[Federal Register Volume 87, Number 121 (Friday, June 24, 2022)]
[Rules and Regulations]
[Pages 37754-37757]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-13249]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 73 and 74

[MB Docket No. 15-146, GN Docket No. 12-268; FCC 22-33; FR ID 91601]


Preservation of One Vacant Channel in the UHF Television Band for 
Use by White Spaces Devices and Wireless Microphones

AGENCY: Federal Communications Commission.

ACTION: Denial of petitions for reconsideration.

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SUMMARY: In this document, the Federal Communications Commission 
(Commission or FCC) adopts an Order on Reconsideration (Order), that 
denies the Petitions for Reconsideration filed by Sennheiser Electronic 
Corporation and Shure Incorporated and affirms its conclusions and 
reasoning to close the vacant channel proceeding. The Commission's 
Order denies petitioners' requests for reconsideration and reversal

[[Page 37755]]

of the Commission's 2020 Report and Order, that declined to adopt 
proposals of a 2015 Notice of Proposed Rulemaking, and affirms closure 
of the vacant channel proceeding.

DATES: The petitions for reconsideration were denied effective May 11, 
2022.

FOR FURTHER INFORMATION CONTACT: For further information, contact 
Michael Scurato (202-418-2083; [email protected]).

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's 
document, Order on Reconsideration, MB Docket No. 15-146, GN Docket No. 
12-268; FCC 22-35, adopted and released on May 11, 2022. The full text 
of this document can be accessed online via the Commission's Electronic 
Comment Filing System (ECFS) at: https://apps.fcc.gov/ecfs and is 
available electronically in ASCII, Microsoft Word, and/or Adobe Acrobat 
via ECFS and at https://www.fcc.gov/document/fcc-affirms-closure-vacant-channel-proceeding. 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). The Commission will not send a Congressional Review Act (CRA) 
submission to Congress or the Government Accountability Office pursuant 
to the CRA, 5 U.S.C. 801(a)(1)(A), because no rules are being adopted 
by the Commission.

Synopsis

    In this Order on Reconsideration, the Commission denies the 
Petitions for Reconsideration filed by Sennheiser Electronic 
Corporation (Sennheiser) and Shure Incorporated (Shure) (collectively, 
Petitioners) requesting reconsideration and reversal of a Commission 
Report and Order, 86 FR 9297 (Feb. 12, 2021), 35 FCC Rcd 14272 (2020) 
(Termination Order) that declined to adopt rules proposed in a 2015 
Notice of Proposed Rulemaking, 80 FR 38158 (July 2, 2015), 30 FCC Rcd 
6711 (2015) (2015 NPRM), to preserve a vacant channel in the television 
(TV) bands for use by white space devices and wireless microphones and 
terminated the proceeding.
    As the Commission held in the Termination Order, it finds that 
adoption of the rules proposed in the 2015 NPRM would not strike the 
most reasonable balance that would best serve the public interest. The 
Commission makes this determination in light of other actions taken by 
the Commission since the 2015 NPRM that will support wireless 
microphone users and the burdens that the proposal would impose on 
broadcasters. The Commission also reaffirms the conclusions it reached 
in the Termination Order that the steps the Commission has taken in 
other proceedings since the 2015 NPRM provide a better alternative for 
addressing the needs of wireless microphone providers than through 
efforts to preserve a vacant channel in light of the burdens the vacant 
channel proposal would impose on broadcasters. Because it agrees that 
the totality of these circumstances support the findings in the 
Termination Order, the Commission rejects the Petitioners' claim that 
the its action was arbitrary and capricious.
    The Commission recognizes the Petitioners' preference for UHF TV 
band spectrum to the alternatives adopted to assist the wireless 
microphone operations, but does not find sufficient grounds to 
reconsider the Commission's conclusion not to pursue the 2015 NPRM. The 
Commission notes that the Termination Order does not find that the 
other proceedings to support spectrum access for wireless microphones 
are a perfect substitute for the UHF TV band spectrum. The Commission 
also notes that its decision not to pursue the 2015 NPRM did not lessen 
the spectrum access that wireless microphones currently enjoy in the TV 
band and indeed the Commission has continued to find ways, and 
additional spectrum, to accommodate wireless microphones in the future 
outside of the crowded TV bands. Furthermore, technical issues raised 
by Petitioners and commenters related to the differences between 
spectrum in the TV band and other bands have been considered in other 
dockets, the Commission explains. Moreover, although not necessary to 
support the Commission's decision to terminate this proceeding, the 
Commission also notes that it continues to explore these issues in 
pending proceedings.
    In weighing those needs, the Commission further affirms that it 
reasonably concluded that the 2015 vacant channel proposal would impose 
undue burdens on the broadcast users of the TV band. The Commission 
finds that it adequately weighed the needs of all spectrum users, and 
supported its decision not to pursue the proposals in the 2015 NPRM for 
several reasons, including changed circumstances since 2015 and the 
alternate initiatives taken by the Commission since 2015.
    The Commission also agrees with its prior decision that the 
proposal would impose undue burdens on broadcasters ``both in congested 
areas where a vacant channel may not be available in the television 
band and in less congested areas where more spectrum is available such 
that analysis is not warranted.'' As the National Association of 
Broadcasters (NAB) and a number of individual broadcasters noted in 
their 2015 comments, the Commission explains that adoption of the 
proposed rules would serve to freeze full power stations in place and 
hamstring their ability to expand or innovate to better serve their 
viewers. And the proposal would require ``novel engineering studies'' 
that ``would be expensive and time-consuming, particularly for smaller 
broadcasters'' where ``the cost of conducting such studies is likely to 
be multiples of current engineering design costs.'' Significantly, 
television stations would bear the administrative burden of studying 
and proving the availability of channels for other users in order to 
receive approval of an application that is otherwise grantable in the 
public interest. The Commission concludes it properly decided ``not 
[to] deviate from previous Commission decisions that use of the TV 
bands by primary and secondary broadcast users have priority over 
wireless microphones and white space devices.'' Further, although 
Petitioners' opine that the adoption of the 2015 proposals would not 
hinder the development of ATSC 3.0 (the TV transmission standard 
developed by the Advanced Television Systems Committee) service by 
broadcasters, including new and innovative uses of broadcast spectrum 
that the ATSC 3.0 standard enables, the Commission explains that it 
believes that it properly balanced concerns raised in the record that 
the proposed rules would hamstring the ability of broadcasters to 
innovate. Petitioners' support of a scheme that would forgo the 
nationwide solution proposed by the Commission and sought by proponents 
of the 2015 NPRM would not ameliorate cost and regulatory compliance 
burdens for licensed broadcasters, the Commission concludes.
    The Commission acknowledges Shure's assertion that the 2015 NPRM 
was an integral part of a multi-proceeding effort to support wireless 
microphones and that it was contemplated that the Incentive Auction 
would result in changed circumstances. The Commission does not, 
however, believe these factors mandate reconsideration. As described 
herein, the Commission continues to balance and support various 
spectrum users' needs in multiple proceedings balancing all the facts 
and circumstances and

