Preserving Vacant Channels in the UHF Television Band for Unlicensed Use, 38158-38171 [2015-15758]
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Federal Register / Vol. 80, No. 127 / Thursday, July 2, 2015 / Proposed Rules
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evidence that the customary rates for the
hours reasonably expended on the case
would result in an unreasonably low fee
award.
(e) Replies to petitions. The opposing
party may file a reply to the petition
within 20 days of the service date of the
petition. The reply may address the
reasonableness of any aspect of the
prevailing party’s claim and may
suggest adjustments to the claim under
the criteria stated in paragraph (d) of
this section.
(f) Rulings on petitions. (1) Upon
consideration of a petition and any
reply thereto, the Commission,
administrative law judge, or small
claims officer will issue an order
granting or denying the petition.
(i) If the order awards the prevailing
party attorney fees, the order will state
the total amount of attorney fees
awarded, specify the compensable hours
and appropriate rate of compensation,
and explain the basis for any additional
adjustments.
(ii) If the order denies the prevailing
party attorney fees, the order will
explain the reasons for the denial.
(2) The Commission, administrative
law judge, or small claims officer may
adopt a stipulated settlement of attorney
fees.
(g) Timing of rulings. An order
granting or denying a petition for
attorney fees will be served within 60
days of the date of the filing of the reply
to the petition or expiration of the reply
period, except that in cases involving a
substantial dispute of facts critical to the
determination of an award, the
Commission, administrative law judge,
or small claims officer may hold a
hearing on such issues and extend the
time for issuing an order by an
additional 30 days.
(h) Appealing rulings by
administrative law judge or small claims
officer. When an administrative law
judge or small claims officer issues an
order granting or denying a fee petition,
§ 502.227 governs the appeal of that
order and Commission review of that
order in the absence of appeal. [Rule
254.]
■ 6. Amend § 502.305 by revising
paragraph (b) to read as follows:
§ 502.305
this part.
*
*
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(b) The following sections in subparts
A through Q of this part apply to
situations covered by this subpart:
§§ 502.2(a) (Requirement for filing);
502.2(f)(1) (Email transmission of
filings); 502.2(i) (Continuing obligation
to provide contact information); 502.7
(Documents in foreign languages);
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§ 502.318
Decision.
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(b) Attorney fees may be awarded to
the prevailing party in accordance with
§ 502.254. [Rule 318.]
■ 8. Amend § 502.321 by revising
paragraph (b) to read as follows:
§ 502.321
this part.
Applicability of other rules of
*
*
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(b) The following sections in subparts
A through Q apply to situations covered
by this subpart: §§ 502.2(a)
(Requirement for filing); 502.2(f)(1)
(Email transmission of filings); 502.2(i)
(Continuing obligation to provide
contact information); 502.7 (Documents
in foreign languages); 502.21–502.23
(Appearance, Authority for
representation, Notice of appearance;
substitution and withdrawal of
representative); 502.43 (Substitution of
parties); 502.253 (Interest in reparation
proceedings); and 502.254 (Attorney
fees in complaint proceedings). [Rule
321.]
By the Commission.
Karen V. Gregory,
Secretary.
[FR Doc. 2015–16260 Filed 7–1–15; 8:45 am]
BILLING CODE P
FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Parts 73 and 74
[MB Docket No. 15–146; GN Docket No. 12–
268; FCC 15–68]
Preserving Vacant Channels in the
UHF Television Band for Unlicensed
Use
Federal Communications
Commission.
ACTION: Proposed rule.
AGENCY:
Applicability of other rules of
*
502.21–502.23 (Appearance, Authority
for representation, Notice of appearance;
substitution and withdrawal of
representative); 502.43 (Substitution of
parties); 502.101 (Computation);
502.117 (Certificate of service); 502.253
(Interest in reparation proceedings); and
502.254 (Attorney fees in complaint
proceedings). [Rule 305.]
■ 7. Amend § 502.318 by revising
paragraph (b) to read as follows:
In this document, the Federal
Communications Commission
(Commission) provides notice and an
opportunity to comment on its plan to
preserve one vacant television channel
in the UHF television band in each area
of the United States for shared use by
white space devices and wireless
SUMMARY:
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microphones. The Commission
recognizes that, following the Incentive
Auction and repacking of the television
bands, there will likely be fewer unused
television channels available for use by
either unlicensed white space devices or
wireless microphones. These devices
are important to businesses and
consumers, and the Commission
therefore seeks to ensure their
continued viability.
DATES: Comments due on or before
August 3, 2015; reply comments due on
or before August 31, 2015. Written
comments on the proposed information
collection requirements, subject to the
Paperwork Reduction Act (PRA) of
1995, Pub. L. 104–13, should be
submitted on or before August 31, 2015.
ADDRESSES: You may submit comments,
identified by MB Docket No. 15–146,
GN Docket No. 12–268 and/or FCC 15–
68, by any of the following methods:
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
• Federal Communications
Commission’s Web site: https://
www.fcc.gov/cgb/ecfs/. Follow the
instructions for submitting comments.
• Mail: Filings can be sent by hand or
messenger delivery, by commercial
overnight courier, or by first-class or
overnight U.S. Postal Service mail
(although we continue to experience
delays in receiving U.S. Postal Service
mail.) All filings must be addressed to
the Commission’s Secretary, Office of
the Secretary, Federal Communications
Commission.
• People with Disabilities: Contact the
FCC to request reasonable
accommodations (accessible format
documents, sign language interpreters,
CART, etc.) by email: FCC504@fcc.gov
or phone: 202–418–0530 or TTY: 202–
418–0432.
For detailed instructions for
submitting comments and additional
information on the rulemaking process,
see the SUPPLEMENTARY INFORMATION
section of this document.
In addition to filing comments with
the Secretary, a copy of any PRA
comments on the proposed collection
requirements contained herein should
be submitted to the Federal
Communications Commission via email
to PRA@fcc.gov and to Cathy.Williams@
fcc.gov and also to Nicholas A. Fraser,
Office of Management and Budget, via
email to Nicholas_A._Fraser@
omb.eop.gov or via fax at 202–395–5167.
FOR FURTHER INFORMATION CONTACT:
Shaun Maher, Shaun.Maher@fcc.gov of
the Media Bureau, Video Division, (202)
418–2324, and Paul Murray,
Paul.Murray@fcc.gov of the Office of
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Federal Register / Vol. 80, No. 127 / Thursday, July 2, 2015 / Proposed Rules
Engineering and Technology, (202) 418–
0688. For additional information
concerning the PRA information
collection requirements contained in
this document, contact Cathy Williams,
Federal Communications Commission,
at (202) 418–2918, or via email
Cathy.Williams@fcc.gov.
SUPPLEMENTARY INFORMATION: This is a
summary of the Commission’s Notice of
Proposed Rulemaking (NPRM), FCC 15–
68, adopted June 11, 2015, in MB
Docket No. 15–146. The full text of this
document is available for inspection
and copying during regular business
hours in the FCC Reference Center, 445
12th Street SW., Room CY–A257,
Portals II, Washington, DC 20554. This
document is available in alternative
formats (computer diskette, large print,
audio record, and Braille). Persons with
disabilities who need documents in
these formats may contact the FCC by
email: FCC504@fcc.gov or phone: 202–
418–0530 or TTY: 202–418–0432.
Paperwork Reduction Act of 1995
Analysis
The NPRM contains proposed new or
modified information collection
requirements. The Commission, as part
of its continuing effort to reduce
paperwork burdens, invites the general
public and the Office of Management
and Budget (OMB) to comment on the
information collection requirements
contained in this document, as required
by the Paperwork Reduction Act of
1995, Public Law 104–13. In addition,
pursuant to the Small Business
Paperwork Relief Act of 2002, Public
Law 107–198, see 44 U.S.C. 3506(c)(4),
the Commission seeks specific comment
on how it might further reduce the
information collection burden for small
business concerns with fewer than 25
employees.
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Synopsis of Notice of Proposed
Rulemaking
1. The current UHF television band
consists of 228 megahertz of spectrum
divided into 38 six megahertz channels
(channels 14–51, except channel 37).
These channels are allocated and
assigned on a primary basis for the
licensed full power and Class A
broadcast television services. Other
licensed broadcast-related users are
permitted to operate on a secondary
basis, including LPTV and TV translator
stations, fixed BAS, and low power
auxiliary stations (‘‘LPAS’’), including
licensed wireless microphones.
Unlicensed operations by white space
devices and wireless microphones also
are permitted to operate on these
channels.
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2. In the Incentive Auction Report and
Order, the Commission adopted rules to
implement the broadcast television
spectrum incentive auction. As
discussed more fully in the Incentive
Auction Report and Order, the incentive
auction will affect the operations of
primary, secondary, and unlicensed
users operating in the current television
bands. The Commission addressed the
impact on each of these groups of users
in various parts of the Incentive Auction
Report and Order. With respect to white
space devices and wireless
microphones, the Commission took
several steps to accommodate their
operations.
3. Both white space devices and
wireless microphones (licensed and
unlicensed) are permitted to operate in
the TV bands on channels at locations
where the spectrum has not been
assigned for use by particular broadcast
licensees (i.e., ‘‘white spaces’’). The
rules and requirements for their
operations differ, however. Licensed
wireless microphones operate pursuant
to the rules for LPAS operations set
forth in part 74, subpart H, 47 CFR
74.801 et seq., while, as noted above,
unlicensed wireless microphones
operate pursuant to a 2010 waiver and
certain part 15 rules. Unlicensed white
space devices operate pursuant to part
15, subpart H rules. In the TV White
Spaces Second MO&O adopted in 2010,
the Commission established rules
pursuant to which wireless microphone
users and unlicensed white space
device users currently have access to
unused TV bands channels. In that
order, the Commission provided that,
where available, the two unused
television channels nearest channel 37
(above and below) would be designated
for wireless microphone operations and
not be made available for white space
devices. Pursuant to this order, white
space devices are not permitted on the
first channel on each side of TV channel
37 that is not occupied by a licensed
service. In the Incentive Auction Report
and Order, in anticipation of the
repurposing of some TV band spectrum
for wireless services and the decreased
amount of TV band spectrum that
would remain after repacking, the
Commission concluded that following
the incentive auction it should no
longer continue to designate any unused
television channel solely for use by
wireless microphones, determining
instead that any such channels should
be made potentially available for white
space device use as well.
4. Furthermore, the Commission
anticipated that at least one television
channel in the UHF band in all (or
nearly all) areas of the United States
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would not be assigned to a television
station in the repacking process,
because the separation between
television stations will be necessary to
avoid interference between primary
broadcast stations in the final channel
assignment process. The Commission
noted that there may be a few areas with
no spectrum available in the TV bands
for wireless microphones and white
space devices to share. Considering the
important public interest benefits
provided by both wireless microphones
and white space devices, the
Commission stated its intent, following
notice and comment, to designate one
channel in each area for shared use by
wireless microphones and white space
devices. The Commission stated that it
sought to ‘‘strike a balance between the
interests of all users of the television
bands,’’ including secondary broadcast
stations as well as wireless microphone
and white space device operators, for
access to the UHF TV spectrum.
5. In this NPRM, the Commission
seeks comment on preserving in each
area of the country at least one vacant
television channel for use by white
space devices and wireless microphones
after repacking. Recognizing that
implementing this objective will
preclude other uses of the preserved
channel, in the first section below, the
Commission tentatively concludes that
it will preserve one vacant television
channel for use by white space devices
and wireless microphones. In the
second section, the Commission seeks
comment on which broadcast applicants
proposing operations in the repacked
UHF television band should be required
to make a demonstration that their
proposed new, displacement, or
modified facility will not eliminate the
last available vacant channel in an area.
In the third section, the Commission
proposes that the vacant channel
preserved will be in the UHF band in
the range of channel 21 and above, and
that the specific vacant channel
preserved will vary depending on the
particular area. The Commission also
proposes that vacant channel
availability at a given location will be
determined using the same criteria
currently specified in Commission rules
for determining where white space
devices and wireless microphones can
operate. In addition, the Commission
proposes procedures and other details
for the vacant channel demonstration.
Preserving One Vacant Television
Channel for Use by White Space Devices
and Wireless Microphones
6. White space devices and wireless
microphones provide significant public
benefits. In the Incentive Auction Report
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and Order, the Commission once again
recognized the value of these important
services. The Commission also found
that operations of unlicensed devices
under part 15 rules are an important
part of our nation’s communications
capabilities, and have provided
manufacturers and developers with the
flexibility to devise a wide variety of
innovative standards and devices, like
WiFi and Bluetooth, which are thriving
in bands that were formerly considered
to be lacking significant commercial
value. The Commission explained that it
was taking actions to make available a
significant amount of spectrum for
white space device operations,
including in the post-auction television
bands, in order to help create certainty
for the unlicensed industry and thereby
promote greater innovation in new
devices and services, including
increased access to broadband services
across the country. The Commission
also found that ‘‘[w]ireless microphones
provide many important functions that
serve the public interest’’ by playing ‘‘an
essential role in enabling broadcasters
and other video programming networks
to serve consumers,’’ by ‘‘significantly
enhanc[ing] event productions in a
variety of settings,’’ and by ‘‘creating
high quality content that consumers
demand and value, and contribut[ing]
substantially to our economy.’’ After the
incentive auction and repacking of the
television bands, however, there will be
fewer unused television channels
available for use by white space devices
and wireless microphones, although the
Commission anticipated that there will
be at least one channel in the UHF band
in all areas that is not assigned to a
television station in the repacking
process. The Commission tentatively
concludes that preserving a vacant
channel in every area for use by white
space devices and wireless microphones
will ensure that the public continues to
have access across the nation to the
significant benefits described above,
consistent with its intent to strike ‘‘a
balance between the interests of all
users of the television bands, including
secondary broadcast stations as well as
[white space] devices and wireless
microphones, for access to the UHF TV
spectrum.’’ In the part 15 NPRM, the
Commission also stated that ‘‘[s]uch a
channel would simply appear in the
white spaces database as vacant and
would therefore be available for white
space devices under the existing rules as
well as any new or modified rules it
adopts in [the part 15] proceeding.’’
7. The Commission believes that its
proposal, implemented as proposed
below, will not significantly burden
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broadcast applicants in terms of either
the continued availability of channels in
all areas or the administrative burdens
of compliance. After the final channel
assignments are made following the
incentive auction, multiple vacant
channels will exist in most areas as a
result of the co- and adjacent-channel
separation requirements necessary to
protect primary broadcast stations from
interference from each other. The 100
repacking simulation results previously
published by Commission staff show
that the areas encompassing the vast
majority of population across the
country would have at least two vacant
channels available. The Commission
arrives at this conclusion by examining
spectrum availability for white space
devices using the limited channel range
where both wireless microphones and
personal portable devices can operate
under current rules. In the part 15
NPRM the Commission proposed to
permit white space devices to operate
on additional TV channels, thus
resulting in multiple vacant channels
being available in areas encompassing
the vast majority of population across
the country. In any event, the effect of
its proposal would be to reduce by only
one the total number of vacant channels
that would otherwise be available in an
area. Therefore, the impact on broadcast
applicants, including LPTV and TV
translator stations, in terms of the
availability of channels for future use,
will be limited because multiple vacant
channels will still exist in all or most
markets as a consequence of the need to
avoid interference between primary
broadcast stations in the incentive
auction final channel assignment
process. Of course, the impact in a given
area will depend on the number of such
applicants [and the nature of their
applications] as well as on the overall
availability of vacant channels after
repacking and the 39-month postauction transition period. In some areas,
independent of the Commission’s
proposal here, the number of vacant
channels may be reduced as a result of
these factors. In addition, the
Commission’s proposed plan involves a
streamlined method for broadcast
applicants to determine quickly the
impact that facilities they intend to
propose will have on the continued
availability of vacant channels. As
discussed in more detail below in
Section III. C. 2., broadcast applicants
may contact one of the existing
databases used to identify available
channels for part 15 white space devices
(‘‘white spaces database’’) to determine
compliance with the Commission’s
proposed rules, and thus the vacant
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channel demonstration would not
impose a significant burden. The
Commission seeks comment on the cost
of complying with the proposed
requirement to make a vacant channel
demonstration and how it may affect
broadcast applicants’ future service or
technical plans.
Applicants Required To Make a Vacant
Channel Demonstration
8. In this section, the Commission
seeks comment on which broadcast
applicants proposing operations in the
repacked UHF television band should
be required to make a demonstration
that their proposed new, displacement,
or modified facility will not eliminate
the last available vacant UHF channel in
an area for use by white space devices
and wireless microphones. Specifically
the Commission (1) tentatively
concludes that applicants for LPTV, TV
translator, and BAS facilities should be
required to make the demonstration
commencing with the post-auction
displacement filing window for
operating LPTV and TV translator
stations; (2) tentatively concludes that
the vacant channel demonstration
requirement should not apply to
applications for modification of Class A
television stations filed during the 39month Post-Auction Transition Period,
but that it should apply to such
applications filed after the end of this
period; and (3) tentatively concludes
that the vacant channel demonstration
should not apply to applications for
modified full power television station
licenses filed during the 39-month PostAuction Transition Period and seek
comment on whether it should apply to
full power modification applications
filed after the end of this period and in
full power allotment proceedings.
LPTV, TV Translators, and BAS
9. The Commission tentatively
concludes that applicants for LPTV, TV
translator, and BAS facilities should be
required to demonstrate that their
proposed new, displacement, or
modified facilities would not eliminate
the last available vacant television
channel in an area for use by white
space devices and wireless
microphones. In the Incentive Auction
Report and Order, the Commission
declined to extend repacking protection
to the more than 5,500 licensed
secondary LPTV and TV translator
stations. Following the release of the
Incentive Auction Report and Order, the
Media Bureau announced a freeze on
the filing of digital replacement
translator (‘‘DRT’’) and displacement
applications for LPTV and TV translator
stations. After the auction, the Media
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Bureau will announce a limited
application filing window for operating
LPTV and TV translator stations
displaced by the repacking and
reallocation of the television bands. The
Commission proposes that these stations
will be required to demonstrate that the
proposed displacement facilities would
not eliminate the last remaining vacant
channel in the repacked television band
in an area; applications that do not
comply with this requirement will be
dismissed.
10. The Commission believes it
appropriate to require LPTV and TV
translator stations displaced by the
incentive auction and repacking to
engineer their proposed replacement
facilities so as not to eliminate a sole
remaining vacant channel in an area for
shared use by white space devices and
wireless microphones. The Commission
also notes that it recently released a
notice of proposed rulemaking seeking
comment on ways to preserve the
availability of channel access for LPTV
and TV translator stations in the
repacked television band through such
means as channel sharing. Channel
sharing could help ensure that
displaced stations can find
opportunities for sharing available
channel(s) in the repacked band in order
to provide their services. Because LPTV
and TV translator stations’ coverage
areas are significantly smaller than a full
power television station, these stations
can engineer facilities in the unused
spectrum between full power stations,
and their proposals thus are more likely
than those of full power stations to
eliminate vacant channels. Moreover,
the Commission anticipates that most
displaced LPTV and TV translator
stations will file applications in this
post-auction displacement window.
Thus, were the Commission not to
require these stations to consider vacant
channel availability in engineering their
displacement facilities, its goal of
preserving one vacant channel in all
areas for shared use by white space
devices and wireless microphones
would be undermined. For the same
reason, the Commission also proposes to
apply the vacant channel demonstration
to all non-displacement LPTV and TV
translator applications, i.e., applications
for modified facilities or new channels,
and any BAS applications, filed on or
after the Media Bureau’s announcement
of the limited application filing window
for LPTV and TV translator
displacement applications.
