**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of: )

)

Satellite Delivery of Network Signals ) CS Docket No. 98-201

to Unserved Households for ) RM No. 9335

Purposes of the Satellite Home ) RM No. 9345

Viewer Act )

)

Part 73 Definition and Measurement )

of Signals of Grade B Intensity )

**REPORT AND ORDER**

**Adopted: February 1, 1999 Released: February 2, 1999**

By the Commission:Chairman Kennard and Commissioner Ness issuing a joint
statement; and Commissioner Furchtgott-Roth dissenting in part and
issuing a statement.

**TABLE OF CONTENTS**

**Paragraph**

I.INTRODUCTION 1

A.The Satellite Home Viewer Act 9

B.Grade B Contours and Signal Intensity 13

C.The PrimeTime 24 Lawsuits 16

D.The NRTC and EchoStar Petitions 22

II.ANALYSIS 23

A.The Commission\'s Role and Responsibility Under the SHVA24

B.Defining a Signal of Grade B Intensity32

C.Measuring Television Signal Intensity at Individual Locations45

D.Predicting Television Signal Intensity at Individual Locations61

E. Loser Pays 89

III.FUTURE OPTIONS 93

IV\. PROCEDURAL MATTERS 98

Appendix A:Regulatory Flexibility Act Analysis

Appendix B:Measurement Rule

Appendix C: List of Commenters

**I. INTRODUCTION**

In this proceeding, we address an issue involving the television
broadcast industry, the direct-to-home satellite industry, and consumers
who subscribe to satellite carriers for their video programming. Over
nine million households subscribe to satellite carriers, and roughly one
third of these subscribers pay an additional subscription fee to receive
broadcast network programming via satellite.[^1] Broadcasters contend
that many of these broadcast network subscribers, as well as many
potential subscribers, are not eligible under the 1988 Satellite Home
Viewer Act (\"SHVA\") to receive such programming using their home
satellite service.

The broadcast television industry has the right, through the Copyright
Act and private contracts, to control the distribution of the national
and local programming that it transmits. In 1988, Congress adopted the
SHVA as an amendment to the Copyright Act in order to protect the
broadcasters\' interests while simultaneously enabling satellite
carriers to provide broadcast programming to those satellite subscribers
who are unable to obtain broadcast network programming over-the-air.[^2]
Congress considered these subscribers to be \"unserved\" by their local
stations.[^3] A Miami federal district court has recently acted to
enforce this law by issuing two nationwide injunctions requiring the
satellite carriers to terminate network service to as many as 1 million
subscribers by February 28, 1999 and to more than 1 million additional
subscribers by April 30, 1999.[^4] Many satellite subscribers have
contacted the Commission to express concern over this imminent
termination of service and have asked for the Commission\'s assistance
to reduce the impact of the court\'s injunctions. The broadcast industry
has urged the Commission not to take any action that will undermine the
court\'s decision or harm broadcasters and, consequently, the viewers
who rely on local broadcast stations. Two satellite carriers, the
National Rural Telecommunications Cooperative (\"NRTC\") and EchoStar
Communications Corporation (\"EchoStar\"), filed petitions for
rulemaking with the Commission asking us to amend our rules to help
those subscribers who face termination.[^5]

In response, the Commission issued a *Notice of Proposed Rule Making*
(\"*NPRM*\") on November 17, 1998, and announced that it expected to
complete this rulemaking before the first wave of satellite subscribers
have their network programming via satellite terminated at the end of
February, 1999.[^6] As we stated in the *NPRM*, the Commission\'s
statutory authority under the SHVA is limited so that, regardless of
action by the Commission, most of the satellite subscribers affected by
the injunction are likely to have their satellite-delivered network
programming discontinued. The court has determined that the vast
majority of subscribers are not within the scope of Congress\' copyright
authorization because they are able to receive broadcast network
programming over-the-air.

The Commission\'s role in this matter originates in a provision in the
SHVA that links the definition of \"unserved households\" to a
Commission definition of television signal strength known as \"Grade B
intensity.\" The critical question under the SHVA and in this rulemaking
is whether a household is able to receive a television signal of this
strength.

Our goal in this rulemaking is to identify more accurately, and
consistent with the SHVA, those consumers who can and cannot receive
their local broadcast network stations over-the-air. As noted above, we
believe that our actions advance this goal, but cannot satisfy every
consumer who wants to receive broadcast network stations via satellite.
Congress has granted the Commission only limited authority to act in
this area. We have also sought to promote competition among multichannel
video programming distributors, to the extent possible under the SHVA,
and we have considered the role that local broadcasters play in their
communities. Increasing competition among MVPDs was not an express goal
of Congress in enacting the SHVA however. Several members of Congress,
however, have recently suggested that changes to the statute could help
open markets and provide consumers with more choices.[^7] Through
hundreds of e-mails, letters, and phone calls, consumers have expressed
frustration at being unable to choose a satellite service that provides
broadcast network stations, although it is unclear how many of these
consumers do receive terrestrially delivered broadcast signals of Grade
B intensity.

To give the satellite industry, broadcast industry, and consumers a
uniform method for determining the signal strength a household actually
receives, the Commission in this *Order* adopts a method for measuring
Grade B signal strength at individual households. The measurement rule
will become effective upon publication in the Federal Register.[^8] We
expect that this rule will provide the uniformity and certainty needed
to eliminate many of the controversies that currently surround
compliance with the SHVA. We believe, consistent with what commenters on
all sides of this issue have requested, that the measurement methodology
is practical, reasonably accurate, and relatively inexpensive.

In this *Order* the Commission also endorses a computer model to predict
whether a household is likely to be able to receive a signal of the
required strength. Although the Commission does not have the authority
to mandate use of this model in connection with the SHVA, we believe our
recommendation will give the industries and consumers a means of
determining eligibility for satellite-delivered network service that
minimizes the need for on-site testing. The predictive model is familiar
to the broadcast and satellite industries and is publicly available for
use at this time. It should provide a degree of dependability and
assurance that will alleviate some of the confusion and cost that has
contributed to consumer dissatisfaction.

This *Order*, therefore, addresses three major issues. First, we
consider whether we can and should change the definition of a signal of
Grade B intensity. We decline to do so in this proceeding. Second, we
consider and adopt a standardized method for measuring the strength of
television signals at individual locations. Third, we consider endorsing
a method for predicting the strength of television signals at individual
locations that could be used in place of actually taking measurements.
The prediction method that we endorse could be used to create an
accurate evidentiary presumption of acceptable television service or
lack of service. Importantly, the effect of this *Order* is not to
increase the number of unserved households that already exist, nor to
reduce the size of local stations\' markets by subtracting viewers who
are able to receive their signal. Rather, we have developed measurement
and prediction tools that more accurately identify those households that
are truly unserved within the meaning of the SHVA.

**A.The Satellite Home Viewer Act**

In the SHVA, Congress created a limited exception to the exclusive
programming copyrights enjoyed by television networks and their
affiliates because it recognized that some households were unable to
receive network station signals directly over the air.[^9] The exception
is a narrow compulsory copyright license that direct-to-home (DTH)
satellite video carriers[^10] may use to provide certain television
network stations[^11] to subscribers who live in \"unserved
households.\"[^12] The SHVA was originally adopted in 1988 to cover
satellite service via C-Band before \"direct broadcast satellite\"
(\"DBS\") existed.[^13] Congress amended the SHVA in 1994 when DBS was
just reaching the market. After DBS was introduced in mid-1994, it
gained 6.5 million subscribers in the first 32 months.[^14] Currently,
direct-to-home (\"DTH\") satellite services, which include C-Band, DBS,
and medium power Ku-band services, have more than nine million
subscribers.[^15] The success of the DBS industry benefits consumers by
providing greater choice among multi-channel video programming
distributors (\"MVPD\"). However, as the number of satellite subscribers
has increased, so has the tension that is inherent in the SHVA regarding
those who are eligible to receive network programming via satellite and
those who are not.

The term \"unserved household,\" as relevant here, is defined by SHVA as
a household that:

119(d)(10)(A) cannot receive, through the use of a conventional outdoor
rooftop receiving antenna, an over‑the‑air signal of grade B intensity
(as defined by the Federal Communications Commission) of a primary
network station affiliated with that network.[^16]

As the law currently stands, satellite carriers may not generally
deliver broadcast network signals to their subscribers via satellite.
The SHVA is enforced through private actions filed with the federal
court system. In such actions, the satellite carrier has the burden of
proving \"that its secondary transmission of a primary transmission by a
network station is for private home viewing to an unserved
household.\"[^17]

The Satellite Home Viewer Act limits the compulsory copyright license to
\"unserved\" households, reflecting Congress\' intent to protect the
role of local broadcasters in providing free, over-the-air television to
American families.[^18] Localism has been a central principle of
broadcast policy since the Radio Act of 1927. Broadcasters must serve
their communities by providing programming (*e.g.,* news, weather, and
public affairs) to meet the needs and interests of those
communities.[^19] Congress was concerned that without some copyright
protection, the economic viability of those local stations affiliated
with national networks might be jeopardized, thus undermining one source
of local information.[^20]

The SHVA has two purposes: (1) to make broadcast network programming via
satellite available to those households beyond the reach of a local
affiliate, and (2) to protect the integrity of the copyrights that make
possible the existing free, over-the-air national network/local
affiliate broadcast distribution system.[^21] This *Order* addresses,
within the boundaries of the Commission\'s authority, the conflicts that
arise between these dual purposes.

**B.Grade B Contours and Signal Intensity**

The Grade B signal intensity standard, which is the key to the SHVA\'s
definition of \"unserved households\" in Section 119(d)(10)(A), is a
Commission-defined measure of the strength of a given television
station\'s over-the-air signal.[^22] This standard was developed in the
early days of television as a key component of the Commission\'s channel
allotment protocol.[^23] Generally, if a household receives a television
signal of Grade B intensity, it should receive an acceptable television
picture at least 90% of the time.[^24] More specifically, Grade B
represents a field strength that is strong enough, in the absence of
man-made noise or interference from other stations, to provide a
television picture that the median observer would classify as
\"acceptable\" using a receiving installation (antenna, transmission
line, and receiver) typical of outlying or near-fringe areas.[^25]

The Grade B values (which represent the required field strength in dB
above one micro-volt per meter) are defined for each over-the-air
television channel in Section 73.683 of the Commission\'s rules:[^26]

Channels 2‑6 \...\...\...\...\.... 47 dBu

Channels 7‑13 \...\...\...\..... 56 dBu

Channels 14‑69 \...\...\...\... 64 dBu

The Grade B values assume that the antenna used to receive the signal
has a 6 db gain for channels 2-13 and an antenna with a 13 db gain for
channels 14-83.[^27] Section 73.684 contains the Commission\'s
\"traditional\" methodology for predicting station service coverage, and
Section 73.686 describes a procedure for making field strength
measurements to determine the likelihood that a signal is available in
an area or community. Section 73.622(e) describes different values for
evaluating field strength in connection with digital television (DTV)
service.

The Commission developed the Grade B standard in the 1950s and has used
it in a variety of contexts, many of which were not envisioned at the
time it was created.[^28] The primary purpose for creating the Grade B
standard was to estimate the extent of a television station\'s coverage
area.[^29] Grade B service areas, or contours, are still used for this
purpose and predict that the best 50% of locations along the outer edge
of a contour should get an acceptable television picture at least 90% of
the time.[^30] The use of the Grade B construct for determining whether
an individual household is unserved under the SHVA was not at issue when
the standard was created, although it is the primary issue in this
rulemaking and related lawsuits.

**C.The PrimeTime 24 Lawsuits**

The most far-reaching lawsuit between satellite carriers and
broadcasters over the unserved households definition is in the United
States District Court for the Southern District of Florida.[^31] In that
litigation, *CBS, Inc. et al. v. PrimeTime 24 Joint Venture*, the
plaintiff television networks (CBS and Fox) and several affiliates
brought a copyright infringement action against PrimeTime 24, a
satellite carrier, for retransmitting distant network programming to
satellite dish owners in violation of the SHVA. The plaintiffs alleged
that PrimeTime 24 distributed the signals of distant network-affiliated
television broadcast stations by satellite to subscribers that were not
\"unserved households\" within the meaning of the SHVA.

Finding that PrimeTime 24 willfully violated the SHVA,[^32] the court
issued a preliminary and, later, a permanent injunction ordering
PrimeTime 24 not to deliver CBS or Fox television network programming to
any customer that does not live in an unserved household. The court
concluded that \"the great majority\" of PrimeTime 24\'s subscribers are
capable of receiving at least a signal of Grade B intensity using a
conventional outdoor rooftop antenna.[^33] According to the court,
PrimeTime 24 has \"simply ignored\" the objective Grade B signal
standard in signing up \"unserved\" customers and had failed to meet its
statutory burden of proving that its subscribers were eligible for
network service via satellite.[^34]

The court outlined methods for predicting and measuring signal intensity
for identifying unserved households and required PrimeTime 24 to use
them.[^35] Specifically, PrimeTime 24 was enjoined from providing CBS or
Fox network programming

to any customer within an area shown on Longley-Rice propagation maps,
created using Longley-Rice Version 1.2.2 in the manner specified by the
Federal Communications Commission (\"FCC\") in OET Bulletin No. 69, as
receiving a signal of at least grade B intensity of a CBS or Fox primary
network station, without first either (i) obtaining the written consent
of the affected station(s) \... or (ii) providing the affected
station(s) with copies of signal intensity tests showing that the
household cannot receive an over-the-air signal of grade B intensity as
defined by the FCC from any station of the relevant network.[^36]

The court ruled that the signal intensity test requires at least 15 days
advance notice to each affected station and outlined a specific
procedure that the tester must follow at each household within a
station\'s area, as predicted by the Longley-Rice map.[^37] The court
also imposed the SHVA\'s \"loser pays\" regime on the testing procedure,
whereby the loser to a challenge of a subscriber\'s eligibility pays the
costs of the test.[^38]

The preliminary injunction is scheduled to take effect on February 28,
1999, and the permanent injunction is scheduled for April 30, 1999. The
preliminary injunction could result in the termination of network
signals to the estimated 700,000 to one million subscribers nationwide
who subscribed to PrimeTime 24 after the networks filed their lawsuit on
March 11, 1997.[^39] The permanent injunction, which applies to the
PrimeTime 24 customers who subscribed before March 11, 1997, could
affect an additional 1.5 million subscribers nationwide.[^40] The total
number of PrimeTime 24 subscribers affected could therefore reach 2.2 -
2.5 million.

