Expanding the Economic and Innovation Opportunities of Spectrum Through Incentive Auctions, 65906-65908 [2014-26038]

Agencies

• FEDERAL COMMUNICATIONS COMMISSION

[Federal Register Volume 79, Number 215 (Thursday, November 6, 2014)]
[Rules and Regulations]
[Pages 65906-65908]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-26038]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 0, 1, 2, 15, 27, 73, and 74

[GN Docket No. 12-268; FCC 14-143]


Expanding the Economic and Innovation Opportunities of Spectrum 
Through Incentive Auctions

AGENCY: Federal Communications Commission.

ACTION: Clarification.

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SUMMARY: This document clarifies how the Commission intends to preserve 
the ``coverage area'' as well as the ``population served'' of eligible 
broadcasters in the repacking process associated with the broadcast 
television spectrum incentive auction. This action is taken in order to 
remove any uncertainty regarding the repacking approach the Commission 
adopted in the Incentive Auction R&O.

DATES: Effective November 6, 2014.

FOR FURTHER INFORMATION CONTACT: Aspasia Paroutsas, Office of 
Engineering and Technology, 202-418-7285, Aspasia.Paroutsas@fcc.gov.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's 
Declaratory Ruling, GN Docket No. 12-268, FCC 14-143, adopted September 
20, 2014 and released September 30, 2014. The full text of this 
document is available for inspection and copying during normal business 
hours in the FCC Reference Center (Room CY-A257), 445 12th Street SW., 
Washington, DC 20554. The complete text of this document also may be 
purchased from the Commission's copy contractor, Best Copy and 
Printing, Inc., 445 12th Street SW., Room, CY-B402, Washington, DC 
20554. The full text may also be downloaded at: www.fcc.gov. People 
with Disabilities: To request materials in accessible formats for 
people with disabilities (braille, large print, electronic files, audio 
format), send an email to fcc504@fcc.gov or call the Consumer & 
Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 
(tty).

Summary of Declaratory Ruling

    1. In this Declaratory Ruling, the Commission clarifies how it 
intends to preserve the ``coverage area'' as well as the ``population 
served'' of eligible broadcasters in the repacking process associated 
with the broadcast television spectrum incentive auction. The 
Commission takes this action in order to remove any uncertainty 
regarding the repacking approach it adopted in the Incentive Auction 
R&O, 79 FR48442, August 15, 2014. The Commission addresses each of 
these factors independently and in a manner that fully comports with 
Congress's mandate to make ``all reasonable efforts'' to ``preserve'' 
both coverage area and population served as of the enactment date of 
the Spectrum Act.

Background

    2. The Spectrum Act requires the Commission, in repacking the 
television bands to repurpose spectrum through the incentive auction, 
to ``make all reasonable efforts to preserve, as of the date of the 
enactment of the Act [February 22, 2012], the coverage area and 
population served of each broadcast television licensee, as determined 
using the methodology described in OET Bulletin 69.'' In the Incentive 
Auction R&O, the Commission interpreted ``coverage area,'' consistent 
with the definition of ``service area'' in OET Bulletin 69 (OET-69) and 
47 CFR 73.622(e), as the area within a full power station's noise-
limited F(50,90) contour where the signal strength is predicted to 
exceed the noise-limited service level, and as the area within a Class 
A station's protected contour. The Commission interpreted ``population 
served,'' consistent with OET-69 and 47 CFR 73.616(e), to mean persons 
who reside within a station's ``coverage area'' at locations where the 
signal is not subject to interference from other stations.
    3. Section 6403(b)(2) requires that the Commission determine each 
eligible station's ``coverage area'' and ``population served'' using 
``the methodology described in OET Bulletin 69.'' The OET-69 
methodology has two major steps. First, ``service area or coverage''--
the area within a station's relevant contour where the signal strength 
is predicted to exceed a specified level--is determined using 2-
kilometer spacing increments or ``cells.'' Second, interference from 
other stations is evaluated on a cell-by-cell basis within that area. 
The result of the interference analysis is data that indicate the 
population and area (in square kilometers) within the ``coverage area'' 
lost to interference from other stations.
    4. While OET-69 does not provide standards for preserving a 
television station's coverage area or population served, the 
Commission's rules provide that applications for new or modified 
digital television station facilities are acceptable if they are not 
predicted to cause interference ``to more than an additional 0.5 
percent of the population served . . . by another DTV station.'' In 
other words, the rules protect from interference populated portions of 
a station's coverage area that are not lost to existing interference 
from other stations. Consistent with this standard, the Commission 
adopted a 0.5 percent interference threshold in the Incentive Auction 
R&O. The Commission also

