service and therefore has different interference 
considerations than those at issue in the white spaces proceeding.
    67. In the Incentive Auction R&O, the Commission decided that 
unlicensed devices will be permitted to operate on channel 37, subject 
to the development of the appropriate technical parameters for such 
operations, including the use of the white space databases to protect 
WMTS operations at their fixed locations. It stated that unlicensed 
operations on channel 37 will be authorized in locations that are 
sufficiently removed from WMTS users and RAS sites to protect those 
incumbent users from harmful interference. In making this decision, the 
Commission recognized the concerns of WMTS equipment manufacturers and 
users about the potential for unlicensed operations on channel 37 to 
cause harmful interference to the WMTS. It also recognized that parties 
disagreed on the appropriate interference analysis methodology and the 
ability of the TV bands databases to provide adequate protection to the 
WMTS. The Commission decided that it would ``permit unlicensed 
operations on channel 37 at locations where it is not in use by 
incumbents, subject to the development of the appropriate technical 
parameters to protect incumbents from harmful interference,'' and that 
it would consider these issues

[[Page 46836]]

as part of a separate rulemaking proceeding ``with the objective of 
developing reliable technical requirements that will permit unlicensed 
operations while protecting the WMTS and RAS from harmful 
interference.''
    68. GE Healthcare (``GEHC'') and the WMTS Coalition seek 
reconsideration of the Commission's decision to allow unlicensed 
devices to operate on channel 37. The petitioners argue that the 
Commission should consider whether to permit sharing only after it has 
completed a full and balanced inquiry into whether operating and 
technical rules can be developed that assure that harmful interference 
will not occur to the WMTS. GEHC claims that the Commission's decision 
to permit unlicensed operations on channel 37 is a policy change and a 
rule change because the Commission revised section 15.707(a) to permit 
unlicensed operations in the 600 MHz Band, including on channel 37, and 
thus its request for reconsideration is appropriate and ripe for 
review. GEHC and the WMTS Coalition also claim that the Commission's 
decision is inconsistent with past precedents that WMTS and unlicensed 
devices could not share the band. The WMTS Coalition states that the 
Commission has given careful consideration to the advisability of band 
sharing on channel 37 between unlicensed devices and the WMTS several 
times over the last twelve years, and that each time it has done so, it 
determined that channel 37 should not be subject to sharing with 
unlicensed devices. GEHC argues that the Commission's failure to 
explain its departure from precedent or how harmful interference to 
WMTS operations from unlicensed devices will be avoided violates the 
APA. The WMTS Coalition also argues that the decision to allow sharing 
is premised upon the unrealistic assumption that current and future 
WMTS sites can be accurately identified. It states that the geographic 
coordinates in the WMTS database are not sufficiently accurate for 
frequency coordination, and that some hospitals have either not kept 
their data updated or have not registered at all with the database. The 
WMTS Coalition argues that by determining in advance that sharing of 
channel 37 will occur, the Commission has tipped the scales away from a 
balanced analysis of the risks and benefits of allowing sharing. We 
received oppositions to the GEHC and WMTS Coalition petitions from 
Google/Microsoft, WISPA, OTI/PK and Sennheiser.
    69. Discussion. We deny the requests of GEHC and the WMTS Coalition 
to reverse the Commission's decision to permit unlicensed white space 
devices to operate on channel 37. The Commission made this decision 
subject to the development of appropriate technical parameters for such 
operations, so unlicensed devices cannot operate on channel 37 unless 
such rules are promulgated. Subsequent to the Incentive Auction R&O, 
the Commission initiated a rulemaking proceeding to develop technical 
and operational rules to enable unlicensed white space devices to 
access and operate on channel 37, through use of a database, in a 
manner that would not cause harmful interference to the WMTS and RAS. 
Specifically, on September 30, 2014, the Commission adopted a Notice of 
Proposed Rulemaking that proposes rules for unlicensed operation in the 
TV bands, repurposed 600 MHz Band, guard bands (including the duplex 
gap), and on channel 37.
    70. We disagree with GEHC that the Commission's action to allow 
unlicensed white space device operation on channel 37 is arbitrary, 
capricious, or violates the APA. As discussed above, the Commission 
followed a similar course in the TV white spaces proceeding in which it 
decided to allow unlicensed white space device operation in particular 
frequency bands (the TV bands in that case), followed by a proposal to 
develop the appropriate technical requirements to prevent interference 
to authorized services in those bands. As with the guard bands, the 
decision in the Incentive Auction R&O was based on the record, 
recognizing that the parties had different analyses based on different 
assumptions. The decision is conditioned on developing technical rules 
to protect incumbent services from harmful interference. As noted 
above, the Commission has broad authority to decide how best to manage 
its decision-making process and to order its docket ``as will best 
conduce to the proper dispatch of business and to the ends of 
justice.'' Contrary to GEHC's assertion, the changes that the 
Commission made to section 15.707(a) in the Incentive Auction R&O do 
not allow operation of unlicensed white space devices on channel 37 
prior to the development of technical requirements. The purpose of the 
changes to section 15.707(a) is to allow the continued operation of 
white space devices in the 600 MHz Band after the incentive auction at 
locations where licensees have not yet commenced service. The 600 MHz 
Band as defined in part 27 does not encompass channel 37, so the 
Commission's changes to section 15.707(a) in the Incentive Auction R&O 
do not allow unlicensed device operation on channel 37.
    71. The Commission adequately explained its policy change to allow 
unlicensed white space devices to operate on channel 37. As discussed 
above, when the Commission decided in 2006 to exclude white space 
devices from operating on channel 37 to protect the WMTS and RAS, it 
noted that channel 37 has different interference considerations than 
those at issue in the white spaces proceeding. In particular, the white 
space proceeding focused on unlicensed devices operating on channels 
used for the broadcast television service, so the Commission developed 
technical requirements to protect television and other operations in 
the TV bands, such as wireless microphones. The Commission did not 
conclude that sharing with the WMTS and RAS was not possible; it simply 
chose not to address the issue of such sharing in the TV white spaces 
proceeding. The Commission explained in the Incentive Auction R&O that 
since the time it made the decision to prohibit unlicensed use of 
channel 37, it has designated multiple TV bands database 
administrators, has had extensive experience working with their 
databases, and has a high degree of confidence that they can reliably 
protect fixed operations. The Commission further explained that the 
fixed locations where the WMTS is used are already registered in the 
American Society for Health Care Engineering (``ASHE'') database, and 
these data could be added to the TV bands databases. The Commission 
recognized concerns that WMTS location information in the ASHE database 
may be imprecise or missing, and stated that these could be addressed 
by establishing conservative separation distances from unlicensed 
devices and by reminding hospitals and other medical facilities of 
their obligation under the rules to register and maintain current 
information in the database. The Commission is currently considering 
these issues in the Part 15 NPRM.

C. Other Services

1. Channel 37 Services

    72. Background. The WMTS, which operates licensed stations on 
channel 37 in the UHF Band, is used for remote monitoring of patients' 
vital signs and other important health parameters (e.g., pulse and 
respiration rates) inside medical facilities. WMTS includes devices 
that transport the data via a radio link to a remote location, such as 
a nurse's station, for monitoring. After the incentive auction, the 
services that

[[Page 46837]]