11. The Commission seeks comment
on whether the proposed vacant
channel demonstration should apply to
displaced digital replacement translator
(‘‘DRT’’) stations. This service was
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established to assist full power stations
transitioning from analog to digital to
restore service to portions of a station’s
existing analog service area that would
no longer be able to receive service after
the transition. While the Commission
declined to protect DRTs in repacking,
it afforded DRT displacement
applications priority over other LPTV
and TV translator displacement
applications in cases of mutual
exclusivity in order to mitigate the
potential impact of the repacking
process on DRTs. Should the
Commission similarly seek to mitigate
the impact of its proposed vacant
channel demonstration requirement on
displaced DRTs beyond the potential for
a waiver and, if so, how? Displaced
DRTs could seek a waiver of the
proposed rules based on the
Commission’s standard waiver criteria.
Section 1.3 of the rules states that a
waiver will be granted if ‘‘good cause’’
is shown. The Commission may exercise
its discretion to waive a rule where the
particular facts make strict compliance
inconsistent with the public interest. In
addition, the Commission may take into
account considerations of hardship,
equity, or more effective
implementation of overall policy on an
individual basis. Waiver of the
Commission’s rules is appropriate only
if both (i) special circumstances warrant
a deviation from the general rule, and
(ii) such deviation will serve the public
interest. Additionally, what would be
the effect of such an exemption on the
nationwide availability of a vacant
channel for wireless microphones and
unlicensed white space devices? The
Commission notes that it has also
proposed to establish a new ‘‘digital-todigital’’ replacement translator service,
similar to the DRT service, which will
allow eligible full power stations to
recover lost digital service area that may
result from the reverse auction and
repacking process. If the Commission
establishes this new translator service, it
tentatively concludes to treat this
service the same as DRTs for purposes
of application of the vacant channel
demonstration.
12. The Commission’s proposal that
LPTV and TV translator stations
demonstrate in their displacement
applications that the proposed facility
will not eliminate the last available
vacant channel in any area may result
in a new type of conflict that would
prevent the Commission from granting
certain applications. Under the
Commission’s existing rules,
applications are considered mutually
exclusive if they cannot be granted
without causing interference to each
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other, and mutually exclusive
applications generally are resolved
through an auction. The
Communications Act, however,
provides that the Commission shall use
engineering solutions, negotiations,
threshold qualifications, service
regulations and other means to avoid
mutual exclusivity where the
Commission determines that doing so
would serve the public interest. During
the displacement window, it is possible
that two (or more) stations operating in
the same vicinity could file applications
for facilities that would not cause such
interference but that nonetheless cannot
be granted because together they would
eliminate the last available vacant
channel in an area for use by white
space devices and wireless
microphones. All displacement
applications submitted during the
limited application filing window will
be considered filed on the last day of the
window. Accordingly, displacement
applications filed later in the window
are not required to consider the
displacement proposals in applications
filed earlier in the window. At the close
of the window, the Commission staff
would make mutual exclusivity
determinations. Under these
circumstances, the Commission
tentatively concludes that these
applications would be mutually
exclusive under § 73.5000(a) of the rules
and subject to competitive bidding if the
mutual exclusivity is not resolved by
the applicants.
13. In addition, the Commission seeks
comment on whether LPTV and TV
translator displacement applications
(including those filed in the postincentive auction displacement
window) should be allowed to
‘‘displace’’ pending applications for
new, or minor changes to, LPTV and TV
translator stations for purposes of
satisfying the vacant channel
demonstration. Under the Commission’s
current rules, when an LPTV or TV
translator displacement application is
filed, it may propose causing
interference to and ‘‘displace’’ a
pending application for new or minor
change to an LPTV or TV translator
station. It is possible that a LPTV or TV
translator displacement application that
is filed for a new channel but is treated
as a minor change would not be
predicted to cause interference to a
pending new or minor change
application, but the displacement
application, if granted, would eliminate
the last remaining vacant channel in an
area. The Commission proposes to
preserve one channel in each area even
in these circumstances. In order to
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accomplish that, in this scenario, should
the Commission allow the displacement
applicant to satisfy the vacant channel
demonstration by proposing that the
channel specified in the pending new or
minor change application serve as the
vacant channel? In other words, should
the displacement applicant be allowed
to ‘‘displace’’ the pending new or minor
change application for purposes of the
vacant channel demonstration? In that
case, the new or minor change
application would be dismissed. The
Commission seeks comment on this
issue as well as how to choose between
applications to be displaced in the
situation where there is more than one
pending new or minor change
application that, if displaced, could
satisfy the vacant channel
demonstration.
14. The Commission tentatively
concludes that it has authority to adopt
the proposals outlined above. As
discussed above, the Commission
tentatively concludes that preserving a
vacant channel in every area for use by
white space devices and wireless
microphones will serve the public
interest by ensuring continued access
across the nation to the significant
benefits provided by white space
devices and wireless microphones
without significantly burdening
broadcast applicants. Moreover, because
the proposed new, displacement, or
modified facilities of LPTV, TV
translator and BAS applicants are more
likely than those of full power stations
to eliminate vacant channels, requiring
such applicants to demonstrate that
their proposed facilities would not
eliminate the last available vacant
channel in an area will advance the
Commission’s goal of preserving a
vacant channel in all areas for shared
use by white space devices and wireless
microphones. The Commission seeks
comment on this tentative conclusion.
In addition, Title III of the
Communications Act of 1934, as
amended, ‘‘endow[s] the Commission
with expansive powers,’’ including
‘‘broad authority to manage spectrum
. . . in the public interest.’’
Determinations with respect to
spectrum management policy (including
allocation and assignment policies) have
long been recognized to be precisely the
sort that Congress intended to leave to
the broad discretion of the Commission
under section 303 of the
Communications Act. The Commission
also tentatively concludes that its
proposal to preserve a vacant channel
for use by white space devices and
wireless microphones in all areas is
consistent with, and not in
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contravention of, section 6403(b) of the
Spectrum Act, which provides for the
UHF band reorganization. The
Commission recognizes that section
6403(b)(5) of the Spectrum Act provides
that ‘‘[n]othing in [section 6403(b)] shall
be construed to alter the spectrum usage
rights of low-power television stations,’’
but section 6403(b)(5) does not affect the
Commission’s broad authority outside of
section 6403(b) to manage spectrum in
the public interest, which provides the
legal basis for the actions the
Commission proposes in this NPRM. To
the contrary, section 6403(i)(1)
preserves that authority by stating that
nothing in section 6403(b) ‘‘shall be
construed to . . . expand or contract the
authority of the Commission, except as
otherwise expressly provided.’’ There is
no express provision in section 6403(b)
prohibiting the Commission from
requiring LPTV and TV translator
stations to consider how their proposed
new, displacement, or modified
facilities will impact the availability of
vacant channels for white space devices
and wireless microphones. Moreover,
section 6403(i)(2) states that nothing in
section 6403(b) ‘‘shall be construed to
. . . prevent the implementation of the
Commission’s ‘White Spaces’ Second
Report and Order . . . in the spectrum
that remains allocated for broadcast
television use after the reorganization
required by’’ section 6403(b). The
Commission’s proposals in this NPRM
will ensure that white space devices and
wireless microphones continue to have
access to unused TV bands channels,
consistent with the TV White Spaces
Second Report and Order.
15. The Commission acknowledges
that its proposal to require LPTV and
TV translator stations to demonstrate
that their proposed operations will not
eliminate the last remaining vacant
channel diverges to a limited extent
from prior Commission decisions stating
that future use of the TV bands by
primary and secondary broadcast users
has priority over wireless microphones
and white space devices. As discussed
above, however, there will be fewer
unused television channels for white
space devices and wireless microphones
after the incentive auction and
repacking of the television band, and
the Commission seeks to ensure that the
public does not lose access to the
significant benefits of wireless
microphones and white space devices.
Moreover, the Commission believes that
the impact of its proposal on LPTV and
TV translator stations will be limited in
terms of both the availability of
channels for future use and the
administrative burdens involved.
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Accordingly, the Commission
tentatively concludes that a limited
departure is warranted from prior FCC
decisions granting secondary LPTV and
TV translator station users priority to
use of the TV bands over white space
devices and wireless microphone users
in all circumstances. The Commission
seeks comment on this analysis.
Modifications of Class A Television
Stations
16. The Commission tentatively
concludes that the vacant channel
demonstration requirement should not
apply to applications for modification of
Class A television stations filed during
the 39-month Post-Auction Transition
Period, but that it should apply to such
applications filed after the end of this
period. Exempting Class A stations from
the vacant channel demonstration
during the transition period will
facilitate a rapid, non-disruptive
transition by maximizing Class A
television stations’ flexibility to propose
expanded facilities and alternative
channels. As a practical matter,
moreover, Class A stations that are
reassigned in the incentive auction will
not be able to determine the availability
of vacant channels for purposes of the
vacant channel demonstration until full
power and Class A stations assigned to
new channels are able to obtain their
initial authorizations. In addition,
imposing the requirement would delay
the filing of applications for alternate
channels and expanded facilities by
Class A television stations until final
data on vacant channels are available,
thereby impeding the goal of a rapid and
non-disruptive 600 MHz band transition
for these stations, and undermining
their ability to obtain reimbursement of
eligible costs within the statutory threeyear reimbursement period.
17. In addition to exempting Class A
stations that were assigned a new
channel in the reverse auction or
repacking process, the Commission also
tentatively concludes that the vacant
channel demonstration requirement
should not apply to applications for
modification filed during the 39-month
Post-Auction Transition Period by Class
A stations that were not assigned a new
channel. The Commission anticipates
that, in some markets, a number of
stations will coordinate modifications to
their facilities to improve service to the
public, and/or facilitate the transition,
and that not all stations participating in
the coordinated effort will have been
assigned new channels. Thus, requiring
non-reassigned stations to make a
vacant channel demonstration during
the Post-Auction Transition Period
likewise could undermine the flexibility
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needed for a rapid, non-disruptive
transition.
18. The Commission seeks comment
on whether out-of-core Class A-eligible
LPTV stations that did not file for a
Class A license until after February 22,
2012 should be subject to the vacant
channel demonstration requirement. In
the Incentive Auction Report and Order,
the Commission declined to protect
such stations in the repacking process,
even if their Class A license
applications are granted before the
auction. Although these stations would
not be protected in the repacking
process, the Commission stated that
these stations, if displaced, would be
permitted to file a displacement
application for a new channel during
one of the filing opportunities for
reassigned full power and Class A
stations to file for alternate channels.
19. The Commission tentatively
concludes that the vacant channel
demonstration requirement should
apply to Class A television station
modification applications filed after the
end of the Post-Auction Transition
Period. The transition-related concerns
noted above should no longer be an
obstacle after the end of the transition.
Moreover, as compared to full power
stations, a proposed modification of a
Class A station has increased potential
to impact the availability of the last
remaining vacant channel in an area.
While full power stations may radiate
up to 1000 kilowatts power, Class A
stations may radiate only at a maximum
operating power of 15 kilowatts, the
same as for LPTV and TV translator
stations. Because their coverage areas,
like those of LPTV and TV translator
stations, are significantly smaller than
those of full power television stations,
these low power stations can engineer
facilities in the unused spectrum
between full power stations. Thus, the
Commission believes that exempting
post-transition Class A television station
modification applications from the
vacant channel demonstration is not
warranted to accomplish its postauction transition goals and would
unduly impede its goal of preserving a
vacant channel for white space devices
and wireless microphones. The
Commission recognizes that some Class
A television stations with construction
deadlines at or near the end of the
transition may discover after the 39month deadline that they need to make
further modifications to their repacked
facilities in order to continue serving
their viewers. The Commission seeks
comment whether such stations should
be allowed not to make the vacant
channel demonstration if they instead
make a showing that the modification is
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necessary to preserve their coverage area
and population served and is
necessitated by circumstances that were
unforeseeable and outside of the
stations’ control. The Commission seeks
comment on other alternatives as well.
20. The Commission tentatively
concludes that it has authority to adopt
the foregoing proposals related to Class
A stations. As discussed above, the
Commission has broad authority to
manage spectrum in the public interest,
including the actions it proposes in this
NPRM to preserve a vacant channel for
white space devices and wireless
microphones. The Commission also
notes that, unlike with LPTV and TV
translators, section 6403(b)(5) has no
bearing on Class A stations. Section
6403(b)(5) provides that ‘‘[n]othing in
[section 6403(b)] shall be construed to
alter the spectrum usage rights of lowpower television stations.’’ The
Spectrum Act categorizes Class A
stations as ‘‘broadcast television
licensees,’’ not as low-power television
stations. The Commission seeks
comment on this analysis.
21. The Commission also seeks
comment on whether to amend its rules
to permit Class A television stations to
displace previously authorized or
proposed LPTV and TV translator
stations where necessary to satisfy the
vacant channel demonstration
requirement. Section 336(f)(7)(B) of the
Communications Act provides that a
Class A station may not cause
‘‘interference’’ to a previously
authorized or proposed LPTV or TV
translator station. Section 336(f)(7)(B)
provides that the Commission may not
grant a Class A license or approve a
Class A license modification unless the
applicant or licensee shows that it ‘‘will
not cause . . . interference’’ within the
protected contour of any LPTV or TV
translator station that was licensed prior
to the date on which the application
was filed, was authorized by
construction permit prior to such date,
or had a pending application submitted
prior to such date. The Commission’s
interference prediction analysis is based
on interference thresholds (D/U signal
strength ratios) using OET–69
methodology. It is possible that a
proposed Class A modification would
comply with this requirement because it
would not cause ‘‘interference’’ to a
previously authorized or proposed
LPTV or TV translator facility, but it
would eliminate the last remaining
vacant channel in an area. Under such
circumstances, should the Commission
amend its rules to allow a Class A
modification proposal to displace an
LPTV or TV translator station in order
to preserve a vacant channel in an area
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for use by white space devices and
wireless microphones? The Commission
also seeks comment on how to choose
between LPTV or TV translator stations
to be displaced in a situation where
there is more than one LPTV or TV
translator station that, if displaced,
would satisfy the vacant channel
demonstration.
Full Power Television Stations
22. The Commission tentatively
concludes that the vacant channel
demonstration should not apply to
applications for modified full power
television station licenses filed during
the 39-month Post-Auction Transition
Period, but seeks comment on whether
it should apply to full power
modification applications filed after the
end of this period. The Commission also
seeks comment on whether the vacant
channel demonstration should apply to
full power allotment proceedings.
Modifications
23. The Commission believes that
there is only a small likelihood that a
proposal by a full power licensee to
modify its facilities that complies with
the Commission’s technical rules would
eliminate the last remaining vacant
channel in an area. Due to engineering
reasons, there may be a few areas in the
country that will not have a vacant
channel after repacking. In order to
avoid interference to co- and adjacent
channel stations, full power stations
must comply with certain technical
provisions which prevent the operation
of a full power television station on
certain channels in geographic areas.
Because the Spectrum Act requires the
Commission in reorganizing the
television bands to ‘‘make all reasonable
efforts to preserve, as of [February 22,
2012], the coverage area and population
served of’’ full power television stations,
these vacant channels will continue to
be necessary after repacking to avoid
interference between full power
television stations. Moreover, in many
areas of the country, channels that were
technically available for television use
were never allotted to communities for
such use and are thus vacant.
24. The Commission tentatively
concludes that the vacant channel
demonstration requirement should not
apply to applications for modified full
power television station licenses filed
during the 39-month Post-Auction
Transition Period, including
modification applications filed by
stations that were not assigned a new
channel in the reverse auction or
repacking process. As discussed above
in connection with Class A stations,
exempting full power stations from the
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vacant channel demonstration during
the transition period will facilitate a
rapid, non-disruptive transition by
maximizing stations’ flexibility to
propose expanded facilities and
alternative channels, as well as by
permitting stations to coordinate
modification of facilities. In addition, as
with Class A stations, applying the
proposed requirement to full power
stations would delay their filing of
applications for alternate channels and
expanded facilities until final data on
vacant channels is available, thereby
impeding the goal of a rapid and nondisruptive 600 MHz band transition,
and undermining their ability to obtain
reimbursement of eligible costs within
the statutory three-year reimbursement
period.
25. The Commission seeks comment
on whether the vacant channel
demonstration should apply to full
power television station modification
applications filed after the end of the
Post-Auction Transition Period. On one
hand, the transition-related concerns
noted above will no longer apply. On
the other hand, the Commission
recognizes full power television may
need to modify their facilities from time
to time in order to continue to serve
their viewers. Additionally, unlike with
Class A stations, there appears to be
only a small likelihood that a full power
television station modification would
eliminate the last remaining vacant
channel in an area, calling into question
the need for the vacant channel
demonstration with respect to full
power modifications. Accordingly, the
Commission seeks comment on the
benefits of applying the required
demonstration to post-transition full
power television station modification
applications and whether these benefits
outweigh the burdens. The Commission
recognizes that some full power
television stations with construction
deadlines at or near the end of the
transition may discover after the 39month deadline that they need to make
further modifications to their repacked
facilities in order to continue serving
their viewers. The Commission seeks
comment whether such stations should
be allowed not to make the vacant
channel demonstration if they instead
make a showing that the modification is
necessary to preserve their coverage area
and population served and is
necessitated by circumstances that were
unforeseeable and outside of the
stations’ control. The Commission seeks
comment on other alternatives as well.
The Commission also seeks comment on
whether the its broad Title III spectrum
management authority encompasses the
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discretion to apply the vacant channel
demonstration requirement to full
power television station modification
applications filed after the end of the
Post-Auction Transition Period.
Allotment Proceedings
26. The Commission seeks comment
on whether, with the exception
discussed below, to require the vacant
channel demonstration for full power
allotment proceedings. There is
presently a freeze on the filing of
rulemaking petitions to change channels
within the DTV Table of Allotments, to
drop in new allotments, to swap
channels among two or more licensees,
or to change communities of license.
The Commission anticipates that, after
repacking, the Media Bureau will lift
filing freezes that are now in place.
Future allotment proceedings would
propose a primary use in the television
bands. Unlike proposed full power
modifications, however, there is a
reasonable likelihood that some of these
proposed allotments could have a
significant impact on vacant channel
availability. For example, a proposal to
drop in a new full power television
channel could eliminate at least one
vacant channel in a large geographic
area. Similarly, a change of community
of license could permit the licensee to
move its transmission facilities in such
a way as to significantly change its
coverage contour. Channel changes and
channel swaps appear to present less
potential to affect vacant channel
availability. Unless a station proposes to
move from below channel 21 to channel
21 or above, it is unlikely that a petition
to change channels would have an
impact on vacant channel availability,
since the channel proposed to be
relinquished would become vacant.
Similarly, in the case of a channel swap
between stations, the channel being
swapped would become vacant in each
station’s service area. The Commission
seeks comment on whether the
petitioner should be required to
demonstrate that the any of these
allotment proposals would not
eliminate the last remaining vacant
channel.
27. At the same time, the Commission
recognizes that there could be allotment
proposals that are a direct result of
certain discontinuances of service after
the auction. For example, although the
Commission believes it unlikely, there
may be limited circumstances in which
a community or area loses broadcast
service from all of its noncommercial
educational stations. The Commission
stated previously in the Incentive
Auction Report and Order that it would
consider appropriate actions to address
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service losses after the auction. The
Commission has adopted television
allotment policies to implement the
goals underlying section 307(b). If it
decides to require the vacant channel
demonstration for full power allotment
proceedings generally, it may be
appropriate to make an exception for
rulemaking proceedings to allot a
reserved noncommercial educational
channel to a community that has lost all
noncommercial educational full power
television service as a result of the
auction. The Commission also seeks
comment on whether it should have a
similar exception for commercial
allotments in the event a community
has lost all of its commercial full power
television service as a result of the
auction. The Commission seeks
comment on this issue.
