700 Recon Order - Federal Communications Commission.doc

1、Federal Communications CommissionFCC 01-258 Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of Service Rules for the 746-764 and 776-794 MHz Bands, and Revisions to Part 27 of the Commissions Rules Carriage of the Transmissions of Digital Television Broadcast Statio

2、ns Review of the Commissions Rules and Policies Affecting the Conversion to Digital Television ) ) ) ) ) ) ) ) ) ) ) WT Docket No. 99-168 CS Docket No. 98-120 MM Docket No. 00-39 ORDER ON RECONSIDERATION OF THE THIRD REPORT AND ORDER Adopted: September 7, 2001Released: September 17, 2001 By the Comm

3、ission: Commissioners Tristani and Copps concurring and issuing separate statements; Commissioners Abernathy and Martin issuing separate statements. TABLE OF CONTENTS HeadingParagraph # I.INTRODUCTION.1 II. BACKGROUND .2 III. DISCUSSION.7 A. DTV Construction Deadlines For Single-Channel Broadcasters

4、.7 B. Interference Protection Standards .12 C. DTV Replication Policy.17 D. Other Matters Relating to Early, Voluntary Band Clearing.21 1.Spectrum Clearing Alliances Comprehensive Band-Clearing Plan .22 2.Expedited Processing of Regulatory Requests .26 3.Proposal to Relax Waiver Policies .30 4.Treat

5、ment of Pending Channel 59-69 Applicants.32 5.Other Band Clearing Approaches.34 IV. PROCEDURAL MATTERS .36 A. Regulatory Flexibility Act and Paperwork Reduction Act .36 B. Alternative Formats.37 C. Further Information.38 V. ORDERING CLAUSES .39 APPENDIX: PETITIONS FOR RECONSIDERATION, COMMENTS, REPL

6、Y COMMENTS, AND OTHER SUBMISSIONS Federal Communications CommissionFCC 01-258 2 I.INTRODUCTION 1.By this Order on Reconsideration of the Third Report and Order, we resolve petitions for reconsideration and clarification of the Third Report and Order in this proceeding (“Upper 700 MHz Third Report an

7、d Order”).1 We generally affirm the decisions we reached in the Upper 700 MHz Third Report and Order, although we make certain adjustments to the rules and policies adopted in this proceeding and the related digital television (“DTV”) proceeding to accommodate the implementation of voluntary band-cl

8、earing agreements among incumbent broadcasters and new licensees in the 746-806 MHz (“Upper 700 MHz”) band, which is currently occupied by TV Channels 60-69. We also reject arguments by a petitioner seeking to reverse our decisions on interference issues, and clarify certain aspects of the applicabl

9、e interference standards. II. BACKGROUND 2.With the Upper 700 MHz Third Report and Order, we completed the adoption of policies to facilitate voluntary clearing of the spectrum currently used for TV Channels 59-69 to allow for the introduction of new wireless services and to promote the transition o

10、f incumbent analog television licensees to DTV service.2 The Upper 700 MHz Third Report and Order provided additional guidance regarding the Commissions review of regulatory requests filed in connection with voluntary private band-clearing agreements.3 In particular, the Upper 700 MHz Third Report a

11、nd Order extended the general rebuttable presumption previously adopted in favor of bilateral agreements (between new 700 MHz wireless licensees and incumbent Channel 59-69 broadcasters) to three-way agreements (which would provide for TV incumbents on television Channels 59-69 to agree with new 700

12、 MHz wireless licensees to relocate to lower band TV channels that, in turn, would be voluntarily cleared by the lower band TV incumbents).4 The 1 Service Rules for the 746-764 and 776-794 MHz Bands, and Revisions to Part 27 of the Commissions Rules, WT Docket No. 99-168, Carriage of the Transmissio

13、ns of Digital Broadcast Stations, CS Docket No. 98-120, Review of the Commissions Rules and Policies Affecting the Conversion to Digital Television, MM Docket No. 00-39, Third Report and Order, 16 FCC Rcd 2703 (2001) (Upper 700 MHz Third Report and Order). 2 See id. The foundation for these policies