[[Page 37756]]

concludes that the actions taken in other proceedings to make spectrum 
available for wireless microphones have achieved the balance sought in 
the Incentive Auction Report and Order, 79 FR 48441 (Aug. 15, 2014), 29 
FCC Rcd 6567 (2014), while also addressing the needs of licensed 
broadcast stations displaced by the Incentive Auction. For the same 
reason, the Commission does not believe that Sennheiser's insistence 
that the Commission pursue the 2015 NPRM's proposals in addition to the 
other proceedings supporting wireless microphones mandates 
reconsideration.
    While the focus of the 2015 NPRM was on a nationwide vacant channel 
solution, Petitioners contend that a non-nationwide solution would also 
benefit wireless microphones and thus the inability to achieve a 
nationwide solution does not justify termination of the proceeding. The 
Commission disagrees. A non-nationwide vacant channel solution would 
necessarily provide fewer benefits than the proposal as originally 
conceived without diminishing any of the burdens on broadcasters, 
especially in rural areas without adequate multichannel video 
programming distributor (MVPD) and broadband service alternatives, and 
if anything would therefore further support the Commission's balance of 
the needs of the various spectrum users.
    The Commission also rejects Shure's unsupported argument that the 
Commission erred by unanimously adopting the Termination Order during 
the ``lame duck'' transition period after the national presidential 
election, which resulted in a change of the party with control over 
administrative agencies. Shure's argument is unavailing because it 
lacks any legal support and, in any event, is now moot because the 
Commission rejects the Petitions on the merits.
    Market analyses provided by Shure and Sennheiser purporting to 
indicate vacant channel availability in major designated market areas 
(DMAs) does not support reconsideration, according to the Commission. 
Neither submission alters the Commission's conclusion in the 
Termination Order that TVStudy software reveals that there are numerous 
major metropolitan areas in the United States that have no vacant, 6 
MHz channels. In its petition, Shure describes an ``independent 
preliminary analysis of channel availability'' that it conducted using 
a tool that it developed to ``calculate[ ] vacant channel availability 
after drawing information from the FCC TV database.'' Using the tool, 
Shure compiled a list of channels it claims are vacant in the top 10 
DMAs. But the ``preliminary analysis'' is flawed, the Commission finds. 
For example, channels listed as available in multiple markets, 
including the two listed for Houston, two for Dallas, two for Los 
Angeles, and one for Chicago, do not qualify as vacant channels because 
they are adjacent to land mobile. Others, including the remaining 
channels listed for Dallas, Los Angeles, and Chicago also do not 
qualify as vacant channels because they are identified in LPTV or Class 
A construction permits or licenses. Similarly, Sennheiser's ex parte 
purportedly ``update[d] the Commission on new developments'' to offer a 
data analysis. On the basis of that analysis, it asserts that, with the 
exception of Phoenix, Arizona, ``in almost every major DMA in the 
United States, there is a vacant channel that could be designated for 
wireless microphones.'' This analysis is also unconvincing, the 
Commission concludes. First, by identifying Phoenix as a market that 
lacks a vacant channel, the ex parte concedes that the Commission was 
correct in its assertion in the Termination Order that a nationwide 
vacant channel solution in the TV band as proposed in the 2015 NPRM is 
no longer possible. Furthermore, the analysis described in the ex parte 
is flawed for several reasons, and therefore it does not undermine the 
assertion in the Termination Order that numerous major metropolitan 
areas have no vacant 6 MHz channels. First, the analysis is inaccurate 
in stating that certain channels are available. For example, the ex 
parte assertion that channel 16 in Salt Lake City is available 
overlooks a displacement construction permit issued for that channel. 
Second, the analysis incorrectly assumes that the identification of an 
available channel in a specific location demonstrates that the channel 