[[Page 65907]]

determined that preserving service for the specific viewers who had 
access to a station's signal as of February 22, 2012, would best 
comport with the ``all reasonable efforts'' mandate. However, the 
Commission rejected arguments that section 6403(b)(2) ``is a `hold 
harmless' provision that requires the Commission to identify 
`extraordinary' or `truly exceptional' circumstances before altering a 
station's coverage area and population served.''

Discussion

    5. The Commission is concerned that the Incentive Auction R&O left 
some uncertainty regarding how it intends to carry out the statutory 
preservation mandate in the repacking process. The Commission now 
clarifies that it will independently protect each eligible station's 
``coverage area'' and its ``population served'' as defined in the 
Incentive Auction R&O. In doing so, the Commission will seek to 
preserve each station's coverage area as determined using the 
methodology described in OET-69. If the station is reassigned to a 
different channel, its coverage area on its original channel will be 
replicated as closely as possible, using the same antenna pattern and 
other technical parameters and allowing power adjustments as necessary 
to enable the signal to reach the same geographic area at the same 
field strength as before the repacking process. As the Commission 
explained in the Incentive Auction R&O, this ``equal area'' approach 
will enable a station to ``replicat[e] the area within the station's 
existing contour as closely as possible using the station's existing 
antenna pattern.'' Consistent with OET-69 and our rules, the Commission 
will seek to preserve coverage area without regard to interference from 
other stations or population.
    6. Independent of our efforts to preserve each station's ``coverage 
area,'' the Commission also will seek to preserve its population 
served, again as determined using the methodology described in OET-69, 
by prohibiting any channel assignment in the repacking process that 
would cause one station to interfere with 0.5 percent or more of 
another station's population served. As ``population served'' by 
definition excludes unpopulated areas and areas where a station's 
signal cannot be received due to existing interference from other 
stations, the Commission will not protect such areas from new 
interference in the repacking process.
    7. The Incentive Auction R&O stated that the constraint files the 
Commission will use during the repacking process ``will match the 
coverage area of a station to the degree that the area is populated.'' 
The Commission clarifies that this statement concerns the mechanics of 
the repacking process, not the ``coverage area'' or ``population 
served'' that it will seek to preserve for each eligible station as set 
forth above. The Commission further clarifies that area's where a 
station's signal is lost to existing interference from other stations, 
as determined using the methodology in OET-69, will not be protected in 
the repacking process.
    8. The Commission's approach is consistent with the statutory 
preservation mandate. First, as indicated, our approach comports with 
OET-69 and FCC rules. ``Congress is presumed to be cognizant of, and 
legislate against the background of, existing interpretations of law.'' 
Although the statutory terms ``coverage area'' and ``population 
served'' are related--in particular, ``population served'' is limited 
by the boundaries of ``coverage area''--they have independent 
significance under OET-69 and our rules. ``Coverage area'' defines the 
geographic region within which a signal is predicted to have a 
specified field strength, whereas ``population served'' represents the 
populated areas within that region where the signal is not subject to 
existing interference from other stations. The Commission fulfills the 
statutory obligation to ``preserve'' a station's coverage area in our 
repacking process by ensuring that they can continue to operate at 
technical parameters sufficient to maintain their coverage areas as of 
February 22, 2012. The Commission ``preserves'' the station's 
population served by protecting it from interference from other 
stations in areas where viewers received the station's signal as of 
that date. Our interpretation does not negate the statutory mandate for 
preservation of a station's coverage area -- as would arguably be the 
case, for instance, if we required a station to reduce its transmission 
power or otherwise modify their facilities to reduce their coverage 
area to conform it to the area of population served. By contrast, 
according interference protection to ``coverage area'' without regard 
to ``population served'' would depart from OET-69 and our rules.
    9. Second, the Commission's interpretation is consistent with 
Congress's mandate to ``preserve'' service as of the statutory 
enactment date, which we observed in the Incentive Auction R&O 
``suggests that the goal is to maintain the status quo,'' consistent 
with the Commission's historical concern ``with avoiding disruption of 
service to existing viewers.'' By seeking to preserve each station's 
``coverage area'' as set forth, the Commission will ensure that its 
signal reaches substantially the same geographic area at the same field 
strength after the repacking process as it did before. By independently 
protecting each station's ``population served'' from interfering 
signals, the Commission will ensure that its signal reaches the same 
viewers before and after the repacking process, subject only to the de 
minimis interference permitted under the Commission's rules for new or 
modified station facilities. In contrast, protecting a station's 
``coverage area'' from interfering signals without regard to its 
``population served'' would result in more expansive protection than 
stations received under the rules in effect at the time the Spectrum 
Act was enacted.
    10. Third, the Commission's interpretation is consistent with 
Congress's ``all reasonable efforts'' mandate. As explained in the 
Incentive Auction R&O, in the context of a statute with important goals 
other than preservation of existing television service, in particular 
the goal of repurposing spectrum, the ``all reasonable efforts'' 
mandate militates against a statutory interpretation that would limit 
our ability to repack the television bands efficiently and thereby 
threaten the auction's overall success in repurposing spectrum. 
Expanding the interference protection provided in the repacking process 
beyond that provided under the pre-Spectrum Act rules to unpopulated or 
unserved (due to existing interference from other stations) portions of 
each station's coverage area would significantly constrain our 
flexibility in the repacking process and impair the efficiency of the 
final television channel assignment scheme: A station could not be 
assigned to a channel if the assignment would cause signal overlap with 
another station within either station's coverage area, even if such 
overlap occurred only in geographic areas where the stations do not 
have viewers because the areas are uninhabited, uninhabitable, or 
service was unavailable in the areas due to existing interference from 
other stations. As a result of such inefficiency, the prospects for the 
auction's overall success would be substantially threatened.