14、 was established in earlier decisions in the Upper 700 MHz proceeding. See Service Rules for the 746-764 and 776-794 MHz Bands, and Revisions to Part 27 of the Commissions Rules, WT Docket No. 99-168, Carriage of the Transmissions of Digital Broadcast Stations, CS Docket No. 98-120, Review of the Co

15、mmissions Rules and Policies Affecting the Conversion to Digital Television, MM Docket No. 00-39, Memorandum Opinion and Order and Further Notice of Proposed Rulemaking, 15 FCC Rcd 20845 (2000) (Upper 700 MHz MO Service Rules for the 746-764 and 776-794 MHz Bands, and Revisions to Part 27 of the Com

16、missions Rules, WT Docket No. 99-168, Carriage of the Transmissions of Digital Broadcast Stations, CS Docket No. 98-120, Review of the Commissions Rules and Policies Affecting the Conversion to Digital Television, MM Docket No. 00-39, First Report and Order, 15 FCC Rcd 476 (2000) (Upper 700 MHz Firs

17、t Report and Order); Service Rules for the 746-764 and 776-794 MHz Bands, and Revisions to Part 27 of the Commissions Rules, WT Docket No. 99-168, Carriage of the Transmissions of Digital Broadcast Stations, CS Docket No. 98-120, Review of the Commissions Rules and Policies Affecting the Conversion

18、to Digital Television, MM Docket No. 00-39, Notice of Proposed Rulemaking, 14 FCC Rcd 11006 (1999). 3 See Upper 700 MHz Third Report and Order, 16 FCC Rcd at 2708-18 10-36. 4 See id., 16 FCC Rcd at 2709-12 13-18. Federal Communications CommissionFCC 01-258 3 Upper 700 MHz Third Report and Order also

19、 provided guidance on interference issues that may arise from a proposal to relocate a broadcast operation to a channel below Channel 59, and adopted various procedural changes in order to streamline the process of reviewing regulatory requests needed to effectuate private band-clearing agreements.5

20、 3.In this proceeding, the Commission has enunciated a policy of facilitating the clearance of the Upper 700 MHz band to the extent that incumbent broadcasters and new 700 MHz licensees voluntarily negotiate agreements toward that end. The Commission has previously found that “voluntary agreements h

21、ave the potential of facilitating both the provision of next-generation and Internet wireless services and the transition to DTV by these incumbent broadcast stations.”6 The Commission has recognized that “the overall effect of voluntary agreements that result in an infusion of capital to incumbent

22、broadcasters, should be a strengthening of the free, over-the-air DTV service ultimately provided by Channel 59-69 incumbents.”7 In addition, the expeditious recovery of the 700 MHz television spectrum for use in providing other services, as mandated by Congress, will further the broad public intere

23、st in intensive and efficient use of the radio spectrum.8 Thus, the Commission has recognized that “both the transition to DTV and clearance of this spectrum will generally be furthered, not frustrated by such voluntary agreements.”9 This policy favoring voluntary band-clearing arrangements derives

24、from our belief that private parties generally are the best evaluators of their own economic circumstances and alternatives and that the Commission should not attempt to second guess private business decisions.10 The Commission observed in a previous order in this proceeding: Our underlying policy p

25、remise is that voluntary agreements can provide supplemental resources to broadcasters that will both expedite their transition to DTV and strengthen their economic viability, as well as enable earlier delivery of new wireless services, but the private parties should determine for themselves, in lig

26、ht of specific circumstances, when the economic case is made. When the private parties are satisfied, therefore, we will be inclined to grant regulatory requests arising from such private commercial arrangements, provided the requests do not, on balance, have adverse public policy consequences. 11 W

27、e have thus viewed our primary role to be assessing the effect on the public interest of regulatory requests in connection with such agreements.12 Our belief in the efficacy of market- 5 See id. at 2712-17 19-33. 6 Upper 700 MHz MO Upper 700 MHz Third Report and Order, 16 FCC Rcd at 2720-21 42-44. F