will operate in the frequency bands adjacent to the WMTS will depend on 
the amount of spectrum recovered in the incentive auction. If more than 
84 megahertz is recovered, there will be three megahertz guard bands on 
each side of channel 37, with wireless downlink spectrum above and 
below these guard bands. If exactly 84 megahertz is recovered, there 
will be a three megahertz guardband above channel 37 to separate this 
channel from wireless downlink spectrum, while channel 36 will continue 
to be used for television. If less than 84 megahertz is recovered, 
channels 36 and 38 will both continue to be used for television.
    73. The decision to provide for a three megahertz guard band 
between WMTS and 600 MHz downlink operations balanced the need to 
protect WMTS facilities from interference with the need for new 600 MHz 
licensees to have flexibility to deploy base stations where needed to 
provide coverage over their service areas. The decision not to require 
coordination was supported by the Commission's technical analysis, 
based on protection criteria GEHC provided in its comments. This 
analysis showed that three megahertz guard bands adjacent to channel 37 
requires only reasonably short separation distances to protect WMTS 
from new 600 MHz operations. The Commission decided not to provide for 
enhanced protection of WMTS if additional TV stations are placed in 
channels 36 or 38 as a result of the repacking process. Instead, we 
chose to rely on the existing DTV out-of-band emission (OOBE) limits, 
and noted that the extent of potential interference to WMTS would 
depend in large part on the locations of any TV stations repacked to 
channels 36 or 38 in relationship to health care facilities.
    74. In its Petition, GEHC claims the Commission erred when it 
relied solely on the three megahertz guard band to protect WMTS from 
600 MHz Band operations in adjacent bands, and that GEHC's revised 
analysis shows that greater separation distances or more stringent 
limits on power and out-of-band emissions from 600 MHz Band base 
stations are needed. GEHC makes three main claims to support its 
position: (1) The FCC's technical analysis inappropriately applied the 
protection criteria GEHC provided; (2) the FCC failed to consider 
interference aggregation from multiple WMTS antennas; and (3) the FCC 
incorrectly converted field strength to received power. GEHC further 
claims that the Commission ignored key concerns that allowing 
additional TV stations to be repacked into channels 36 and 38 will 
reduce WMTS spectrum capacity, increase the number of WMTS facilities 
that could experience interference from TV operations, cause hospitals 
to incur additional costs to protect their WMTS operations from harmful 
interference, and require hospitals to create de facto guard bands to 
protect their WMTS operations from harmful interference, effectively 
reducing the amount of usable spectrum on channel 37 for the WMTS. CTIA 
disagrees with GEHC, noting that their positions would threaten to 
limit the amount of licensed spectrum made available in the incentive 
auction and increase the number of new wireless licenses that are 
encumbered.
    75. Discussion--WMTS and 600 MHz Band services. While we revise our 
technical analysis in light of GEHC's Petition, we affirm our 
conclusion that a three megahertz guard band between 600 MHz operations 
and channel 37, along with the 600 MHz Band service out-of-band 
emission limits we adopted, will adequately protect WMTS facilities. 
GEHC states that the FCC's technical analysis inappropriately applied 
the protection criteria GEHC provided. More specifically, it states 
that instead of applying the field strength protection values it 
provided ``at the perimeter of a registered WMTS facility,'' we applied 
them at the receiver. GEHC argues that this resulted in the double-
counting of building penetration losses and filter rejection in the 
overload interference analyses and double-counting of building 
penetration loss in the out-of-band analysis. GEHC's maximum 
recommended field strength levels at the perimeter of a WMTS facility 
that were provided in its comments to the Incentive Auction NPRM were 
based on several tables showing a link budget analysis for overload and 
out-of-band interference. These tables included a term described as 
``excess loss (building attenuation, etc.),'' which we included in our 
analysis. It was unclear from GEHC's comments that these losses had 
been already considered in developing their recommended field strength 
limits. However, based on the clarification in its petition, we now 
agree that these losses should not have been considered in our 
analysis. Accordingly, we eliminate this factor from our revised 
analysis shown in Appendix A.
    76. While we agree that we incorrectly double-counted building 
losses in our original analysis, we disagree that we double-counted any 
WMTS receive filter attenuation outside of channel 37. GEHC developed 
its recommended field strength limits using the assumption that new 600 
MHz licensees would be operating directly adjacent to channel 37. The 
600 MHz Band Plan, however, includes three megahertz guard bands 
adjacent to channel 37. Based on the filter characteristics provided by 
GEHC, this frequency separation provides an additional 10 dB of signal 
attenuation. Thus, it was appropriate to include this additional 10 dB 
of signal loss for filter attenuation in our analysis. This is so even 
though the receiver which includes the filter is not located at the 
perimeter of the building, because the goal is to protect the receiver 
and the filter provides some of that protection. Such excess loss 
occurs after the point at which GEHC specifies the protection values 
must be met. But, because that loss is a real phenomenon, GEHC takes it 
into account when developing its protection criteria. We treat the 
filter attenuation in a similar manner in our analysis.
    77. We also agree with GEHC that we erred by failing to consider 
interference aggregation from multiple WMTS antennas in our technical 
analysis. Because most WMTS facilities employ distributed antenna 
systems (``DAS'') which include many antenna elements, more than a 
single antenna element may receive an interfering signal. In its 
comments, GEHC asserted that the analysis therefore should include a 10 
dB penalty for aggregating signals from ten WMTS antennas. In its 
Petition, GEHC states that this scenario is unlikely, and instead 
recommends an aggregation adjustment of three dB based on signal 
aggregation from two antennas. Using the revised three dB value 
provides an additional seven dB of margin, which would allow less 
stringent field strength protection values than those GEHC proposed. We 
take this three dB antenna aggregation factor into account in our new 
analysis shown in Appendix A.
    78. Regarding GEHC's claim that we incorrectly converted field 
strength to received power, we disagree. There are many methods for 
converting between these units and the choice of which method to use 
depends on many factors, such as whether the conversion is being used 
to verify a measurement or to estimate an electric field at some 
distance from a transmitter. GEHC asserts that the formula we used, 
which is commonly used in measurement laboratories, unfairly biases our 
results by three meters (the assumed measurement distance). It states 
that such bias creates a 37.6 dB disparity, which is equivalent to the 
free space loss over the first three meters from an antenna at 611 MHz. 
GEHC's claim fails to recognize that the received power is being 
generated from a transmitter at a much greater distance than three 
meters.

[[Page 46838]]

Because signal strength attenuates exponentially over distance, the 
loss in that last three meters is much less than the loss over the 
first three meters or any other three-meter segment along the signal 
path. The exact difference will depend on the actual distance of the 
transmitter from the WMTS facility.
    79. We reject GEHC's alternative formula for calculating radiated 
power and field strength for conducted power measurements. It cites an 
equation that relates power in the load (i.e. power received by the 
antenna) to the field strength. GEHC then argues an equivalency between 
that field strength and the transmitter equivalent isotropically 
radiated power (``EIRP''). GEHC fails to acknowledge that the EIRP is a 
function of the transmitter power and transmit antenna gain, which is 
at some distance from the receiving antenna. Thus, the power received 
by the receive antenna is not the EIRP, but the EIRP less the path loss 
(e.g., free space loss plus any additional loss that the signal may 
incur as it propagates from the transmitter to the antenna).
    80. We also disagree with GEHC's claims that there are several 
other, less serious errors in our analysis. For the overload analysis, 
it states that while we assumed five megahertz channels for the 600 MHz 
transmitter, we incorrectly considered only that portion of the 600 MHz 
Band power that falls in the first adjacent six megahertz channels 
above and below channel 37, effectively ignoring any power in the 
second adjacent channels. GEHC argues that such a methodology is 
unrealistic as it inherently assumes that power in the second adjacent 
channel does not exist or that the receiver's filter perfectly rejects 
this portion of the power. Based on the surface acoustic wave (``SAW'') 
filter characteristics GEHC provided, which show attenuation between 
approximately 40 and 60 dB beyond four to five megahertz of the channel 
37 band edges (i.e., into the second adjacent channel), our assumption 
to only consider the power in the first adjacent channel is reasonable. 
If we were to consider the power across additional channels, we would 
also need to consider the full filter attenuation across the channel; 
instead, we simplify our analysis and assume only 10 dB of attenuation 
at three megahertz from the band edge. Thus, our power assumptions are 
conservative. GEHC also states that we should not have integrated the 
partial power over the entire six megahertz adjacent channel. However, 
GEHC fails to offer an alternative method. Again, we believe this to be 
a valid simplifying assumption for the purposes of our analysis.
    81. In advocating for specific field strength protection values, 
GEHC fails to provide information on the relationship between the 
results of its analysis and those field strength protection values. 
GEHC does, however, state that those field strength protection values 
are based on meeting a -37.8 dBm/MHz threshold in its overload (or 
blocking) analysis and on meeting an I/N ratio of -6 in its OOBE 
analysis. GEHC's methodology for calculating protection distance based 
on these protection values is straightforward. Using that same 
methodology, we show in Appendix A that the separation distance 
necessary to protect WMTS from 600 MHz operations is reasonably small. 
The results of our analysis show shorter separation distances than 
those calculated by GEHC to meet the same protection criteria for 
overload and OOBE interference. We acknowledge that these distances are 
larger than those we calculated in our analysis supporting the 
Incentive Auction R&O, but not of such a magnitude that persuades us to 
alter our conclusion that the vast majority of WMTS stations will not 
suffer any detrimental effects from the installation of new 600 MHz 
base stations. It is important to note that this is a worst case 
analysis and in most installations one or more of the parameters we 
assumed here will provide additional protection. Thus, we continue to 
believe that the three megahertz guard band along with the adopted 600 
MHz service OOBE limits we adopted will adequately protect WMTS 
facilities while providing flexibility for new 600 MHz licensees to 
deploy their systems. Nevertheless, we encourage new 600 MHz licensees 
to be cognizant of the presence of WMTS facilities when designing their 
networks and when possible to take measures to minimize the energy 
directed towards them.
    82. WMTS and Television Services. We decline to reconsider our 
decision not to limit the number of television stations that could be 
repacked in channels 36 and 38. Restricting repacking on channels 36 
and 38 would significantly impede repacking flexibility and limit our 
ability to repurpose spectrum through the incentive auction. Even if 
channels 36 and 38 continue to be used for broadcast television after 
the auction, an increase in the number of stations on these channels 
does not correspond to an increase in the number of WMTS users that 
would be affected by adjacent channel TV stations. We expect that there 
will be many locations where TV stations can operate on channels 36 and 
38 with minimal or no effect on WMTS users. Any interference that does 
occur to the WMTS from adjacent channel TV operations can be addressed 
on an as-needed basis. The potential for an adjacent channel TV station 
to affect a WMTS installation depends on many factors, including the TV 
station power and antenna height, separation distance, intervening 
obstacles (such as terrain, trees or buildings), and the WMTS receive 
antenna characteristics (such as height, gain, directionality, and 
location inside or outside a building). While we recognize GEHC's 
concern that ``hardening'' a WMTS facility against adjacent channel TV 
emissions involves costs, we note that many WMTS licensees have already 
taken such action by adding filters to their systems. Thus, we believe 
that the need for some facilities to take this action does not pose an 
insurmountable problem, or require a blanket restriction on repacking 
TV stations into channels 36 and 38. As CTIA points out, WMTS has never 
been able to rely on those channels being vacant.
    83. Finally, we note that the Commission allocated three spectrum 
bands for the WMTS, including two bands at 1.4 GHz in addition to 
channel 37. In allocating this spectrum, the Commission recognized that 
WMTS operations on channel 37 could be affected in some instances by 
nearby stations on channels 36 and 38, and it stated that WMTS 
providers could use one of the other allocated bands in these 
situations. The Commission also stated that manufacturers could design 
their equipment to provide sufficient protection from adjacent channel 
interference.