Procedures for Identifying Channels
Available for Use by White Space
Devices and Wireless Microphones
28. The Commission seeks comment
below on procedures for identifying
which channels and which specific
areas it will use for ensuring the
availability of at least one vacant
channel for use by white space devices
and wireless microphones.
Suitable Channels for Preservation
29. The Commission proposes to
preserve the availability of UHF
channels in the range of Channel 21 and
above for use by white space devices
and wireless microphones. Fixed white
space devices may operate only when
both adjacent TV channels are vacant,
meaning they need three contiguous
vacant channels to operate. However,
personal/portable devices may operate
at locations where both adjacent TV
channels are occupied if their power
does not exceed 40 milliwatts Under its
proposal, the channel preserved would
not be the same nationwide or even
through a DMA, but instead would vary
depending on the repacked television
operations in the UHF band in each
area. In particular, the Commission is
not proposing to designate a particular
TV channel in each area for shared use
after repacking. Rather, the procedures
the Commission proposes will ensure
that at least one TV channel in each area
remains unused by broadcast or BAS
licensees, and thereby is preserved and
available for shared use by white space
devices and wireless microphones.
30. Although white space devices and
wireless microphones may operate on
any UHF–TV channel, under the current
rules personal/portable white space
devices can operate only on Channels
21 and above. In addition, the current
rules prohibit fixed white space device
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operation within the protected contour
of an adjacent TV channel. In the recent
part 15 NPRM, the Commission
proposed to permit personal/portable
white space devices to operate on
Channels 14–20. In addition, the
Commission proposed to allow fixed
white space devices to operate within
the protected contour of an adjacent TV
channel if they use an operating power
of 40 milliwatts or less, thereby
allowing fixed devices to operate on
more channels above and below channel
21. Should the Commission adopt the
proposals in the part 15 NPRM to
expand available frequencies for white
space device operation, the Commission
would want the preservation of the last
remaining channel to apply to Channels
14 and above where white space devices
and wireless microphones may operate
and the Commission seeks comment on
this alternative approach.
Demonstration of Compliance
31. In this section, the Commission
proposes the procedures and other
details for the required demonstration
that proposed operations in the
repacked UHF television band will not
eliminate the last available vacant UHF
channel in an area for use by white
space devices and wireless
microphones. These procedures would
apply only to applications for broadcast
or BAS stations for those channels to
which the demonstration requirement
applies as decided by the Commission
in this proceeding. In the case of
applications for broadcast stations, a
party wishing to construct a new,
displacement, or modified station on
one of these channels would generally
follow the current procedures used in
planning and applying for a broadcast
station. That is, the party would perform
a technical study based on the
Commission’s requirements (e.g.,
separation from TV station contours) to
determine channel availability and the
other operating parameters for the
proposed facility (e.g., transmitter
location, effective radiated power,
antenna height and directionality). Once
the proposed channel and operating
parameters are determined, the
applicant would calculate the service
contour for a proposed TV or LPTV
station facility based on these
parameters. In the case of BAS stations,
the applicant would determine its
protected area in accordance with the
requirements of § 15.712(c), instead of a
service contour. White space devices
protect fixed BAS station receive sites
by avoiding co-channel and adjacent
channel operation within keyholeshaped exclusion zones. These zones
are defined by an arc of ±30 degrees
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at this power level can operate within
the service contours of adjacent channel
TV stations, thus allowing their
operation at locations where there is
only a single available channel.
Personal/portable devices and fixed
devices with a low antenna height (less
than three meters height above average
terrain (HAAT)) must operate at least
four kilometers outside the protected
contour of co-channel TV stations.
Fixed devices operating with higher
antenna heights must comply with
greater co-channel separation distances,
and all fixed devices, as well as
personal/portable devices operating at
greater than 40 milliwatts, must comply
with adjacent channel separation
distances as well. The requirement to
comply with adjacent channel
separation distances means that all fixed
devices and personal/portable devices
with a power level greater than 40
milliwatts may operate only at locations
where there are three contiguous vacant
TV channels, while personal/portable
devices operating at 40 milliwatts need
only a single available channel.
Specifically, the Commission proposes
that broadcast applicants required to
make a vacant channel demonstration
must show that, at a minimum, 40
milliwatt personal/portable white space
devices and wireless microphones could
operate anywhere within the applicant’s
proposed protected area (i.e., after
accounting for the proposed broadcast
or BAS operations, there is at least one
channel at all locations within the
broadcast or BAS station’s proposed
protected area that meets the protection
criteria for co-channel TV stations, other
Criteria for Determining Vacant Channel authorized services and certain receive
sites in the TV bands).
Availability at a Given Location
34. In the part 15 NPRM, the
33. The Commission proposes that
Commission proposed to reduce the
vacant channel availability at a given
required separation distance between 40
location be determined using the same
milliwatt personal/portable devices and
criteria currently specified in
co-channel TV service contours from
Commission rules for determining
four kilometers to 1.3 kilometers. The
where wireless microphones and white
Commission also proposed to apply this
space devices can operate. Specifically,
separation distance to 40 milliwatt fixed
the Commission proposes that a channel devices with an antenna HAAT of less
be considered available if it can
than three meters. It also sought
accommodate wireless microphones and comment on whether the Commission
40 milliwatt personal/portable devices
should reduce the separation distance
operating in a manner that meets the
between wireless microphones and coCommission’s existing rules for
channel TV service contours from four
protecting co-channel TV stations, other kilometers to 1.3 kilometers. Should the
authorized services, and certain receive
Commission adopt these proposals, it
sites in the TV bands. Pursuant to
seeks comment on whether it should
§§ 15.712(a)(2) and 74.802(b)(1), 40
also reduce the size of the protection
milliwatt personal/portable white space zone for co-channel TV stations by the
devices and wireless microphones must same amount when performing a vacant
meet the same protection criteria with
channel demonstration.
respect to protecting co-channel TV
35. In addition to protecting TV
service, the part 15 rules require that
stations (four kilometers outside of the
white space devices protect certain
station’s protected contours). Personal/
other services in the TV bands,
portable white space devices operating
from a line between the BAS receive site
and its associated permanent transmitter
within a distance of 80 kilometers from
the receive site for co-channel operation
and 20 kilometers for adjacent channel
operation. Outside this ±30 degree arc,
white space devices may not operate
within eight kilometers from the receive
site for co-channel operation and two
kilometers from the receive site for
adjacent channel operation. Wireless
microphones are not prohibited from
operating in these exclusion zones.
32. In addition to following the abovestated procedures under the
Commission’s current rules, the
Commission proposes that the applicant
perform an analysis and submit a
showing with its application
demonstrating that white space devices
and wireless microphones operating
within the same area as the proposed
broadcast or BAS station will have
access to at least one channel
throughout the applicant’s proposed
protected service area, as described in
more detail below, although it need not
be the same channel in all locations
within that area. Under current rules,
white space devices and wireless
microphones must meet certain criteria
to protect broadcast stations, other
authorized services, and certain receive
sites in the TV bands, and application
of these rules defines the vacant
channels in their operating area that are
available for their use. These rules form
the foundation of the proposed
methodology the Commission describes
in more detail below that the applicant
would use for making the vacant
channel determination.
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including the PLMRS/CMRS, MVPD
and low power TV receive sites, fixed
BAS links, and wireless microphone
operations at specified times/locations
when registered in the databases. The
protection distances for wireless
microphones are one kilometer from
fixed white space devices, and 400
meters from personal/portable white
space devices. Because wireless
microphones and temporary BAS
operations operate only for limited
periods of time at any given location,
the Commission believes that it is
appropriate to exclude those stations
registered in the white spaces database
from the vacant channel analysis. Thus,
the Commission proposes that broadcast
applicants need not consider wireless
microphone operations or temporary
BAS stations registered in the white
spaces database when determining if
their proposed operations preserve a
channel for wireless microphone and
white space devices.
36. The Commission also seeks
comment on whether it should consider
white space devices other than 40
milliwatt personal/portable devices in
preserving a vacant channel. For
example, should the Commission base
the analysis on preserving a vacant
channel for fixed devices or higher
power (100 milliwatt) personal/portable
devices as well? If so, what fixed device
HAATs should the Commission
consider, and how would this affect the
availability of spectrum for broadcast
and BAS stations, since an analysis
would have to consider adjacent
channel spectrum use?
Methodology for Determining the
Availability of a Vacant Channel in a
Particular Area
37. New and Displaced Broadcast
Stations. The Commission proposes that
each applicant for a new or displaced
TV or LPTV station required to make a
vacant channel demonstration must
demonstrate that, within its proposed
protected area, at least one channel
other than its desired channel would be
available for white space device and
wireless microphone use, as defined
above. The same channel need not be
available in all locations within a
station’s proposed protected area. This
analysis must take into account the part
74 and part 15 criteria that white space
devices and wireless microphones must
meet to protect other co-channel
broadcast and other services located
close by, as discussed above.
38. Under the Commission’s proposed
approach, applicants could use the
white spaces databases to determine
whether at least one channel would
remain available for white space devices
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and wireless microphones within a
station’s proposed protected area. The
white spaces databases are designed to
provide lists of available channels that
can be used by a white space device at
the device’s specific geographic
coordinates (i.e., a single point). A white
space device must contact a database to
obtain a list of available channels before
transmitting and must contact a
database at least once per day thereafter
to ensure that its operating channel
continues to remain available. The cochannel television protection
requirements for wireless microphones
are the same as for 40 milliwatt
personal/portable white space devices,
so a channel that the white spaces
database indicates as being available for
40 milliwatt personal/portable white
space devices will also be available for
wireless microphones. Because the
white space databases provide lists of
available channels for one point at a
time rather than over a defined area, the
Commission is proposing a procedure
that will allow an applicant to
determine channel availability over an
area by using channel lists for
individual points within its proposed
protected area of operations.
39. Specifically, the Commission
proposes that the availability of
channels for white space devices and
wireless microphones be determined by
using the white spaces databases to
analyze a single point within each
individual two-by-two kilometer cell of
a grid that covers the entire proposed
protected area of operations. An
example of a grid is shown in Figure 1
below. The Commission proposes a two
kilometer grid size as a balance between
minimizing the number of individual
points that must be analyzed and
ensuring that the analysis is sufficiently
detailed so as not to miss locations
where no vacant channel is available. A
larger grid size reduces the number of
points that must be analyzed, while a
smaller grid size increases the number
of points. Also, a two kilometer grid size
is consistent with the methodology the
Commission has used for evaluating TV
coverage and interference. The
Commission notes, however, that in its
2004 Report and Order adopting the
digital rules for LPTV, TV translator and
Class A stations, it concluded that use
of a 1 square kilometer grid resolution
should be the maximum permitted in
evaluating the interference to Class A,
LPTV and TV translator facilities, whose
smaller service area require a finer grid
resolution analysis. For the purpose of
this analysis, the Commission proposes
that the TV station proposed protected
area be calculated in accordance with
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the methodology in §§ 74.802(b)(1) and
15.712(a)(1)–(2) of the rules, since those
sections define the co-channel TV
station operations that wireless
microphones and white space devices
must protect. Wireless microphones and
40 milliwatt white space devices must
operate at least four kilometers outside
the protected contour of co-channel
television stations. In addition, the
Commission proposes that all cells that
are within or overlap any portion of the
proposed protected area be analyzed for
white space device and wireless
microphone channel availability, and
that the availability be calculated at a
single point at the center of each cell. In
proposing to require analysis for only a
single point in each cell, the
Commission recognizes that it is not
computationally practicable to evaluate
white space device and wireless
microphone channel availability at
every possible location in a cell. The
Commission also proposes that, as long
as at least one channel would remain
available for white space devices and
wireless microphones at the center
point of each cell requiring analysis, the
applicant’s vacant channel
demonstration would be satisfied.
40. Modifications to Existing
Broadcast Stations. The Commission
proposes that an applicant required to
make a vacant channel demonstration
that wishes to modify an existing
broadcast station that would result in a
change to the station’s protected area
must demonstrate that at least one
channel would remain available for
white space devices and wireless
microphones in those portions of the
proposed protected area that would
extend beyond its existing protected
area. The Commission recognizes that
there could be situations in which there
are no vacant channels for white space
devices and wireless microphones
within portions of the station’s existing
protected area, but the Commission is
not proposing that the vacant channel
demonstration be applied to these areas.
To do so could jeopardize the station’s
ability to maintain service to the public
within the existing protected area,
depending on channel availability
within the area and whether further
station modifications would be needed.
41. The Commission proposes that an
applicant requesting to modify an
existing broadcast station provide a
showing of compliance, using the
methodology described above that is
performed over the portions of the
proposed protected area that would
extend beyond the existing protected
area. In this case, the channel
availability analysis would be
performed on the station’s proposed
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protected area after excluding all cells
that are within or overlap any portion of
the station’s existing protected area. The
Commission further proposes that as
long as at least one channel would
remain available for white space devices
and wireless microphones at the center
point of each cell requiring analysis, the
vacant channel demonstration would be
satisfied.
42. BAS stations. The Commission
proposes that each applicant for a new
or displaced BAS station required to
make a vacant channel demonstration
must demonstrate that, within the entire
proposed protected area, at least one
channel other than the desired channel
would continue to be available for white
space device and wireless microphone
use within that area. Wireless
microphones are not required to avoid
the BAS receive site exclusion zones
that white space devices must avoid.
Thus, a channel that is available for
white space devices would also be
available for wireless microphones. An
applicant could demonstrate
compliance with this requirement using
the methodology described above,
except that the protected area for a BAS
station would be the exclusion zones
defined in § 15.712(c) rather than a
service contour plus four kilometers.
Since § 15.712(c) requires white space
devices to provide both co-channel and
adjacent channel protection to the BAS,
the analysis must be performed on coand adjacent channels that fall within
the range that the Commission selects
for channel preservation (e.g., channels
21 and above as proposed above). For
example, an applicant for a BAS station
on channel 22 would have to perform
analyses on channels 21, 22 and 23. An
applicant for a BAS station on channel
20 would have to perform an analysis
on only channel 21.
43. In the case of a modification of an
existing BAS station, the applicant
could provide a showing of compliance
performed over only the portions of the
proposed protected area that would
extend beyond its existing protected
area, i.e., by excluding all cells that are
within or overlap any portion of the
station’s existing protected area. The
Commission further proposes that as
long as at least one channel would
remain available for white space devices
and wireless microphones at the center
point of each cell requiring analysis, the
vacant channel demonstration would be
satisfied.
44. Appropriate Grid Size. The
Commission seeks comment on the
appropriate grid size for the vacant
channel demonstration. Is two
kilometers appropriate, or should the
grid size be smaller or larger? Should
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the Commission require that the grid be
oriented with the lines in north-south
and east-west directions, or is there any
need to specify the orientation? Should
the Commission require that the grid be
positioned so that the transmitter is at
the intersection of two grid lines, in the
center of a cell, some other position, or
is there no need to specify such a
requirement? At which point in a cell
should the available vacant channels be
determined—the center of the cell, the
center of population, or some other
point? What is the appropriate way to
determine channel availability in cells
at the edge of the proposed protected
area where the center point of the cell
is outside the protected area? Should
the channel availability be determined
at a point other than the center of such
cells, and if so, which point? Does there
need to be a vacant channel available in
every cell, or should the Commission
allow exclusion of certain cells, such as
those in unpopulated areas or over
water, or those in which only a small
fraction of the area of a cell is
encompassed within the edge of the
proposed protected area? Would the
white space database administrators
have to make any changes to their
systems as a result of the Commission’s
proposed changes? Is there an
alternative method for analyzing
wireless microphone and white space
device channel availability in order to
determine whether a vacant channel for
their operation remains? Parties that
wish to propose alternative methods
should describe them in detail and
explain how they would be practically
implementable for broadcast applicants.
45. The Commission’s proposed
methodology is designed to make the
process of determining channel
availability over an area simple for
broadcasters by limiting the analysis to
a finite number of discrete points and
using the existing white spaces
databases which are capable of
performing the necessary channel
availability calculations at each point.
There are several ways that a
broadcaster could demonstrate
compliance with the proposed
requirement. For example, an applicant
could perform the analysis by plotting
the protected area on a grid and
accessing one of the white space
databases to determine channel
availability at the center point of each
cell where a vacant channel
determination is required. Alternatively,
a white space database administrator
could perform an entire analysis and
charge a reasonable fee for its services.
46. Finally, recognizing that channel
availability is dynamic and can change
day-to-day, the Commission proposes
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that broadcast applicants make a vacant
channel demonstration only once—as of
the date of the filing of their application,
and as discussed in paragraph 35 above.
In addition, the analysis needs to
consider only long-term restrictions on
unlicensed use and not wireless
microphone or temporary BAS
installations. The Commission believes
this proposal is appropriate given that
broadcast applications are, for the most
part, protected from interference from
subsequently-filed applications (‘‘cutoff’’) on the day they are filed. The
Commission notes, however, that
applications filed during the postincentive auction displacement window
will be considered as filed on the last
day of the window. In Section III.A.
supra, the Commission seeks comment
on procedures for resolving mutually
exclusive displacement applications
filed by two or more stations that
together would eliminate the sole
remaining vacant channel in an area.
The Commission seeks comment on this
proposal.
Initial Regulatory Flexibility Act
Analysis
47. As required by the Regulatory
Flexibility Act of 1980, as amended
(‘‘RFA’’) 1 the Commission has prepared
this present Initial Regulatory
Flexibility Analysis (‘‘IRFA’’)
concerning the possible significant
economic impact on small entities by
the policies and rules proposed in this
NPRM of Proposed Rulemaking (NPRM).
Written public comments are requested
on this IRFA. Comments must be
identified as responses to the IRFA and
must be filed by the deadlines for
comments indicated in the DATES
section of the NPRM. The Commission
will send a copy of the NPRM, including
this IRFA, to the Chief Counsel for
Advocacy of the Small Business
Administration (‘‘SBA’’).2 In addition,
the NPRM and IRFA (or summaries
thereof) will be published in the Federal
Register.3
Need for and Objectives of the Proposed
Rules
48. On June 2, 2014, the Commission
released its Incentive Auction Report
and Order, 29 FCC Rcd 6567 (2014), 79
FR 48442, August 15, 2014, adopting
rules to implement the broadcast
1 See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601 et
seq., has been amended by the Small Business
Regulatory Enforcement Fairness Act of 1996
(‘‘SBREFA’’), Pub. L. 104–121, Title II, 110 Stat. 847
(1996). The SBREFA was enacted as Title II of the
Contract with America Advancement Act of 1996
(‘‘CWAAA’’).
2 See 5 U.S.C. 603(a).
3 Id.
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television spectrum incentive auction
authorized by the Middle Class Tax
Relief and Job Creation Act (Spectrum
Act). The Commission recognized that
following the incentive auction and
repacking of the television band there
would likely be fewer unused television
channels available for use by either
unlicensed ‘‘white space’’ devices or by
wireless microphones and other low
power auxiliary stations (collectively
‘‘wireless microphones’’). However, the
Commission anticipated that there
would be at least one channel in the
ultra-high frequency (‘‘UHF’’) band in
all areas in the United States that is not
assigned to a television station in the
repacking process and, given the
importance of white space devices and
wireless microphones to businesses and
consumers, stated its intent, after
additional notice and an opportunity to
comment, to preserve one television
channel in each area for shared use by
these devices.
49. In this NPRM, the Commission
tentatively concludes to preserve a
vacant channel in each area.
Specifically, the Commission seeks
comment on which applicants
proposing operations in the repacked
UHF television band should be required
to demonstrate that a new,
displacement, or modified facility
would not eliminate the last available
vacant television channel in an area for
shared use and when this technical
showing requirement should
commence. In order to achieve this
objective, the Commission proposes to
require certain applicants for LPTV, TV
translator, and Broadcast Auxiliary
Service (‘‘BAS’’) facilities to
demonstrate that their proposed new,
displacement, or modified facility
would not eliminate the last available
vacant UHF television channel for use
by white space devices and wireless
microphones in an area.