28、ederal Communications CommissionFCC 01-258 4 based forces also led us to conclude that it is not necessary or appropriate at this time to adopt cost-sharing rules, cost caps, or cost recovery guidelines to assist in clearing the Upper 700 MHz band, and to leave cost-sharing arrangements to voluntary

29、 negotiations among new wireless licensees.13 Similarly, we have left the implementation of any process by which broadcasters and new wireless licensees reach band-clearing agreements, including any secondary auction process, to private, voluntary efforts. We have stated that these processes must be

30、 consistent with Commission policies and rules and must not interfere with the integrity and operations of the Commissions spectrum auctions.14 4.The Commission has received three petitions for reconsideration of the Upper 700 MHz Third Report and Order.15 One petition was filed by Spectrum Clearing

31、 Alliance (“SCA”), which is led by Paxson Communications Corporation and joined by a number of other broadcasters having existing analog TV operations on Channels 60-69 as well as by other parties interested in band clearing.16 SCA states in its petition that it is developing a comprehensive, privat

32、e band-clearing plan that would be a “definitive framework for clearing the 700 MHz band.”17 SCA asserts that the adoption by the Commission of certain procedural and DTV policy changes would facilitate early clearing and provide certainty to prospective bidders that the Channel 59-69 spectrum will

33、be cleared by a certain date.18 One signatory of the SCA Petition, Spectrum Exchange Group, LLC (“Spectrum Exchange”), which has expressed an interest in serving as an intermediary to facilitate SCAs clearing scheme, also filed a separate petition in support of the SCA plan.19 5.The Association for

34、Maximum Service Television, Inc. (“MSTV”) also filed a petition, primarily seeking reconsideration of our decision in the Upper 700 MHz Third Report and Order not to adopt a new “no interference” standard that would prohibit any new involuntary interference to existing licensees.20 MSTV also seeks c

35、larification of the appropriate 13 See Upper 700 MHz Third Report and Order, 16 FCC Rcd at 2706-07 5-9, 2723-24 48- 50. 14 See id., 16 FCC Rcd at 2718-21 37-44. 15 The attached appendix is a list of the petitioners and other parties that submitted petitions, responsive filings, and ex parte notifica

36、tions concerning band-clearing issues. 16 See The Spectrum Clearing Alliance Petition for Clarification and Reconsideration, WT Docket No. 99-168, CS Docket No. 98-120, MM Docket No. 00-39 (filed Mar. 16, 2001) (“SCA Petition”). 17 See id. at 2-6, 11-12. 18 See id. at 12. SCA also requested a brief

37、delay in the start of Auction No. 31 to provide time to implement a band-clearing plan. See id. at 5-6. On July 11, 2001, the Wireless Telecommunications Bureau (“WTB”) announced the postponement of Auction No. 31 pending resolution of petitions for reconsideration and clarification of the Upper 700

38、 MHz Third Report and Order. WTB stated that it will announce key auction dates upon release of this order. See “Auction of Licenses for 747-762 and 777- 792 MHz Bands (Auction No. 31) Is Postponed,” Public Notice, DA 01-1546, Report No. AUC-01-31-B (rel. July 11, 2001). 19 See Petition for Clarific

39、ation and Reconsideration of Spectrum Exchange Group, LLC, WT Docket No. 99-168, CS Docket No. 98-120, MM Docket No. 00-39 (filed Mar. 16, 2001). Federal Communications CommissionFCC 01-258 5 interference standard to be used for protection of DTV allotments and facilities from modified analog operat

40、ions.21 Finally, MSTV requests that the Commission rule out the possibility that other types of band-clearing policies might be adopted in the future and express “an unqualified commitment to voluntary band clearing.”22 6.Because these petitions were filed within six months of the then-scheduled sta

41、rt of the auction of commercial licenses in the Upper 700 MHz band (Auction No. 31, the auction of licenses in the 747-762 and 777-792 MHz band),23 an expedited pleading schedule was established to give the Commission an opportunity to provide timely guidance regarding these issues to prospective bi