Ordering Clauses

    11. The actions in this Declaratory Ruling has not changed the 
Final Regulatory Flexibility Analysis (FRFA), which was set forth in 
the Incentive Auction R&O. Thus, no supplemental FRFA is necessary. In 
addition, the action contained herein does not change

[[Page 65908]]

the information collection requirements subject to the Paperwork 
Reduction Act of 1995 (``PRA''), Public Law 104-13, contained in the 
Incentive Auction R&O. As a result, no new submission to the Office of 
Management and Budget is necessary to comply with the PRA requirements.
    12. Pursuant to the authority found in Sections 1, 4, 301, 303, and 
307 of the Communications Act of 1934, as amended, and sections 6402 
and 6403 of Middle Class Tax Relief and Job Creation Act of 2012, 
Public Law 112-96, 126 Stat. 156, 47 U.S.C. 151, 154, 301, 303, and 
307, and section 1.2 of the Commission's rules, 47 CFR 1.2, the 
Declaratory Ruling is adopted.
    13. The Declaratory Ruling adopted herein shall be effective upon 
release.
    14. The Commission's Consumer and Governmental Affairs Bureau, 
Reference Information Center, shall send a copy of this Declaratory 
Ruling in GN Docket No. 12-268 to the Chief Counsel for Advocacy of the 
Small Business Administration.
    15. The Commission will not send a copy of the Declaratory Ruling 
pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A), 
because the Commission did not adopt any new rules here.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 2014-26038 Filed 11-5-14; 8:45 am]
BILLING CODE 6712-01-P