50. The Commission believes that its
proposal will not significantly burden
broadcast applicants in terms of either
the continued availability of channels in
all areas or the administrative burdens
of compliance. After the final channel
assignments are made following the
incentive auction, multiple vacant
channels will exist in most areas as a
result of the co- and adjacent-channel
separation requirements necessary to
protect primary broadcast stations from
interference from each other. The 100
repacking simulation results previously
published by Commission staff show
that the areas encompassing the vast
majority of population across the
country would have at least two vacant
channels available. In any event, the
effect of the proposal would be to
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reduce by only one the total number of
vacant channels that would otherwise
be available in an area. Therefore, the
impact on broadcast applicants,
including LPTV, TV translator and BAS
stations, in terms of the availability of
channels for future use, will be limited
because multiple vacant channels will
still exist in all or most areas as a
consequence of the need to avoid
interference between primary broadcast
stations in the Incentive Auction final
channel assignment process. In
addition, the proposed plan involves a
streamlined method for broadcast
applicants to determine quickly the
impact that facilities they intend to
propose will have on the continued
availability of vacant channels.
Although small entity LPTV, TV
translator and BAS stations may
experience an increased burden, the
Commission believes that adoption of
the vacant channel preservation
requirement will greatly benefit white
space and wireless microphone users as
well as the manufacturers of white
space and wireless microphone
equipment, which are also small
businesses, by creating new uses and
opportunities for this spectrum. The
Commission also believes that this
prioritization and protection of white
space is critical if it is to realize the
benefits that this spectrum will provide
to small businesses and developers that
will usher forth new and unthought-of
uses. We also note that, in a separate
proceeding, the Commission is
considering additional proposals to
mitigate the potential impact of the
incentive auction and the repacking
process on LPTV and TV translator
stations and to help preserve the
important services they provide. See
Amendment of Parts 73 and 74 of the
Commission’s Rules to Establish Rules
for Digital Low Power Television,
Television Translator, and Television
Booster Stations, MB Docket No. 03–
185, Third Notice of Proposed
Rulemaking, 29 FCC Rcd 12536 (2014),
79 FR 70824, November 28, 2014.
51. The Commission also seeks
comment on how to identify vacant
television channels (i.e., ‘‘white
spaces’’) available for use by white
space devices and wireless
microphones, the definition of the
‘‘area’’ that would be considered for this
purpose, and what kind of system it
should establish for applicants to use to
determine whether their proposed
facility would eliminate the last
available vacant channel in an area.
Legal Basis
52. The authority for the action
proposed in this rulemaking is
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contained in sections 1, 4, 7, 301, 303,
307, 308, 309, 310, 316, 319, 332, 336,
and 403 of the Communications Act of
1934, 47 U.S.C 151, 154, 157, 301, 303,
307, 308, 309, 310, 316, 319, 332, 336,
and 403.
Description and Estimate of the Number
of Small Entities to Which the Proposed
Rules Will Apply
53. The RFA directs the Commission
to provide a description of and, where
feasible, an estimate of the number of
small entities that will be affected by the
proposed rules, if adopted.4 The RFA
generally defines the term ‘‘small
entity’’ as having the same meaning as
the terms ‘‘small business,’’ small
organization,’’ and ‘‘small government
jurisdiction.’’ 5 In addition, the term
‘‘small business’’ has the same meaning
as the term ‘‘small business concern’’
under the Small Business Act.6 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 SBA.7
54. Small Businesses, Small
Organizations, and Small Governmental
Jurisdictions. Our action may, over time,
affect small entities that are not easily
categorized at present. We therefore
describe here, at the outset, three
comprehensive, statutory small entity
size standards.8 First, nationwide, there
are a total of 28.2 million small
businesses, according to the SBA.9 In
addition, a ‘‘small organization’’ is
generally ‘‘any not-for-profit enterprise
which is independently owned and
operated and is not dominant in its
field.’’ 10 Nationwide, as of 2012, there
were approximately 2,300,000 small
organizations.11 Finally, the term ‘‘small
4 Id.
at section 603(b)(3).
U.S.C. 601(6).
6 Id. at section 601(3) (incorporating by reference
the definition of ‘‘small business concern’’ in 15
U.S.C. 632). Pursuant to 5 U.S.C. 601(3), the
statutory definition of a small business applies
‘‘unless an agency, after consultation with the
Office of Advocacy of the Small Business
Administration and after opportunity for public
comment, establishes one or more definitions of
such term which are appropriate to the activities of
the agency and publishes such definition(s) in the
Federal Register.’’ 5 U.S.C. 601(3).
7 15 U.S.C. 632. Application of the statutory
criteria of dominance in its field of operation and
independence are sometimes difficult to apply in
the context of broadcast television. Accordingly, the
Commission’s statistical account of television
stations may be over-inclusive.
8 See 5 U.S.C. 601(3)–(6).
9 See SBA, Office of Advocacy, ‘‘Frequently
Asked Questions,’’ https://www.sba.gov/sites/
default/files/FAQ_March_2014_0.pdf (last visited
May 2, 2014; figures are from 2011).
10 5 U.S.C. 601(4).
11 National Center for Charitable Statistics, The
Nonprofit Almanac (2012).
55
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governmental jurisdiction’’ is defined
generally as ‘‘governments of cities,
towns, townships, villages, school
districts, or special districts, with a
population of less than fifty
thousand.’’ 12 Census Bureau data for
2012 indicate that there were 90,056
local governments in the United
States.13 Thus, we estimate that most
governmental jurisdictions are small.
55. Television Broadcasting. This
economic census category ‘‘comprises
establishments primarily engaged in
broadcasting images together with
sound. These establishments operate
television broadcasting studios and
facilities for the programming and
transmission of programs to the
public.’’ 14 The SBA has created the
following small business size standard
for Television Broadcasting firms: Those
having $14 million or less in annual
receipts.15 The Commission has
estimated the number of licensed
commercial television stations to be
1,390.16 In addition, according to
Commission staff review of the BIA
Advisory Services, LLC’s Media Access
Pro Television Database on March 28,
2012, about 950 of an estimated 1,300
commercial television stations (or
approximately 73 percent) had revenues
of $14 million or less.17 We therefore
estimate that the majority of commercial
television broadcasters are small
entities.
56. We note, however, that in
assessing whether a business concern
qualifies as small under the above
definition, business (control) affiliations
must be included.18 Our estimate,
therefore, likely overstates the number
of small entities that might be affected
by our action because the revenue figure
on which it is based does not include or
12 5
U.S.C. 601(5).
Census Bureau, Government Organization
Summary Report: 2012 (rel. Sep. 26, 2013), https://
www2.census.gov/govs/cog/g12_org.pdf (last visited
June 11, 2015).
14 U.S. Census Bureau, 2012 NAICS Definitions:
515120 Television Broadcasting, https://
www.census.gov/cgi-bin/sssd/naics/
naicsrch?code=515120&search=2012https://
www.census.gov/cgi-bin/sssd/naics/
naicsrch?code=515120&search=2012https://
www.census.gov/cgi-bin/sssd/naics/
naicsrch?code=515120&search=2012 (last visited
June 11, 2015).
15 13 CFR 121.201 (NAICS code 515120) (updated
for inflation in 2010).
16 See FCC News Release, Broadcast Station
Totals as of March 31, 2015 (rel. April 8, 2015),
available at: https://www.fcc.gov/document/
broadcast-station-totals-march-31-2015.
17 We recognize that BIA’s estimate differs
slightly from the FCC total given the information
provided above.
18 ‘‘[Business concerns] are affiliates of each other
when one concern controls or has the power to
control the other, or a third party or parties controls
or has the power to control both.’’ 13 CFR
121.103(a)(1).
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aggregate revenues from affiliated
companies. In addition, an element of
the definition of ‘‘small business’’ is that
the entity not be dominant in its field
of operation. We are unable at this time
to define or quantify the criteria that
would establish whether a specific
television station is dominant in its field
of operation. Accordingly, the estimate
of small businesses to which rules may
apply does not exclude any television
station from the definition of a small
business on this basis and is therefore
possibly over-inclusive to that extent.
57. In addition, the Commission has
estimated the number of licensed
noncommercial educational (‘‘NCE’’)
television stations to be 395.19 These
stations are non-profit, and therefore
considered to be small entities.20
58. The Commission has estimated
that there are also 405 Class A stations,
1,939 LPTV stations and 3,689 TV
translator stations.21 Given the nature of
these services, we will presume that all
of these entities qualify as small entities
under the above SBA small business
size standard.
59. LPAS Licensees. There are a total
of more than 1,200 Low Power
Auxiliary Station (LPAS) licenses in all
bands and a total of over 600 LPAS
licenses in the UHF spectrum.22
Existing LPAS operations are intended
for uses such as wireless microphones,
cue and control communications, and
synchronization of TV camera signals.
These low power auxiliary stations
transmit over distances of
approximately 100 meters.23
60. Low Power Auxiliary Device
Manufacturers: Radio and Television
Broadcasting and Wireless
Communications Equipment
Manufacturing. The Census Bureau
defines this category as follows: ‘‘This
industry comprises establishments
primarily engaged in manufacturing
radio and television broadcast and
wireless communications equipment.
Examples of products made by these
establishments are: Transmitting and
receiving antennas, cable television
equipment, GPS equipment, pagers,
cellular phones, mobile
communications equipment, and radio
and television studio and broadcasting
equipment.’’ 24 The SBA has developed
19 See FCC News Release, Broadcast Station
Totals as of March 31, 2015 (rel. April 8, 2015).
20 See generally 5 U.S.C. 601(4), (6).
21 See FCC News Release, Broadcast Station
Totals as of March 31, 2015 (rel. April 8, 2015).
22 FCC, Universal Licensing System (ULS),
available at https://wireless.fcc.gov/uls/
index.htm?job=home (last visited June 11, 2015).
23 47 CFR 74.801.
24 U.S. Census Bureau, 2012 NAICS Definitions:
334220 Radio and Television Broadcasting and
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38169
a small business size standard for Radio
and Television Broadcasting and
Wireless Communications Equipment
Manufacturing, which is: All such firms
having 750 or fewer employees.25
According to Census Bureau data for
2007, there were a total of 939
establishments in this category that
operated for the entire year.26 Of this
total, 912 establishments had
employment of less than 500, and an
additional 10 establishments had
employment of 500 to 999.27 Thus,
under this size standard, the majority of
firms can be considered small.
61. Low Power Auxiliary Device
Manufacturers: Other Communications
Equipment Manufacturing. The Census
Bureau defines this category as follows:
‘‘This industry comprises
establishments primarily engaged in
manufacturing communications
equipment (except telephone apparatus,
and radio and television broadcast, and
wireless communications
equipment).’’ 28 The SBA has developed
a small business size standard for Other
Communications Equipment
Manufacturing, which is: All such firms
having 750 or fewer employees.29
According to Census Bureau data for
2007, there were a total of 452
establishments in this category that
operated for the entire year.30 Of this
Wireless Communications Equipment
Manufacturing, https://www.census.gov/cgi-bin/
sssd/naics/naicsrch?code=334220&search=2012
(last visited May 6, 2014).
25 13 CFR 121.201, NAICS code 334220.
26 U.S. Census Bureau, Table No. EC0731SG3,
Manufacturing: Summary Series: General Summary:
Industry Statistics for Subsectors and Industries by
Employment Size: 2007 (NAICS code 334220),
https://factfinder2.census.gov/faces/tableservices/
jsf/pages/productview.xhtml?pid=ECN_2007_US_
31SG3. The number of ‘‘establishments’’ is a less
helpful indicator of small business prevalence in
this context than would be the number of ‘‘firms’’
or ‘‘companies,’’ because the latter take into account
the concept of common ownership or control. Any
single physical location for an entity is an
establishment, even though that location may be
owned by a different establishment. Thus, the
numbers given may reflect inflated numbers of
businesses in this category, including the numbers
of small businesses.
27 Id. An additional 17 establishments had
employment of 1,000 or more.
28 U.S. Census Bureau, 2012 NAICS Definitions:
334290 Other Communications Equipment
Manufacturing, https://www.census.gov/cgi-bin/
sssd/naics/naicsrch?code=334290&search=2012
(last visited May 6, 2014).
29 13 CFR 121.201, NAICS code 334290.
30 U.S. Census Bureau, Table No. EC0731SG3,
Manufacturing: Summary Series: General Summary:
Industry Statistics for Subsectors and Industries by
Employment Size: 2007 (NAICS code 334290),
https://factfinder2.census.gov/faces/tableservices/
jsf/pages/productview.xhtml?pid=ECN_2007_US_
31SG3&prodType=table (last visited May 6, 2014).
The number of ‘‘establishments’’ is a less helpful
indicator of small business prevalence in this
context than would be the number of ‘‘firms’’ or
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total, 448 establishments had
employment below 500, and an
additional 4 establishments had
employment of 500 to 999.31 Thus,
under this size standard, the majority of
firms can be considered small.
62. Radio and Television
Broadcasting and Wireless
Communications Equipment
Manufacturing. The Census Bureau
defines this category as follows: ‘‘This
industry comprises establishments
primarily engaged in manufacturing
radio and television broadcast and
wireless communications equipment.
Examples of products made by these
establishments are: Transmitting and
receiving antennas, cable television
equipment, GPS equipment, pagers,
cellular phones, mobile
communications equipment, and radio
and television studio and broadcasting
equipment.’’ 32 The SBA has developed
a small business size standard for Radio
and Television Broadcasting and
Wireless Communications Equipment
Manufacturing, which is: All such firms
having 750 or fewer employees.
According to Census Bureau data for
2007, there were a total of 939
establishments in this category that
operated for part or all of the entire year.
Of this total, 912 had less than 500
employees and 17 had more than 1000
employees.33 Thus, under that size
standard, the majority of firms can be
considered small.
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
Description of Projected Reporting,
Recordkeeping and Other Compliance
Requirements
63. The NPRM proposes the following
new or revised reporting or
recordkeeping requirements. The
Commission proposes procedures that a
broadcast applicant must use to satisfy
the vacant channel demonstration
requirement. These procedures would
apply only to applications for broadcast
and BAS stations by those entities and
on those channels as decided by the
Commission in this proceeding. A party
‘‘companies,’’ because the latter take into account
the concept of common ownership or control. Any
single physical location for an entity is an
establishment, even though that location may be
owned by a different establishment. Thus, the
numbers given may reflect inflated numbers of
businesses in this category, including the numbers
of small businesses.
31 Id. There were no establishments that had
employment of 1,000 or more.
32 The NAICS Code for this service 334220. See
13 CFR 121/201. See also https://
factfinder.census.gov/servlet/IBQTable?_bm=y&fds_name=EC0700A1&-geo_id=&-_skip=300&-ds_
name=EC0731SG2&-_lang=en.
33 See https://factfinder.census.gov/servlet/
IBQTable?_bm=y&-geo_id=&-fds_
name=EC0700A1&-_skip=4500&-ds_
name=EC0731SG3&-_lang=en.
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Jkt 235001
wishing to construct a new,
displacement, or modified broadcast
station on one of these channels would
generally follow the current procedures
used in planning and applying for a
broadcast station. That is, the party
would perform a technical study based
on the Commission’s requirements (e.g.,
separation from TV station contours) to
determine channel availability and the
other operating parameters for the
proposed station (e.g., transmitter
location, effective radiated power,
antenna height and directionality). Once
the proposed channel and operating
parameters are determined, the
applicant would calculate the service
contour for the proposed station based
on these parameters. In the case of BAS
stations, the applicant would determine
its protected area in accordance with the
requirements of § 15.712(c). The
applicant would then be required to
perform an analysis and submit a
showing with its application
demonstrating that white space devices
and wireless microphones operating
within the same area as the proposed
broadcast or BAS station will have
access to at least one channel, although
it need not be the same channel in all
locations.
Steps Taken To Minimize Significant
Impact on Small Entities, and
Significant Alternatives Considered
64. The RFA requires an agency to
describe any significant alternatives that
it has considered in reaching its
proposed approach, which may include
the following four alternatives (among
others): (1) The establishment of
differing compliance or reporting
requirements or timetables that take into
account the resources available to small
entities; (2) the clarification,
consolidation, or simplification of
compliance or reporting requirements
under the rule for small entities; (3) the
use of performance, rather than design,
standards; and (4) an exemption from
coverage of the rule, or any part thereof,
for small entities.34
65. The Commission believes that its
proposal will not significantly burden
small entities in terms of either the
continued availability of channels in all
areas or the administrative burdens of
compliance. After the final channel
assignments are made following the
incentive auction, multiple vacant
channels will exist in most areas as a
result of the co- and adjacent-channel
separation requirements necessary to
protect primary broadcast stations from
interference from each other. The 100
repacking simulation results previously
PO 00000
34 5
U.S.C. 603(c)(1)–(c)(4).
Frm 00152
Fmt 4702
Sfmt 4702
published by Commission staff show
that the areas encompassing the vast
majority of population across the
country would have at least two vacant
channels available. In any event, the
effect of the proposal would be to
reduce by only one the total number of
vacant channels that would otherwise
be available in an area. Therefore, the
impact on small entities, in terms of the
availability of channels for future use,
will be limited because multiple vacant
channels will still exist in all or most
markets as a consequence of the need to
avoid interference between primary
broadcast stations in the Incentive
Auction final channel assignment
process. In addition, the proposed plan
involves a streamlined method for
broadcast applicants to determine
quickly the impact that facilities they
intend to propose will have on the
continued availability of vacant
channels. Although small entities may
experience an increased burden, the
Commission believes that adoption of
the vacant channel preservation
requirement will greatly benefit white
space and wireless microphone users as
well as the manufacturer of white space
and wireless microphone equipment
that are also small businesses by
creating new uses and opportunity for
this spectrum. The Commission also
believes that this prioritization and
protection of white space is critical if it
is to realize the benefits that this
spectrum will provide to small
businesses and developers that will
usher forth new and unthought-of uses.
66. In addition, the Commission has
initiated a proceeding seeking comment
on the adoption of rules to permit LPTV
and TV translator stations to share
channels. If adopted, channel sharing
would help displaced LPTV and TV
translators that experience difficulty in
finding new channels following the
incentive auction and repacking by
allowing them to share channels in
markets with limited vacant channels.
Further, the Commission has proposed
to utilize its incentive auction
optimization software to help identify
available channels post-auction for
displaced LPTV and TV translator
stations. Finally, the Commission and
its staff continue outreach to LPTV and
TV translator stations to educate them
on the possible impact of the incentive
auction and repacking as well as this
vacant channel proceedings and to
continue to gather comment and input
from these affected industries.
Federal Rules Which Duplicate,
Overlap, or Conflict With the
Commission’s Proposals
67. None.
E:\FR\FM\02JYP1.SGM
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Federal Register / Vol. 80, No. 127 / Thursday, July 2, 2015 / Proposed Rules
List of Subjects for 47 CFR Parts 73 and
74
Reporting and recordkeeping
requirements, Television.
Federal Communications Commission.
Sheryl D. Todd,
Deputy Secretary.
For the reasons discussed in the
preamble, the Federal Communications
Commission proposes to amend 47 CFR
parts 73 and 74 as follows:
PART 73—RADIO BROADCAST
SERVICES
1. The authority citation for part 73
continues to read as follows:
■
Authority: 47 U.S.C. 154, 303, 334, 336,
and 339.
2. Section 73.3572 is revised by
adding paragraph (i) to read as follows:
■
§ 73.3572 Processing of TV broadcast,
Class A TV broadcast, low power TV, TV
translators, and TV booster applications.