42、dders and incumbent broadcasters in advance of Auction No. 31.24 III. DISCUSSION A.DTV Construction Deadlines For Single-Channel Broadcasters 7.Background. The Commission initially adopted a DTV construction schedule that requires rapid build-out of digital broadcast facilities, among other reasons,

43、 to “ensure that recovery of broadcast spectrum occurs as quickly as possible.”25 The DTV construction deadlines are set forth in Section 73.624(d) of the Commissions rules.26 According to the remaining deadlines, those commercial television broadcasters that have not yet constructed their authorize

44、d digital facilities must do so by May 1, 2002, and noncommercial broadcasters must complete their DTV facilities by May 1, 2003.27 Consistent with this plan, the Upper 700 MHz Third Report and Order stated that, if a broadcaster is left with only a single analog allotment as a result of a voluntary

45、 band-clearing agreement, it must convert to DTV by the deadline set forth in Section 73.624(d).28 8.SCA seeks reconsideration of the Commissions decision in the Upper 700 MHz (Continued from previous page) 20 See Petition for Clarification and Reconsideration of the Association for Maximum Service

46、Television, Inc., LLC, WT Docket No. 99-168, CS Docket No. 98-120, MM Docket No. 00-39 (filed Mar. 16, 2001) (“MSTV Petition”). 21 See id. at 9-10. 22 Id. at 4-5. 23 See “Auction of Licenses for the 747-762 and 777-792 MHz Bands Postponed Until September 12, 2001,” Public Notice, Report No. AUC-01-3

47、1-A, DA 01-266 (rel. Jan. 31, 2001). 24 See “Pleading Cycle Established for Responses to Petitions For Reconsideration of the Third Report and Order in WT Docket No. 99-168, CS Docket No. 98-120, and MM Docket No. 00-39,” Public Notice, DA 01-788 (March 29, 2001). 25 See Advanced Television Systems

48、and Their Impact upon the Existing Television Broadcast Service, MM Docket No. 87-268, Fifth Report and Order, 12 FCC Rcd 12809, 12843 83 (1997). 26 47 C.F.R. 73.624(d). 27 Deadlines for construction of DTV facilities affiliated with the four major networks in the top 30 markets have already passed.

49、 See 47 C.F.R. 73.624(d). 28 See Upper 700 MHz Third Report and Order, 16 FCC Rcd at 2717 33. Federal Communications CommissionFCC 01-258 6 Third Report and Order to require broadcasters that are left with a single channel as a result of a band-clearing arrangement to comply with the current DTV con

50、struction deadlines. In its petition, SCA requested that the Commission permit an incumbent broadcaster participating in an arrangement that clears an allotment in the Channels 59-69 band and leaves that broadcaster with only a single channel to remain in analog operation beyond the DTV construction

51、 deadline and to convert to digital at any time during the DTV transition.29 SCA points out that this approach would be consistent with the Commissions decision in the DTV proceeding to afford those stations that were not allotted a paired channel the flexibility to convert to digital operation at a

52、 later stage in the DTV transition.30 SCA contends that, due to the limited number of stations that would be affected, delaying their conversion to digital would not have an impact on the 85% market penetration trigger in Section 309(j)(14)(B) of the Communications Act that defines the end of the DT

53、V transition period.31 SCA also asserts that, by allowing such stations the discretion to convert to DTV at any time up until the end of the DTV transition, single-channel broadcasters would minimize service losses.32 In a subsequent ex parte submission, SCA now proposes that such single-channel bro

54、adcasters be permitted to continue to operate in analog “until December 31, 2005 or when 70% of the television households in their markets are capable of receiving digital broadcast signals over-the-air.”33 9.Discussion. Upon review of the arguments presented, we agree with SCA, Spectrum Exchange, a

55、nd Ericsson that a broadcaster that gives up one of its channels to accommodate band clearing should have the flexibility to convert to DTV at a later stage in the transition period.34 We note that all of the commenters addressing this subject support the proposal to afford such broadcasters greater flexibility in timing their conversion to digital operations,35 and no parties 29 See SCA Petition at 6-9. 30 SCA Petition at 7, citing Advanced Television Systems and Their Impact upon the Existing Television Br