2. LPAS and Unlicensed Wireless Microphones

    84. We deny Sennheiser's and RTDNA's petitions requesting that 
additional spectrum be reserved exclusively for wireless microphone 
operations. We instead affirm the balanced approach we adopted in the 
Incentive Auction R&O to accommodate wireless microphone operations 
while also taking into account the interests of other users of the more 
limited spectrum in the repacked TV bands and the repurposed 600 MHz 
Band spectrum, including the 600 MHz Band guard bands. Considering the 
several actions the Commission took in the Incentive Auction R&O, as 
well as the additional actions it now is actively exploring, to 
accommodate wireless microphone operators' needs following the 
incentive auction, including the high-end professional-type needs about

[[Page 46839]]

which Sennheiser and RDTNA are concerned, we are not persuaded that we 
should provide any more spectrum exclusively for use by wireless 
microphone users for these types of operations.
    85. The Commission took several steps in the Incentive Auction R&O 
to accommodate wireless microphone operations--including licensed 
wireless microphone operations--in the spectrum that would remain 
available for use following the incentive auction. Specifically, it 
provided for more opportunities for co-channel operations with 
television stations. It also sought to ensure that at least one channel 
in the TV bands would continue to be available for wireless microphone 
operations, stating its intent, following notice and comment, to 
designate one unused TV channel in each area of the country for use by 
wireless microphones and white space devices. As discussed above, we 
recently adopted the Vacant Channel NPRM proposing to do this. Licensed 
wireless microphone operators needing interference-free operations from 
white space devices will be able to reserve this channel for use at 
specified locations and times through the TV bands databases. Further, 
the Commission stated that it would seek comment on ways to update its 
rules for TV bands databases to provide for more immediate reservation 
of unused and available channels for use by wireless microphone 
operators in order to better enable them to obtain needed interference 
protection from white space device operations at specified locations 
and times. Shortly following adoption of the Incentive Auction R&O, in 
September 2014, the Commission issued the Part 15 NPRM proposing such 
revisions.
    86. The Commission also indicated in the Incentive Auction R&O that 
it planned to take additional steps to ensure that spectrum for 
wireless microphone users--again including licensed wireless microphone 
users--would be available following the incentive auction. It provided 
that wireless microphones would be permitted to operate in the 600 MHz 
Band guard bands, including the duplex gap, subject to technical 
standards to be developed in a later proceeding. In the Part 15 NPRM, 
we are following through on that decision, including seeking comment on 
our proposal to provide licensed wireless microphone operators with 
exclusive access to four megahertz of spectrum in the duplex gap. 
Because wireless microphone operators today rely heavily on the current 
UHF Band, we provided for a transition period that would permit them to 
continue to operate in the repurposed 600 MHz Band spectrum for up to 
39 months following issuance of the Channel Reassignment PN, subject to 
specified conditions, both to address their near-term needs and to help 
facilitate the transition of users that currently operate in this 
portion of the UHF Band to spectrum that is or will be available for 
their use. In order to accommodate wireless microphone users' long-term 
needs, the Commission committed to initiating a proceeding to explore 
additional steps it can take, including use of additional frequency 
bands. We followed through on this commitment by adopting the Wireless 
Microphones NPRM in September 2014. In light of the above-stated 
actions, and the need to balance the interests of multiple different 
UHF Band spectrum users, as well as the goals of the incentive auction, 
we decline to take action on reconsideration to provide any more 
spectrum exclusively for use by wireless microphone users.
    87. We also deny Qualcomm's petition challenging the Commission's 
decision to permit wireless microphone operations in the guard bands 
and duplex gap. The crux of Qualcomm's challenge is that there was 
insufficient record to decide how wireless microphones could operate 
successfully in these bands, along with white space devices, in a 
manner that also ensures that such operations do not cause interference 
to licensed wireless services in the adjacent bands. For the reasons 
discussed above with respect to Qualcomm's challenge of the decision to 
permit unlicensed white space devices to operate in the guard bands and 
duplex gap (along with wireless microphones), we reject Qualcomm's 
request. In the Part 15 NPRM, we are seeking comment on technical rules 
that comply with the Spectrum Act and address the potential 
interference concerns raised in Qualcomm's petition. Qualcomm has the 
opportunity to present its concerns in that proceeding.
    88. Finally, we reject Sennheiser's renewed request that we require 
forward auction winners to reimburse licensed and unlicensed wireless 
microphone users for costs associated with replacing equipment as a 
result of the incentive auction and repurposing of spectrum for 
wireless services. Sennheiser does not challenge the Commission's 
conclusion that reimbursement was not contemplated or required by the 
Spectrum Act. Instead, Sennheiser argues that the Commission has 
independent authority under the Communications Act to require 
reimbursement, and challenges the Commission's reasoning that wireless 
microphone users are not entitled to reimbursement because they operate 
on a secondary or unlicensed basis. While we agree that the Commission 
does have independent authority for requiring reimbursements for 
relocation costs under certain circumstances, we affirm our decision 
not to require it here. Contrary to Sennheiser's arguments, our rules 
and policies are clear that licensed wireless microphone operations are 
secondary, and not primary, in those portions of the current TV bands 
that will be reallocated for wireless services following the incentive 
auction. The Commission has never required that primary licensees 
(here, the 600 MHz Band wireless licensees) moving into a band 
reimburse users that have been operating on a secondary basis in that 
band. We also decline to require reimbursement of unlicensed wireless 
microphone users that currently are operating pursuant to a limited 
waiver under certain part 15 rules; unlicensed users as a general 
matter do not have vested or cognizable rights to their continued 
operations in the reallocated TV bands.

II. The Incentive Auction Process

A. Integration of the Reverse and Forward Auctions

    89. We deny the petitions for reconsideration of the average price 
component of the final stage rule. The final stage rule is an aggregate 
reserve price based on bids in the forward auction. If the final stage 
rule is satisfied, the forward auction bidding will continue until 
there is no excess demand, and then the incentive auction will close. 
If the final stage rule is not satisfied, additional stages will be 
run, with progressively lower spectrum targets in the reverse auction 
and less spectrum for licenses available in the forward auction, until 
the rule is satisfied.
    90. Contrary to petitioners' claims, the Commission clearly stated 
the reason for the adoption of the average price component in the 
Incentive Auction R&O. The Commission concluded that its reserve price 
approach would help assure that auction prices reflect competitive 
market values and serve the public interest. In particular, the 
Commission stated, ``the first component of the final stage rule's 
reserve price [the average price component] ensures that the forward 
auction recovers `a portion of the value of the public spectrum 
resource,' as required by the Communications Act.'' The petitioners, T-
Mobile and the Competitive Carriers Association (``CCA''), do not 
demonstrate that this