*
*
*
*
(i) Vacant channel demonstration. (1)
Applicability. The provisions of this
paragraph (i) shall apply to:
(i) All applications filed by low power
television, TV translator, and Broadcast
Auxiliary Service (BAS) stations for
new, displacement, or modified
facilities filed on or after release of the
Channel Reassignment Public Notice
issued pursuant to § 73.3700(a)(2); and
(ii) Applications for modified Class A
television station facilities filed more
than 39 months after release of the
Channel Reassignment Public Notice
issued pursuant to § 73.3700(a)(2).
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
*
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(2) Required showing. (i) Applicants
subject to this provision shall include a
showing with their application
demonstrating that grant of the
application will not eliminate the last
remaining vacant channel in their entire
proposed protected area (in the case of
applications for new or displacement
facilities) or expanded proposed
protected area (in the case of modified
facilities).
(ii) Applicants shall determine the
availability of a vacant channel as of the
date of the filing of their application.
(iii) Vacant channel availability for
purposes of the required showing shall
be determined using the criteria set
forth in §§ 74.802(b)(1) and 15.712(a)(2)
of this chapter. Applicants must show
that, at a minimum, 40 milliwatt
personal/portable white space devices
and wireless microphones can operate
anywhere within the entire or expanded
proposed protected area. Wireless
microphones and temporary BAS
operations registered in the white space
database shall not be considered when
determining whether a proposed
operation eliminates the last remaining
vacant channel. The availability of
channels shall be determined by
analyzing individual two by two
kilometer cells of a grid that covers the
entire or expanded proposed protected
area of operations. The protected area
for broadcast stations shall be the area
defined by adding four kilometers to the
contour calculated in accordance with
the methodology in §§ 74.802(b)(1) and
15.712(a)(1) of this chapter. The
protected area for BAS stations shall be
the area defined by § 15.712(c) of this
chapter. All cells that are within or
PO 00000
Frm 00153
Fmt 4702
Sfmt 9990
38171
overlap any portion of the entire or
expanded proposed protected areas of
operations shall be analyzed for vacant
channel availability, and the availability
shall be calculated at a single point at
the center of each cell. The required
showing shall be satisfied as long as at
least one vacant channel remains
available at the center point of each cell
requiring analysis.
(iv) For purposes of the required
showing, applicants shall consider only
UHF channels in the range of 21 and
above.
PART 74—EXPERIMENTAL RADIO,
AUXILIARY, SPECIAL BROADCAST
AND OTHER PROGRAM
DISTRIBUTIONAL SERVICES
3. The authority citation for part 74
continues to read as follows:
■
Authority: 47 U.S.C. 154, 302a, 303, 307,
309, 336 and 554.
4. Section 74.632 is revised by adding
paragraph (h) to read as follows:
■
§ 74.632
Licensing requirements.
*
*
*
*
*
(h) The provisions of § 73.3572(i) of
the rules shall apply to all applications
filed under this rule.
■ 5. Section 74.787 is revised by adding
paragraph (d) to read as follows:
§ 74.787
Digital licensing.
*
*
*
*
*
(d) The provisions of § 73.3572(i) of
the rules shall apply to all applications
filed under this rule.
[FR Doc. 2015–15758 Filed 7–1–15; 8:45 am]
BILLING CODE 6712–01–P
E:\FR\FM\02JYP1.SGM
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Agencies
[Federal Register Volume 80, Number 127 (Thursday, July 2, 2015)]
[Proposed Rules]
[Pages 38158-38171]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-15758]
=======================================================================
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 73 and 74
[MB Docket No. 15-146; GN Docket No. 12-268; FCC 15-68]
Preserving Vacant Channels in the UHF Television Band for
Unlicensed Use
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: In this document, the Federal Communications Commission
(Commission) provides notice and an opportunity to comment on its plan
to preserve one vacant television channel in the UHF television band in
each area of the United States for shared use by white space devices
and wireless microphones. The Commission recognizes that, following the
Incentive Auction and repacking of the television bands, there will
likely be fewer unused television channels available for use by either
unlicensed white space devices or wireless microphones. These devices
are important to businesses and consumers, and the Commission therefore
seeks to ensure their continued viability.
DATES: Comments due on or before August 3, 2015; reply comments due on
or before August 31, 2015. Written comments on the proposed information
collection requirements, subject to the Paperwork Reduction Act (PRA)
of 1995, Pub. L. 104-13, should be submitted on or before August 31,
2015.
ADDRESSES: You may submit comments, identified by MB Docket No. 15-146,
GN Docket No. 12-268 and/or FCC 15-68, by any of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments.
Federal Communications Commission's Web site: https://www.fcc.gov/cgb/ecfs/. Follow the instructions for submitting comments.
Mail: Filings can be sent by hand or messenger delivery,
by commercial overnight courier, or by first-class or overnight U.S.
Postal Service mail (although we continue to experience delays in
receiving U.S. Postal Service mail.) All filings must be addressed to
the Commission's Secretary, Office of the Secretary, Federal
Communications Commission.
People with Disabilities: Contact the FCC to request
reasonable accommodations (accessible format documents, sign language
interpreters, CART, etc.) by email: FCC504@fcc.gov or phone: 202-418-
0530 or TTY: 202-418-0432.
For detailed instructions for submitting comments and additional
information on the rulemaking process, see the SUPPLEMENTARY
INFORMATION section of this document.
In addition to filing comments with the Secretary, a copy of any
PRA comments on the proposed collection requirements contained herein
should be submitted to the Federal Communications Commission via email
to PRA@fcc.gov and to Cathy.Williams@fcc.gov and also to Nicholas A.
Fraser, Office of Management and Budget, via email to
Nicholas_A._Fraser@omb.eop.gov or via fax at 202-395-5167.
FOR FURTHER INFORMATION CONTACT: Shaun Maher, Shaun.Maher@fcc.gov of
the Media Bureau, Video Division, (202) 418-2324, and Paul Murray,
Paul.Murray@fcc.gov of the Office of
[[Page 38159]]
Engineering and Technology, (202) 418-0688. For additional information
concerning the PRA information collection requirements contained in
this document, contact Cathy Williams, Federal Communications
Commission, at (202) 418-2918, or via email Cathy.Williams@fcc.gov.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice
of Proposed Rulemaking (NPRM), FCC 15-68, adopted June 11, 2015, in MB
Docket No. 15-146. The full text of this document is available for
inspection and copying during regular business hours in the FCC
Reference Center, 445 12th Street SW., Room CY-A257, Portals II,
Washington, DC 20554. This document is available in alternative formats
(computer diskette, large print, audio record, and Braille). Persons
with disabilities who need documents in these formats may contact the
FCC by email: FCC504@fcc.gov or phone: 202-418-0530 or TTY: 202-418-
0432.
Paperwork Reduction Act of 1995 Analysis
The NPRM contains proposed new or modified information collection
requirements. The Commission, as part of its continuing effort to
reduce paperwork burdens, invites the general public and the Office of
Management and Budget (OMB) to comment on the information collection
requirements contained in this document, as required by the Paperwork
Reduction Act of 1995, Public Law 104-13. In addition, pursuant to the
Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44
U.S.C. 3506(c)(4), the Commission seeks specific comment on how it
might further reduce the information collection burden for small
business concerns with fewer than 25 employees.
Synopsis of Notice of Proposed Rulemaking
1. The current UHF television band consists of 228 megahertz of
spectrum divided into 38 six megahertz channels (channels 14-51, except
channel 37). These channels are allocated and assigned on a primary
basis for the licensed full power and Class A broadcast television
services. Other licensed broadcast-related users are permitted to
operate on a secondary basis, including LPTV and TV translator
stations, fixed BAS, and low power auxiliary stations (``LPAS''),
including licensed wireless microphones. Unlicensed operations by white
space devices and wireless microphones also are permitted to operate on
these channels.
2. In the Incentive Auction Report and Order, the Commission
adopted rules to implement the broadcast television spectrum incentive
auction. As discussed more fully in the Incentive Auction Report and
Order, the incentive auction will affect the operations of primary,
secondary, and unlicensed users operating in the current television
bands. The Commission addressed the impact on each of these groups of
users in various parts of the Incentive Auction Report and Order. With
respect to white space devices and wireless microphones, the Commission
took several steps to accommodate their operations.
3. Both white space devices and wireless microphones (licensed and
unlicensed) are permitted to operate in the TV bands on channels at
locations where the spectrum has not been assigned for use by
particular broadcast licensees (i.e., ``white spaces''). The rules and
requirements for their operations differ, however. Licensed wireless
microphones operate pursuant to the rules for LPAS operations set forth
in part 74, subpart H, 47 CFR 74.801 et seq., while, as noted above,
unlicensed wireless microphones operate pursuant to a 2010 waiver and
certain part 15 rules. Unlicensed white space devices operate pursuant
to part 15, subpart H rules. In the TV White Spaces Second MO&O adopted
in 2010, the Commission established rules pursuant to which wireless
microphone users and unlicensed white space device users currently have
access to unused TV bands channels. In that order, the Commission
provided that, where available, the two unused television channels
nearest channel 37 (above and below) would be designated for wireless
microphone operations and not be made available for white space
devices. Pursuant to this order, white space devices are not permitted
on the first channel on each side of TV channel 37 that is not occupied
by a licensed service. In the Incentive Auction Report and Order, in
anticipation of the repurposing of some TV band spectrum for wireless
services and the decreased amount of TV band spectrum that would remain
after repacking, the Commission concluded that following the incentive
auction it should no longer continue to designate any unused television
channel solely for use by wireless microphones, determining instead
that any such channels should be made potentially available for white
space device use as well.
4. Furthermore, the Commission anticipated that at least one
television channel in the UHF band in all (or nearly all) areas of the
United States would not be assigned to a television station in the
repacking process, because the separation between television stations
will be necessary to avoid interference between primary broadcast
stations in the final channel assignment process. The Commission noted
that there may be a few areas with no spectrum available in the TV
bands for wireless microphones and white space devices to share.
Considering the important public interest benefits provided by both
wireless microphones and white space devices, the Commission stated its
intent, following notice and comment, to designate one channel in each
area for shared use by wireless microphones and white space devices.
The Commission stated that it sought to ``strike a balance between the
interests of all users of the television bands,'' including secondary
broadcast stations as well as wireless microphone and white space
device operators, for access to the UHF TV spectrum.
5. In this NPRM, the Commission seeks comment on preserving in each
area of the country at least one vacant television channel for use by
white space devices and wireless microphones after repacking.
Recognizing that implementing this objective will preclude other uses
of the preserved channel, in the first section below, the Commission
tentatively concludes that it will preserve one vacant television
channel for use by white space devices and wireless microphones. In the
second section, the Commission seeks comment on which broadcast
applicants proposing operations in the repacked UHF television band
should be required to make a demonstration that their proposed new,
displacement, or modified facility will not eliminate the last
available vacant channel in an area. In the third section, the
Commission proposes that the vacant channel preserved will be in the
UHF band in the range of channel 21 and above, and that the specific
vacant channel preserved will vary depending on the particular area.
The Commission also proposes that vacant channel availability at a
given location will be determined using the same criteria currently
specified in Commission rules for determining where white space devices
and wireless microphones can operate. In addition, the Commission
proposes procedures and other details for the vacant channel
demonstration.
Preserving One Vacant Television Channel for Use by White Space Devices
and Wireless Microphones
6. White space devices and wireless microphones provide significant
public benefits. In the Incentive Auction Report
[[Page 38160]]
and Order, the Commission once again recognized the value of these
important services. The Commission also found that operations of
unlicensed devices under part 15 rules are an important part of our
nation's communications capabilities, and have provided manufacturers
and developers with the flexibility to devise a wide variety of
innovative standards and devices, like WiFi and Bluetooth, which are
thriving in bands that were formerly considered to be lacking
significant commercial value. The Commission explained that it was
taking actions to make available a significant amount of spectrum for
white space device operations, including in the post-auction television
bands, in order to help create certainty for the unlicensed industry
and thereby promote greater innovation in new devices and services,
including increased access to broadband services across the country.
The Commission also found that ``[w]ireless microphones provide many
important functions that serve the public interest'' by playing ``an
essential role in enabling broadcasters and other video programming
networks to serve consumers,'' by ``significantly enhanc[ing] event
productions in a variety of settings,'' and by ``creating high quality
content that consumers demand and value, and contribut[ing]
substantially to our economy.'' After the incentive auction and
repacking of the television bands, however, there will be fewer unused
television channels available for use by white space devices and
wireless microphones, although the Commission anticipated that there
will be at least one channel in the UHF band in all areas that is not
assigned to a television station in the repacking process. The
Commission tentatively concludes that preserving a vacant channel in
every area for use by white space devices and wireless microphones will
ensure that the public continues to have access across the nation to
the significant benefits described above, consistent with its intent to
strike ``a balance between the interests of all users of the television
bands, including secondary broadcast stations as well as [white space]
devices and wireless microphones, for access to the UHF TV spectrum.''
In the part 15 NPRM, the Commission also stated that ``[s]uch a channel
would simply appear in the white spaces database as vacant and would
therefore be available for white space devices under the existing rules
as well as any new or modified rules it adopts in [the part 15]
proceeding.''
7. The Commission believes that its proposal, implemented as
proposed below, will not significantly burden broadcast applicants in
terms of either the continued availability of channels in all areas or
the administrative burdens of compliance. After the final channel
assignments are made following the incentive auction, multiple vacant
channels will exist in most areas as a result of the co- and adjacent-
channel separation requirements necessary to protect primary broadcast
stations from interference from each other. The 100 repacking
simulation results previously published by Commission staff show that
the areas encompassing the vast majority of population across the
country would have at least two vacant channels available. The
Commission arrives at this conclusion by examining spectrum
availability for white space devices using the limited channel range
where both wireless microphones and personal portable devices can
operate under current rules. In the part 15 NPRM the Commission
proposed to permit white space devices to operate on additional TV
channels, thus resulting in multiple vacant channels being available in
areas encompassing the vast majority of population across the country.
In any event, the effect of its proposal would be to reduce by only one
the total number of vacant channels that would otherwise be available
in an area. Therefore, the impact on broadcast applicants, including
LPTV and TV translator stations, in terms of the availability of
channels for future use, will be limited because multiple vacant
channels will still exist in all or most markets as a consequence of
the need to avoid interference between primary broadcast stations in
the incentive auction final channel assignment process. Of course, the
impact in a given area will depend on the number of such applicants
[and the nature of their applications] as well as on the overall
availability of vacant channels after repacking and the 39-month post-
auction transition period. In some areas, independent of the
Commission's proposal here, the number of vacant channels may be
reduced as a result of these factors. In addition, the Commission's
proposed plan involves a streamlined method for broadcast applicants to
determine quickly the impact that facilities they intend to propose
will have on the continued availability of vacant channels. As
discussed in more detail below in Section III. C. 2., broadcast
applicants may contact one of the existing databases used to identify
available channels for part 15 white space devices (``white spaces
database'') to determine compliance with the Commission's proposed
rules, and thus the vacant channel demonstration would not impose a
significant burden. The Commission seeks comment on the cost of
complying with the proposed requirement to make a vacant channel
demonstration and how it may affect broadcast applicants' future
service or technical plans.
Applicants Required To Make a Vacant Channel Demonstration
8. In this section, the Commission seeks comment on which broadcast
applicants proposing operations in the repacked UHF television band
should be required to make a demonstration that their proposed new,
displacement, or modified facility will not eliminate the last
available vacant UHF channel in an area for use by white space devices
and wireless microphones. Specifically the Commission (1) tentatively
concludes that applicants for LPTV, TV translator, and BAS facilities
should be required to make the demonstration commencing with the post-
auction displacement filing window for operating LPTV and TV translator
stations; (2) tentatively concludes that the vacant channel
demonstration requirement should not apply to applications for
modification of Class A television stations filed during the 39-month
Post-Auction Transition Period, but that it should apply to such
applications filed after the end of this period; and (3) tentatively
concludes that the vacant channel demonstration should not apply to
applications for modified full power television station licenses filed
during the 39-month Post-Auction Transition Period and seek comment on
whether it should apply to full power modification applications filed
after the end of this period and in full power allotment proceedings.
LPTV, TV Translators, and BAS
9. The Commission tentatively concludes that applicants for LPTV,
TV translator, and BAS facilities should be required to demonstrate
that their proposed new, displacement, or modified facilities would not
eliminate the last available vacant television channel in an area for
use by white space devices and wireless microphones. In the Incentive
Auction Report and Order, the Commission declined to extend repacking
protection to the more than 5,500 licensed secondary LPTV and TV
translator stations. Following the release of the Incentive Auction
Report and Order, the Media Bureau announced a freeze on the filing of
digital replacement translator (``DRT'') and displacement applications
for LPTV and TV translator stations. After the auction, the Media
[[Page 38161]]
Bureau will announce a limited application filing window for operating
LPTV and TV translator stations displaced by the repacking and
reallocation of the television bands. The Commission proposes that
these stations will be required to demonstrate that the proposed
displacement facilities would not eliminate the last remaining vacant
channel in the repacked television band in an area; applications that
do not comply with this requirement will be dismissed.
10. The Commission believes it appropriate to require LPTV and TV
translator stations displaced by the incentive auction and repacking to
engineer their proposed replacement facilities so as not to eliminate a
sole remaining vacant channel in an area for shared use by white space
devices and wireless microphones. The Commission also notes that it
recently released a notice of proposed rulemaking seeking comment on
ways to preserve the availability of channel access for LPTV and TV
translator stations in the repacked television band through such means
as channel sharing. Channel sharing could help ensure that displaced
stations can find opportunities for sharing available channel(s) in the
repacked band in order to provide their services. Because LPTV and TV
translator stations' coverage areas are significantly smaller than a
full power television station, these stations can engineer facilities
in the unused spectrum between full power stations, and their proposals
thus are more likely than those of full power stations to eliminate
vacant channels. Moreover, the Commission anticipates that most
displaced LPTV and TV translator stations will file applications in
this post-auction displacement window. Thus, were the Commission not to
require these stations to consider vacant channel availability in
engineering their displacement facilities, its goal of preserving one
vacant channel in all areas for shared use by white space devices and
wireless microphones would be undermined. For the same reason, the
Commission also proposes to apply the vacant channel demonstration to
all non-displacement LPTV and TV translator applications, i.e.,
applications for modified facilities or new channels, and any BAS
applications, filed on or after the Media Bureau's announcement of the
limited application filing window for LPTV and TV translator
displacement applications.
11. The Commission seeks comment on whether the proposed vacant
channel demonstration should apply to displaced digital replacement
translator (``DRT'') stations. This service was established to assist
full power stations transitioning from analog to digital to restore
service to portions of a station's existing analog service area that
would no longer be able to receive service after the transition. While
the Commission declined to protect DRTs in repacking, it afforded DRT
displacement applications priority over other LPTV and TV translator
displacement applications in cases of mutual exclusivity in order to
mitigate the potential impact of the repacking process on DRTs. Should
the Commission similarly seek to mitigate the impact of its proposed
vacant channel demonstration requirement on displaced DRTs beyond the
potential for a waiver and, if so, how? Displaced DRTs could seek a
waiver of the proposed rules based on the Commission's standard waiver
criteria. Section 1.3 of the rules states that a waiver will be granted
if ``good cause'' is shown. The Commission may exercise its discretion
to waive a rule where the particular facts make strict compliance
inconsistent with the public interest. In addition, the Commission may
take into account considerations of hardship, equity, or more effective
implementation of overall policy on an individual basis. Waiver of the
Commission's rules is appropriate only if both (i) special
circumstances warrant a deviation from the general rule, and (ii) such
deviation will serve the public interest. Additionally, what would be
the effect of such an exemption on the nationwide availability of a
vacant channel for wireless microphones and unlicensed white space
devices? The Commission notes that it has also proposed to establish a
new ``digital-to-digital'' replacement translator service, similar to
the DRT service, which will allow eligible full power stations to
recover lost digital service area that may result from the reverse
auction and repacking process. If the Commission establishes this new
translator service, it tentatively concludes to treat this service the
same as DRTs for purposes of application of the vacant channel
demonstration.