In a similar lawsuit, a Raleigh, North Carolina, federal district court
ruled against PrimeTime 24 and in favor of a local ABC affiliate.[^41]
The court issued a permanent injunction on August 19, 1998 that applies
to all subscribers living within the affiliate\'s predicted Grade B
contour of the affiliate\'s transmitting tower.[^42] The court found
that the SHVA defines unserved households and Grade B using objective
standards, and stated,

PrimeTime\'s screening procedures have systematically substituted a
subjective inquiry into the quality of the picture on a potential
subscriber\'s television set for any signal strength showing. PrimeTime
has ignored or turned a blind eye to the necessity of objective signal
strength testing and thus willfully or repeatedly provides network
programming to subscribers under SHVA.[^43]

The court found a \"pattern and practice of willful or repeated
copyright infringement\" and therefore enjoined transmission within the
\"locality or region\" as is provided for in the enforcement provisions
of the statute. PrimeTime 24 has provided network services to as many as
35,000 households in the ABC affiliate\'s Raleigh/Durham market.[^44] At
the time of the court\'s decision, PrimeTime 24 continued to serve more
than 9,000 subscribers within the affiliate\'s Grade B contour.[^45]

Several other lawsuits have been filed by both broadcasters and
satellite carriers. In Amarillo, Texas, an NBC affiliate has sued
PrimeTime 24 in federal district court in a case that still awaits
judgment.[^46] In Denver, Colorado, EchoStar has filed suit against CBS,
Fox, NBC, and ABC on October 19, 1998 in federal district court.[^47]
EchoStar has asked the court to find that the Commission has never
endorsed a particular model for predicting or measuring Grade B
intensity for the purposes of the SHVA. Echostar wants the court to
declare that a viewer\'s own opinion of the quality of his or her signal
is adequate for determining whether that home is unserved under the
SHVA, and asks the court to endorse a predictive model for identifying
served households such that 95% of households receive a Grade B signal
95% of the time with a 50% degree of confidence.[^48] The networks
followed EchoStar\'s action by countersuing in Miami.[^49] No decisions
have been issued in either EchoStar case.

**D.The NRTC and EchoStar Petitions**

In its petition for rulemaking, the NRTC, a distributor of DirecTV DBS
service, has asked the Commission to adopt, exclusively for purposes of
interpreting the SHVA, a new definition of \"unserved\" that includes
all households located outside a Grade B contour encompassing a
geographic area in which 100 percent of the population receives
over-the-air coverage by network affiliates 100 percent of the time
using readily available, affordable receiving equipment. EchoStar, which
is a provider of DBS service, urges the Commission in its petition to
adopt a prediction model to locate unserved households. EchoStar
endorses a model that predicts an area where 99 percent of households
receive a Grade B signal 99 percent of the time with a 99 percent
confidence level. EchoStar also urges adoption of a methodology for
measuring signal strength that more closely reflects the signal that a
viewer\'s television set actually receives. It argues that a number of
flaws exist in the current measurement and prediction processes when
they are used for purposes of the SHVA. After receiving comment on these
Petitions, the Commission issued the NPRM in this proceeding.

**II. ANALYSIS**

The SHVA\'s concern with adequate television signal intensity at
individual households, rather than across broad areas, is central to
this rulemaking.[^50] This important distinction leads us to consider
measurement and prediction methodologies that have a different purpose
from the methodologies for determining Grade B service areas.[^51] The
definition of an unserved household as \"a household that cannot receive
\... a signal of Grade B intensity\" most logically refers to television
signal reception at an individual household and reflects a concern for
individual viewers that is not at issue in most applications of the
Grade B standard. Moreover, when Congress created the limited compulsory
license, it clearly intended to help individual consumers who are unable
to receive an acceptable, over-the-air television picture.[^52] In a
report accompanying the 1994 reauthorization of the SHVA, the House
stated that \"households that cannot receive over-the-air broadcasts or
cable can be supplied with television programming via home satellite
dishes.\"[^53] The Senate, in its 1994 report, stated that the
restriction on satellite delivery of network signals refers to
\"subscribers \[who\] are unable to receive the signal of a particular
network.\"[^54] And when originally adopted in 1988, the House stated,
\"The distribution of network signals is restricted to unserved
households; that is, those that are unable to receive an adequate
over-the-air signal.\"[^55]

**A. The Commission\'s Role and Responsibility Under the SHVA**

The *NPRM* raised issues regarding the scope of the Commission\'s
authority to conduct this rulemaking and involve itself in matters
related to the SHVA. The comments reflect a wide range of opinion
regarding our authority to act.

Commenters representing broadcasters, network affiliates, and state or
national television associations argue that SHVA is a copyright statute,
not a telecommunications statute and that, as a result, the Commission
has no authority to either administer or enforce it.[^56] Moreover, they
assert, Congress did not delegate to the Commission any authority to
rewrite SHVA.[^57] Some commenters argue that Congress intended
\"unserved household\" to be defined using the Commission\'s Grade B
standard that existed at the time SHVA was adopted in 1988, and that if
Congress had intended or wished to create a larger geographical \"white
area\"[^58] for satellite providers it could have done so at its own
discretion.[^59] In any event, many of these commenters point out that
the \"white area\" problem has diminished due to an increase in
television stations and improvement in transmitters, receivers, and
antennas.[^60] Some of these commenters also assert that using the SHVA
to nurture competition would be irreconcilable with the fundamental
purpose of the Copyright Act, whose intent is to preserve local
broadcast services, and any attempt by the Commission to circumvent the
legislation would encroach on Congress\' prerogatives.[^61]

The majority of broadcasting commenters disagree with the satellite
carriers\' characterization of the underlying disputes as a
\"crisis.\"[^62] The conflict over who is unserved is self-inflicted,
they argue, because satellite carriers have been exceeding the limits of
their compulsory licenses since the SHVA became law in 1988.[^63] They
state that the Commission should not use this proceeding as a means to
rescue satellite carriers from the consequences of their illegal
activities.[^64] They contend that the core of satellite network
subscribers are not in rural areas, as the Congress envisioned in 1988,
but includes households located in more populous areas.[^65] Several
commenters assert that the number of households watching distant network
stations via satellite bears no relation to the number of households
that truly cannot receive their local affiliates over-the-air.[^66]
Indeed, they argue that most of their challenges to allegedly served
subscribers have proven, through actual signal tests, that the
subscribers were receiving signals of Grade B intensity.[^67] The NAB
asserts that the majority of dish owners who are served but still sign
up for network service do so because they want to watch the same
programming at different times (time-shifting), obtain sports or other
programs not broadcast by their local stations, or avoid placing an
antenna on their roofs.[^68]

In contrast, commenters representing satellite carriers state that the
Commission has broad authority to address issues surrounding the SHVA
and specific authority to address the definition, measurement, and
prediction of signals of Grade B intensity. Most satellite commenters
strongly urge the Commission to define \"signals of Grade B intensity\"
expressly for SHVA purposes.[^69] They argue that agencies have broad
discretion to make policy either through rulemaking or adjudication, and
if the Commission can redefine Grade B intensity in general, it
certainly has the authority to create a new definition in a
SHVA-specific rulemaking.[^70] They maintain that nothing in the statute
or the pertinent legislative history contradicts this conclusion. The
commenters also argue that Congress did not \"freeze\" the definition of
Grade B signal intensity when it adopted the SHVA in 1988.[^71]
Commenters assert that the SHVA does not incorporate the language of any
rule into the statute and refers to Grade B \"as defined by the Federal
Communications Commission,\" so the law clearly grants the Commission
the authority to define and redefine a signal of Grade B intensity.[^72]
Indeed, several satellite commenters point out that the Commission has
never defined an \"over-the-air signal of Grade B intensity\" as
received \"through the use of a conventional outdoor rooftop receiving
antenna\" and it should adopt such a definition now.[^73] They contend
that Congress, in Section 119(d)(1) of the SHVA, recognized and deferred
to the Commission\'s expertise in this area and that it clearly intended
the \"unserved household\" restriction to fall under the Commission\'s
expertise. In addition, satellite carriers state that Congress has
utilized the Commission\'s Grade B prediction and measurement standards
in the past, so the Commission\'s authority to define Grade B signal
intensity must naturally include the ancillary authority to adopt
methods for predicting and measuring signal intensity.[^74] Although the
parties agree that a prediction methodology should not preclude a party
from conducting actual tests, they assert that requiring an individual
measurement at each household is unworkable due to the high cost and
time commitment involved.[^75]

Questions concerning the Commission\'s role and responsibility with
respect to this matter arise on two levels. Several commenters assert
the Commission should elaborate on the objectives of the SHVA or change
its administration to help satellite carriers become more competitive
with cable television systems. These commenters argue that home
satellite companies provide the strongest challenge to entrenched cable
monopolies, but are hindered by their inability to deliver network
signals via satellite to consumers who want them. While increased
competition among service providers is an important and longstanding
goal of the Commission, we cannot make it a primary goal of this
proceeding. The SHVA is a copyright law designed to balance owners\' and
users\' rights. It is not a communications law with an express purpose
of increasing competition among MVPDs. The SHVA is primarily
administered by the Copyright Office and enforced by the federal courts,
and contains the basic Congressional decisions regarding how and to whom
satellite distributed network broadcast signals are made available.[^76]
We may not change the policy behind the law, nor may we go beyond two
terms Congress used in defining \"unserved households.\" First, Congress
explicitly incorporated the Grade B standard into the definition, so
only Congress may consider the use of another measure. Second, the law
demands that a consumer be unable to receive a television signal \"using
a conventional outdoor rooftop antenna\" before qualifying as unserved.
We may not change that requirement, nor may consumers ignore it.[^77]

In addition, there are questions about the Commission\'s specific
authority to interpret and amend the Grade B standard, whether for all
purposes or only for the SHVA. We continue to believe, as the *NPRM*
preliminarily concluded, that we have the authority to change the
definition of a signal of Grade B intensity as a general matter.[^78]
Broadcasters concur with our general authority to make changes for
non-SHVA purposes, but argue that such a change would have no effect on
the interpretation of the SHVA because the definition of Grade B is
frozen in time by the language and intent of the SHVA.[^79] Satellite
carriers and other commenters disagree.[^80] The U.S. Copyright Office,
for example, reviewed the legislative history and found nothing to
support the conclusion that Congress intended to freeze particular
values for Grade B signal intensity in the SHVA.[^81]

We conclude that Congress did not freeze the Grade B rules in place when
it enacted the SHVA. Congress gave the Commission a continuing role when
it defined \"unserved households\" as those that cannot receive \"an
over-the-air signal of Grade B intensity (*as defined by the
Commission*).\"[^82] When it incorporated Grade B into the definition of
\"unserved households,\" Congress did not incorporate specific values,
such as the dBu levels the Commission uses in Section 73.683. Moreover,
nothing in the SHVA itself or its legislative history indicates that
Congress intended to freeze the value of Grade B when it passed the law
in 1988 or when it renewed it in 1994. When Congress has chosen to
freeze Commission regulations for other purposes, it has explicitly done
so. For example, Congress expressly referenced rules \"in effect on
April 15, 1976\" when it froze in place regulations relating to
copyright compulsory licensing. No such reference exists here. Case law
also supports the proposition that the meaning of \"signal of Grade B
intensity\" was not frozen when the SHVA was enacted.[^83] For example,
the Supreme Court has held that \"\[i\]t is of course not true that
whenever Congress enacts legislation using a word that has a given
administrative interpretation it means to freeze that interpretation in
place.\"[^84] The Supreme Court reasoned that if legislation so
constrained an agency\'s ability to conduct rulemaking under its
enabling legislation, then \"the result would be to read into the grant
of express administrative powers an implied condition that they were not
to be exercised unless, in effect, the Congress had consented. We do not
believe that such impairment of the administrative process is consistent
with the statutory scheme which the Congress has designed.\"[^85]

Although we conclude that the Commission has the authority to modify
Grade B intensity values for all purposes, we believe that it is
significant that Congress tied the SHVA compulsory license to the
Commission\'s Grade B standard, which was and is used for a multiplicity
of purposes. We think Congress\' use of the widely used Grade B standard
in SHVA indicates that we should not adopt a separate Grade B intensity
standard for purposes of SHVA alone. Moreover, additional considerations
also lead us to conclude that it would be inadvisable to adopt a
separate Grade B standard for SHVA purposes. As discussed below, a
second set of signal strength values, also called \"Grade B signal
intensity,\" is likely to create confusion for the broadcast industry
and others affected by Commission regulations.[^86]

**B.Defining a Signal of Grade B Intensity**

The SHVA uses an objective standard to determine whether a household is
\"unserved\" and thus permitted to receive network signal via satellite.
SHVA\'s criterion is whether the household can receive \"through the use
of a conventional outdoor rooftop receiving antenna, an over‑the‑air
signal \[of a particular network station\] of grade B intensity (as
defined by the Federal Communications Commission).\" By incorporating
the objective Grade B signal intensity standard into the SHVA, Congress
declined to account for viewers\' individual subjective opinions about
the quality of their television reception, as well as the adequacy of
the household\'s existing antenna.[^87] Use of the Grade B signal
intensity standard in the SHVA both invites and limits the Commission\'s
involvement with this statute. The reference to Grade B signal intensity
\"as defined by the Federal Communications Commission\" brings the
Commission\'s rules and our interpretations of our rules into play. But,
by using Grade B signal intensity to define unserved, the SHVA also
limits what the Commission can do to address any drawbacks to this
standard. The Grade B signal intensity values were used in the SHVA as
an available objective benchmark for determining whether a household is
\"served.\" While those values may have proven difficult to apply in
practice as the sole standard for determining whether a household is
unserved, this is the standard in the statute and must be employed here
when distinguishing served and unserved households.