[[Page 46840]]

objective is not a satisfactory explanation for adopting this 
component.
    91. CCA argues that the average price component is unnecessary 
because forward auction bids that satisfy the costs component 
(including payments to reverse auction bidders) would represent a price 
for goods agreed to by willing sellers and buyers of those goods, but 
this argument is based on an incorrect premise. The forward auction 
bidders will not be ``buying'' what the reverse auction bidders are 
``selling.'' Rather, the Commission will offer new flexible use 
licenses--unlike existing broadcast licenses--utilizing spectrum from 
various sources, including the aggregate spectrum relinquished by 
reverse auction bidders as well as spectrum freed by relocating 
broadcasters that will continue broadcasting on different frequencies. 
Consequently, bids to relinquish spectrum in the reverse auction do not 
intrinsically determine the value of the licenses offered in the 
forward auction. As a result, CCA has not demonstrated that it was 
unreasonable for the Commission to establish the average price 
component to serve public interest objectives of spectrum auctions as 
required by the Communications Act.
    92. T-Mobile contends that the Commission failed to adequately 
address the inherent risk that forward auction bids may not satisfy the 
average price component or the risks that an unsuccessful auction pose 
to wireless competition and the availability of sufficient low band 
spectrum to meet demand for broadband services. The degree of these 
risks, however, depends in large part on the final benchmarks used, 
which the Commission stated that it would decide later based on 
additional public input. To the extent T-Mobile's argument rests upon 
the degree of risk posed by a specific average price, therefore, it is 
premature. Moreover, assessing the reasonableness of any risk to the 
incentive auction's success requires a proper metric for that success. 
The incentive auction will succeed if its results serve the public 
interest, as identified by the Commission and consistent with 
Congress's statutory mandates. As discussed, Congress mandated the 
particular objective of recovering a portion of the value of the public 
spectrum resource in the Communications Act. Neither petitioner takes 
into account this metric of success when complaining that the average 
price component risks auction ``failure.''
    93. We do not find the petitioners' additional arguments any more 
persuasive. T-Mobile complains that the use of an ``average'' price 
benchmark leaves many issues undecided and adds further complexity to 
an already complex proceeding. As noted in the Incentive Auction R&O, 
however, ``the Procedures PN will determine the specific parameters of 
the final stage rule after further notice and comment in the pre-
auction process.'' In its Reply, T-Mobile strains to read the Incentive 
Auction R&O as providing that ``all that remains to be done . . . is 
for the Commission to announce a price figure[.]'' T-Mobile's list of 
questions regarding implementation, however, demonstrates that more is 
required in the pre-auction process than simply announcing a price 
figure. The Incentive Auction Comment PN makes proposals and seeks 
comment with respect to several such points. Accordingly, T-Mobile's 
argument does not offer a basis for reconsidering the decision to adopt 
the average price component of the final stage rule.
    94. Finally, CCA contends that the Commission did not articulate a 
reason for addressing the possibility in the average price component 
that the spectrum clearing target exceeds the spectrum clearing 
benchmark, but not the possibility that the actual target falls below 
the spectrum clearing benchmark. The Commission need not address why 
the decision it made ``is a better means [to achieving its purpose] 
than any conceivable alternative.'' Given that the Commission's mandate 
is to recover ``a portion of the value of the public spectrum 
resource,'' the average price component need not be designed to take 
into account MHz-pop prices that might be higher than expected (which 
would be the effect, if any, of the auction clearing less spectrum than 
the spectrum clearing benchmark). Put differently, the Commission is 
not charged with recovering a particular percentage of the spectrum 
value, so there is no need for the average price component to respond 
to increasing prices.