12. The Commission's proposal that LPTV and TV translator stations
demonstrate in their displacement applications that the proposed
facility will not eliminate the last available vacant channel in any
area may result in a new type of conflict that would prevent the
Commission from granting certain applications. Under the Commission's
existing rules, applications are considered mutually exclusive if they
cannot be granted without causing interference to each other, and
mutually exclusive applications generally are resolved through an
auction. The Communications Act, however, provides that the Commission
shall use engineering solutions, negotiations, threshold
qualifications, service regulations and other means to avoid mutual
exclusivity where the Commission determines that doing so would serve
the public interest. During the displacement window, it is possible
that two (or more) stations operating in the same vicinity could file
applications for facilities that would not cause such interference but
that nonetheless cannot be granted because together they would
eliminate the last available vacant channel in an area for use by white
space devices and wireless microphones. All displacement applications
submitted during the limited application filing window will be
considered filed on the last day of the window. Accordingly,
displacement applications filed later in the window are not required to
consider the displacement proposals in applications filed earlier in
the window. At the close of the window, the Commission staff would make
mutual exclusivity determinations. Under these circumstances, the
Commission tentatively concludes that these applications would be
mutually exclusive under Sec. 73.5000(a) of the rules and subject to
competitive bidding if the mutual exclusivity is not resolved by the
applicants.
13. In addition, the Commission seeks comment on whether LPTV and
TV translator displacement applications (including those filed in the
post-incentive auction displacement window) should be allowed to
``displace'' pending applications for new, or minor changes to, LPTV
and TV translator stations for purposes of satisfying the vacant
channel demonstration. Under the Commission's current rules, when an
LPTV or TV translator displacement application is filed, it may propose
causing interference to and ``displace'' a pending application for new
or minor change to an LPTV or TV translator station. It is possible
that a LPTV or TV translator displacement application that is filed for
a new channel but is treated as a minor change would not be predicted
to cause interference to a pending new or minor change application, but
the displacement application, if granted, would eliminate the last
remaining vacant channel in an area. The Commission proposes to
preserve one channel in each area even in these circumstances. In order
to
[[Page 38162]]
accomplish that, in this scenario, should the Commission allow the
displacement applicant to satisfy the vacant channel demonstration by
proposing that the channel specified in the pending new or minor change
application serve as the vacant channel? In other words, should the
displacement applicant be allowed to ``displace'' the pending new or
minor change application for purposes of the vacant channel
demonstration? In that case, the new or minor change application would
be dismissed. The Commission seeks comment on this issue as well as how
to choose between applications to be displaced in the situation where
there is more than one pending new or minor change application that, if
displaced, could satisfy the vacant channel demonstration.
14. The Commission tentatively concludes that it has authority to
adopt the proposals outlined above. As discussed above, the Commission
tentatively concludes that preserving a vacant channel in every area
for use by white space devices and wireless microphones will serve the
public interest by ensuring continued access across the nation to the
significant benefits provided by white space devices and wireless
microphones without significantly burdening broadcast applicants.
Moreover, because the proposed new, displacement, or modified
facilities of LPTV, TV translator and BAS applicants are more likely
than those of full power stations to eliminate vacant channels,
requiring such applicants to demonstrate that their proposed facilities
would not eliminate the last available vacant channel in an area will
advance the Commission's goal of preserving a vacant channel in all
areas for shared use by white space devices and wireless microphones.
The Commission seeks comment on this tentative conclusion. In addition,
Title III of the Communications Act of 1934, as amended, ``endow[s] the
Commission with expansive powers,'' including ``broad authority to
manage spectrum . . . in the public interest.'' Determinations with
respect to spectrum management policy (including allocation and
assignment policies) have long been recognized to be precisely the sort
that Congress intended to leave to the broad discretion of the
Commission under section 303 of the Communications Act. The Commission
also tentatively concludes that its proposal to preserve a vacant
channel for use by white space devices and wireless microphones in all
areas is consistent with, and not in contravention of, section 6403(b)
of the Spectrum Act, which provides for the UHF band reorganization.
The Commission recognizes that section 6403(b)(5) of the Spectrum Act
provides that ``[n]othing in [section 6403(b)] shall be construed to
alter the spectrum usage rights of low-power television stations,'' but
section 6403(b)(5) does not affect the Commission's broad authority
outside of section 6403(b) to manage spectrum in the public interest,
which provides the legal basis for the actions the Commission proposes
in this NPRM. To the contrary, section 6403(i)(1) preserves that
authority by stating that nothing in section 6403(b) ``shall be
construed to . . . expand or contract the authority of the Commission,
except as otherwise expressly provided.'' There is no express provision
in section 6403(b) prohibiting the Commission from requiring LPTV and
TV translator stations to consider how their proposed new,
displacement, or modified facilities will impact the availability of
vacant channels for white space devices and wireless microphones.
Moreover, section 6403(i)(2) states that nothing in section 6403(b)
``shall be construed to . . . prevent the implementation of the
Commission's `White Spaces' Second Report and Order . . . in the
spectrum that remains allocated for broadcast television use after the
reorganization required by'' section 6403(b). The Commission's
proposals in this NPRM will ensure that white space devices and
wireless microphones continue to have access to unused TV bands
channels, consistent with the TV White Spaces Second Report and Order.
15. The Commission acknowledges that its proposal to require LPTV
and TV translator stations to demonstrate that their proposed
operations will not eliminate the last remaining vacant channel
diverges to a limited extent from prior Commission decisions stating
that future use of the TV bands by primary and secondary broadcast
users has priority over wireless microphones and white space devices.
As discussed above, however, there will be fewer unused television
channels for white space devices and wireless microphones after the
incentive auction and repacking of the television band, and the
Commission seeks to ensure that the public does not lose access to the
significant benefits of wireless microphones and white space devices.
Moreover, the Commission believes that the impact of its proposal on
LPTV and TV translator stations will be limited in terms of both the
availability of channels for future use and the administrative burdens
involved. Accordingly, the Commission tentatively concludes that a
limited departure is warranted from prior FCC decisions granting
secondary LPTV and TV translator station users priority to use of the
TV bands over white space devices and wireless microphone users in all
circumstances. The Commission seeks comment on this analysis.
Modifications of Class A Television Stations
16. The Commission tentatively concludes that the vacant channel
demonstration requirement should not apply to applications for
modification of Class A television stations filed during the 39-month
Post-Auction Transition Period, but that it should apply to such
applications filed after the end of this period. Exempting Class A
stations from the vacant channel demonstration during the transition
period will facilitate a rapid, non-disruptive transition by maximizing
Class A television stations' flexibility to propose expanded facilities
and alternative channels. As a practical matter, moreover, Class A
stations that are reassigned in the incentive auction will not be able
to determine the availability of vacant channels for purposes of the
vacant channel demonstration until full power and Class A stations
assigned to new channels are able to obtain their initial
authorizations. In addition, imposing the requirement would delay the
filing of applications for alternate channels and expanded facilities
by Class A television stations until final data on vacant channels are
available, thereby impeding the goal of a rapid and non-disruptive 600
MHz band transition for these stations, and undermining their ability
to obtain reimbursement of eligible costs within the statutory three-
year reimbursement period.
17. In addition to exempting Class A stations that were assigned a
new channel in the reverse auction or repacking process, the Commission
also tentatively concludes that the vacant channel demonstration
requirement should not apply to applications for modification filed
during the 39-month Post-Auction Transition Period by Class A stations
that were not assigned a new channel. The Commission anticipates that,
in some markets, a number of stations will coordinate modifications to
their facilities to improve service to the public, and/or facilitate
the transition, and that not all stations participating in the
coordinated effort will have been assigned new channels. Thus,
requiring non-reassigned stations to make a vacant channel
demonstration during the Post-Auction Transition Period likewise could
undermine the flexibility
[[Page 38163]]
needed for a rapid, non-disruptive transition.
18. The Commission seeks comment on whether out-of-core Class A-
eligible LPTV stations that did not file for a Class A license until
after February 22, 2012 should be subject to the vacant channel
demonstration requirement. In the Incentive Auction Report and Order,
the Commission declined to protect such stations in the repacking
process, even if their Class A license applications are granted before
the auction. Although these stations would not be protected in the
repacking process, the Commission stated that these stations, if
displaced, would be permitted to file a displacement application for a
new channel during one of the filing opportunities for reassigned full
power and Class A stations to file for alternate channels.
19. The Commission tentatively concludes that the vacant channel
demonstration requirement should apply to Class A television station
modification applications filed after the end of the Post-Auction
Transition Period. The transition-related concerns noted above should
no longer be an obstacle after the end of the transition. Moreover, as
compared to full power stations, a proposed modification of a Class A
station has increased potential to impact the availability of the last
remaining vacant channel in an area. While full power stations may
radiate up to 1000 kilowatts power, Class A stations may radiate only
at a maximum operating power of 15 kilowatts, the same as for LPTV and
TV translator stations. Because their coverage areas, like those of
LPTV and TV translator stations, are significantly smaller than those
of full power television stations, these low power stations can
engineer facilities in the unused spectrum between full power stations.
Thus, the Commission believes that exempting post-transition Class A
television station modification applications from the vacant channel
demonstration is not warranted to accomplish its post-auction
transition goals and would unduly impede its goal of preserving a
vacant channel for white space devices and wireless microphones. The
Commission recognizes that some Class A television stations with
construction deadlines at or near the end of the transition may
discover after the 39-month deadline that they need to make further
modifications to their repacked facilities in order to continue serving
their viewers. The Commission seeks comment whether such stations
should be allowed not to make the vacant channel demonstration if they
instead make a showing that the modification is necessary to preserve
their coverage area and population served and is necessitated by
circumstances that were unforeseeable and outside of the stations'
control. The Commission seeks comment on other alternatives as well.
20. The Commission tentatively concludes that it has authority to
adopt the foregoing proposals related to Class A stations. As discussed
above, the Commission has broad authority to manage spectrum in the
public interest, including the actions it proposes in this NPRM to
preserve a vacant channel for white space devices and wireless
microphones. The Commission also notes that, unlike with LPTV and TV
translators, section 6403(b)(5) has no bearing on Class A stations.
Section 6403(b)(5) provides that ``[n]othing in [section 6403(b)] shall
be construed to alter the spectrum usage rights of low-power television
stations.'' The Spectrum Act categorizes Class A stations as
``broadcast television licensees,'' not as low-power television
stations. The Commission seeks comment on this analysis.
21. The Commission also seeks comment on whether to amend its rules
to permit Class A television stations to displace previously authorized
or proposed LPTV and TV translator stations where necessary to satisfy
the vacant channel demonstration requirement. Section 336(f)(7)(B) of
the Communications Act provides that a Class A station may not cause
``interference'' to a previously authorized or proposed LPTV or TV
translator station. Section 336(f)(7)(B) provides that the Commission
may not grant a Class A license or approve a Class A license
modification unless the applicant or licensee shows that it ``will not
cause . . . interference'' within the protected contour of any LPTV or
TV translator station that was licensed prior to the date on which the
application was filed, was authorized by construction permit prior to
such date, or had a pending application submitted prior to such date.
The Commission's interference prediction analysis is based on
interference thresholds (D/U signal strength ratios) using OET-69
methodology. It is possible that a proposed Class A modification would
comply with this requirement because it would not cause
``interference'' to a previously authorized or proposed LPTV or TV
translator facility, but it would eliminate the last remaining vacant
channel in an area. Under such circumstances, should the Commission
amend its rules to allow a Class A modification proposal to displace an
LPTV or TV translator station in order to preserve a vacant channel in
an area for use by white space devices and wireless microphones? The
Commission also seeks comment on how to choose between LPTV or TV
translator stations to be displaced in a situation where there is more
than one LPTV or TV translator station that, if displaced, would
satisfy the vacant channel demonstration.
Full Power Television Stations
22. The Commission tentatively concludes that the vacant channel
demonstration should not apply to applications for modified full power
television station licenses filed during the 39-month Post-Auction
Transition Period, but seeks comment on whether it should apply to full
power modification applications filed after the end of this period. The
Commission also seeks comment on whether the vacant channel
demonstration should apply to full power allotment proceedings.
Modifications
23. The Commission believes that there is only a small likelihood
that a proposal by a full power licensee to modify its facilities that
complies with the Commission's technical rules would eliminate the last
remaining vacant channel in an area. Due to engineering reasons, there
may be a few areas in the country that will not have a vacant channel
after repacking. In order to avoid interference to co- and adjacent
channel stations, full power stations must comply with certain
technical provisions which prevent the operation of a full power
television station on certain channels in geographic areas. Because the
Spectrum Act requires the Commission in reorganizing the television
bands to ``make all reasonable efforts to preserve, as of [February 22,
2012], the coverage area and population served of'' full power
television stations, these vacant channels will continue to be
necessary after repacking to avoid interference between full power
television stations. Moreover, in many areas of the country, channels
that were technically available for television use were never allotted
to communities for such use and are thus vacant.
24. The Commission tentatively concludes that the vacant channel
demonstration requirement should not apply to applications for modified
full power television station licenses filed during the 39-month Post-
Auction Transition Period, including modification applications filed by
stations that were not assigned a new channel in the reverse auction or
repacking process. As discussed above in connection with Class A
stations, exempting full power stations from the
[[Page 38164]]
vacant channel demonstration during the transition period will
facilitate a rapid, non-disruptive transition by maximizing stations'
flexibility to propose expanded facilities and alternative channels, as
well as by permitting stations to coordinate modification of
facilities. In addition, as with Class A stations, applying the
proposed requirement to full power stations would delay their filing of
applications for alternate channels and expanded facilities until final
data on vacant channels is available, thereby impeding the goal of a
rapid and non-disruptive 600 MHz band transition, and undermining their
ability to obtain reimbursement of eligible costs within the statutory
three-year reimbursement period.
25. The Commission seeks comment on whether the vacant channel
demonstration should apply to full power television station
modification applications filed after the end of the Post-Auction
Transition Period. On one hand, the transition-related concerns noted
above will no longer apply. On the other hand, the Commission
recognizes full power television may need to modify their facilities
from time to time in order to continue to serve their viewers.
Additionally, unlike with Class A stations, there appears to be only a
small likelihood that a full power television station modification
would eliminate the last remaining vacant channel in an area, calling
into question the need for the vacant channel demonstration with
respect to full power modifications. Accordingly, the Commission seeks
comment on the benefits of applying the required demonstration to post-
transition full power television station modification applications and
whether these benefits outweigh the burdens. The Commission recognizes
that some full power television stations with construction deadlines at
or near the end of the transition may discover after the 39-month
deadline that they need to make further modifications to their repacked
facilities in order to continue serving their viewers. The Commission
seeks comment whether such stations should be allowed not to make the
vacant channel demonstration if they instead make a showing that the
modification is necessary to preserve their coverage area and
population served and is necessitated by circumstances that were
unforeseeable and outside of the stations' control. The Commission
seeks comment on other alternatives as well. The Commission also seeks
comment on whether the its broad Title III spectrum management
authority encompasses the discretion to apply the vacant channel
demonstration requirement to full power television station modification
applications filed after the end of the Post-Auction Transition Period.
Allotment Proceedings
26. The Commission seeks comment on whether, with the exception
discussed below, to require the vacant channel demonstration for full
power allotment proceedings. There is presently a freeze on the filing
of rulemaking petitions to change channels within the DTV Table of
Allotments, to drop in new allotments, to swap channels among two or
more licensees, or to change communities of license. The Commission
anticipates that, after repacking, the Media Bureau will lift filing
freezes that are now in place. Future allotment proceedings would
propose a primary use in the television bands. Unlike proposed full
power modifications, however, there is a reasonable likelihood that
some of these proposed allotments could have a significant impact on
vacant channel availability. For example, a proposal to drop in a new
full power television channel could eliminate at least one vacant
channel in a large geographic area. Similarly, a change of community of
license could permit the licensee to move its transmission facilities
in such a way as to significantly change its coverage contour. Channel
changes and channel swaps appear to present less potential to affect
vacant channel availability. Unless a station proposes to move from
below channel 21 to channel 21 or above, it is unlikely that a petition
to change channels would have an impact on vacant channel availability,
since the channel proposed to be relinquished would become vacant.
Similarly, in the case of a channel swap between stations, the channel
being swapped would become vacant in each station's service area. The
Commission seeks comment on whether the petitioner should be required
to demonstrate that the any of these allotment proposals would not
eliminate the last remaining vacant channel.
27. At the same time, the Commission recognizes that there could be
allotment proposals that are a direct result of certain discontinuances
of service after the auction. For example, although the Commission
believes it unlikely, there may be limited circumstances in which a
community or area loses broadcast service from all of its noncommercial
educational stations. The Commission stated previously in the Incentive
Auction Report and Order that it would consider appropriate actions to
address service losses after the auction. The Commission has adopted
television allotment policies to implement the goals underlying section
307(b). If it decides to require the vacant channel demonstration for
full power allotment proceedings generally, it may be appropriate to
make an exception for rulemaking proceedings to allot a reserved
noncommercial educational channel to a community that has lost all
noncommercial educational full power television service as a result of
the auction. The Commission also seeks comment on whether it should
have a similar exception for commercial allotments in the event a
community has lost all of its commercial full power television service
as a result of the auction. The Commission seeks comment on this issue.
Procedures for Identifying Channels Available for Use by White Space
Devices and Wireless Microphones
28. The Commission seeks comment below on procedures for
identifying which channels and which specific areas it will use for
ensuring the availability of at least one vacant channel for use by
white space devices and wireless microphones.
Suitable Channels for Preservation
29. The Commission proposes to preserve the availability of UHF
channels in the range of Channel 21 and above for use by white space
devices and wireless microphones. Fixed white space devices may operate
only when both adjacent TV channels are vacant, meaning they need three
contiguous vacant channels to operate. However, personal/portable
devices may operate at locations where both adjacent TV channels are
occupied if their power does not exceed 40 milliwatts Under its
proposal, the channel preserved would not be the same nationwide or
even through a DMA, but instead would vary depending on the repacked
television operations in the UHF band in each area. In particular, the
Commission is not proposing to designate a particular TV channel in
each area for shared use after repacking. Rather, the procedures the
Commission proposes will ensure that at least one TV channel in each
area remains unused by broadcast or BAS licensees, and thereby is
preserved and available for shared use by white space devices and
wireless microphones.
30. Although white space devices and wireless microphones may
operate on any UHF-TV channel, under the current rules personal/
portable white space devices can operate only on Channels 21 and above.
In addition, the current rules prohibit fixed white space device
[[Page 38165]]
operation within the protected contour of an adjacent TV channel. In
the recent part 15 NPRM, the Commission proposed to permit personal/
portable white space devices to operate on Channels 14-20. In addition,
the Commission proposed to allow fixed white space devices to operate
within the protected contour of an adjacent TV channel if they use an
operating power of 40 milliwatts or less, thereby allowing fixed
devices to operate on more channels above and below channel 21. Should
the Commission adopt the proposals in the part 15 NPRM to expand
available frequencies for white space device operation, the Commission
would want the preservation of the last remaining channel to apply to
Channels 14 and above where white space devices and wireless
microphones may operate and the Commission seeks comment on this
alternative approach.