The Commission\'s rules define values for Grade B signal intensity in
connection with authorizing television stations and the stations\'
service areas or \"contours.\"[^88] It was not, however, created for
evaluating picture quality in individual households. Rather, the system
was developed to address the very different and difficult problem of
creating station service areas and to determine the proper allocation of
television channels in the early days of television. The Commission
created two \"grades of service.\"[^89] The specifications for \"Grade
A\" and \"Grade B\" service were established so that \"a quality
acceptable to the median observer is expected to be available for at
least 90 percent of the time at the best 70 percent of receiver
locations at the outer limits of \[Grade A\] service. In the case of
Grade B service the figures are 90 percent of the time and 50 percent of
the locations.\"[^90] The service areas were established to effectuate
the Commission\'s stated twofold purpose \"to provide television
service, as far as possible, to all people of the United States and to
provide a fair, efficient and equitable distribution of television
broadcast stations to the several states and communities.\"[^91] The
signal intensity values (also referred to as \"field strengths\") were
determined based on certain assumptions, which differ for the Grade A
service area, which is urban and suburban, and the Grade B service area,
which is rural. For example, the type of receiving antenna assumed for
Grade A service is smaller than the receiving antenna assumed for Grade
B, and the terrain assumed for Grade A differs from that assumed for
B.[^92]

The \"acceptable quality\" contemplated in these early Commission Orders
was based on quality levels developed by the Television Allocation Study
Organization (\"TASO\").[^93] TASO used data from actual viewers. These
viewers were shown television pictures and were asked to rate them on a
scale from 1(excellent) to 6 (unusable). Level 3, on which the Grade B
service level was based, was defined as \"(Passable) - The picture is of
acceptable quality. Interference is not objectionable.\"[^94] Based on
the results of viewer ratings, a specific signal (or carrier) to noise
ratio at the television receiver was found to be associated with the
grade 3 level \-- that is, a level of signal that the median observer
identified as acceptable. In association with this level of acceptable
quality, and with the primary goal of creating service areas with
minimal interference and maximum coverage, the Commission developed
assumptions, generally described as planning factors, regarding the
environment in which viewing would take place. Assumptions were made as
to the quality of the television receiver used focusing on the amount of
electrical noise created in the tuner, the signal losses that take place
in the wire connection from the receiver to the antenna, the nature
(gain, directionality, and height) of the antenna to be used, and the
amount of electrical noise in the environment that the signal would have
to overcome to be viewable. Because radio signal propagation varies over
time, certain statistical assumptions were built into the definitions
used, including the assumption that the signal in question would be of
acceptable quality to the median observer at least 90 percent of the
time.[^95]

Satellite industry and consumer comments[^96] argue in this proceeding
that the Grade B signal intensity levels as currently defined are
inappropriate to use to determine eligibility for broadcast network
service via satellite because they do not ensure a good television
picture. They ask the Commission to change the Grade B signal intensity
values to reflect what they contend are changed circumstances. The
satellite industry asserts that technology, environmental noise, and
consumer expectations have changed since Grade B signal strength was
first defined and contend that these changed expectations justify upward
adjustments to the Grade B values. PrimeTime 24 states that Grade B was
based on television pictures received on black-and-white televisions and
the Commission should revise the definition of Grade B signal intensity
to adjust for \"today\'s modern world of VCRs, large screen color
televisions, and heavy television watching.\"[^97]

While satellite industry commenters are in agreement that the Grade B
signal values should be increased, they disagree on the precise values
that should be used.[^98] For example, PrimeTime 24\'s engineering
consultant asserts that the planning factor for the C/N (carrier to
noise) ratio should be increased from 30 dB to 43 dB based on the
Commission\'s 1992 cable television standards. He also adds a new
planning factor to address ambient (environmental) noise and decreases
the assumed antenna gain for UHF signals from 13 dB to 9 dB. These
revisions produce Grade B values of 67 dBu (low VHF), 72 dBu (high VHF),
and 81 dBu (UHF).[^99] PrimeTime 24\'s Hassinger also describes a
different set of revised values for Grade B based on an \"empirical
approach,\" which produces a mix of higher and lower values.[^100]
Hassinger acknowledges that his proposed values do not deal with the
problem of \"multipathing\" (i.e., ghosting or multiple images due to
signal reflection) and acknowledges that the stronger signal intensity
he proposes \"may make the effect of multipathing more
pronounced.\"[^101] PrimeTime 24 concedes that these increased values
would approximate or exceed current Grade A contour values, but contends
the FCC is not constrained by the existing Grade A values since the
Grade B values proposed would be for purposes of the SHVA only.

The Satellite Broadcasting Communications Association (SBCA) argues for
values of 70.75 dBu (low VHF), 76.5 dBu (high VHF), and 92.75 dBu (UHF)
to better reflect \"today\'s more complex signal propagation
environment.\"[^102] SBCA\'s Consulting Engineers propose changes to
certain of the planning factors that are the basis for the Grade B
values to increase the receiver noise figure, the required signal to
noise ratio, the receiver antenna gain, and line loss.[^103]

Satellite industry commenters also contend that the improvements in
receivers since the 1950s do not adequately offset other factors that
have made picture quality decline.[^104] PrimeTime 24 asserts that the
appropriate standard for DTV allotments or Grade B contours is
irrelevant and that what matters is the appropriate signal strength to
assure \"that an individual household receives an acceptable quality
picture.\"[^105]

Broadcast industry commenters argue that even if the Commission had
authority to revise the definition of Grade B as it is used in the SHVA,
the Grade B values should be lowered rather than raised. They assert
that television receivers and antennas have improved since the 1950s and
now give viewers better picture quality at the Grade B signal level than
they had when Grade B was adopted.[^106] The broadcast industry also
asserts that the definition of Grade B has been repeatedly reevaluated
over the past 40 years and reaffirmed on each occasion.[^107] NAB\'s
consulting engineer, Jules Cohen states that over the forty years since
the Grade B values were established, viewers may have become more
sophisticated and their definition of an \"acceptable\" picture may have
changed. He contends, however, that improvements in receivers have
improved the C/N ratio at the same signal strength.[^108] He also notes
the conclusion of the Advisory Committee on an Advanced Television
Service in 1994 that Grade B as defined in 47 C.F.R. § 73.683 is still
the logical signal strength level for acceptable picture quality.[^109]
Broadcasters also state that increasing the Grade B values will
seriously undermine the viability of local television stations by
reducing the size of their markets, which will decrease advertising
revenue.[^110] Decreased advertising revenue threatens their survival,
which, they contend, threatens localism. Echostar responds that none of
the broadcasters have quantified their alleged loss of advertising
revenue.[^111]

*Discussion*. The comments submitted by the satellite industry and
consumers urge vigorously that for many people the existing Grade B
signal intensity values do not equate to truly acceptable picture
quality. The first attack on the existing standards has to do with the
possibility that viewers\' expectations as to signal quality have
increased over time. If this were the case a stronger signal would be
needed to produce a picture that would now be regarded as acceptable.
Although there is some speculation in the comments that viewer
expectations have indeed changed, no current study documents this or
replicates the initial TASO study that correlated viewer judgments of
television picture quality with specific signal levels.[^112] In
response to contentions that the current values for Grade B signal
intensity are erroneous because they were based on viewer evaluations of
monochrome images, we note that the planning factors established in
April 1952 (Doc. 8736) were revisited in 1959 by TASO, which was
established in response to a Commission request to study the technical
principles which should be applied in television channel allocations.
TASO studied these issues for two years, used 21 inch monochrome and
color television sets, and essentially confirmed the same carrier to
noise ratio as was established earlier.[^113] Research on subjective
evaluations of television pictures may show that viewers have raised
their level of expected performance, but the results of any subjective
testing is dependent on the testing methodology and conditions. Many of
these recent tests were conducted by cable television sponsors using
viewers who may have expected to pay for these better pictures.[^114]

In addition to suggesting that viewer expectations are different, it is
also argued that radio frequency noise in outlying areas has increased
so that rural areas are today more akin to urban areas of the 1950\'s,
that the typical household now has multiple television receivers
necessitating antenna lead splitters that increase line loss, and that
antenna gain figures (particularly in the UHF frequencies) should be
re-evaluated.[^115] We believe that the technology of receivers and
antennas has kept pace with changing consumer expectations and with
increased noise.[^116] Thus, it is necessary to consider the totality of
changes that have taken place over the past fifty years. In the 1950s
low cost electronic technology at television frequencies was hard to
find. Therefore, the planning factors had to be set low enough to ensure
that television sets could be affordable by the public. The noise figure
used in the planning factors serves as a good example. The noise figure
is a measure of the amount of electronic noise produced by the
components in the television. This must be added to the signal budget
just like man‑made noise and must be overcome to produce a passable
picture. In the 1950s, the television tuner technology consisted of low
cost noisy tubes and attached components. Today, this technology has
progressed to modern solid state components that produce lower set
noise. Thus, although many developments have taken place since the
standards were first adopted, it is not clear that increases in the
values involved are warranted.

We conclude that the record in this proceeding provides an inadequate
basis for changing the Grade B signal intensity values either generally
or for purposes of the SHVA specifically. First, the evidence in the
record suggests that some of the environmental and technical changes
that have taken place trend in opposite directions and tend to cancel
each other out. The Commission has examined the adequacy of the Grade B
standard on several occasions since it was adopted in the 1950s, and in
each case has decided not to make changes. In 1975, the Commission
considered revisions to the Grade B contour, including a study of actual
viewers\' ratings.[^117] That study concluded that there was some
evidence supporting minor changes in the Grade B values, but endorsed
the Commission\'s existing standards as providing \"a realistic picture
of station coverage.\"[^118] The Commission concluded in that proceeding
to revise the contour for UHF channels and to adopt a \"terrain
roughness factor,\" but declined to make other revisions because there
was \"no urgent need, from an engineering standpoint, to redefine the
Grade B contour.\"[^119] In that *Order*, the Commission emphasized the
dislocation that would be imposed on broadcasters by changing the Grade
B contour.[^120] Again, in 1980, Commission staff noted progress in
obtaining good UHF weak signal performance under the existing rules and
recommended against reducing the standards for maximum UHF noise
figure.[^121] More recently, in the DTV Allotment proceeding, the
Commission reconfirmed the usefulness of the Grade B values for the
purpose for which they were originally created: defining service
areas.[^122] The record in this rulemaking does not warrant a change
from this recent decision.

Second, we do not believe that we have the authority to create a special
Grade B solely for the purpose of the SHVA, nor do we believe this is an
advisable approach to take. Establishing another set of values, also
called Grade B, is likely to create confusion for the broadcast
industry. It would risk harm to the network/affiliate relationship by
creating an implication that another, different Grade B definition might
be more suitable for other situations that are not contemplated in this
proceeding. In addition, raising the values for Grade B such that they
would equal or exceed the Grade A values may require reevaluation of the
Grade A values, as well.[^123] The significant and widespread
ramifications of changing these definitions demand that we have a more
complete and conclusive record, and more time to evaluate the record,
than we have in this rulemaking.[^124]

Finally, some commenters raise concerns regarding the ability of the
existing standard to address interference and other signal impairments.
Although we are not changing the Grade B values, it is important to note
that as a matter of general policy we agree that the Grade B standard
incorporated by Congress into the SHVA implicitly includes within the
definition a signal that is, in fact, viewable and not one so impaired
by interference as to be degraded below the \"acceptable to the median\"
observer level. While such problems can be identified by qualified
engineering personnel through actual observations, this is not a matter,
as satellite commenters in this proceeding acknowledge,[^125] that can
be resolved by simply adjusting the dBu levels involved. No readily
usable mechanism for addressing this matter through changed definitions
has been identified in the comments.

**C.Measuring Television Signal Intensity at Individual Locations**

For the SHVA to function more effectively, a relatively low cost,
accurate, and reproducible methodology for measuring the presence of a
Grade B intensity signal at an individual household is especially
important. Individual testing is the key mechanism under the SHVA for
proving that a specific household is unserved and, therefore, eligible
to receive satellite delivery of network affiliated television
stations.[^126] The Commission already has a method for measuring signal
intensity for describing a station\'s service area or for propagation
analysis, but it has not yet devised a method for measuring signal
intensity at a discrete location, such as an individual household.[^127]
We believe that the method we identify herein balances accuracy,
affordability, and simplicity.