B. Reverse Auction

1. Eligibility
    95. We reject the arguments of Free Access, LPTV Coalition, and 
Signal Above that LPTV stations should be allowed to participate in the 
incentive auction and that we violated the RFA by failing to conduct an 
independent analysis of the potential economic impact on LPTV stations 
of either granting or denying them eligibility to participate. Two 
months after the deadline for filing reconsideration petitions, Free 
Access filed a Motion for Leave to File Supplement to Petition for 
Reconsideration (filed Dec. 15, 2014) (``Free Access Motion''), arguing 
that it discovered additional information after the deadline for filing 
for reconsideration, that it raised such matters in a letter to the 
Chairman and to the Chief Counsel of the Small Business Administration 
(``SBA Letter''), and asking that the SBA Letter be included in the 
record of this proceeding. We dismiss this filing as a late-filed 
petition for reconsideration. The Commission may not waive the deadline 
for seeking reconsideration absent extraordinary circumstances, which 
Free Access has failed to demonstrate. Accordingly, we deny Free 
Access' Motion. We will, however, consider the matters raised in Free 
Access' Motion as informal comments.
    96. We affirm our determination that eligibility to participate in 
the reverse auction is limited to licensees of full power and Class A 
television stations. This determination is consistent with the Spectrum 
Act's mandate to conduct a reverse auction specifically for each 
``broadcast television licensee,'' which is defined to exclude LPTV 
stations. Even assuming we have discretion to grant eligibility to the 
licensees of LPTV stations despite the statutory mandate, granting such 
eligibility would be inappropriate for the reasons we explained in the 
Incentive Auction R&O. For instance, LPTV stations are not entitled to 
repacking protection, and we reasonably declined to exercise our 
limited discretion to protect them. As LPTV stations are not eligible 
for protection in the repacking process and are subject to displacement 
by primary services, relinquishment of their spectrum usage rights is 
not necessary ``in order to make spectrum available for assignment'' in 
the forward auction. Accordingly, sharing the proceeds of the forward 
auction with the licensees of LPTV stations would not further the goals 
of the Spectrum Act; instead, it would undercut Congress's funding 
priorities, including public-safety related priorities and deficit 
reduction.
    97. Contrary to the petitioners' arguments, nothing in the RFA or 
any other statute requires the Commission to conduct an independent 
analysis of the economic impact on LPTV stations of making them 
ineligible to participate in the incentive auction. The RFA requires a 
```statement of the factual, policy, and legal reasons for selecting 
the alternative adopted in the final rule.' Nowhere does it require . . 
. cost-benefit analysis or economic modeling.'' We disagree with Free 
Access' claim that the Final Regulatory Flexibility Analysis included 
with the Incentive Auction R&O incorrectly stated that ``no comments 
were received in response to the IRFA

[[Page 46841]]

[Initial Regulatory Flexibility Analysis] in this proceeding.'' The 
IRFA included with the Incentive Auction NPRM at Appendix B stated that 
``[w]ritten public comments are requested on this IRFA'' and that 
``[c]omments must be identified as responses to the IRFA and must be 
filed by the deadlines for comments indicated on the first page of the 
Notice.'' Although some parties may have raised IRFA-related matters in 
ex parte presentations to staff, these presentations did not constitute 
formal comments filed in response to the IRFA, were not identified as 
such, and were not filed by the comment deadline. Nevertheless, the 
matters that were raised in these ex parte presentations (namely that 
the FCC should undertake a full economic and financial analysis as to 
whether LPTV participation could result in a more successful incentive 
auction) were considered by the Commission in this proceeding. 
Furthermore, many of the filings Free Access mentions simply cite a 
sentence in the IRFA included with the Incentive Auction NPRM as 
support for the position that LPTV may participate in the auction. 
Those filings have nothing to do with the analysis in the IRFA of the 
impact on small entities.
    98. Likewise, the APA requires that a rule be ``reasonable and 
reasonably explained.'' Here, Congress has already determined that LPTV 
stations are not eligible for the auction, rendering an economic 
analysis superfluous at best. We fully explained our reasons for 
declining to protect LPTV stations in the repacking process or to 
include them in the reverse auction, adopted various measures to 
mitigate the potential impact of the incentive auction and the 
repacking process on LPTV stations, and initiated a separate proceeding 
to consider additional remedial measures. Having demonstrated a 
``reasonable, good-faith effort to carry out [the RFA's] mandate,'' no 
independent analysis of the potential economic impact on LPTV stations 
of excluding them from reverse auction participation was required of 
us, nor would such an analysis have been useful or helpful.
2. Bid Options
    99. For the reasons set out in more detail below, we affirm our 
decision to allow NCE stations to participate fully in the reverse 
auction and find that it is consistent with the Public Broadcasting Act 
and our NCE reservation policy, taking into account the unique 
circumstances and Congressional directives with respect to the auction. 
At the same time, the Commission remains fully committed to the mission 
of noncommercial broadcasting. The Commission has continuously found 
that NCEs provide an important service in the public interest, and it 
has promoted the growth of public television accordingly. In the 
context of the incentive auction, we emphasize that there will be 
multiple ways for NCE stations to participate in the auction and 
continue in their broadcasting missions. The bid options to channel 
share and to move to a VHF channel will enable NCE stations to continue 
service after the auction while still realizing significant proceeds. 
In the channel sharing context, we continue to disfavor dereservation 
of NCE channels. For those stations that are interested in moving to 
VHF, we have proposed opening prices that represent significant 
percentages of the prices for going off the air, and we will afford 
favorable consideration to post-auction requests for waiver of the VHF 
power and height limitations. NCEs that participate in the auction 
under any bid option but are not selected will remain broadcasters in 
their home band, and we will make all reasonable efforts to preserve 
their service.
    100. Our auction design preserves for each NCE licensee the 
decision of whether to participate, giving stations that want to 
participate but remain on the air choices for doing so, without 
unnecessarily constraining our ability to repurpose spectrum. Our 
approach gives NCE licensees the flexibility to participate fully in 
the incentive auction, and we will be able to address any service 
losses after the auction is complete in a manner consistent with the 
goals of section 307(b) of the Communications Act and our longstanding 
NCE reservation policy. On balance, we find that the approach we 
adopted in the Incentive Auction R&O is the best way to uphold the NCE 
reservation policy while also carrying out Congress's goals for the 
incentive auction.
    101. We agree with PTV that the Commission has a longstanding 
policy of reserving spectrum in the television band for NCE stations 
and against dereserving channel allotments. As PTV notes, the 
Commission's policy originated more than 60 years ago, when the 
Commission concluded that ``there is a need for non commercial 
educational stations.'' Indeed, the Commission has historically denied 
requests for dereservation both where the licensee was in severe 
financial distress and where the channel was vacant after a number of 
attempts to provide noncommercial service failed.
    102. However, we disagree that our decision reverses the NCE 
reservation policy. The incentive auction presents unique circumstances 
that we must take into account in implementing this policy. Congress 
directed that the Commission conduct a broadcast television spectrum 
incentive auction to repurpose UHF spectrum for new, flexible uses, but 
directed that participation in the reverse auction by broadcasters must 
be voluntary. Thus, the Commission cannot compel participation, but 
neither should it preclude a willing broadcast licensee, including an 
NCE station, from bidding. PTV also claims that our analysis that 
restrictions on participation would be contrary to the statute is 
flawed. On this, we agree and update our analysis. Section 1452(a)(1) 
provides that the Commission ``shall conduct a reverse auction to 
determine the amount of compensation that each broadcast television 
licensee would accept in return for voluntarily relinquishing some or 
all of its broadcast television usage rights . . . .'' After further 
analysis, we agree that the language in section 1452(a) is ambiguous 
and that nothing in section 1452(a) expressly prohibits the FCC from 
imposing conditions on its acceptance of reverse auction bids in order 
to serve policy goals, and the Commission did in fact impose certain 
conditions on acceptance of reverse auction bids in the Incentive 
Auction R&O. Nevertheless, while we agree that we are not statutorily 
precluded from adopting the PTV proposal, we decline to adopt it for 
all the policy reasons described above.
    103. Most closely analogous to the incentive auction in terms of 
application of the reservation policy was the digital television 
transition. There, the Commission preserved vacant reserved allotments 
where possible, but where it was impossible, the Commission allowed for 
the future allotment of reserved NCE channels after the transition to 
fill in those areas that lost a reserved allotment, finding that ``if 
vacant allotments were retained, it would not be possible to 
accommodate all existing broadcasters in all areas . . . and could 
result in increased interference to existing . . . stations.'' In the 
auction context, we similarly determined that we could not apply the 
reservation policy during the repacking process itself because there is 
no feasible way of doing so without creating additional constraints on 
repacking that would compromise the auction.
    104. PTV proposes ``to allow a noncommercial educational station to 
relinquish its spectrum so long as at least one such station remains 
on-air in the community or at least one reserved channel is preserved 
in the repacking to

[[Page 46842]]

enable a new entrant to offer noncommercial educational television 
service in the community.'' While PTV regards its proposal as balanced 
because it would allow the last NCE to relinquish its spectrum, the two 
options it puts forward would impose essentially equivalent constraints 
on our ability to repurpose spectrum. Under PTV's proposal, the auction 
mechanism would either have to reject the bids of the last NCE station 
in a market, or it would have to put an additional constraint in the 
new television band. Rejecting the bid of the last NCE in a market 
would prevent at least some NCEs from engaging in the auction. And 
while conditioning the relinquishment of the last NCE's spectrum on the 
preservation of at least one reserved channel may allow full 
participation by NCE licensees, it would impose the same constraint on 
the auction system's ability to repack commercial and NCE stations that 
remain on the air. The effect would be the same as PTV's first option, 
reducing the amount of spectrum that can be cleared and the revenue 
that can be realized in the forward auction. This extra analysis would 
also compromise the speed at which the auction runs.
    105. We conclude that the most effective means of balancing our 
commitment to noncommercial educational broadcasting and the mandates 
of the Spectrum Act is to address any actual service losses on a case-
by-case basis in a manner that is tailored to the post-auction 
television landscape. We are considering a number of such measures. For 
example, we could waive the freeze on the filing of applications for 
new LPTV or TV translator stations to allow NCE licensees to promptly 
restore NCE service to a loss area with these stations. Or, if the last 