could be preserved across an entire DMA. Again, the example of channel 
16 in Salt Lake City is illustrative, as the Salt Lake City DMA 
includes the entire state of Utah and portions of neighboring states. 
Within that DMA a number of TV translators occupy channel 16, which 
would disqualify the channel as vacant throughout the entire DMA. 
Third, some of the channels that the ex parte identifies as available 
in large markets, such as New York and Los Angeles, could not be deemed 
vacant for the purposes of the 2015 NPRM proposals because those 
channels have land mobile reservations on adjacent channels. Finally, 
the ex parte analysis was performed using a third-party tool found on 
an internet web page that utilizes standards that are not consistent 
with Commission rules to protect TV operations from wireless 
microphones, which in many cases will overstate channel availability as 
compared to what was proposed in the 2015 NPRM and is not a reliable 
method for evaluating the Vacant Channel proposal.
    In summary, and consistent with the public interest analysis in the 
Termination Order, while the Commission recognizes the important 
benefits provided by wireless microphones in the TV bands, it finds 
that other actions that the Commission has taken to support these users 
subsequent to issuance of the 2015 NPRM provide a better alternative 
for addressing their needs than through efforts to preserve a vacant 
channel in light of the burdens the vacant channel proposal would 
impose on broadcasters. The Commission agrees with the conclusion in 
the Termination Order that it can no longer say that the 2015 NPRM's 
proposals ``will not significantly burden broadcast applicants.'' In 
light of changed circumstances, the Commission concludes that it should 
not deviate from previous Commission decisions that use of the TV bands 
by primary and secondary broadcast users have priority over wireless 
microphones and white space devices. The Commission believes that 
preserving robust over-the-air broadcast television service remains an 
important spectrum allocation priority, especially to rural areas 
without adequate MVPD and broadband service alternatives. The 
Commission continues to recognize the promise of next generation ATSC 
3.0 service by over-the-air television broadcasters to expand the 
universe of potential uses of broadcast spectrum capacity for new and 
innovative services in ways that will complement the nation's 
burgeoning 5G networks and usher in a new wave of innovation and 
opportunity. Having restructured the TV band, the Commission finds that 
to now adopt a requirement that primary and/or secondary television 
stations protect spectrum availability for wireless microphones in the 
smaller, more densely packed television band, would not serve the 
public interest. Therefore, the Commission finds that, on balance, 
seeking to preserve a vacant channel at this time, considering all of 
the actions that the Commission has taken since 2015 to promote 
wireless microphones interests, are outweighed by the burdens of the 
proposals on broadcasters.
    The Commission therefore affirms the its decision in the 
Termination Order to decline to adopt the proposals of the 2015 NPRM 
and to terminate this docket, and disagrees with Petitioners

[[Page 37757]]

that the Commission's rejection of the 2015 NPRM warrants 
reconsideration.
    For the reasons stated above, the Commission denies the Petitions 
filed by Sennheiser and Shure requesting reconsideration and reversal 
of the Termination Order and declines to adopt rules proposed in the 
2015 NPRM to preserve a vacant channel for use wireless microphones 
use.
    Accordingly, it is ordered that, pursuant to sections 1, 4(i), 
4(j), 303(r), and 405 of the Communications Act of 1934, as amended, 47 
U.S.C. 151, 154(i), 154(j), 303(r), 405 and Sec.  1.429 of the 
Commission's rules, 47 CFR 1.429, the captioned Petitions for 
Reconsideration are denied, for the reasons discussed herein.
    It is further ordered that, should no petitions for reconsideration 
or petitions for judicial review be timely filed, MB Docket No. 15-146 
shall be terminated and the docket closed.

Federal Communications Commission.
Marlene Dortch,
Secretary.
[FR Doc. 2022-13249 Filed 6-23-22; 8:45 am]
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