Many commenters have explicitly asked us to adopt a measurement
methodology.[^128] Satellite carriers contend that requiring an
individual measurement at each household in every case is unworkable due
to the high cost and time commitment. Some satellite commenters contend
that the FCC\'s current method of conducting field strength measurements
is inappropriate for SHVA purposes because many homes do not have
30-foot antennas, individual antennas are generally not oriented towards
the station\'s broadcast tower because many do not have rotors, it does
not take into account the number of splitters used in a household for
multiple television sets, and the use of the 100-foot mobile run is
flawed. Primetime 24 maintains that any measurements must be made as
close to the house as possible, should define how signal strength
variability is taken into account and, if the homeowner is cooperative,
specify that the home\'s antenna be used for the test to obtain the most
realistic result.[^129] PrimeStar points to the simplified measurement
techniques set forth in the Hatfield & Dawson Engineering
Statement.[^130]

Broadcasting commenters assert that only an actual site test can settle
the legal eligibility of an individual household. The majority of them
agree that any prescribed testing methodology must be consistent with
the Act, that measurements should be taken using standardized equipment,
that the receiving antenna should be oriented toward the signal being
received, and that splitters, which deliver a signal from one antenna to
more than one television set, should not be considered during
measurements. The major network affiliates suggest that the Commission
adopt the measurement methodology used in an agreement they brokered
with PrimeStar Partners, Netlink USA, and Telluride Cablevision
(\"PrimeStar/Netlink Agreement\").[^131]

*Inadequacy of the Current Grade B Measurement Methodology.* The
Commission\'s current signal measurement method, requiring a so-called
100-foot mobile run, is inadequate for the purposes of the SHVA. The
method typically involves a truck with a 30-foot antenna that takes
continuous measurements as it travels a distance of 100 feet.[^132]
Under Commission rules, the antenna must be rotated to the best
receiving position, and engineers must record factors that might affect
signal intensity, such as topography, height and type of vegetation,
buildings, obstacles, and weather conditions. If overhead obstacles
prevent a 100-foot run, a cluster of five measurements may be taken at
locations within 200 feet of each other. Testing can cost several
hundred dollars each time it is performed \-- an expensive proposition
for a satellite company or a consumer who wants to prove that a
household is unserved by over-the-air signals.[^133] When multiplied
over hundreds of households in a station\'s service area, the cost may
become prohibitive and may preclude many truly unserved consumers from
receiving broadcast network service. Mitigating the costs of the
procedure, without sacrificing the integrity of the testing results, is
an important goal of the new signal measurement methodology.

In addition to the difficulties inherent in the existing measurement
test, many of its assumptions do not hold in individual Grade B
situations. The purpose of the procedure currently specified in the
rules is not to determine the receivability of a signal at a single
spot, but to determine, through measurements at a series of grid
intersections over a community, the nature of service to the
community.[^134] Thus, the current procedure has limited use in
measuring signal intensity at individual locations. For example, many
homes do not have antennas 30 feet above the ground, especially if they
are one-story homes. The definition of unserved household only describes
reception over a conventional outdoor rooftop receiving antenna,[^135]
so requiring measurements on a 30-foot antenna may not reflect what is
\"conventional\" at all locations around the country. Finally, requiring
tests and a 100-foot mobile run ignores the fact that homes are
stationary and that reception may vary considerably over a mobile run on
a nearby street.

*Measurement Methodology for Individual Locations.* Because the SHVA is
concerned with adequate television signals at individual households, it
is entirely proper that the Commission, as the originator of the Grade B
standard, develop an objective way to measure whether or not that
standard exists at a particular location. In short, the methodology
requires a tester to make at least five measurements in a cluster as
close as possible to the location being tested. The median value of the
measurements will be the signal intensity at the location. In deciding
on which measurement methodology to adopt, we examined the following
factors, discussed in detail below \-- the type of testing antenna and
equipment, where and how many measurements should be taken, the effect
of time and weather on signal strength, the height the testing antenna
should be raised, the orientation of the testing antenna, and what
information should be recorded.[^136]

Regarding the preparation for measurements, we considered the kind of
testing antenna that should be used and conclude that a tuned half-wave
dipole is the best choice.[^137] It is widely available, inexpensive,
and simple to use. In situations where definite readings are required,
it has advantages over gain antennas[^138] that are difficult to
characterize (calibrate) over a wide range of frequencies. Although
dipole antennas are susceptible to interference from signals other than
the one being measured, the cluster measurements that we require will
mitigate those effects.

We considered where the signal measurements should be taken \-- on the
roof, in the yard, as close as possible to the house, in the driveway,
or at the nearest public road. We conclude that the measurements should
be taken in a cluster as close as possible to a reasonable and likely
spot for the receiving antenna.[^139] In doing so, we do not require
testers to climb up to the roof or trespass on property where they are
denied permission to enter. Although we recognize, as the satellite
carriers argue, that measurements taken at the television receiver would
most accurately reflect the picture that a consumer watches, such an
approach would be inconsistent with the intent of the SHVA, which
requires the use of an *outdoor rooftop* antenna. Measurements at the
television receiver are inappropriate for determining the ambient signal
intensity available at a household\'s roof.

We considered how many measurements are necessary and conclude that at
least five measurements must be taken, each at a pre-determined spot.
Multiple readings are necessary because a single reading may give
misleading results. Reflections from surrounding objects could cause a
reading to be either a higher or lower than normal. Multiple readings
will tend to mitigate these effects. The spots must be chosen before
measurements are taken to prevent gaming of the results. They must be a
minimum distance of three meters from each other, an appropriate spacing
to enable reasonably accurate results. To help ensure the objectivity of
the tests, we suggest that, if possible, the first testing point should
be chosen as the center point of an imaginary square whose corners are
the four other spots. The tester shall calculate and report the median
of the measurements (in units of dBu) as the measurement results. For
purposes of the SHVA, this median measurement will determine whether a
household is unserved. If signals of more than one transmitter (*e.g.*,
more than one television station) are being tested, the tester shall use
the same spots for all the measurements.

Regarding measurement procedure, we believe that a one-time measurement
is sufficient to determine the signal intensity at individual locations.
Satellite carriers and broadcasters appear to agree with this
conclusion.[^140] We recognize that several measurements over time may
determine even more accurately the actual signal intensity at individual
locations, but we have sought to create a testing methodology that is
both accurate, practical, and relatively inexpensive.

We require the tester to measure the field strength of the visual
carrier with a calibrated instrument with a bandwidth of at least 450
kHz, but no greater than one megahertz. The tester must perform an
on-site calibration of the instrument in accordance with the
manufacturer\'s specifications. The instrument must accurately indicate
the peak amplitude of the synchronizing signal. The tester must use a
shielded transmission line between the testing antenna and the field
strength meter. The tester must match the antenna impedance to the
transmission line, and, if using an unbalanced line, employ a suitable
balun. Finally, the tester must account for the transmission line loss
for each frequency being measured.

We considered the effect that time and weather have on signal strength.
Generally, neither time nor steady‑state conditions of weather have an
appreciable effect on broadcast television frequencies. However, in
inclement weather or when major weather fronts are moving through the
measurement area, some noticeable consequence may result. The tester
should not take measurements at such times.

We considered the effect that signal interference has on the strength of
the primary signal being measured.[^141] We have not found an easily
reproducible, practical or cost-effective objective process for
measuring interference that impairs reception.[^142] Adding expense and
complication to the testing methodology would be inconsistent with our
goal of creating a practical and economical measurement method. While we
recognize that interference can make signals unviewable at a given
location, and thus ideally issues of this nature should be reviewed as
part of the standard measurement process, the only current way to
include these factors is for all interested parties to undertake a
common subjective evaluation at the test site and make a common judgment
on the issue. In the absence of a common subjective judgment, it remains
necessary to rely on the standard process that does not take this factor
into account. Because common testing cannot be required and because it
would add expense to the testing procedure, we believe it would be
highly desirable for the parties to develop procedures to address these
concerns through waivers or impartial testing personnel. This is
especially desirable in those situations where interference is predicted
or expected to exist.[^143] In such situations, it is not illogical to
give some precedence to the prediction involved since interference can
be reliably predicted and should be confirmable by on-site observation,
even if not recordable using the standard test procedure. Moreover,
where local broadcasters are aware of interference, we expect they will
be willing to acknowledge its effects. We believe that the intent of the
SHVA will be better realized if parties consider interference when
classifying households as served or unserved, and we encourage the
engineering community to focus on this issue to improve objective
measurement techniques.

We considered the height of a \"conventional outdoor rooftop antenna\"
so that the tester would know how high to raise the testing antenna.
Commenters offered several options, including five feet above the
roof,[^144] 30 feet for all circumstances, and a combination of 20 feet
for a one-story house and 30-feet for two story houses.[^145] There is
evidence that signal intensity varies at different heights above the
ground, so the height of the testing antenna could affect whether a
household is deemed unserved.[^146] Because the SHVA relates to actual
ambient signal intensity at individual households, we believe that the
height of the individual home is significant and, therefore, relevant
when dictating the height of the testing antenna. In the interest of
simplicity and consistency, we do not require the tester to raise the
antenna to 5 feet above the height of the roof, which would result in
measurements taken at an endless variety of heights and would increase
dramatically the complexity of the testing and predictive models. We
also decline to require that the measurement be taken at 30 feet in all
circumstances, primarily because many American homes are one-story
households that do not, and would not, erect a 30-foot antenna. We
conclude that the tester should raise the testing antenna 20 feet (6.1
meters) above the ground for one-story buildings and 30 feet (9.1
meters) above the ground for buildings taller than one-story. This
accounts for most households in the country, while maintaining an
easy-to-administer standard. For example, testers will not be required
to measure the height of each individual household and they will not
have to raise an unwieldy testing antenna that is higher than 30
feet.[^147] The 20 foot / 30 foot rule is also consistent with at least
one agreement between the broadcasters and satellite carriers regarding
measuring methodology.[^148] We recognize that many households are part
of multiple dwelling units (MDUs) that present special problems.[^149]
We believe that where households have access to a master antenna on the
MDU\'s roof, the test should be made there, if possible.[^150] If the
MDU has no master antenna, then the test should be made at the household
(outside if possible, on a balcony or patio) where the consumer might
place a conventional antenna.[^151] In some instances, particularly in
MDUs taller than three stories, the signal strength may be adequate
inside the unit, as with \"rabbit ears\" on the television itself. If
the signal intensity is stronger inside the unit, in these cases, the
measurement should be taken inside, near the television and using the
prescribed testing antenna. We note that MDU residents may require
specialized attention due to the differences inherent in large or tall
multi-unit buildings. The rulemaking record is largely directed to
issues affecting individual homes and does not contain sufficient detail
on the MDU issue to address every circumstance here.

We considered how the testing antenna should be oriented. The maximum
gain of the testing antenna (over an isotropic antenna) should face the
strongest signal coming from the transmitter whose signal is being
tested. If more than one station\'s signal is being measured, the
testing antenna should be oriented separately for each station. This
orientation is consistent with good engineering practice, with the
technique required by the Commission\'s signal measurement rules,[^152]
and with the PrimeStar/Netlink Agreement on determining eligible
households.[^153] It is also consistent with the Copyright Act, which
defines an unserved household in relation to an individual television
station rather than to all network affiliates in a market. Section
119(d)(10) defines unserved household \"with respect to a particular
television network\" and states that such a household must be unable to
receive the signal of \"a primary network affiliate station affiliated
with that network.\" Based on this distinction, we believe that signal
testers should focus on individual stations. Because one of the primary
purposes of this *Order* is to provide a practical and reliable
measurement methodology, we include in the testing procedure the proper
orientation, which is essential to ensure the validity and integrity of
the signal intensity test.

Finally, we considered how to ensure the integrity of the signal tests
simply and with as little burden as possible. The tester shall make and
maintain a written record of the measurements that includes several
items \-- (i) a list of calibrated equipment used in the field strength
survey, which for each instrument, specifies the manufacturer, type,
serial number and rated accuracy, and the date of the most recent
calibration by the manufacturer or by a laboratory; (ii) a detailed
description of the calibration of the measuring equipment, including
field strength meters, measuring antenna, and connecting cable; (iii)
for each spot at the measuring site, all factors which may affect the
recorded field, such as topography, height and types of vegetation,
buildings, obstacles, weather, and other local features; (iv) a
description of where the cluster measurements were made; (v) time and
date of the measurements and signature of the person making the
measurements; (vi) for each channel being measured, a list of the
measured value of field strength (in units of dBu and after adjustment
for line loss and antenna factor) of the five readings made during the
cluster measurement process, with the median value highlighted. We note
that slight, unintentional departures from these written procedures will
not invalidate a test if there is no basis to believe they affected the
outcome.

**D. Predicting Television Signal Intensity at Individual Locations**

Although the SHVA appears to require actual signal measurements when
determining whether households are unserved, broadcasters and satellite
carriers often use a predictive model to avoid the costs and
difficulties associated with such on-site measurements. However, they do
not always agree on which model is most appropriate. Even when parties
use the same model, they often disagree on the factors that are
considered in that model. For example, different predictive models may
or may not account for the effects on signal strength of receiving
antenna height, vegetation, ground clutter, buildings, signal
interference, or multipathing. Additionally, predictive models may
account differently for variability in signal strength over time and
location, and may predict signal strength with varying levels of
confidence. Also, values for these parameters may be varied within some
predictive models.

Many commenters, particularly satellite-affiliated commenters, have
asked the Commission to adopt a predictive model in this rulemaking, and
they express strong preferences for what that model should look like.
Satellite carriers assert that the Commission has the authority to
develop a model for predicting whether a household can receive a signal
of Grade B strength, but most concede that such a methodology should not
preclude a party from conducting actual tests. Some commenters state
that any challenger to a presumption created by the test should bear
cost of the tests, regardless of the results.[^154] Other commenters
argue that the loser in a challenge should pay the cost of
measurements.[^155] Satellite carriers do not agree on which of two
predictive models, Longley-Rice or Terrain Integrated Rough Earth Model
(TIREM), is the best model for SHVA purposes, although most favor TIREM.

*Usefulness of Predictive Models.* In the *NPRM*, we asked whether we
could mandate a model for SHVA purposes or merely endorse one.
Broadcasters contend that only an actual site test can settle the legal
eligibility of an individual household and that the Act grants the FCC
no authority to unilaterally substitute a predictive model.[^156] They
assert that satellite providers and broadcasters may privately negotiate
the use of a predictive model, but the SHVA precludes the Commission
from mandating a particular predictive methodology. If the Commission
does endorse a model, most broadcasters argue that the model should only
create a rebuttable presumption of service of lack of service.[^157] The
satellite providers counter that the Commission certainly has the
authority to develop a predictive model.[^158] Some satellite commenters
state that such a methodology should not preclude a party from
conducting actual tests,[^159] but at least one commenter argues that a
prediction is enough, by itself, to satisfy a satellite carrier\'s
burden of proving that a household is unserved.[^160] The satellite
providers also argue that because the Commission has created predictive
models for other uses of the Grade B construct, it may develop a
predictive model specifically for the use of Grade B in the SHVA.