Demonstration of Compliance
31. In this section, the Commission proposes the procedures and
other details for the required demonstration that proposed operations
in the repacked UHF television band will not eliminate the last
available vacant UHF channel in an area for use by white space devices
and wireless microphones. These procedures would apply only to
applications for broadcast or BAS stations for those channels to which
the demonstration requirement applies as decided by the Commission in
this proceeding. In the case of applications for broadcast stations, a
party wishing to construct a new, displacement, or modified station on
one of these channels would generally follow the current procedures
used in planning and applying for a broadcast station. That is, the
party would perform a technical study based on the Commission's
requirements (e.g., separation from TV station contours) to determine
channel availability and the other operating parameters for the
proposed facility (e.g., transmitter location, effective radiated
power, antenna height and directionality). Once the proposed channel
and operating parameters are determined, the applicant would calculate
the service contour for a proposed TV or LPTV station facility based on
these parameters. In the case of BAS stations, the applicant would
determine its protected area in accordance with the requirements of
Sec. 15.712(c), instead of a service contour. White space devices
protect fixed BAS station receive sites by avoiding co-channel and
adjacent channel operation within keyhole-shaped exclusion zones. These
zones are defined by an arc of 30 degrees from a line
between the BAS receive site and its associated permanent transmitter
within a distance of 80 kilometers from the receive site for co-channel
operation and 20 kilometers for adjacent channel operation. Outside
this 30 degree arc, white space devices may not operate
within eight kilometers from the receive site for co-channel operation
and two kilometers from the receive site for adjacent channel
operation. Wireless microphones are not prohibited from operating in
these exclusion zones.
32. In addition to following the above-stated procedures under the
Commission's current rules, the Commission proposes that the applicant
perform an analysis and submit a showing with its application
demonstrating that white space devices and wireless microphones
operating within the same area as the proposed broadcast or BAS station
will have access to at least one channel throughout the applicant's
proposed protected service area, as described in more detail below,
although it need not be the same channel in all locations within that
area. Under current rules, white space devices and wireless microphones
must meet certain criteria to protect broadcast stations, other
authorized services, and certain receive sites in the TV bands, and
application of these rules defines the vacant channels in their
operating area that are available for their use. These rules form the
foundation of the proposed methodology the Commission describes in more
detail below that the applicant would use for making the vacant channel
determination.
Criteria for Determining Vacant Channel Availability at a Given
Location
33. The Commission proposes that vacant channel availability at a
given location be determined using the same criteria currently
specified in Commission rules for determining where wireless
microphones and white space devices can operate. Specifically, the
Commission proposes that a channel be considered available if it can
accommodate wireless microphones and 40 milliwatt personal/portable
devices operating in a manner that meets the Commission's existing
rules for protecting co-channel TV stations, other authorized services,
and certain receive sites in the TV bands. Pursuant to Sec. Sec.
15.712(a)(2) and 74.802(b)(1), 40 milliwatt personal/portable white
space devices and wireless microphones must meet the same protection
criteria with respect to protecting co-channel TV stations (four
kilometers outside of the station's protected contours). Personal/
portable white space devices operating at this power level can operate
within the service contours of adjacent channel TV stations, thus
allowing their operation at locations where there is only a single
available channel. Personal/portable devices and fixed devices with a
low antenna height (less than three meters height above average terrain
(HAAT)) must operate at least four kilometers outside the protected
contour of co-channel TV stations. Fixed devices operating with higher
antenna heights must comply with greater co-channel separation
distances, and all fixed devices, as well as personal/portable devices
operating at greater than 40 milliwatts, must comply with adjacent
channel separation distances as well. The requirement to comply with
adjacent channel separation distances means that all fixed devices and
personal/portable devices with a power level greater than 40 milliwatts
may operate only at locations where there are three contiguous vacant
TV channels, while personal/portable devices operating at 40 milliwatts
need only a single available channel. Specifically, the Commission
proposes that broadcast applicants required to make a vacant channel
demonstration must show that, at a minimum, 40 milliwatt personal/
portable white space devices and wireless microphones could operate
anywhere within the applicant's proposed protected area (i.e., after
accounting for the proposed broadcast or BAS operations, there is at
least one channel at all locations within the broadcast or BAS
station's proposed protected area that meets the protection criteria
for co-channel TV stations, other authorized services and certain
receive sites in the TV bands).
34. In the part 15 NPRM, the Commission proposed to reduce the
required separation distance between 40 milliwatt personal/portable
devices and co-channel TV service contours from four kilometers to 1.3
kilometers. The Commission also proposed to apply this separation
distance to 40 milliwatt fixed devices with an antenna HAAT of less
than three meters. It also sought comment on whether the Commission
should reduce the separation distance between wireless microphones and
co-channel TV service contours from four kilometers to 1.3 kilometers.
Should the Commission adopt these proposals, it seeks comment on
whether it should also reduce the size of the protection zone for co-
channel TV stations by the same amount when performing a vacant channel
demonstration.
35. In addition to protecting TV service, the part 15 rules require
that white space devices protect certain other services in the TV
bands,
[[Page 38166]]
including the PLMRS/CMRS, MVPD and low power TV receive sites, fixed
BAS links, and wireless microphone operations at specified times/
locations when registered in the databases. The protection distances
for wireless microphones are one kilometer from fixed white space
devices, and 400 meters from personal/portable white space devices.
Because wireless microphones and temporary BAS operations operate only
for limited periods of time at any given location, the Commission
believes that it is appropriate to exclude those stations registered in
the white spaces database from the vacant channel analysis. Thus, the
Commission proposes that broadcast applicants need not consider
wireless microphone operations or temporary BAS stations registered in
the white spaces database when determining if their proposed operations
preserve a channel for wireless microphone and white space devices.
36. The Commission also seeks comment on whether it should consider
white space devices other than 40 milliwatt personal/portable devices
in preserving a vacant channel. For example, should the Commission base
the analysis on preserving a vacant channel for fixed devices or higher
power (100 milliwatt) personal/portable devices as well? If so, what
fixed device HAATs should the Commission consider, and how would this
affect the availability of spectrum for broadcast and BAS stations,
since an analysis would have to consider adjacent channel spectrum use?
Methodology for Determining the Availability of a Vacant Channel in a
Particular Area
37. New and Displaced Broadcast Stations. The Commission proposes
that each applicant for a new or displaced TV or LPTV station required
to make a vacant channel demonstration must demonstrate that, within
its proposed protected area, at least one channel other than its
desired channel would be available for white space device and wireless
microphone use, as defined above. The same channel need not be
available in all locations within a station's proposed protected area.
This analysis must take into account the part 74 and part 15 criteria
that white space devices and wireless microphones must meet to protect
other co-channel broadcast and other services located close by, as
discussed above.
38. Under the Commission's proposed approach, applicants could use
the white spaces databases to determine whether at least one channel
would remain available for white space devices and wireless microphones
within a station's proposed protected area. The white spaces databases
are designed to provide lists of available channels that can be used by
a white space device at the device's specific geographic coordinates
(i.e., a single point). A white space device must contact a database to
obtain a list of available channels before transmitting and must
contact a database at least once per day thereafter to ensure that its
operating channel continues to remain available. The co-channel
television protection requirements for wireless microphones are the
same as for 40 milliwatt personal/portable white space devices, so a
channel that the white spaces database indicates as being available for
40 milliwatt personal/portable white space devices will also be
available for wireless microphones. Because the white space databases
provide lists of available channels for one point at a time rather than
over a defined area, the Commission is proposing a procedure that will
allow an applicant to determine channel availability over an area by
using channel lists for individual points within its proposed protected
area of operations.
39. Specifically, the Commission proposes that the availability of
channels for white space devices and wireless microphones be determined
by using the white spaces databases to analyze a single point within
each individual two-by-two kilometer cell of a grid that covers the
entire proposed protected area of operations. An example of a grid is
shown in Figure 1 below. The Commission proposes a two kilometer grid
size as a balance between minimizing the number of individual points
that must be analyzed and ensuring that the analysis is sufficiently
detailed so as not to miss locations where no vacant channel is
available. A larger grid size reduces the number of points that must be
analyzed, while a smaller grid size increases the number of points.
Also, a two kilometer grid size is consistent with the methodology the
Commission has used for evaluating TV coverage and interference. The
Commission notes, however, that in its 2004 Report and Order adopting
the digital rules for LPTV, TV translator and Class A stations, it
concluded that use of a 1 square kilometer grid resolution should be
the maximum permitted in evaluating the interference to Class A, LPTV
and TV translator facilities, whose smaller service area require a
finer grid resolution analysis. For the purpose of this analysis, the
Commission proposes that the TV station proposed protected area be
calculated in accordance with the methodology in Sec. Sec.
74.802(b)(1) and 15.712(a)(1)-(2) of the rules, since those sections
define the co-channel TV station operations that wireless microphones
and white space devices must protect. Wireless microphones and 40
milliwatt white space devices must operate at least four kilometers
outside the protected contour of co-channel television stations. In
addition, the Commission proposes that all cells that are within or
overlap any portion of the proposed protected area be analyzed for
white space device and wireless microphone channel availability, and
that the availability be calculated at a single point at the center of
each cell. In proposing to require analysis for only a single point in
each cell, the Commission recognizes that it is not computationally
practicable to evaluate white space device and wireless microphone
channel availability at every possible location in a cell. The
Commission also proposes that, as long as at least one channel would
remain available for white space devices and wireless microphones at
the center point of each cell requiring analysis, the applicant's
vacant channel demonstration would be satisfied.
40. Modifications to Existing Broadcast Stations. The Commission
proposes that an applicant required to make a vacant channel
demonstration that wishes to modify an existing broadcast station that
would result in a change to the station's protected area must
demonstrate that at least one channel would remain available for white
space devices and wireless microphones in those portions of the
proposed protected area that would extend beyond its existing protected
area. The Commission recognizes that there could be situations in which
there are no vacant channels for white space devices and wireless
microphones within portions of the station's existing protected area,
but the Commission is not proposing that the vacant channel
demonstration be applied to these areas. To do so could jeopardize the
station's ability to maintain service to the public within the existing
protected area, depending on channel availability within the area and
whether further station modifications would be needed.
41. The Commission proposes that an applicant requesting to modify
an existing broadcast station provide a showing of compliance, using
the methodology described above that is performed over the portions of
the proposed protected area that would extend beyond the existing
protected area. In this case, the channel availability analysis would
be performed on the station's proposed
[[Page 38167]]
protected area after excluding all cells that are within or overlap any
portion of the station's existing protected area. The Commission
further proposes that as long as at least one channel would remain
available for white space devices and wireless microphones at the
center point of each cell requiring analysis, the vacant channel
demonstration would be satisfied.
42. BAS stations. The Commission proposes that each applicant for a
new or displaced BAS station required to make a vacant channel
demonstration must demonstrate that, within the entire proposed
protected area, at least one channel other than the desired channel
would continue to be available for white space device and wireless
microphone use within that area. Wireless microphones are not required
to avoid the BAS receive site exclusion zones that white space devices
must avoid. Thus, a channel that is available for white space devices
would also be available for wireless microphones. An applicant could
demonstrate compliance with this requirement using the methodology
described above, except that the protected area for a BAS station would
be the exclusion zones defined in Sec. 15.712(c) rather than a service
contour plus four kilometers. Since Sec. 15.712(c) requires white
space devices to provide both co-channel and adjacent channel
protection to the BAS, the analysis must be performed on co- and
adjacent channels that fall within the range that the Commission
selects for channel preservation (e.g., channels 21 and above as
proposed above). For example, an applicant for a BAS station on channel
22 would have to perform analyses on channels 21, 22 and 23. An
applicant for a BAS station on channel 20 would have to perform an
analysis on only channel 21.
43. In the case of a modification of an existing BAS station, the
applicant could provide a showing of compliance performed over only the
portions of the proposed protected area that would extend beyond its
existing protected area, i.e., by excluding all cells that are within
or overlap any portion of the station's existing protected area. The
Commission further proposes that as long as at least one channel would
remain available for white space devices and wireless microphones at
the center point of each cell requiring analysis, the vacant channel
demonstration would be satisfied.
44. Appropriate Grid Size. The Commission seeks comment on the
appropriate grid size for the vacant channel demonstration. Is two
kilometers appropriate, or should the grid size be smaller or larger?
Should the Commission require that the grid be oriented with the lines
in north-south and east-west directions, or is there any need to
specify the orientation? Should the Commission require that the grid be
positioned so that the transmitter is at the intersection of two grid
lines, in the center of a cell, some other position, or is there no
need to specify such a requirement? At which point in a cell should the
available vacant channels be determined--the center of the cell, the
center of population, or some other point? What is the appropriate way
to determine channel availability in cells at the edge of the proposed
protected area where the center point of the cell is outside the
protected area? Should the channel availability be determined at a
point other than the center of such cells, and if so, which point? Does
there need to be a vacant channel available in every cell, or should
the Commission allow exclusion of certain cells, such as those in
unpopulated areas or over water, or those in which only a small
fraction of the area of a cell is encompassed within the edge of the
proposed protected area? Would the white space database administrators
have to make any changes to their systems as a result of the
Commission's proposed changes? Is there an alternative method for
analyzing wireless microphone and white space device channel
availability in order to determine whether a vacant channel for their
operation remains? Parties that wish to propose alternative methods
should describe them in detail and explain how they would be
practically implementable for broadcast applicants.
45. The Commission's proposed methodology is designed to make the
process of determining channel availability over an area simple for
broadcasters by limiting the analysis to a finite number of discrete
points and using the existing white spaces databases which are capable
of performing the necessary channel availability calculations at each
point. There are several ways that a broadcaster could demonstrate
compliance with the proposed requirement. For example, an applicant
could perform the analysis by plotting the protected area on a grid and
accessing one of the white space databases to determine channel
availability at the center point of each cell where a vacant channel
determination is required. Alternatively, a white space database
administrator could perform an entire analysis and charge a reasonable
fee for its services.
46. Finally, recognizing that channel availability is dynamic and
can change day-to-day, the Commission proposes that broadcast
applicants make a vacant channel demonstration only once--as of the
date of the filing of their application, and as discussed in paragraph
35 above. In addition, the analysis needs to consider only long-term
restrictions on unlicensed use and not wireless microphone or temporary
BAS installations. The Commission believes this proposal is appropriate
given that broadcast applications are, for the most part, protected
from interference from subsequently-filed applications (``cut-off'') on
the day they are filed. The Commission notes, however, that
applications filed during the post-incentive auction displacement
window will be considered as filed on the last day of the window. In
Section III.A. supra, the Commission seeks comment on procedures for
resolving mutually exclusive displacement applications filed by two or
more stations that together would eliminate the sole remaining vacant
channel in an area. The Commission seeks comment on this proposal.
Initial Regulatory Flexibility Act Analysis
47. As required by the Regulatory Flexibility Act of 1980, as
amended (``RFA'') \1\ the Commission has prepared this present Initial
Regulatory Flexibility Analysis (``IRFA'') concerning the possible
significant economic impact on small entities by the policies and rules
proposed in this NPRM of Proposed Rulemaking (NPRM). Written public
comments are requested on this IRFA. Comments must be identified as
responses to the IRFA and must be filed by the deadlines for comments
indicated in the DATES section of the NPRM. The Commission will send a
copy of the NPRM, including this IRFA, to the Chief Counsel for
Advocacy of the Small Business Administration (``SBA'').\2\ In
addition, the NPRM and IRFA (or summaries thereof) will be published in
the Federal Register.\3\
---------------------------------------------------------------------------
\1\ See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601 et seq., has
been amended by the Small Business Regulatory Enforcement Fairness
Act of 1996 (``SBREFA''), Pub. L. 104-121, Title II, 110 Stat. 847
(1996). The SBREFA was enacted as Title II of the Contract with
America Advancement Act of 1996 (``CWAAA'').
\2\ See 5 U.S.C. 603(a).
\3\ Id.
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Need for and Objectives of the Proposed Rules
48. On June 2, 2014, the Commission released its Incentive Auction
Report and Order, 29 FCC Rcd 6567 (2014), 79 FR 48442, August 15, 2014,
adopting rules to implement the broadcast
[[Page 38168]]
television spectrum incentive auction authorized by the Middle Class
Tax Relief and Job Creation Act (Spectrum Act). The Commission
recognized that following the incentive auction and repacking of the
television band there would likely be fewer unused television channels
available for use by either unlicensed ``white space'' devices or by
wireless microphones and other low power auxiliary stations
(collectively ``wireless microphones''). However, the Commission
anticipated that there would be at least one channel in the ultra-high
frequency (``UHF'') band in all areas in the United States that is not
assigned to a television station in the repacking process and, given
the importance of white space devices and wireless microphones to
businesses and consumers, stated its intent, after additional notice
and an opportunity to comment, to preserve one television channel in
each area for shared use by these devices.
49. In this NPRM, the Commission tentatively concludes to preserve
a vacant channel in each area. Specifically, the Commission seeks
comment on which applicants proposing operations in the repacked UHF
television band should be required to demonstrate that a new,
displacement, or modified facility would not eliminate the last
available vacant television channel in an area for shared use and when
this technical showing requirement should commence. In order to achieve
this objective, the Commission proposes to require certain applicants
for LPTV, TV translator, and Broadcast Auxiliary Service (``BAS'')
facilities to demonstrate that their proposed new, displacement, or
modified facility would not eliminate the last available vacant UHF
television channel for use by white space devices and wireless
microphones in an area.
50. The Commission believes that its proposal will not
significantly burden broadcast applicants in terms of either the
continued availability of channels in all areas or the administrative
burdens of compliance. After the final channel assignments are made
following the incentive auction, multiple vacant channels will exist in
most areas as a result of the co- and adjacent-channel separation
requirements necessary to protect primary broadcast stations from
interference from each other. The 100 repacking simulation results
previously published by Commission staff show that the areas
encompassing the vast majority of population across the country would
have at least two vacant channels available. In any event, the effect
of the proposal would be to reduce by only one the total number of
vacant channels that would otherwise be available in an area.
Therefore, the impact on broadcast applicants, including LPTV, TV
translator and BAS stations, in terms of the availability of channels
for future use, will be limited because multiple vacant channels will
still exist in all or most areas as a consequence of the need to avoid
interference between primary broadcast stations in the Incentive
Auction final channel assignment process. In addition, the proposed
plan involves a streamlined method for broadcast applicants to
determine quickly the impact that facilities they intend to propose
will have on the continued availability of vacant channels. Although
small entity LPTV, TV translator and BAS stations may experience an
increased burden, the Commission believes that adoption of the vacant
channel preservation requirement will greatly benefit white space and
wireless microphone users as well as the manufacturers of white space
and wireless microphone equipment, which are also small businesses, by
creating new uses and opportunities for this spectrum. The Commission
also believes that this prioritization and protection of white space is
critical if it is to realize the benefits that this spectrum will
provide to small businesses and developers that will usher forth new
and unthought-of uses. We also note that, in a separate proceeding, the
Commission is considering additional proposals to mitigate the
potential impact of the incentive auction and the repacking process on
LPTV and TV translator stations and to help preserve the important
services they provide. See Amendment of Parts 73 and 74 of the
Commission's Rules to Establish Rules for Digital Low Power Television,
Television Translator, and Television Booster Stations, MB Docket No.
03-185, Third Notice of Proposed Rulemaking, 29 FCC Rcd 12536 (2014),
79 FR 70824, November 28, 2014.
51. The Commission also seeks comment on how to identify vacant
television channels (i.e., ``white spaces'') available for use by white
space devices and wireless microphones, the definition of the ``area''
that would be considered for this purpose, and what kind of system it
should establish for applicants to use to determine whether their
proposed facility would eliminate the last available vacant channel in
an area.
Legal Basis
52. The authority for the action proposed in this rulemaking is
contained in sections 1, 4, 7, 301, 303, 307, 308, 309, 310, 316, 319,
332, 336, and 403 of the Communications Act of 1934, 47 U.S.C 151, 154,
157, 301, 303, 307, 308, 309, 310, 316, 319, 332, 336, and 403.