NCE station in a given community goes off the air as a result of the 
incentive auction, the Commission could consider a minor modification 
application by a neighboring public station to expand its contour to 
cover that community, possibly by waiving our rules on power and height 
restrictions, if the licensee can demonstrate that it would not 
introduce new interference to other broadcasters. In addition, 
interested parties could file petitions for rulemaking to propose the 
allotment of new reserved channels to replace the lost service once the 
Commission lifts the current freeze on the filing of petitions for 
rulemaking for new station allotments, or the Commission could do so on 
its own motion.
    106. Finally, we disagree with PTV's claim that ``nothing in the 
NPRM or the extensive record in this proceeding `fairly apprised the 
public of the Commission's new approach' to reserved channels,'' 
contrary to the requirements of the APA. The petition states that the 
``Notice's discussion of the impact of the incentive auction on 
noncommercial educational service was limited to channel sharing 
restrictions aimed at `preserv[ing] NCE stations and reserved 
channels.' '' This is incorrect. The Incentive Auction NPRM 
specifically analyzed whether NCEs would be eligible to participate in 
the reverse auction. It proposed an approach that did not restrict the 
participation of NCEs operating on reserved or non-reserved channels, 
noting that the Spectrum Act did not limit eligibility based on 
commercial status. The Incentive Auction NPRM indicated further that 
NCE participation in the auction would be beneficial, both because it 
would promote the overall goals of the auction and it would ``serve the 
public interest by providing NCE licensees with opportunities to 
strengthen their financial positions and improve their service to the 
public.'' Adequacy of the notice is demonstrated by comments that PTV 
submitted in response to the Incentive Auction NPRM, which cited 
section 307(b) and the FCC's historical policies pertaining to loss of 
service and asked the Commission not to accept license relinquishment 
bids that would result in DMAs not served by certain NCE stations.

III. The Post-Incentive Auction Transition

A. Construction Schedule and Deadlines

    107. We decline to consider at this time the Affiliates 
Associations, ATBA's, and Gannett's requests regarding the transition 
period for full power and Class A stations because the arguments the 
petitioners raise are the subject of a recent decision by the United 
States Court of Appeals for the D.C. Circuit. We will take appropriate 
action regarding these arguments in a subsequent Order.
    108. We will, however, address ATBA's petition to the extent that 
it challenges the decision not to ``protect'' LPTV and TV translator 
stations from displacement during and after the post-auction transition 
process. We decline ATBA's request that we ``protect all LPTV licenses 
and construction permits'' during the post-incentive auction transition 
period and ``for at least two years thereafter,'' which would 
presumably allow LPTV and TV translators to avoid being displaced 
during the post-incentive auction transition and two years beyond while 
repacked stations continue to make modifications to their facilities. 
The Spectrum Act does not mandate protection of LPTV or TV translator 
stations in the repacking process, and we declined to grant such 
protection as a matter of discretion for the reasons explained in the 
Incentive Auction R&O. For the same reasons, we decline to grant LPTV 
and TV translator stations protection during and after the post-auction 
transition period. Any such protection would be inconsistent with the 
secondary status of LPTV stations under the Commission's rules and 
policies and would seriously impede the transition process, a critical 
element to the incentive auction's success. Recognizing the potential 
impact of the incentive auction and the repacking process on LPTV 
stations, we adopted in the Incentive Auction R&O an expedited post-
auction displacement window to allow stations that are displaced to 
file an application for a new channel without having to wait until they 
are actually displaced by a primary user. In addition, we have 
initiated a proceeding to consider measures to help LPTV and TV 
translators that are displaced, including delaying the digital 
transition deadline, allowing stations to channel share, and other 
measures. These actions will mitigate the impact of the repacking 
process on LPTV stations without impeding the post-incentive auction 
transition process.

B. Consumer Education

    109. We grant, in part, Affiliates Associations' petition for 
reconsideration and modify our consumer education requirements with 
respect to certain ``transitioning stations.'' We continue to believe 
that ``[c]onsumer education will be an important element of an orderly 
post-auction band transition. Consumers will need to be informed if 
stations they view will be changing channels, encouraged to rescan 
their receivers for new channel assignments, and educated on steps to 
resolve potential reception issues.'' At the same time, we agree with 
Affiliates Association that transitioning stations, except for license 
relinquishment stations, will be motivated to inform their viewers of 
their upcoming channel change to prevent disruptions in service. 
Therefore, we revise our consumer education requirements to provide 
these stations with additional flexibility.
    110. In the Incentive Auction R&O, we required that all commercial 
full power and Class A television transitioning stations air a mix of 
Public Service

[[Page 46843]]

Announcements (``PSAs'') and crawls at specific times of the day. We 
allowed NCE full power stations to comply with consumer education 
requirements through an alternate plan. Specifically, we allowed NCE 
full power stations to either comply with the framework established for 
commercial full power and Class A television stations or by only airing 
60 seconds per day of on-air consumer education PSAs for 30 days prior 
to termination of operations on their pre-auction channel. Thus, NCE 
full power stations were given additional flexibility to choose the 
timeslots for their consumer education PSAs and to not have to air 
crawls. We conclude that all transitioning stations, except for license 
relinquishment stations, should have the same flexibility. Therefore, 
we will allow all transitioning stations, except for license 
relinquishment stations, to meet the consumer education objectives by 
airing, at a minimum, either 60 seconds of on-air consumer education 
PSAs or 60 seconds of crawls per day for 30 days prior to termination 
of operations on their pre-auction channel. Stations will have the 
discretion to choose the timeslots for these PSAs or crawls. We will 
continue to require that transition PSAs and crawls conform to the 
requirements set forth in the rules.
    111. We decline, however, to revise our consumer education 
requirements for license relinquishment stations. Given that these 
stations will be going off the air, their incentives are necessarily 
different from stations that will remain on the air. Specifically, 
relinquishing stations may be less motivated to inform their viewers of 
their upcoming plan to terminate operations. Nevertheless, it is 
critical that viewers of these stations be informed of the potential 
loss of service so they can take the necessary steps to view 
programming from another source. As we did with consumer education 
during the DTV transition, we continue to believe a ```baseline 
requirement' is necessary and appropriate for license relinquishment 
stations to ensure the public awareness necessary for a smooth and 
orderly transition.'' For these reasons, we affirm our decision with 
respect to consumer education requirements for license relinquishment 
stations.

C. Reimbursement of Relocation Costs

1. Sufficiency of Reimbursement Fund
    112. For the reasons set out below, we deny the requests of 
Affiliates Associations, Block Stations and NAB that the Commission 
limit the number of stations that can be repacked based on the 
availability of $1.75 billion for relocation expenses. We agree with 
CTIA that the statute merely limits the budget of the Fund to $1.75 
billion but does not require that actual costs fall below this level. 
We affirm the repacking approach adopted in the Incentive Auction R&O, 
which will incorporate an optimization process to determine the amount 
of spectrum that can be cleared or repurposed based on the feasibility 
of assigning channels to stations that remain following the reverse 
auction. We deny NAB's request that the Commission impose additional 
constraints on provisional channel assignments, which will be made 
throughout the reverse auction, beyond those mandated by the statute. 
Imposing the cost-based constraints sought by petitioners is not 
mandated by the Spectrum Act and would be unworkable because the total 
cost of any repacking scenario remains unknown. Moreover, by increasing 
the number of constraints on the repacking process, granting the 
petitioners' request would limit our ability to recover spectrum 
through the incentive auction and undermine the goals of the Spectrum 
Act.
    113. We agree that reducing the overall costs associated with the 
repacking process would be beneficial, not only to broadcasters and 
MVPDs that will rely on reimbursement from the Fund, but also because 
any excess in funding would be applied to deficit reduction, consistent 
with another goal of the Spectrum Act. Accordingly, the Commission has 
proposed an optimization process that seeks to minimize relocation 
costs associated with the repacking process by adopting a plan for 
final channel assignments that maximizes the number of stations 
assigned to their pre-auction channel and avoids reassignments of 
stations with high anticipated relocation costs. The proposed 
optimization process would accomplish the same goals as the proposals 
made by NAB, without compromising the speed and certainty provided by 
the repacking process adopted in the Incentive Auction R&O. In this 
regard, we note that Affiliates Associations' and NAB's reliance on 
estimates that up to 1,300 stations could be reassigned to new channels 
is misplaced. These estimates do not include any optimization to 
minimize channel moves and reduce relocation costs in the final TV 
channel assignment plan. Therefore, these results are not 
representative of the final number of stations that will be required to 
move, which we expect to be significantly lower as a result of 
optimization. Likewise, Affiliates Associations' concern that 
optimization may not reduce the number of stations repacked enough to 
bring the total costs below $1.75 billion does not account for the 
ability of the optimization process to avoid reassignments of stations 
with high anticipated relocation costs, thereby reducing the total cost 
of repacking. In light of these initiatives, we have no reason, at this 
time, to believe the Fund will be insufficient to cover all eligible 
relocation costs.
    114. Contrary to Block Stations' contention, the ``all reasonable 
efforts'' mandate in section 1452(b)(2) does not require us to limit 
the number of repacked stations based on concerns about the sufficiency 
of the Fund. Section 1452(b)(2) applies ``[i]n making any reassignments 
or reallocations'' under section 1452(b)(1)(B). ``Reassignments and 
reallocations'' are ``ma[de]'' during the repacking process, and become 
``effective'' after ``the completion of the reverse auction . . . and 
the forward auction,'' specifically upon release of the Channel 
Reassignment PN. Although the Commission's efforts to fulfill the 
statutory mandate include post-auction measures available to remedy 
losses in coverage area or population served that individual stations 
may experience, the mandate itself does not extend to the reimbursement 
process, which will occur after the Commission has made the 
reassignments and reallocations for which the statute provides.
    115. We are not persuaded by Affiliates Associations' argument that 
participation in the reverse auction might become involuntary for 
broadcasters if there is a risk that they could potentially incur out-
of-pocket expenses. As discussed in the Incentive Auction R&O, Congress 
allocated $1.75 billion of the auction proceeds to cover repacking 
costs. The Spectrum Act expressly provides that broadcasters' 
participation in the reverse auction is voluntary, but the repacking 