We conclude that predictive models can be effective and helpful proxies
for individual household measurements and that we have the authority to
develop and endorse a model for making predictions of signal strength at
individual locations. The Commission has developed and used predictive
models for determining signal intensity in other contexts (*e.g.*,
determination of stations\' DTV service areas).[^161] Two prominent
examples are the newer Longley-Rice models and the procedure set forth
in Section 73.684 of our Rules for determining traditional Grade B
contours using the radio propagation curves for broadcast television set
forth in Section 73.699. We believe our position as the originator of
the Grade B criterion qualifies us to determine the effectiveness and
accuracy of predictive models that relate to it.

The difference in taking actual measurements at individual households
and using predictive models is significant, because measurement requires
time, money, and other resources that often outweigh the benefits. For
example, it may cost more for a satellite company to take a measurement
than it can recover through subscriber and advertising fees. To avoid
these costs, satellite providers may have refused or terminated service
to consumers who are actually unserved.[^162] Additionally, satellite
providers, broadcasters, and consumers have often turned to predictive
models that erroneously permit some served households to receive
satellite network service, or, conversely, prevent some unserved
households from being eligible to receive network stations via
satellite.[^163] When truly unserved households are deemed ineligible
for broadcast network service via satellite, consumers are hurt and the
SHVA\'s intent is thwarted. Likewise, when served households are deemed
eligible for satellite-delivered broadcast network service, network
affiliates are harmed and the SHVA\'s intent is also thwarted. We
believe the Commission\'s endorsement of a model will address some of
the problems that consumers, as well as the broadcast and satellite
industries, encounter when following the SHVA. We expect our endorsement
to reduce conflicts regarding which model satisfactorily predicts a
household\'s true status as served or unserved, and we hope that a
single model makes it easy for consumers to determine their eligibility
for satellite-delivered broadcast network service at the time they
subscribe to a DTH satellite service (at the point of sale).

We recognize that we speak only as the expert agency on the Grade B
construct, not as the primary enforcer of the SHVA. That role belongs to
the courts. We also acknowledge that we cannot change satellite
carriers\' burden under the SHVA of proving that a household is
unserved,[^164] and use of the predictive model we endorse is
discretionary with the parties.[^165] While our predictive model need
not replace actual measurement, it could serve as a presumption of
service or lack of service for purposes of the SHVA.[^166] A presumption
should make administration of the unserved household rule easier and
more cost-effective for both consumers and the industries. Broadcasters
and satellite providers should be able to rely on a Commission-endorsed
model when deciding whether individual consumers are presumed to be
eligible to receive satellite-delivered network signals.[^167] Moreover,
we recommend that courts accept the model\'s predictions as sufficient
to show that a satellite service provider has carried its statutory
burden of showing that a household is unserved.[^168] We believe that
such an approach is consistent with the Miami federal court\'s use of
one variation of the Commission\'s Longley-Rice predictive methodology
in its injunctions.[^169] Finally, we recommend that the rebuttable
presumptions created by our model will be combined with in-court and
out-of-court \"loser pays\" mechanisms to help the SHVA operate more
smoothly.[^170] Such a loser pays scheme would require the loser of any
challenge to a predictive model\'s presumption to pay the costs of an
on-site test following the challenge.

*Inadequacy of the Traditional Grade B Contour Methodology.* In the
*NPRM*, we sought comment on the application of existing predictive
models in the SHVA context, including our \"traditional\" Grade B
contour methodology and the Longley-Rice predictive model.[^171] We
tentatively concluded that the Commission\'s traditional predictive
methodology for determining a Grade B contour is inappropriate for
predicting signal strength at individual locations. Our rules state that
this methodology is for three purposes only: (1) estimation of coverage
resulting from the selection of a particular transmitter site, (2)
problems of coverage related to 47 C.F.R. § 73.3555 (ownership
restrictions), and (3) determination of compliance with § 73.685(a)
concerning minimum field strength over the principal community.[^172]
The traditional methodology predicts signal strength on the basis of
average terrain elevation along radial lines extending only ten miles
from a television station\'s transmitter.[^173] The traditional
methodology does not accurately reflect all the topographic differences
in a station\'s transmission area, and explicitly does not account for
interference from other signals.[^174] These omissions make it an
imperfect methodology for predicting whether an individual household can
receive an adequate signal.[^175] For example, the model may fail to
account for terrain features that could block a house\'s reception.

Commenters agree that the traditional methodology for predicting a Grade
B contour should not be used as a prediction model for purposes of the
SHVA. Satellite industry commenters state that these field strength
contour and coverage prediction rules were never intended to be used to
determine whether a particular individual could see an acceptable
picture at his or her home.[^176] The SBCA\'s Consulting Engineers,
Hatfield & Dawson, call the methodology in Section 73.684 of our rules
\"simplistic,\" and commends the Commission for ignoring pleas to use
the traditional methodology in the DTV Allotment determinations.[^177]
Broadcasting industry commenters agree that the traditional methodology
is insufficient.[^178] In practice, as well as in the Miami lawsuit,
they have endorsed the Longley-Rice model for signal strength
predictions.[^179] In their pleadings, the majority of broadcasters say
that the Commission should endorse the Longley-Rice model \"as
implemented for DTV,\"[^180] although some feel that, for SHVA purposes,
the model should not be adopted in all particulars. Other broadcasters
feel that SHVA did not intend the use of any predictive
methodology[^181] and that such models have no legal relevance to the
ultimate determination of subscriber eligibility.[^182]

*Longley-Rice Point-to-Point Model for Digital Television.* We noted in
the *NPRM* that the Commission recently adopted, in the digital
television (DTV) proceeding, rules for analyzing TV service areas using
a point-to-point prediction method based on version 1.2.2 of the
Longley-Rice propagation model.[^183] We proposed that this variation of
Longley-Rice be used to determine Grade B service at individual
households. The Longley-Rice propagation model is the most widely-used
private means of predicting the existence of a signal of Grade B
intensity for SHVA purposes.[^184] Although it is similar to the
traditional method for determining a Grade B contour, Longley-Rice
improves the traditional model by adjusting the predictions for changes
in terrain (*e.g.*, hills and valleys between the transmitter and the
house) along the entire path from the transmitter to the specified
receive site. Thus, while the Commission\'s traditional contour method
often results in smooth concentric circles surrounding a transmission
tower, the Longley-Rice method produces rougher outlines that more
precisely depict areas of coverage.

The broadcasters support the use of the Longley-Rice point-to-point
model in the SHVA context (assuming, they state, that the Commission may
endorse a model in the first place), but the satellite interests claim
it is insufficient. The Network Affiliate Associations declares,

To the extent the Commission wishes to advise Congress, \[we\] endorse
the Commission\'s proposal to recommend the Longley-Rice propagation
model as a means of predicting Grade B service at individual locations.
Both the broadcasting and satellite industries are familiar with
Longley-Rice, and, as the Commission determined in the DTV proceeding, a
better predictive model has not been developed.[^185]

The broadcasters accept Longley-Rice with the proviso that it should not
make predictions for households only within a station\'s predicted Grade
B contour.[^186] This argument recognizes that many served households
exist outside a station\'s contour, and it highlights the irrelevance of
a station\'s service area when determining, for purposes of the SHVA,
what is happening at an individual household. Broadcasters also assert
that the time and location variability factors and the statistical
confidence levels should all be 50%.[^187] Many satellite commenters
reject Longley-Rice as a first choice because they allege it is based on
extremely low and unrealistic prediction of service probabilities and
fails to account for several important factors that affect signal
availability, including interference from other signals, vegetation, and
buildings.[^188] They propose the use of the TIREM methodology, jointly
developed by the Department of Defense and the National
Telecommunications and Information Agency (NTIA).[^189] TIREM is fully
discussed below. If we do not accept TIREM, the satellite carriers
accept Longley-Rice as the next best option.[^190] PrimeTime 24 submits
that if we do endorse Longley-Rice, the Commission must pay particularly
careful attention to the parameters used in the model and should require
the model to assume the receiving antenna height is 5 feet above the
actual height of the household\'s roof or, alternatively, no more than
20 feet above ground.[^191]

*A Predictive Model for Individual Locations.* The model we endorse is a
version of Longley-Rice 1.2.2 that we have adapted for predicting signal
strength at individual locations. Called \"Individual Location
Longley-Rice\" or \"ILLR,\" it is similar to the point-to-point
predictive model we established for digital television (DTV)
allocations.[^192] We believe ILLR is an accurate, practical, and
readily available model for determining signal intensity at individual
locations. ILLR has several characteristics, discussed in detail below,
which make it unique:

•the time variability factor is 50%[^193] and the confidence variability
factor is 50%;

• the model is run in individual mode;

• terrain elevation is considered every 1/10 of a kilometer;

• receiving antenna height is assumed to be 20 feet above ground for
one-story buildings and 30 feet above ground for buildings taller than
one-story;

• land use and land cover (e.g., vegetation and buildings) shall be
included when an accurate method for doing so is developed;

•where error codes appear, they shall be ignored and the predicted value
accepted or the result shall be tested with an on-site measurement;

•locations both within and beyond a station\'s Grade B contour shall be
examined.

We believe the ILLR can be used for predicting signal strength for
purposes of the SHVA as well as for other purposes that require
information about signal intensity at discrete locations. The model
would not supplant currently-existing approaches for depicting a field
strength contour or for describing a station\'s service area.
Specifically, the ILLR will not replace the current Commission rules for
field strength contours (47 C.F.R. § 73.683) or prediction of coverage
for non-SHVA purposes (47 C.F.R. §73.684).[^194] In fact, the ILLR
should not affect a station\'s Grade B contour or service area, because
areas are irrelevant when predicting what signals exist at a particular
location. As both satellite carriers and broadcasters have recognized, a
predictive model for individual locations might identify unserved
households that lay within a station\'s Grade B contour or, likewise,
might identify served households outside a Grade B contour.[^195]
Importantly, our model should not increase or decrease the number of
truly unserved households.[^196] The number of unserved households
remains finite under any single definition of Grade B intensity, and we
do not change that definition here. If a household is unserved in
reality, the ILLR prediction model will not change that situation.
Likewise, if a household is currently served, the prediction model will
not change it to an unserved household. A predictive model of any sort
simply reflects reality without actually testing or observing it, and
some are better than others at painting the most lifelike picture. The
ILLR corrects for the mistakes of less-appropriate and less-accurate
models by more precisely identifying households as served or unserved.

*Time, Location, and Confidence Factors*. Predictive models are
inherently imperfect because they seek to replicate reality without
actually measuring or observing it. These imperfections can be mitigated
through statistical means and by varying the \"ingredients,\" or
factors, included in any particular model. For example, although signals
of Grade B intensity are defined as discrete values measured in dBu, the
intensity of broadcast signals at particular locations and at particular
times cannot be precisely determined, regardless of the predictive
method used.

One way to account for these factors is to build them directly into
signal strength values. The Grade B intensity levels are actually median
signal strengths \-- *i.e.*, 50% of locations in a particular area
should receive a Grade B signal or higher at least 50% of the time.
However, this does not mean that 50% of the locations will receive an
*acceptable picture* only 50% of the time. The Grade B values have a
built-in time factor so that an acceptable picture is predicted at least
90% of the time. For example, a signal strength of 41 dBu equals an
acceptable picture for channels 2-6. To ensure that a location receives
such a signal 90% of the time, the Grade B value for those channels, 47
dBu, includes an extra time factor of 6 dBu.[^197] Thus, although a
location receiving a Grade B signal of 47 dBu will only get that signal
50% of the time, that same location will receive a 41 dBu signal 90% of
the time.

Time, location, and confidence factors can also be built into predictive
models.[^198] However, it is often unnecessary to build an additional
factor into a predictive model to get the desired results. For instance,
the Grade B values already predict the existence of an acceptable
television picture at least 90% of the time, so the model need only
predict that a signal of Grade B intensity exists at least 50% of the
time. Use of a higher time factor, such as 90%, would amount to
unnecessary double-counting. The Longley-Rice model used for DTV
allocations recognizes this and, therefore, incorporates the 50% time
factor into its calculations. Both broadcasters and satellite carriers
agree that this is also appropriate for purposes of the SHVA.[^199] We
therefore see no reason to change the number when adapting Longley-Rice
to the individual location context.

Although the parties generally agree that the time factor should be 50%,
they do not agree on the appropriate level for the confidence factor.
Confidence, in this context, is a way of expressing how certain the
model is that the predicted signal value is *at least* that high.[^200]
Importantly, it is not a reflection of how accurate the model is.
Longley-Rice has generally incorporated a 50% confidence factor in its
calculations.[^201] The broadcasters object to any higher number because
they claim it underpredicts served households, and would discourage
trust in the model while encouraging more signal testing. The
broadcasters note that \"confidence\" does not mean, as the word
implies, that the model is more accurate.[^202]

We believe that increasing the \"confidence\" factor above 50% decreases
errors of one type and increases errors of another type. For example, if
we use a confidence factor of 90%, the model will \"search\" for a
predicted signal value at a particular location in which it has 90%
confidence that the value would, in reality, be that value or higher.
The model could predict a particular signal value, say 47 dBu, and be
85% confident that the signal would be 47 dBu or higher in reality. Such
a high level of confidence means it would be very likely that the
location would get a 47 dBu signal. However, because it is searching for
a value in which it has 90% confidence, the model would not predict 47
dBu and would continue searching. Eventually, the model would find a
signal value in which it has 90% confidence, say 45 dBu, and deliver
that as the result. Taking the example one step further, consider a
\"served\" household under the SHVA to be a household that receives a
signal of at least 47 dBu (the appropriate value for channels 2-6). If
the model predicts with 90% confidence that a signal of *at least* 45
dBu exists, the 45 dBu household would be classified as \"unserved,\"
even though it is very likely (85% confidence) that it receives a signal
of at least 47 dBu. We believe it would be inconsistent with the SHVA to
classify a household as *unserved* when a model could predict it to be
*served* with such a high degree of confidence. Therefore, a confidence
variability factor of 90% is unsuitable for purposes of the SHVA because
it overpredicts the number of truly unserved households.