Description and Estimate of the Number of Small Entities to Which the
Proposed Rules Will Apply
53. The RFA directs the Commission to provide a description of and,
where feasible, an estimate of the number of small entities that will
be affected by the proposed rules, if adopted.\4\ The RFA generally
defines the term ``small entity'' as having the same meaning as the
terms ``small business,'' small organization,'' and ``small government
jurisdiction.'' \5\ In addition, the term ``small business'' has the
same meaning as the term ``small business concern'' under the Small
Business Act.\6\ 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
SBA.\7\
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\4\ Id. at section 603(b)(3).
\5\ 5 U.S.C. 601(6).
\6\ Id. at section 601(3) (incorporating by reference the
definition of ``small business concern'' in 15 U.S.C. 632). Pursuant
to 5 U.S.C. 601(3), the statutory definition of a small business
applies ``unless an agency, after consultation with the Office of
Advocacy of the Small Business Administration and after opportunity
for public comment, establishes one or more definitions of such term
which are appropriate to the activities of the agency and publishes
such definition(s) in the Federal Register.'' 5 U.S.C. 601(3).
\7\ 15 U.S.C. 632. Application of the statutory criteria of
dominance in its field of operation and independence are sometimes
difficult to apply in the context of broadcast television.
Accordingly, the Commission's statistical account of television
stations may be over-inclusive.
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54. Small Businesses, Small Organizations, and Small Governmental
Jurisdictions. Our action may, over time, affect small entities that
are not easily categorized at present. We therefore describe here, at
the outset, three comprehensive, statutory small entity size
standards.\8\ First, nationwide, there are a total of 28.2 million
small businesses, according to the SBA.\9\ In addition, a ``small
organization'' is generally ``any not-for-profit enterprise which is
independently owned and operated and is not dominant in its field.''
\10\ Nationwide, as of 2012, there were approximately 2,300,000 small
organizations.\11\ Finally, the term ``small
[[Page 38169]]
governmental jurisdiction'' is defined generally as ``governments of
cities, towns, townships, villages, school districts, or special
districts, with a population of less than fifty thousand.'' \12\ Census
Bureau data for 2012 indicate that there were 90,056 local governments
in the United States.\13\ Thus, we estimate that most governmental
jurisdictions are small.
---------------------------------------------------------------------------
\8\ See 5 U.S.C. 601(3)-(6).
\9\ See SBA, Office of Advocacy, ``Frequently Asked Questions,''
https://www.sba.gov/sites/default/files/FAQ_March_2014_0.pdf (last
visited May 2, 2014; figures are from 2011).
\10\ 5 U.S.C. 601(4).
\11\ National Center for Charitable Statistics, The Nonprofit
Almanac (2012).
\12\ 5 U.S.C. 601(5).
\13\ U.S. Census Bureau, Government Organization Summary Report:
2012 (rel. Sep. 26, 2013), https://www2.census.gov/govs/cog/g12_org.pdf (last visited June 11, 2015).
---------------------------------------------------------------------------
55. Television Broadcasting. This economic census category
``comprises establishments primarily engaged in broadcasting images
together with sound. These establishments operate television
broadcasting studios and facilities for the programming and
transmission of programs to the public.'' \14\ The SBA has created the
following small business size standard for Television Broadcasting
firms: Those having $14 million or less in annual receipts.\15\ The
Commission has estimated the number of licensed commercial television
stations to be 1,390.\16\ In addition, according to Commission staff
review of the BIA Advisory Services, LLC's Media Access Pro Television
Database on March 28, 2012, about 950 of an estimated 1,300 commercial
television stations (or approximately 73 percent) had revenues of $14
million or less.\17\ We therefore estimate that the majority of
commercial television broadcasters are small entities.
---------------------------------------------------------------------------
\14\ U.S. Census Bureau, 2012 NAICS Definitions: 515120
Television Broadcasting, https://www.census.gov/cgi-bin/sssd/naics/naicsrch?code=515120&search=2012https://www.census.gov/cgi-bin/sssd/naics/naicsrch?code=515120&search=2012https://www.census.gov/cgi-bin/sssd/naics/naicsrch?code=515120&search=2012 (last visited June 11,
2015).
\15\ 13 CFR 121.201 (NAICS code 515120) (updated for inflation
in 2010).
\16\ See FCC News Release, Broadcast Station Totals as of March
31, 2015 (rel. April 8, 2015), available at: https://www.fcc.gov/document/broadcast-station-totals-march-31-2015.
\17\ We recognize that BIA's estimate differs slightly from the
FCC total given the information provided above.
---------------------------------------------------------------------------
56. We note, however, that in assessing whether a business concern
qualifies as small under the above definition, business (control)
affiliations must be included.\18\ Our estimate, therefore, likely
overstates the number of small entities that might be affected by our
action because the revenue figure on which it is based does not include
or aggregate revenues from affiliated companies. In addition, an
element of the definition of ``small business'' is that the entity not
be dominant in its field of operation. We are unable at this time to
define or quantify the criteria that would establish whether a specific
television station is dominant in its field of operation. Accordingly,
the estimate of small businesses to which rules may apply does not
exclude any television station from the definition of a small business
on this basis and is therefore possibly over-inclusive to that extent.
---------------------------------------------------------------------------
\18\ ``[Business concerns] are affiliates of each other when one
concern controls or has the power to control the other, or a third
party or parties controls or has the power to control both.'' 13 CFR
121.103(a)(1).
---------------------------------------------------------------------------
57. In addition, the Commission has estimated the number of
licensed noncommercial educational (``NCE'') television stations to be
395.\19\ These stations are non-profit, and therefore considered to be
small entities.\20\
---------------------------------------------------------------------------
\19\ See FCC News Release, Broadcast Station Totals as of March
31, 2015 (rel. April 8, 2015).
\20\ See generally 5 U.S.C. 601(4), (6).
---------------------------------------------------------------------------
58. The Commission has estimated that there are also 405 Class A
stations, 1,939 LPTV stations and 3,689 TV translator stations.\21\
Given the nature of these services, we will presume that all of these
entities qualify as small entities under the above SBA small business
size standard.
---------------------------------------------------------------------------
\21\ See FCC News Release, Broadcast Station Totals as of March
31, 2015 (rel. April 8, 2015).
---------------------------------------------------------------------------
59. LPAS Licensees. There are a total of more than 1,200 Low Power
Auxiliary Station (LPAS) licenses in all bands and a total of over 600
LPAS licenses in the UHF spectrum.\22\ Existing LPAS operations are
intended for uses such as wireless microphones, cue and control
communications, and synchronization of TV camera signals. These low
power auxiliary stations transmit over distances of approximately 100
meters.\23\
---------------------------------------------------------------------------
\22\ FCC, Universal Licensing System (ULS), available at https://wireless.fcc.gov/uls/index.htm?job=home (last visited June 11,
2015).
\23\ 47 CFR 74.801.
---------------------------------------------------------------------------
60. Low Power Auxiliary Device Manufacturers: Radio and Television
Broadcasting and Wireless Communications Equipment Manufacturing. The
Census Bureau defines this category as follows: ``This industry
comprises establishments primarily engaged in manufacturing radio and
television broadcast and wireless communications equipment. Examples of
products made by these establishments are: Transmitting and receiving
antennas, cable television equipment, GPS equipment, pagers, cellular
phones, mobile communications equipment, and radio and television
studio and broadcasting equipment.'' \24\ The SBA has developed a small
business size standard for Radio and Television Broadcasting and
Wireless Communications Equipment Manufacturing, which is: All such
firms having 750 or fewer employees.\25\ According to Census Bureau
data for 2007, there were a total of 939 establishments in this
category that operated for the entire year.\26\ Of this total, 912
establishments had employment of less than 500, and an additional 10
establishments had employment of 500 to 999.\27\ Thus, under this size
standard, the majority of firms can be considered small.
---------------------------------------------------------------------------
\24\ U.S. Census Bureau, 2012 NAICS Definitions: 334220 Radio
and Television Broadcasting and Wireless Communications Equipment
Manufacturing, https://www.census.gov/cgi-bin/sssd/naics/naicsrch?code=334220&search=2012 (last visited May 6, 2014).
\25\ 13 CFR 121.201, NAICS code 334220.
\26\ U.S. Census Bureau, Table No. EC0731SG3, Manufacturing:
Summary Series: General Summary: Industry Statistics for Subsectors
and Industries by Employment Size: 2007 (NAICS code 334220), https://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2007_US_31SG3. The number of
``establishments'' is a less helpful indicator of small business
prevalence in this context than would be the number of ``firms'' or
``companies,'' because the latter take into account the concept of
common ownership or control. Any single physical location for an
entity is an establishment, even though that location may be owned
by a different establishment. Thus, the numbers given may reflect
inflated numbers of businesses in this category, including the
numbers of small businesses.
\27\ Id. An additional 17 establishments had employment of 1,000
or more.
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61. Low Power Auxiliary Device Manufacturers: Other Communications
Equipment Manufacturing. The Census Bureau defines this category as
follows: ``This industry comprises establishments primarily engaged in
manufacturing communications equipment (except telephone apparatus, and
radio and television broadcast, and wireless communications
equipment).'' \28\ The SBA has developed a small business size standard
for Other Communications Equipment Manufacturing, which is: All such
firms having 750 or fewer employees.\29\ According to Census Bureau
data for 2007, there were a total of 452 establishments in this
category that operated for the entire year.\30\ Of this
[[Page 38170]]
total, 448 establishments had employment below 500, and an additional 4
establishments had employment of 500 to 999.\31\ Thus, under this size
standard, the majority of firms can be considered small.
---------------------------------------------------------------------------
\28\ U.S. Census Bureau, 2012 NAICS Definitions: 334290 Other
Communications Equipment Manufacturing, https://www.census.gov/cgi-bin/sssd/naics/naicsrch?code=334290&search=2012 (last visited May 6,
2014).
\29\ 13 CFR 121.201, NAICS code 334290.
\30\ U.S. Census Bureau, Table No. EC0731SG3, Manufacturing:
Summary Series: General Summary: Industry Statistics for Subsectors
and Industries by Employment Size: 2007 (NAICS code 334290), https://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2007_US_31SG3&prodType=table (last visited
May 6, 2014). The number of ``establishments'' is a less helpful
indicator of small business prevalence in this context than would be
the number of ``firms'' or ``companies,'' because the latter take
into account the concept of common ownership or control. Any single
physical location for an entity is an establishment, even though
that location may be owned by a different establishment. Thus, the
numbers given may reflect inflated numbers of businesses in this
category, including the numbers of small businesses.
\31\ Id. There were no establishments that had employment of
1,000 or more.
---------------------------------------------------------------------------
62. Radio and Television Broadcasting and Wireless Communications
Equipment Manufacturing. The Census Bureau defines this category as
follows: ``This industry comprises establishments primarily engaged in
manufacturing radio and television broadcast and wireless
communications equipment. Examples of products made by these
establishments are: Transmitting and receiving antennas, cable
television equipment, GPS equipment, pagers, cellular phones, mobile
communications equipment, and radio and television studio and
broadcasting equipment.'' \32\ The SBA has developed a small business
size standard for Radio and Television Broadcasting and Wireless
Communications Equipment Manufacturing, which is: All such firms having
750 or fewer employees. According to Census Bureau data for 2007, there
were a total of 939 establishments in this category that operated for
part or all of the entire year. Of this total, 912 had less than 500
employees and 17 had more than 1000 employees.\33\ Thus, under that
size standard, the majority of firms can be considered small.
---------------------------------------------------------------------------
\32\ The NAICS Code for this service 334220. See 13 CFR 121/201.
See also https://factfinder.census.gov/servlet/IBQTable?_bm=y&-fds_name=EC0700A1&-geo_id=&-_skip=300&-ds_name=EC0731SG2&-_lang=en.
\33\ See https://factfinder.census.gov/servlet/IBQTable?_bm=y&-geo_id=&-fds_name=EC0700A1&-_skip=4500&-ds_name=EC0731SG3&-_lang=en.
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Description of Projected Reporting, Recordkeeping and Other Compliance
Requirements
63. The NPRM proposes the following new or revised reporting or
recordkeeping requirements. The Commission proposes procedures that a
broadcast applicant must use to satisfy the vacant channel
demonstration requirement. These procedures would apply only to
applications for broadcast and BAS stations by those entities and on
those channels as decided by the Commission in this proceeding. A party
wishing to construct a new, displacement, or modified broadcast station
on one of these channels would generally follow the current procedures
used in planning and applying for a broadcast station. That is, the
party would perform a technical study based on the Commission's
requirements (e.g., separation from TV station contours) to determine
channel availability and the other operating parameters for the
proposed station (e.g., transmitter location, effective radiated power,
antenna height and directionality). Once the proposed channel and
operating parameters are determined, the applicant would calculate the
service contour for the proposed station based on these parameters. In
the case of BAS stations, the applicant would determine its protected
area in accordance with the requirements of Sec. 15.712(c). The
applicant would then be required to perform an analysis and submit a
showing with its application demonstrating that white space devices and
wireless microphones operating within the same area as the proposed
broadcast or BAS station will have access to at least one channel,
although it need not be the same channel in all locations.
Steps Taken To Minimize Significant Impact on Small Entities, and
Significant Alternatives Considered
64. The RFA requires an agency to describe any significant
alternatives that it has considered in reaching its proposed approach,
which may include the following four alternatives (among others): (1)
The establishment of differing compliance or reporting requirements or
timetables that take into account the resources available to small
entities; (2) the clarification, consolidation, or simplification of
compliance or reporting requirements under the rule for small entities;
(3) the use of performance, rather than design, standards; and (4) an
exemption from coverage of the rule, or any part thereof, for small
entities.\34\
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\34\ 5 U.S.C. 603(c)(1)-(c)(4).
---------------------------------------------------------------------------
65. The Commission believes that its proposal will not
significantly burden small entities in terms of either the continued
availability of channels in all areas or the administrative burdens of
compliance. After the final channel assignments are made following the
incentive auction, multiple vacant channels will exist in most areas as
a result of the co- and adjacent-channel separation requirements
necessary to protect primary broadcast stations from interference from
each other. The 100 repacking simulation results previously published
by Commission staff show that the areas encompassing the vast majority
of population across the country would have at least two vacant
channels available. In any event, the effect of the proposal would be
to reduce by only one the total number of vacant channels that would
otherwise be available in an area. Therefore, the impact on small
entities, in terms of the availability of channels for future use, will
be limited because multiple vacant channels will still exist in all or
most markets as a consequence of the need to avoid interference between
primary broadcast stations in the Incentive Auction final channel
assignment process. In addition, the proposed plan involves a
streamlined method for broadcast applicants to determine quickly the
impact that facilities they intend to propose will have on the
continued availability of vacant channels. Although small entities may
experience an increased burden, the Commission believes that adoption
of the vacant channel preservation requirement will greatly benefit
white space and wireless microphone users as well as the manufacturer
of white space and wireless microphone equipment that are also small
businesses by creating new uses and opportunity for this spectrum. The
Commission also believes that this prioritization and protection of
white space is critical if it is to realize the benefits that this
spectrum will provide to small businesses and developers that will
usher forth new and unthought-of uses.
66. In addition, the Commission has initiated a proceeding seeking
comment on the adoption of rules to permit LPTV and TV translator
stations to share channels. If adopted, channel sharing would help
displaced LPTV and TV translators that experience difficulty in finding
new channels following the incentive auction and repacking by allowing
them to share channels in markets with limited vacant channels.
Further, the Commission has proposed to utilize its incentive auction
optimization software to help identify available channels post-auction
for displaced LPTV and TV translator stations. Finally, the Commission
and its staff continue outreach to LPTV and TV translator stations to
educate them on the possible impact of the incentive auction and
repacking as well as this vacant channel proceedings and to continue to
gather comment and input from these affected industries.
Federal Rules Which Duplicate, Overlap, or Conflict With the
Commission's Proposals
67. None.
[[Page 38171]]
List of Subjects for 47 CFR Parts 73 and 74
Reporting and recordkeeping requirements, Television.
Federal Communications Commission.
Sheryl D. Todd,
Deputy Secretary.
For the reasons discussed in the preamble, the Federal
Communications Commission proposes to amend 47 CFR parts 73 and 74 as
follows:
PART 73--RADIO BROADCAST SERVICES
0
1. The authority citation for part 73 continues to read as follows:
Authority: 47 U.S.C. 154, 303, 334, 336, and 339.
0
2. Section 73.3572 is revised by adding paragraph (i) to read as
follows:
Sec. 73.3572 Processing of TV broadcast, Class A TV broadcast, low
power TV, TV translators, and TV booster applications.
* * * * *
(i) Vacant channel demonstration. (1) Applicability. The provisions
of this paragraph (i) shall apply to:
(i) All applications filed by low power television, TV translator,
and Broadcast Auxiliary Service (BAS) stations for new, displacement,
or modified facilities filed on or after release of the Channel
Reassignment Public Notice issued pursuant to Sec. 73.3700(a)(2); and
(ii) Applications for modified Class A television station
facilities filed more than 39 months after release of the Channel
Reassignment Public Notice issued pursuant to Sec. 73.3700(a)(2).
(2) Required showing. (i) Applicants subject to this provision
shall include a showing with their application demonstrating that grant
of the application will not eliminate the last remaining vacant channel
in their entire proposed protected area (in the case of applications
for new or displacement facilities) or expanded proposed protected area
(in the case of modified facilities).
(ii) Applicants shall determine the availability of a vacant
channel as of the date of the filing of their application.
(iii) Vacant channel availability for purposes of the required
showing shall be determined using the criteria set forth in Sec. Sec.
74.802(b)(1) and 15.712(a)(2) of this chapter. Applicants must show
that, at a minimum, 40 milliwatt personal/portable white space devices
and wireless microphones can operate anywhere within the entire or
expanded proposed protected area. Wireless microphones and temporary
BAS operations registered in the white space database shall not be
considered when determining whether a proposed operation eliminates the
last remaining vacant channel. The availability of channels shall be
determined by analyzing individual two by two kilometer cells of a grid
that covers the entire or expanded proposed protected area of
operations. The protected area for broadcast stations shall be the area
defined by adding four kilometers to the contour calculated in
accordance with the methodology in Sec. Sec. 74.802(b)(1) and
15.712(a)(1) of this chapter. The protected area for BAS stations shall
be the area defined by Sec. 15.712(c) of this chapter. All cells that
are within or overlap any portion of the entire or expanded proposed
protected areas of operations shall be analyzed for vacant channel
availability, and the availability shall be calculated at a single
point at the center of each cell. The required showing shall be
satisfied as long as at least one vacant channel remains available at
the center point of each cell requiring analysis.
(iv) For purposes of the required showing, applicants shall
consider only UHF channels in the range of 21 and above.
PART 74--EXPERIMENTAL RADIO, AUXILIARY, SPECIAL BROADCAST AND OTHER
PROGRAM DISTRIBUTIONAL SERVICES
0
3. The authority citation for part 74 continues to read as follows:
Authority: 47 U.S.C. 154, 302a, 303, 307, 309, 336 and 554.
0
4. Section 74.632 is revised by adding paragraph (h) to read as
follows:
Sec. 74.632 Licensing requirements.
* * * * *
(h) The provisions of Sec. 73.3572(i) of the rules shall apply to
all applications filed under this rule.
0
5. Section 74.787 is revised by adding paragraph (d) to read as
follows:
Sec. 74.787 Digital licensing.
* * * * *
(d) The provisions of Sec. 73.3572(i) of the rules shall apply to
all applications filed under this rule.
[FR Doc. 2015-15758 Filed 7-1-15; 8:45 am]
BILLING CODE 6712-01-P