process is not voluntary. Other than suggesting that the Commission 
could be ``putting its thumb on the scale'' in favor of auction 
participation as broadcasters weigh their options, Affiliates 
Associations offers no evidence that, notwithstanding the $1.75 billion 
set aside to compensate broadcasters for reasonable relocation costs, 
broadcasters who would otherwise remain on the air will be motivated to 
participate in the reverse auction out of concern they will not be 
fully compensated for their relocation expenses. For the reasons stated 
above, we believe that the optimization process will enhance the 
sufficiency of the $1.75 billion Fund by reducing both the overall 
number of

[[Page 46844]]

stations repacked and the number of particularly expensive channel 
moves.
    116. We decline Affiliates Associations' request to reconsider the 
conclusion that providing additional funding from auction proceeds 
beyond the $1.75 billion would be contrary to the express language of 
the Spectrum Act. Our decision is consistent with the Commission's 
conclusion in previous auctions that it lacks authority to use auction 
proceeds to pay incumbents' relocation costs. In this case, section 309 
of the Communications Act, as revised, requires $1.75 billion of ``the 
proceeds'' of the auction to be deposited in the Reimbursement Fund, 
and ``all other proceeds'' to be deposited in the Public Safety Trust 
Fund and the general fund of the Treasury. While section 1452(i) of the 
Act provides that ``[n]othing in [section 1452(b)] shall be construed 
to'' expand or contract the FCC's authority except as expressly 
provided, that provision does not qualify the specific direction in 
section 309 as to funding priorities and the amount of proceeds to be 
dedicated to relocation costs.
    117. We also deny requests that we mandate that winning forward 
auction bidders pay for post-auction expenses. First, we find no merit 
in the argument of ATBA that wireless carriers should reimburse LPTV 
stations. We agree with CTIA that the Commission is not obligated to 
provide reimbursement for displaced LPTV stations given Congress' 
unambiguous definition of ``broadcast television licensee,'' which 
includes only full-power television stations and Class A licensees. 
Because LPTV licensees do not meet the definition of ``broadcast 
station licensee'' they are not eligible for reimbursement from any 
source. Second, we disagree with the Affiliates Associations and NAB 
that there is relevant precedent for requiring winning forward auction 
bidders to reimburse relocation expenses of repacked broadcasters. 
Although in previous auctions the Commission has required winning 
bidders to cover incumbents' relocation costs pursuant to its broad 
spectrum management authority, in this case the Spectrum Act contains 
an explicit provision for the Reimbursement Fund. Congress's adoption 
of a precise amount for such costs indicates its intention to limit the 
FCC's authority to order additional reimbursements. In any event, it 
distinguishes the incentive auction from previous auctions in which the 
Commission has adopted other measures to address incumbent relocation 
costs.
    118. The blanket waiver approach advocated by ATBA is inconsistent 
with the Commission's obligation to analyze waiver petitions to ensure 
they comply with the statutory requirements. The Spectrum Act's 
flexible use waiver provision provides a means of reducing demand on 
the Fund by conditioning petition grant on an agreement to forgo 
reimbursement, as well as offering broadcasters flexibility in the use 
of their licensed broadcast spectrum. In the Incentive Auction R&O, we 
declined to automatically grant service rule waiver requests because we 
found that, in evaluating a waiver petition, the Media Bureau must 
determine whether the petition meets the Commission's general waiver 
standard and complies with the statutory requirements pertaining to 
interference protection and the provision of one broadcast television 
program stream at no cost to the public. Similarly, this analysis must 
be performed for each station seeking a waiver of the Commission's 
service rules. Therefore, we deny the request of ATBA. We note that a 
station group may still obtain a waiver for all of its stations if the 
Media Bureau determines they demonstrate compliance with the relevant 
statutory provisions.
2. Stations That Are Not Repacked and Translator Facilities
    119. We decline to exercise our discretionary authority to allow 
secondary services such as translator stations to claim reimbursement 
from the Fund, consistent with our decision not to protect these 
entities in the repacking process. This decision is consistent with 
Commission precedent to reimburse only primary services that are 
relocated, not secondary services that are not entitled to protection. 
Providing reimbursement for translators or other secondary services out 
of the $1.75 billion Fund would also reduce the amount available to 
reimburse repacked Class A and full-power stations for their eligible 
relocation costs. Therefore, we deny this portion of ATBA's petition.
    120. Further, we are not persuaded by Affiliates Associations' 
argument that we acted inconsistently in declining to reimburse non-
reassigned stations directly but allowing MVPDs to be reimbursed from 
the Fund for expenses related to a particular type of station move 
(successful high-VHF-to-low-VHF bidders). Although the Spectrum Act 
does not require reimbursement for either type of expense, they are 
distinguishable. The MVPD expenses in question arise from our decision 
to allow high-VHF-to-low-VHF bids, a decision that Congress could not 
have specifically anticipated. Our exercise of discretion makes MVPDs 
eligible for reimbursement for the reasonable costs they incur in order 
to continue to carry broadcast stations that are reassigned as a result 
of the auction, regardless of the type of bid option exercised by the 
broadcaster. In contrast, Congress clearly anticipated a distinction 
between reassigned and non-reassigned broadcasters, expressly providing 
for reimbursement of the former but not the latter. Moreover, non-
repacked broadcasters might nevertheless indirectly benefit from a 
reimbursement to a reassigned station. We find that our decision was 
reasonable and will help to preserve limited reimbursement funds.
3. Reimbursement Timing
    121. We dismiss on procedural grounds Affiliates Associations' 
request that we delay the completion of the auction until after forward 
licenses have been issued. The Incentive Auction R&O fully considered 
the argument by broadcasters that the Commission should delay the close 
of the forward auction until wireless licenses are assigned. 
Specifically, we found that this approach would produce uncertainty in 
the UHF Band transition because the Spectrum Act directs that no 
reassignments or reallocations may become effective until the 
completion of the reverse auction and the forward auction. We therefore 
dismiss the assertion of Affiliates Associations that close of the 
auction should be contingent on assigning licenses to winning forward 
auction bidders.
    122. We deny the requests of Affiliates Associations and Gannett 
for reconsideration of certain aspects of the reimbursement process. In 
adopting a reimbursement process providing that eligible entities 
receive an initial allocation of up to 80 percent of their estimated 
expenses, the Commission concluded that this approach should help 
ensure that broadcasters and MVPDs do not face an undue financial 
burden while also reducing the possibility that we allocate more funds 
than necessary to cover actual relocation expenses. Moreover, this 
approach takes into consideration the practical limitation that the 
Commission will have only $1 billion (borrowed from Treasury) to 
allocate at the beginning of the reimbursement process. Nevertheless, 
we fully intend to make initial allocations quickly to help 
broadcasters begin the relocation process.
    123. We also deny requests that we extend the initial three-month 
deadline for repacked stations to file construction permits and cost 
estimates. We find that doing so would postpone the award of initial 
funding allocations, thus making

[[Page 46845]]

it more difficult for broadcasters to meet construction deadlines. The 
purpose behind these deadlines is to permit broadcasters to begin 
construction as quickly as possible. Moreover, the statute requires 
that reimbursements from the Fund be completed no later than three 
years after the completion of the forward auction, and extending the 
filing deadline would compress the period within which disbursements 
could be made. We disagree with Affiliates Associations that the Media 
Bureau will be unable to approve the cost estimates and construction 
permit applications of a large number of stations quickly. With respect 
to construction permit applications, the Media Bureau has the 
experience and expertise to process these applications quickly and has 
adopted expedited processing guidelines for certain applications to 
further accelerate the approval process. We also plan to hire a 
reimbursement contractor to assist with processing the cost estimates 
and actual cost submissions throughout the reimbursement period. In 
order to make initial allocations, we require all eligible entities to 
file cost estimates at the three-month deadline because allocations 
will be calculated based on total cost estimates in relation to the 
amount available to the Commission at the time. To the extent a 
broadcaster or MVPD is unable to obtain price quotes by the filing 
deadline, it can use the predetermined cost estimates published in the 
Catalog of Eligible Expenses as cost estimate proxies. For these 
reasons, we retain the three-month deadline for eligible entities to 
file construction permit applications and reimbursement cost estimates.

IV. Other Matters

    124. Mako argues that the Incentive Auction R&O violates the 
National Environmental Policy Act of 1969 (``NEPA'') because it did not 
include an ``Environmental Assessment'' (``EA'') with a ``No 
Significant Impact'' finding or a full ``Environmental Impact 
Statement'' (``EIS''). In addition, International Broadcasting Network 
(``IBN'') argues without any support that Chairman Wheeler should be 
recused from this proceeding. We find no evidence whatsoever to support 
IBN's claim that the Chairman should have recused himself from this 
proceeding and we therefore we reject this request. We reject this 
argument. The environmental effects attributable to the rules adopted 
in the Incentive Auction R&O, including the potential modification of 
broadcast facilities resulting from channel reassignments and the 
build-out of facilities in the 600 MHz Band, are already subject to 
environmental review under our NEPA procedures. Under those procedures, 
potentially significant environmental effects of proposed facilities 
will be evaluated on a site-specific basis prior to construction. 
Adoption of rules in the Incentive Auction R&O has no potentially 
significant environmental effects--beyond those already subject to 
site-specific reviews--that the Commission must evaluate in an EA or 
EIS under NEPA or the Commission's NEPA procedures.

V. Procedural Matters

    125. Final Regulatory Flexibility Act Analysis. The Commission has 
prepared a Final Regulatory Flexibility Certification in Appendix C. 
The Regulatory Flexibility Act of 1980, as amended (RFA), requires that 
a regulatory flexibility analysis be prepared for notice-and-comment 
rule making proceedings, unless the agency certifies that ``the rule 
will not, if promulgated, have a significant economic impact on a 
substantial number of small entities.'' The RFA generally defines the 
term ``small entity'' as having the same meaning as the terms ``small 
business,'' ``small organization,'' and ``small governmental 
jurisdiction.'' In addition, the term ``small business'' has the same 
meaning as the term ``small business concern'' under the Small Business 
Act. 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 U.S. Small 
Business Administration (SBA).
    126. In 2012, Congress mandated that the Commission conduct an 
incentive auction of broadcast television spectrum as set forth in the 
Middle Class Tax Relief and Job Creation Act of 2012 (``Spectrum 
Act''). The incentive auction will have three major pieces: (1) A 
``reverse auction'' in which full power and Class A broadcast 
television licensees submit bids to voluntarily relinquish certain 