A predictive model that includes truly served households in an unserved
category, even temporarily, creates several undesired effects. First,
consumers could be confused and frustrated. If the model overpredicts
the number of unserved consumers, and those consumers subscribe to
network service via satellite, they will face disappointment when the
broadcaster forces termination of the broadcast network service.
Conversely, if the model underpredicts the number of unserved consumers,
they would be unjustly deprived of broadcast network service via
satellite. Second, the SHVA protects network affiliates by making their
served households off limits to satellite delivery of broadcast
networks. A 90% confidence factor for served households would make many
truly served households eligible for satellite-delivered network
service, contrary to the intent of the SHVA. Third, if we endorse a
model that underpredicts served households, broadcasters would have a
great incentive to challenge the model\'s prediction by taking an actual
measurement. Satellite carriers would pursue testing when models
consistently underpredict unserved households. Either result would
defeat our goal of endorsing a predictive methodology upon which all
parties can rely.

We have chosen to incorporate a 50% confidence factor in the ILLR model
because it neither overpredicts nor underpredicts served households. A
50% confidence factor does not create a statistical bias in favor of
either satellite carriers or broadcasters. Rather, it provides a median
result that does not predictably err in one direction or the other. We
have sought to endorse a confidence factor that is fair to both sides.
Importantly, broadcasters have accepted the 50% confidence factor in
their pleadings and in their endorsement of the DTV Longley-Rice model
in the Miami court case. Similarly, SBCA\'s engineering experts,
Hatfield and Dawson, propose using a 50% confidence factor in the TIREM
model that they endorse. They explain that when the confidence factor is
50%, the model predicts the median situation and \"the user has no
control over this statistical variable.\"[^203]

*Individual Mode*. The ILLR will operate in a so-called \"individual
mode,\" reflecting an observer\'s point-of-view at a single location. In
the ILLR, location variability becomes effectively irrelevant because
only one location (*e.g.*, a single household) is considered. The
individual mode merges location variability (the measurable or
observable differences between dissimilar locations) and so-called
situational variability (the small, often hidden, differences between
similar or identical locations) into the statistical confidence
factor.[^204] One expert on the issues, George Hufford, states:

In the [individual mode]{.underline} situation and location variability
are combined so that there remain this combined variability and time
variability. Here, the typical user would be the individual receiver of
a broadcast station for whom reliability means the time availability,
and confidence means the combined situation/location variability.[^205]

Compare the \"broadcast mode,\" in which the DTV Longley-Rice model
operates, but which is inappropriate for the purposes of the SHVA.[^206]
That mode reflects the broadcaster\'s point-of-view when it is
determining a service area that includes many locations. The DTV
allotment proceeding utilized the broadcast mode because it was
predicting the service areas of the new DTV stations, not the status of
individual households as served or unserved by analog (NTSC) signals.

*Terrain Elevation.* Because the model seeks to predict signal intensity
at individual locations, the model we endorse considers terrain
elevation every 1/10 of a kilometer. This distance is as precise as
current technology allows. It contrasts with the DTV Longley-Rice model
that considers terrain elevation every kilometer.[^207]

*Antenna Height.* The ILLR model approximates the height of the
household whose signal is being predicted. Current models presume an
antenna height of 30 feet. The model we endorse, when used for purposes
of the SHVA, shall incorporate an antenna height of 20 feet for one
story buildings and 30 feet for buildings taller than one story,
including MDUs. This requirement is generally consistent with our
conclusions about the height a tester must raise a testing antenna when
making actual, on-site signal measurements.[^208]

*Land Use and Land Cover.* Satellite carriers and some other commenters
argue that vegetation and buildings affect signal intensity. Some
broadcasters agree that vegetation and buildings affect signal
propagation, but assert that the Longley‑Rice model, as well as the
Grade B planning factors, already account for these effects.[^209] The
Network Affiliate Associations acknowledge, however, that the empirical
data allegedly incorporated in the Longley‑Rice model consists of, at
most, \"sparse\" ground cover and some \"areas with moderate
forestation.\"[^210] They add that this data produces a model that
includes the effects of foliage \"only to the fixed degree that they
were present in the data used.\" Other broadcasters contend that
buildings have no appreciable effect on the rural areas that Congress
sought to protect in the SHVA because large buildings exist primarily
within the \"city grade\" where a broadcaster\'s field strength is
strong enough to overcome any problems.[^211] Some broadcasters contend
that vegetation changes seasonally and that both vegetation and land use
change rapidly as land is developed.[^212]

We conclude that land use and land cover affect signal intensity at
individual locations and should be used in the ILLR when an appropriate
application develops. The United States Geological Survey maintains a
Global Land Information System (\"GLIS\")[^213] database on land use and
land cover indicating features such as vegetation and man-made
structures. We believe that this information is both credible and
useful. We acknowledge that larger buildings are usually found in urban
areas and Congress expected that the SHVA would primarily benefit rural
consumers, but the definition of \"unserved\" is not explicitly limited
to those consumers. The statute does not impose a mileage limitation or
distinguish between urban and rural households. While we expect the
model to include land use and land cover, we are not aware of a standard
means of including such information in the ILLR that has been accepted
by the technical and scientific community. When an appropriate
application has been developed and accepted, this information will be
included in the ILLR. We challenge interested parties to develop such an
application that more accurately reflects the signal intensity at an
individual location.

*Interference.* The Longley-Rice model as used in the DTV Allotment
proceeding is capable of predicting interference from nearby television
stations. We believe that the model we endorse, ILLR, should include
signal interference so that it will more accurately predict picture
quality. We acknowledge that interference is not formally included in
the measurement methodology we have established in this *Order*,
primarily because of the difficulties that would be created if we
required testers to attempt to measure for it.[^214] However, all sides
have acknowledged that interference affects picture quality, and we
believe that, in contrast to the measurement methodology, interference
can be reliably included in the predictive model, and so it should be
included to create more accurate results.

*Error Codes.* Some satellite carriers have argued strongly for
alleviation of the problems presented by error codes (KWX=3) that the
Longley-Rice model sometimes presents after analysis of signal intensity
at particular locations. Error codes result when the model makes a
prediction of signal intensity, but essentially rejects the prediction
for a reason that may or may not be significant. Hatfield and Dawson, in
their Engineering Statement accompanying the SBCA Comments, describe
error codes:

In circumstances where the program\'s capabilities are exceeded,
\[Longley‑Rice 1.2.2\] cannot compute a result that falls within its
\`confidence\' limits, and therefore returns an error code. The \[DTV\]
version of the program assumes service (that is, signal above the
desired threshold) for these conditions.[^215]

They explain that these drawbacks are trivial for DTV allotment and
service analysis, but in the SHVA situation, \"it is manifestly unjust
at those locations where propagation path impairments may result in
input parameter variations which cannot properly be calculated by
Longley‑Rice 1.2.2 \[and\] its use for SHVA compliance testing is
unsupportable.\"[^216] Broadcasters respond that this is a
\"non-issue.\" NAB claims that PrimeTime 24 wants a household
automatically deemed \"unserved\" if the program returns an error code.
The NAB asserts that this contradicts the advice offered by SBCA\'s
engineers, Hatfield & Dawson, to ignore the error codes as if they were
a \"false alarm.\"[^217] The Affiliates Association also contends that
the error codes are false alarms that are not built into the
Longley-Rice model and are ignored by the DTV version of
Longley-Rice.[^218] We conclude that a party should either accept the
prediction by ignoring the error code or test the result with an on-site
measurement.[^219] If the result is accepted and is high enough to
predict service, the household shall be classified as served. If the
result is low enough to predict lack of service, the household shall be
classified as unserved.

*TIREM.* Several satellite carriers have asked the Commission to endorse
the TIREM predictive model instead of Longley-Rice.[^220] It was
developed by the Joint Spectrum Center of the Defense Department to test
specific paths with complex geometry.[^221] News Corporation and the
Corporation for Public Broadcasting have used one version of this model
to examine their stations\' coverage.[^222] However, the NAB\'s
engineering consultant, Jules Cohen, rejects the model, contending that
there are many versions of TIREM, that it is unclear which version is
recommended by satellite carriers, and that the TIREM version that is
discussed most often is proprietary.[^223] He also states that TIREM\'s
proponents have provided little data on which to examine the propriety
of using TIREM in the SHVA context.[^224] The Affiliate Associations add
that the proprietary version would cost \$500,000 to adapt for purposes
of the SHVA.[^225] They also assert that neither the Commission nor the
broadcast and satellite industries have extensive experience with TIREM,
especially when compared to the experience the Commission already has
with Longley-Rice.

We believe that TIREM shows promise as a tool for predicting signal
intensity at individual locations, but we decline to endorse it at this
time for several reasons. NTIA has confirmed the concerns raised by some
commenters concerning the public availability of a standardized and
useful version of TIREM.[^226] For example, the NTIA states that the
latest version of TIREM may not be readily available outside of eligible
government agencies due to federal export restrictions.[^227] These
impediments to access and use would severely impede TIREM\'s usefulness
to the industries and to consumers. Further, there is not enough
information regarding which, if any, version would work best in the SHVA
context. We are unaware of any empirical information demonstrating that
publicly available applications of TIREM are substantively more accurate
than the ILLR. Indeed, the NTIA has run tests comparing the publicly
available version found on its Internet site with both the Commission\'s
traditional Grade B contour projections and a version of Longley-Rice
similar to ILLR.[^228] The NTIA created a chart of sample contours for
16 designated market areas and accompanying maps that suggest that, in
many cases, TIREM Version 3 predicts a station service area larger than
the Commission\'s traditional Grade B contour.[^229]

In contrast to TIREM, the Commission has many years of experience using
and evaluating the Longley-Rice model. TIREM and Longley-Rice consider
the same factors: \"frequency, atmospheric conditions, the electrical
parameters of the earth, and the shape of the terrain between the two
points.\"[^230] The difference between the models is the algorithm used
to consider the factors. Neither model\'s source code accounts for
vegetation or buildings, but both models could be run including this
data, as ILLR will be. Further, we are increasing the accuracy of the
Longley-Rice model for the purpose of predictions for individual
locations by requiring that terrain elevations be examined every
one-tenth kilometer. In light of the significance and weight conveyed by
the Commission\'s endorsement of a particular model, we believe that the
ILLR model will provide most, if not all, of the same benefits claimed
for TIREM by its proponents while avoiding its current potential
flaws.[^231]

**E. Loser Pays**

The SHVA contains a \"loser pays\" mechanism that allows a party to
recover the cost of conducting a signal measurement at a subscriber\'s
household.[^232] At the present time, the loser pays mechanism only
applies when parties are in litigation. Under the current law, if a
broadcast network station questions whether a subscriber is unserved, an
actual measurement at the subscriber\'s household may be conducted by
either the satellite carrier or broadcaster to determine
eligibility.[^233] If a measurement shows that the household is
unserved, the broadcaster must pay the cost of the test. Similarly, if
the test shows that the household is served, the satellite carrier must
assume the cost of the test. From 1994 to 1996, the SHVA had
\"transitional rules\" that included a \"loser pays\" mechanism
different from the one currently in effect.[^234] This \"loser pays\"
mechanism was not confined to the context of civil litigation.[^235]

In light of the Miami and Raleigh court findings that satellite carriers
have signed up millions of people who are served, it appears that the
loser pays mechanisms have not been effective in discouraging the
enrollment of ineligible subscribers.[^236] The record is unclear on the
reason for this failure, but anecdotal evidence suggests that both
satellite carriers and broadcasters are disinclined to conduct tests,
even when they are likely to win, because the tests could annoy their
customers and generate ill-will.

Some commenters endorse the current loser pays mechanism in the
SHVA.[^237] Several broadcasters have noted that the
privately-negotiated settlement agreement between broadcasters and
Primestar/Netlink includes a \"loser pays\" arrangement that does not
require civil litigation.[^238] A few of the satellite carriers
criticize the SHVA\'s current loser pays requirement, arguing that it
does not adequately decrease the motivation for broadcasters to bring
numerous challenges against satellite carriers.[^239] They advocate a
\"challenger pays\" mechanism in which the party challenging a
predictive model\'s presumptive result would bear the cost of the test
regardless of the outcome.[^240] Broadcast industry commenters oppose
\"challenger pays\" as unfair.[^241]

The loser pays mechanism is part of the SHVA, and the Commission has no
authority to change this mechanism or to promulgate regulations that
conflict with it. We believe that the Commission\'s endorsement of a
more reliable predictive model in this *Order* will allow the existing
loser pays mechanism in the SHVA to work more effectively in civil
actions.

**III. FUTURE OPTIONS**

The resolution of the issues surrounding delivery of broadcast network
signals over satellite should not end with this *Order*. There are
several, often competing, public policies involved in the future actions
that we discuss below. The value of local broadcasting in this country
has been recognized time and again by Congress and the Commission. Local
television stations play a vital role in delivering news, weather, and
public affairs information to their local communities. The growing
competition between DBS and cable, however, benefits consumers by giving
them more choices to watch what they want and by creating new and
higher-quality services. DTH satellite carriers have proven to be the
most successful competitors to incumbent cable companies, but they still
serve only 9 million households, which is only between 10% and 15% of
the multichannel video programming market.[^242] One significant reason
consumers give for not considering satellite programming service is the
difficulty of getting seamless broadcast network service. Congress has
informally asked for our opinion on options to improve the SHVA and
Communications Act to better serve consumers. In response to these
requests, we identify some possible changes Congress could consider.
This list is not meant to be exhaustive.

**A.Local-into-Local**

Congress could consider changes to copyright law to allow satellite
companies to provide local television stations to local markets. Cable
companies already do this, to their distinct advantage *vis a vis* the
satellite carriers. Broadcasters support local-into-local legislation
because they do not fear losing their audiences \-- and the advertising
dollars that follow.[^243] Some satellite carriers accept
local-into-local legislation because it gives them a limited right to
provide their subscribers with services those subscribers want.[^244]
Local-into-local satisfies consumers\' demands for broadcast network
service via satellite without harming localism. Local-into-local also
makes satellite carriers more attractive to consumers, thus increasing
their competitive standing with cable companies. However,
local-into-local cannot provide the solution for every community in the
immediate future, due to limitations in the satellites\' capacity to
carry every local channel. EchoStar recently predicted that with new
spectrum, and without full must‑carry requirements, it will only be able
to serve 20 major cities within the next three years.[^245] Those cities
cover about half the United States\' population. Smaller cities would
not be able to receive service, even under the best scenario, for about
5 years. Viewers who live in communities where local-into-local service
is unavailable will need other solutions, including DirecTV\'s practice
of selling over-the-air antennas with their satellite dishes. However,
for those that can receive local network stations via satellite,
local-into-local provides a partial solution that should address the
needs of consumers and the broadcast and satellite industries, as well
as promote competition to cable.

**B.Change from the Grade B Signal Intensity Standard**

We have noted that the Grade B signal intensity standard was originally
designed to depict a television station\'s service area, and that it may
not address all the factors that determine the quality of a consumer\'s
television picture. This is especially true if one assumes that
consumers have higher expectations for their television picture than
they did in the 1950s and that environmental changes increase the
effects of the factors that Grade B cannot easily address, such as
ghosting and signal interference. Although we believe that the Grade B
standard is still useful for determining signal strength and signal
intensity, there may be a better, but still objective, standard that
could be developed for identifying unserved households. The SHVA,
however, prevents the Commission from exploring an alternative standard
because it explicitly requires the use of Grade B to measure signal
intensity and determine whether a household is unserved. This
undertaking would demand considerable time and significant government
and industry resources.

**C.90-Day Waiting Period**

Before receiving satellite-delivered broadcast networks, the SHVA
requires an unserved consumer who subscribes to cable to terminate that
service and wait for 90 days. Once the cable service ends, the consumer
then would face 90 days with no acceptable network service \-- nothing
over cable, unattainable over-the-air, and not yet available via
satellite. This requirement discourages a potential satellite consumer
from terminating his or her cable service. We believe that elimination
of the waiting period should be considered.

**D.Predictive Model and Loser Pays Mechanism**

The \"loser pays\" mechanism in the SHVA holds promise for helping to
resolve or avoid the disputes that arise under the law, but it currently
applies only when the parties are engaged in civil litigation over the
eligibility of subscribing households to receive broadcast network
programming via satellite. We believe the loser pays mechanism would be
more effective if it also applied before litigation commences and if
used in conjunction with a predictive model. Initially, we suggest that
clear statutory acceptance of prediction models for creating rebuttable
presumptions of service or lack of service would add certainty to the
entire SHVA process. The ILLR that we endorse in this *Order* will
reduce mistakes when predicting a household\'s status as served or
unserved and will therefore allow parties to be more confident in the
predicted result and less inclined to conduct or demand a test. A
broadly applied loser pays mechanism that allocates the cost of testing
on the party in error, in conjunction with this more reliable prediction
model, would likely give satellite carriers an economic incentive to
avoid enrolling consumers who are predicted to be served, and to
discourage broadcasters from challenging subscribers who are predicted
as unserved. Less testing means less burden and inconvenience for the
industries and consumers. Fewer challenges and disputes would reduce the
number of consumers who are angered and inconvenienced by the operation
of the SHVA.

**IV. PROCEDURAL MATTERS**

To minimize possible confusion in connection with the injunction
scheduled to take effect on February 28, 1999, that will affect more
than 700,000 satellite subscribers, this *Report and Order* will become
effective upon publication in the Federal Register. We find good cause
exists under the Administrative Procedure Act (\"APA\") to have the rule
adopted in this *Report and Order* take effect upon publication in the
Federal Register pursuant to section 553(d)(3) of the APA.[^246] We
believe that making the *Report and Order* and rule effective upon
publication in the Federal Register will eliminate any confusion should
the court in *CBS et al. v. PrimeTime 24* wish to issue a supplemental
order in light of the conclusions in this *Order*.[^247]

*Paperwork Reduction Act of 1995 Analysis*. The requirements adopted in
this *Report and Order* have been analyzed with respect to the Paperwork
Reduction Act of 1995 (the \"1995 Act\") and found to impose new or
modified information collection requirements on the public. The
Commission has requested Office of Management and Budget (\"OMB\")
approval, under the emergency processing provisions of the 1995 Act (5
C.F.R. § 1320.13), of the information collection requirements contained
in this *Report and Order*.

*Regulatory Flexibility Act Analysis.* The regulatory flexibility
analysis is found in Appendix A, attached.

*Ordering Clauses.* **IT IS ORDERED**, pursuant to Sections 1, 4(i),
4(j) of the Communications Act of 1934, as amended, 47 U.S.C. §§ 151,
154(i), and 154(j); and Section 119(d)(10)(a) of the Copyright Act, 17
U.S.C. § 119(d)(10)(a), the terms and rule of this *Report and Order*
**ARE ADOPTED**. The amendments to 47 C.F.R. § 73.686 shall become
effective upon date of publication of this *Report and Order* in the
Federal Register.

**IT IS FURTHER ORDERED** that the Commission\'s Office of Public
Affairs, Reference Operations Division, **SHALL SEND** a copy of this
Report and Order, including the Final Regulatory Flexibility Analysis,
to the Chief Counsel for Advocacy of the Small Business Administration
in accordance with paragraph 603(a) of the Regulatory Flexibility Act,
Pub. L. No. 96-354, 94 Stat. 1164, 5 U.S.C. §§ 601 et seq. (1981).

**FEDERAL COMMUNICATIONS COMMISSION**

Magalie Roman Salas

Secretary

**Appendix A**

**Final Regulatory Flexibility Analysis**

As required by the Regulatory Flexibility Act (\"RFA\") an Initial
Regulatory Flexibility Analysis (\"IRFA\") was incorporated into the
Notice of Proposed Rulemaking (\"*NPRM*\") in this proceeding. The
Commission sought written public comment on the possible impact of the
proposed policies and rules on small entities in the *NPRM*, including
comments on the IRFA. This Final Regulatory Flexibility Analysis
(\"FRFA\") in this Report and Order (\"Order\") conforms to the RFA.

**A. Need for and Objective of the Rules**

. In this Order, the Commission responds to Petitions for Rulemaking
filed by the National Rural Telecommunications Cooperative and EchoStar
Communications Corporation requesting that the Commission address the
methods for determining whether a household is \"unserved\" by network
television stations for purposes of the 1988 Satellite Home Viewer
Act.[^248]

**B. Legal Basis**

. This Order is authorized under Sections 1, 4(i), 4(j) of the
Communications Act of 1934, as amended, 47 U.S.C. §§ 151, 154(i), and
154(j) and Section 119(d)(10)(a) of the Copyright Act, 17 U.S.C. §
119(d)(10)(a).

**C. Summary of Significant Issues Raised by the Public Comments in**

**Response to the IRFA.**

3\. Small Cable Business Association (SCBA) filed comments regarding the
possible impact of this proceeding on small cable operators. SCBA
contends that since small cable and satellite carriers draw from the
same customer base, any Commission action broadening the \"unserved\"
household definition could adversely affect small cable operators. SCBA
contends that its members represent an important link in the
distribution of local programming, especially in rural areas, and should
not be overlooked in this proceeding. SCBA does not object to satellite
delivery of broadcast network signals, so long as satellite providers
are required to provide carriage of all broadcast signals within a
single community. National Association of Broadcasters (NAB), and
others, maintain that any expansion of unserved viewers could have a
substantial impact on television broadcast stations serving smaller
markets. The ability of these stations to purchase programming and to
serve their viewers would be impacted by lower advertising revenues
should the Commission\'s actions dramatically expand the numbers of
unserved households in their market place. National Rural
Telecommunications Cooperative urges the Commission to revisit the
conclusion in its IRFA that because small businesses do not have the
financial resources necessary to become DBS licensees, none will be
affected by the proposed action.

**D. Description and Estimate of the Number of Small Entities To**

**Which the Rules Will Apply**

4\. 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 action.[^249] The RFA defines the term \"small
entity\" as having the same meaning as the terms \"small business,\"
\"small organization,\" and \"small business concern\" under Section 3
of the Small Business Act.[^250] Under the Small Business Act, a small
business concern is one which: (1) is independently owned and operated;
(2) is not dominant in its field of operation; and (3) satisfies any
additional criteria established by the SBA.[^251] The action taken in
this Order will affect television broadcasting licensees and DTH
satellite operators.

5\. *Television Stations*. The rules in this Order will apply to
television broadcasting licensees, and potential licensees of television
service. The SBA defines a television broadcasting station that has no
more than \$10.5 million in annual receipts as a small business.[^252]
Television broadcasting stations consist of establishments primarily
engaged in broadcasting visual programs by television to the public,
except cable and other pay television services.[^253] Included in this
industry are commercial, religious, educational, and other television
stations.[^254] Also included are establishments primarily engaged in
television broadcasting and that produce taped television program
materials.[^255] Separate establishments primarily engaged in producing
taped television program materials are classified under another SIC
number.[^256] There were 1,509 television broadcasting stations
operating in the nation in 1992.[^257] That number has remained fairly
constant as indicated by the approximately 1,579 operating full power
television broadcasting stations in the nation as of May 31, 1998.[^258]
In addition, as of October 31, 1997, there were 1,880 low power
television broadcasting (\"LPTV\") broadcasting stations that may also
be affected by our proposed rule changes.[^259] For 1992[^260] the
number of television broadcasting stations that produced less than
\$10.0 million in revenue was 1,155 establishments.[^261]

6\. *DBS and other DTH satellite operators.* The Commission has not
developed a definition of small entities applicable to geostationary or
non-geostationary orbit fixed-satellite or DBS service applicants or
licensees. Therefore, the applicable definition of small entity is the
definition under the SBA rules applicable to Communications Services,
Not Elsewhere Classified. This definition provides that a small entity
is one with \$11.0 million or less in annual receipts.[^262] The number
of employees working for a \"small entity\" must be 750 or fewer.
According to Census Bureau data, there are 848 firms that fall under the
category of Communications Services, Not Elsewhere Classified that could
potentially fall into the DTH category. Of those, approximately 775
reported annual receipts of \$11 million or less and qualify as small
entities.[^263] The proposed action in this Order applies to entities
providing DTH service, including licensees of DBS services and
distributors of satellite programming. There are four licensees of DBS
services under Part 100 of the Commission\'s rules.[^264] Three of those
licensees are currently operational, and each of those licensees has
annual revenues in excess of the threshold for a small business.

**E.Description of Projected Reporting, Record-keeping, and Other
Compliance Requirements**

7\. The rules adopted today impose no requirement to file any
information with the Federal Communications Commission. Parties who
choose to conduct individual household measurements are required to
reduce to memorialize their test observations and results.

**F.Steps Taken to Minimize Significant Economic Impact on Small
Entities, and Significant Alternatives Considered**

8\. We believe that the rules we adopt today will have minimal impact on
small television stations\' ability to serve the public. The rule we
adopt today has no impact on the number of viewers who are \"unserved\"
or unable to receive the relevant television broadcast stations\'
signals, thus mitigating any economic impact in the market place. The
rule will primarily affect DTH satellite operators, carriers and
distributors, as well as full power commercial stations that are
affiliates of national networks. The latter businesses generally do not
fall into the category of small entities. Any adverse effect on the
satellite industry is primarily the result of SHVA itself, and the
actions we take represent our efforts to maximize competition including
competition by small businesses consistent with faithfully interpreting
the Act.

**G.Federal Rules that May Duplicate, Overlap, or Conflict with the
Proposed Rule Changes**

9\. None.

**Appendix B**

**§73.686(d) Collection of field strength data to determine television
signal intensity at an individual location \-- cluster measurements.**

\(1\) *Preparation for measurements.*

\(i\) *Testing antenna.* The test antenna shall be a standard half-wave
dipole tuned to the visual carrier frequency of channel being measured.

\(ii\) *Testing locations.* At the location, choose a minimum of five
locations as close as possible to the specific site where the site\'s
receiving antenna is located. If there is no receiving antenna at the
site, choose the minimum of five locations as close as possible to a
reasonable and likely spot for the antenna. The locations shall be at
least three meters apart, enough so that the testing is practical. If
possible, the first testing point should be chosen as the center point
of a square whose corners are the four other locations. Calculate the
median of the five measurements (in units of dBu) and report it as the
measurement result.

\(iv\) *Multiple Signals.* If more than one signal is being measured
(i.e., signals from different transmitters), use the same locations to
measure each signal.

\(2\) *Measurement Procedure*. Measurements shall be made in accordance
with good engineering practice and in accordance with this section of
the Rules. At each measuring location, the following procedure shall be
employed:

\(i\) *Testing Equipment.* Measure the field strength of the visual
carrier with a calibrated instrument with a bandwidth of at least 450
kHz, but no greater than one megahertz. Perform an on-site calibration
of the instrument in accordance with the manufacturer\'s specifications.
The instrument must accurately indicate the peak amplitude of the
synchronizing signal. Take all measurements with a horizontally
polarized dipole antenna. Use a shielded transmission line between the
testing antenna and the field strength meter. Match the antenna
impedance to the transmission line, and, if using an unbalanced line,
employ a suitable balun. Take account of the transmission line loss for
each frequency being measured.

\(ii\) *Weather.* Do not take measurements in inclement weather or when
major weather fronts are moving through the measurement area.

\(iii\) *Antenna Elevation.* When field strength is being measured for a
one-story building, elevate the testing antenna to 6.1 meters (20 feet)
above the ground. In situations where the field strength is being
measured for a building taller than one-story, elevate the testing
antenna 9.1 meters (30 feet) above the ground.