broadcast rights in exchange for payments; (2) a reorganization or 
``repacking'' of the broadcast television bands in order to free up a 
portion of the ultra-high frequency (``UHF'') band for other uses; and 
(3) a ``forward auction'' of licenses for flexible use of the newly 
available spectrum. In the Incentive Auction R&O, the Commission 
adopted rules to implement the broadcast television spectrum incentive 
auction. Among other things, the Commission adopted the use of TVStudy 
software and certain modified inputs in applying the methodology 
described in OET-69 to evaluate the coverage area and population served 
by television stations in the repacking process. Pursuant to the RFA, a 
Final Regulatory Flexibility Analysis (``FRFA'') was incorporated into 
the Incentive Auction R&O.
    127. The Second Order on Reconsideration for the most part affirms 
the decisions made in the Incentive Auction R&O. To the extent the 
Second Order on Reconsideration revises the Incentive Auction R&O, it 
does so in a way that benefits both large and small entities, but 
without imposing any burdens or costs of compliance on such entities. 
First, the Second Order on Reconsideration modifies two of the input 
values that the Commission uses when applying the OET-69 methodology. 
Specifically, the Second Order on Reconsideration revises the vertical 
antenna pattern inputs for Class A stations in the TVStudy software, 
which will result in more accurate modeling of the service and 
interference potential of those stations during the repacking process. 
It also reduces the minimum effective radiated power (``ERP'') values, 
or power floors, that the TVStudy software uses to replicate a 
television station's signal contours when conducting pairwise 
interference analysis in the repacking process, which will result in 
greater accuracy. Second, the Second Order on Reconsideration provides 
that the Commission will make all reasonable efforts to preserve the 
coverage areas of stations operating pursuant to waivers of the antenna 
height above average terrain (``HAAT'') or ERP limits set forth in the 
Commission's rules, provided such facilities are otherwise entitled to 
protection under the Incentive Auction R&O. Third, in the Incentive 
Auction R&O, the Commission extended discretionary protection to five 
stations affected by the destruction of the World Trade Center. In the 
Second Order on Reconsideration, the Commission extends this protection 
to an additional station, WNJU, Linden, New Jersey. Fourth, we exercise 
discretion to protect stations that hold a Class A license today and 
that had an application for a Class A construction permit pending or 
granted as of February 22, 2012. Fifth, we revise our consumer 
education requirements to provide stations changing channels as a 
result of the incentive auction and repacking additional flexibility to 
determine the timeslots to air their consumer education public service 
announcements.
    128. None of these changes to the Incentive Auction R&O adopted in 
the Second Order on Reconsideration will impose additional costs or 
impose

[[Page 46846]]

additional record keeping requirements on either small or large 
entities. Therefore, we certify that the changes adopted in this Second 
Order on Reconsideration will not have a significant economic impact on 
a substantial number of small entities.
    129. The Commission will send a copy of the Second Order on 
Reconsideration, including a copy of this Final Regulatory Flexibility 
Certification, in a report to Congress pursuant to the Congressional 
Review Act, see 5 U.S.C. 801(a)(1)(A). In addition, the Second Order on 
Reconsideration and this certification will be sent to the Chief 
Counsel for Advocacy of the Small Business Administration, and will be 
published in the Federal Register. See 5 U.S.C. 605(b).
    130. Congressional Review Act. The Commission will send a copy of 
this Second Order on Reconsideration to Congress and the Government 
Accountability Office pursuant to the Congressional Review Act.

VII. Ordering Clauses

    131. It is ordered, pursuant to the authority found in sections 1, 
4, 301, 303, 307, 308, 309, 310, 316, 319, 325(b), 332, 336(f), 338, 
339, 340, 399b, 403, 534, and 535 of the Communications Act of 1934, as 
amended, and sections 6004, 6402, 6403, 6404, and 6407 of the Middle 
Class Tax Relief and Job Creation Act of 2012, Pub. L. 112-96, 126 
Stat. 156, 47 U.S.C. 151, 154, 301, 303, 307, 308, 309, 310, 316, 319, 
325(b), 332, 336(f), 338, 339, 340, 399b, 403, 534, 535, 1404, 1452, 
and 1454, this Second Order on Reconsideration in GN Docket No. 12-268 
is adopted.
    132. It is further ordered that, pursuant to section 405 of the 
Communications Act of 1934, as amended, 47 U.S.C. 405, and section 
1.429 of the Commission's rules, 47 CFR 1.429, the Petition for 
Reconsideration filed by ABC Television Affiliates Association, CBS 
Television Network Affiliates Association, FBC Television Affiliates 
Association, and NBC Television Affiliates, is granted in part and 
denied in part to the extent described herein
    133. It is further ordered that, pursuant to section 405 of the 
Communications Act of 1934, as amended, 47 U.S.C. 405, and section 
1.429 of the Commission's rules, 47 CFR 1.429, the Petition for 
Reconsideration filed by NBC Telemundo License, LLC, as clarified on 
April 7, 2015, is granted to the extent described herein.
    134. It is further ordered that, pursuant to section 405 of the 
Communications Act of 1934, as amended, 47 U.S.C. 405, and section 
1.429 of the Commission's rules, 47 CFR 1.429, the Petition for 
Reconsideration filed by the Walt Disney Company is granted to the 
extent described herein.
    135. It is further ordered that, pursuant to section 405 of the 
Communications Act of 1934, as amended, 47 U.S.C. 405, and section 
1.429 of the Commission's rules, 47 CFR 1.429, the Petition for 
Reconsideration filed by Dispatch Printing Company is granted to the 
extent described herein.
    136. It is further ordered that, pursuant to section 405 of the 
Communications Act of 1934, as amended, 47 U.S.C. 405, and section 
1.429 of the Commission's rules, 47 CFR 1.429, the Petition for 
Reconsideration filed by Cohen, Dippell, and Everist, P.C is granted in 
part and denied in part to the extent described herein.
    137. It is further ordered that, pursuant to section 405 of the 
Communications Act of 1934, as amended, 47 U.S.C. 405, and section 
1.429 of the Commission's rules, 47 CFR 1.429, the Petitions for 
Reconsideration filed by Advanced Television Broadcasting Alliance; and 
Gannett Co., Inc., Graham Media Group, and ICA Broadcasting are denied 
in part to the extent described herein.
    138. It is further ordered that, pursuant to section 405 of the 
Communications Act of 1934, as amended, 47 U.S.C. and 405, and section 
1.429 of the Commission's rules, 47 CFR 1.429, the Petitions for 
Reconsideration filed by Abacus Television; American Legacy Foundation; 
Artemis Networks LLC; Association of Public Television Stations, 
Corporation for Public Broadcasting, and Public Broadcasting Service; 
Beach TV Properties, Inc.; Block Communications, Inc.; Bonten Media 
Group, Inc. and Raycom Media, Inc.; Competitive Carriers Association; 
Free Access & Broadcast Telemedia, LLC; GE Healthcare; International 
Broadcasting Network; the LPTV Spectrum Rights Coalition; Mako 
Communications, LLC; Media General, Inc.; Radio Television Digital News 
Association; Sennheiser Electronic Corporation; Signal Above, LLC; 
Qualcomm Inc.; T-Mobile USA, Inc.; U.S. Television, LLC; The 
Videohouse, Inc.; and the WMTS Coalition are dismissed and/or denied to 
the extent described herein.
    139. It is further ordered that the Petition for Leave to File 
Supplemental Reconsideration filed by Abacus Television on November 12, 
2014 and the Petition for Leave to Amend filed by the LPTV Coalition on 
November 12, 2014 are denied.
    140. It is further ordered that the Motion for Leave to File 
Supplement to Petition for Reconsideration filed by Free Access and 
Broadcast Telemedia, LLC on December 15, 2014 is denied.
    141. It is further ordered that the Commission's rules are hereby 
amended as set forth in the Final Rules and will become effective 
September 8, 2015 except for Sec.  73.3700(c)(6) which contains new or 
modified information collection requirements that have not be approved 
by OMB. The Federal Communications Commission will publish a document 
announcing the effective date.
    142. It is further ordered that the Commission's Consumer and 
Governmental Affairs Bureau, Reference Information Center, shall send a 
copy of this Second Order on Reconsideration in GN Docket No. 12-268, 
including the Final Regulatory Flexibility Certification, to the Chief 
Counsel for Advocacy of the Small Business Administration.
    143. It is further ordered that the Commission shall send a copy of 
this Second Order on Reconsideration in GN Docket No. 12-268 in a 
report to be sent to Congress and the Government Accountability Office 
pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

List of Subjects in 47 CFR Part 73

    Administrative practice and procedure, Communications common 
carriers, Radio, Telecommunications.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.

Final rules

    For the reasons stated in the preamble, the Federal Communications 
Commission amends 47 CFR part 73 as set forth below:

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 73.3700 paragraph (c) is revised to read as follows:


Sec.  73.3700  Post-incentive auction licensing and operation.

* * * * *
    (c) Consumer education for transitioning stations. (1) License 
relinquishment stations that operate on a commercial basis will be 
required to

[[Page 46847]]

air at least one Public Service Announcement (PSA) and run at least one 
crawl in every quarter of every day for 30 days prior to the date that 
the station terminates operations on its pre-auction channel. One of 
the required PSAs and one of the required crawls must be run during 
prime time hours (for purposes of this section, between 8:00 p.m. and 
11:00 p.m. in the Eastern and Pacific time zones, and between 7:00 p.m. 
and 10:00 p.m. in the Mountain and Central time zones) each day.
    (2) Noncommercial educational full power television license 
relinquishment stations may choose to comply with these requirements in 
paragraph (c)(1) of this section or may air 60 seconds per day of on-
air consumer education PSAs for 30 days prior to the station's 
termination of operations on its pre-auction channel.
    (3) Transitioning stations, except for license relinquishment 
stations, must air 60 seconds per day of on-air consumer education PSAs 
or crawls for 30 days prior to the station's termination of operations 
on its pre-auction channel.
    (4) Transition crawls. (i) Each crawl must run during programming 
for no less than 60 consecutive seconds across the bottom or top of the 
viewing area and be provided in the same language as a majority of the 
programming carried by the transitioning station.
    (ii) Each crawl must include the date that the station will 
terminate operations on its pre-auction channel; inform viewers of the 
need to rescan if the station has received a new post-auction channel 
assignment; and explain how viewers may obtain more information by 
telephone or online.
    (5) Transition PSAs. (i) Each PSA must have a duration of at least 
15 seconds.
    (ii) Each PSA must be provided in the same language as a majority 
of the programming carried by the transitioning station; include the 
date that the station will terminate operations on its pre-auction 
channel; inform viewers of the need to rescan if the station has 
received a new post-auction channel assignment; explain how viewers may 
obtain more information by telephone or online; and for stations with 
new post-auction channel assignments, provide instructions to both 
over-the-air and MVPD viewers regarding how to continue watching the 
television station; and be closed-captioned.
    (6) Licensees of transitioning stations, except for license 
relinquishment stations, must place a certification of compliance with 
the requirements in paragraph (c) of this section in their online 
public file within 30 days after beginning operations on their post-
auction channels. Licensees of license relinquishment stations must 
include the certification in their notification of discontinuation of 
service pursuant to Sec.  73.1750 of this chapter.
* * * * *
[FR Doc. 2015-19281 Filed 8-5-15; 8:45 am]
 BILLING CODE 6712-01-P