\(iv\) *Antenna Orientation.* Orient the testing antenna in the
direction which maximizes the value of field strength for the signal
being measured. If more than one station\'s signal is being measured,
orient the testing antenna separately for each station.

\(3\) *Written Record shall be made and shall include at least the
following:*

\(i\) A list of calibrated equipment used in the field strength survey,
which for each instrument, specifies the manufacturer, type, serial
number and rated accuracy, and the date of the most recent calibration
by the manufacturer or by a laboratory. Include complete details of any
instrument not of standard manufacture.

\(ii\) A detailed description of the calibration of the measuring
equipment, including field strength meters, measuring antenna, and
connecting cable.

\(iii\) For each spot at the measuring site, all factors which may
affect the recorded field, such as topography, height and types of
vegetation, buildings, obstacles, weather, and other local features.

\(iv\) A description of where the cluster measurements were made.

\(v\) Time and date of the measurements and signature of the person
making the measurements.

\(vi\) For each channel being measured, a list of the measured value of
field strength (in units of dBu and after adjustment for line loss and
antenna factor) of the five readings made during the cluster measurement
process, with the median value highlighted.

**Appendix C**

**COMMENTS**

+-----------------------------------+-----------------------------------+
| 1\. ABC, CBS, Fox, and NBC        | 30\. Brueggeman, William          |
|                                   |                                   |
| Television Network Affiliate Assn | 31\. Bushway, Courtney D.         |
|                                   |                                   |
| 2\. Aeder, Michael                | 32\. Cadavid, Carlos              |
|                                   |                                   |
| 3\. A. H. Belo Corporation        | 33\. California Oregon            |
|                                   | Broadcasting                      |
| 4\. Alexander, Dennis Jay         |                                   |
|                                   | 34\. Cantella, Vince              |
| 5\. Allum, Raymond G.             |                                   |
|                                   | 35\. Cantisano, Richard           |
| 6\. Association for Maximum       |                                   |
| Service                           | 36\. Capital of Texas Public      |
|                                   |                                   |
| Television (MSTV)                 | Telecommunications Council        |
|                                   |                                   |
| 7\. Association of America\'s     | 37\. Capitol Broadcasting Co.,    |
| Public                            | Inc.                              |
|                                   |                                   |
| Television Stations (APTS)        | 38\. Caprez, Randy R.             |
|                                   |                                   |
| 8\. Association of Local          | 39\. Catamount Broadcast Group    |
| Television                        |                                   |
|                                   | 40\. Cathey, Ben H.               |
| Stations, Inc. (ALTV)             |                                   |
|                                   | 41\. CBS Corporation              |
| 9\. Arkansas Broadcasters         |                                   |
| Association                       | 42\. Cedar Rapids Television      |
|                                   | Company                           |
| 10\. Bailey, Michael E.           |                                   |
|                                   | 43\. Cheever, Susan               |
| 11\. Baldridge, Susan             |                                   |
|                                   | 44\. Chitty, Louis                |
| 12\. Ball, Pamela                 |                                   |
|                                   | 45\. Clark, Danny                 |
| 13\. Bandy, Bo                    |                                   |
|                                   | 46\. Clark, Ross L.               |
| 14\. Bandy, James D.              |                                   |
|                                   | 47\. Clear Channel Communications |
| 15\. Barlean, John                |                                   |
|                                   | 48\. Coffield, Frank              |
| 16\. Belina, Greg                 |                                   |
|                                   | 49\. Coggins, Kevin               |
| 17\. Bell, Randy                  |                                   |
|                                   | 50\. Conditt, Rebecca             |
| 18\. Benedek Broadcasting         |                                   |
| Corporation,                      | 51\. Cordillera Communications,   |
|                                   | Inc.,                             |
| Chronicle Broadcasting Company,   |                                   |
| Draper Communications, Inc., LIN  | Cosmos Broadcasting Corporation,  |
| Television Corporation, Midwest   | Cox Broadcasting, Inc.,           |
| Television, Inc., Paxton Media    | Independence Television Company & |
| Group, Inc., Post-Newsweek        | Media General Broadcasting, Inc.  |
| Stations, Inc., Raycom Media,     |                                   |
| Inc., and Spartan Communications, | 52\. Corporation for General      |
| Inc. (joint comments)             | Trade                             |
|                                   |                                   |
| 19\. Biby Engineering Services    | 53\. Davidson, Donald             |
| P.C.                              |                                   |
|                                   | 54\. Deaner, Mark E.              |
| 20\. Blake, Baird A.              |                                   |
|                                   | 55\. Decisionmark Corp.           |
| 21\. Blankenship, Penny           |                                   |
|                                   | 56\. DirecTV, Inc.                |
| 22\. Bloom, Ray                   |                                   |
|                                   | 57\. Dreyer, John H.              |
| 23\. Boline, John                 |                                   |
|                                   | 58\. Echostar Communications      |
| 24\. Bowes, John E.               | Corp.                             |
|                                   |                                   |
| 25\. Bowman, Noel                 | 59\. Ekart, Gary                  |
|                                   |                                   |
| 26\. Brechner Stations            | 60\. Elam, John                   |
|                                   |                                   |
| 27\. Brian, Tom                   | 61\. Electronics Technicians      |
|                                   | Assn, Int\'l.                     |
| 28\. Brooks Broadcasting LLC      |                                   |
|                                   | 62\. Ellsworth, Benjamin          |
| 29\. Brooks, Robert               |                                   |
|                                   | 63\. Entravision Holdings LLC     |
|                                   |                                   |
|                                   | 64\. Farris, Jr., Carl S.         |
|                                   |                                   |
|                                   | 65\. Festog, David                |
+-----------------------------------+-----------------------------------+
| 66\. Fisher Broadcasting, Inc.    | 112\. Kitchen, Kevin              |
|                                   |                                   |
| 67\. Fox Broadcasting Company     | 113\. Kiralla, John S.            |
|                                   |                                   |
| 68\. Fulkerson, Jo                | 114\. KKCO-TV                     |
|                                   |                                   |
| 69\. Gaines, Richard L.           | 115\. KLAX-TV                     |
|                                   |                                   |
| 70\. Gant, Susan                  | 116\. Knab, Terry                 |
|                                   |                                   |
| 71\. Garner, James and Claudia    | 117\. Knief, H.C.                 |
|                                   |                                   |
| 72\. Gilmore Broadcasting Corp.   | 118\. Kohl, Steven                |
|                                   |                                   |
| 73\. Gocom Communications LLC     | 119\. Kuhn, David                 |
|                                   |                                   |
| 74\. Godfrey, Chuck E.            | 120\. Laboone, Michael W.         |
|                                   |                                   |
| 75\. Gonser, Tom                  | 121\. Lacasse, Norman R.          |
|                                   |                                   |
| 76\. Granite Broadcasting         | 122\. Lamco Communications, Inc.  |
| Corporation                       |                                   |
|                                   | 123\. Laquintano, Robert          |
| 77\. Grant Broadcasting Group     |                                   |
|                                   | 124\. Lawrence, David R.          |
| 78\. Green, Lyman C.              |                                   |
|                                   | 125\. Leahy, Patrick (Senator)    |
| 79\. Greenwood, Bob and Sally     |                                   |
|                                   | 126\. Lear, James G.              |
| 80\. Griffith, Rebecca            |                                   |
|                                   | 127\. Lee Enterprises, Inc.       |
| 81\. Grimsley, Robert             |                                   |
|                                   | 128\. Lefevre, D. Meade           |
| 82\. Grocott, Terry P.            |                                   |
|                                   | 129\. Lenchus, Rachelle and       |
| 83\. Gustafson, David H.          | Richard                           |
|                                   |                                   |
| 84\. Hale, Gerald L.              | 130\. Local TV on Satellite       |
|                                   | (LTVS)                            |
| 85\. Halstead, Roger D.           |                                   |
|                                   | 131\. Louisiana Television        |
| 86\. Hamilton, Ralph B.           | Broadcasting                      |
|                                   |                                   |
| 87\. Hammett & Edison, Inc.       | Corp.                             |
|                                   |                                   |
| 88\. Hammonds, Trevor G.          | 132\. Lowrie, Max                 |
|                                   |                                   |
| 89\. Harris, Charles              | 133\. Manning, Peter L.           |
|                                   |                                   |
| 90\. Hassid, Jack                 | 134\. Mansfield, William T.       |
|                                   |                                   |
| 91\. Hauser, William              | 135\. Maranatha Broadcasting      |
|                                   | Company                           |
| 92\. Hearst-Argyle Television,    |                                   |
| Inc.                              | 136\. Marchino, Martha J.         |
|                                   |                                   |
| 93\. Heaton, Gigi                 | 137\. Marlowe, Ronald J.          |
|                                   |                                   |
| 94\. Heggenstaller, Dennis R.     | 138\. McCormack, Donald           |
|                                   |                                   |
| 95\. Henderson, T.A.              | 139\. McGinnis, Jr., Bryan H.     |
|                                   |                                   |
| 96\. Herman, Tommy                | 140\. McPherson, Jr., William C.  |
|                                   |                                   |
| 97\. Herndon, Bill                | 141\. Medeiros, Victor            |
|                                   |                                   |
| 98\. Hoffman, Joseph L.           | 142\. Media Venture Management,   |
|                                   | Inc.                              |
| 99\. Holston Valley Broadcasting  |                                   |
| Corp.                             | 143\. Meredith Corporation        |
|                                   |                                   |
| 100\. Hubbard Broadcasting, Inc.  | 144\. Miller, Ricky E. and        |
|                                   | Theresa J.                        |
| 101\. Hunt, James B., Governor,   |                                   |
| N.C.                              | 145\. Mobile Video Tapes, Inc.    |
|                                   |                                   |
| 102\. JME Media, Inc.             | 146\. Montclair Communications    |
|                                   |                                   |
| 103\. Johnson, Bobby J.           | 147\. Montgomery Communications,  |
|                                   | Inc.                              |
| 104\. Jones, Cecile               |                                   |
|                                   | 148\. Moore, Jr., Donald L.       |
| 105\. Jones, Claude P.            |                                   |
|                                   | 149\. Morgan Murphy Stations      |
| 106\. KASW(TV)                    |                                   |
|                                   | 150\. Moyer, John                 |
| 107\. KEYC-TV                     |                                   |
|                                   | 151\. Mt. Mansfield Television,   |
| 108\. KIEM-TV                     | Inc.                              |
|                                   |                                   |
| 109\. King, Edward                | 152\. Named State Broadcasters    |
|                                   | Assn                              |
| 110\. King, John E.               |                                   |
|                                   | 153\. Natl Assn of Broadcasters   |
| 111\. Kirchner, Ken               | (NAB)                             |
|                                   |                                   |
|                                   | 154\. National Broadcasting Co.   |
|                                   | (NBC)                             |
|                                   |                                   |
|                                   | 155\. National Communications,    |
|                                   | Inc.                              |
|                                   |                                   |
|                                   | 156\. National Football League    |
+-----------------------------------+-----------------------------------+
| 157\. National Rural Electric     | 197\. Small, Robert               |
| Coop. Assn.                       |                                   |
|                                   | 198\. Smith, Debra                |
| 158\. National Rural              |                                   |
| Telecommunications                | 199\. Snell, Jr., Donald F.       |
|                                   |                                   |
| Cooperative (NRTC)                | 200\. Stewart, David              |
|                                   |                                   |
| 159\. Nelson, Bill                | 201\. Superstar/Netlink Group,    |
|                                   | LLC                               |
| 160\. New Mexico Broadcasters     |                                   |
| Assn.                             | 202\. Sutton, Robert              |
|                                   |                                   |
| 161\. Newton, Mark                | 203\. Swain, Keith L.             |
|                                   |                                   |
| 162\. NOE Corp. LLC               | 204\. Tanner, Garth               |
|                                   |                                   |
| 163\. North Carolina and Virginia | 205\. Taylor, George W.           |
| Assn                              |                                   |
|                                   | 206\. Tennant, Raymond C.         |
| of Broadcasters                   |                                   |
|                                   | 207\. Texas Television, Inc.      |
| 164\. Northpoint Technology       |                                   |
|                                   | 208\. Thompson, Dave              |
| 165\. Ohanesian, Jay              |                                   |
|                                   | 209\. Traweek, Gary               |
| 166\. Oliver, Dylan               |                                   |
|                                   | 210\. Trodick, Marie J.           |
| 167\. Orton, Ralph                |                                   |
|                                   | 211\. TV-67, Inc.                 |
| 168\. Pappas Telecasting, Inc.,   |                                   |
| Morris                            | 212\. Vachal, Joel T.             |
|                                   |                                   |
| Network, Inc., and Pikes Peak     | 213\. Vanpool, Gary C.            |
| Broadcasting Company              |                                   |
|                                   | 214\. Virginia Broadcasting       |
| 169\. Pegasus Communications      | Corporation                       |
| Corp.                             |                                   |
|                                   | 215\. Wade, Randy                 |
| 170\. Peters, Jeremy              |                                   |
|                                   | 216\. Wallace, Jessica            |
| 171\. Porgal, John M.             |                                   |
|                                   | 217\. Wallace, Vaughn             |
| 172\. Post Company                |                                   |
|                                   | 218\. Walt Disney Company         |
| 173\. Potaracke, Kelly            |                                   |
|                                   | 219\. Warren, Ronald              |
| 174\. Powell, C. Randy            |                                   |
|                                   | 220\. Waterman Broadcasting Corp  |
| 175\. Primestar Partners L.P.     |                                   |
|                                   | of Florida                        |
| 176\. PrimeTime 24 Joint Venture  |                                   |
|                                   | 221\. Watson, Joe D.              |
| 177\. Professional Service Assn.  |                                   |
| (PSA)                             | 222\. WB Television Network       |
|                                   |                                   |
| 178\. Radosta, Dino J.            | 223\. Wedel, James                |
|                                   |                                   |
| 179\. Ragan, Jim                  | 224\. Weigel Broadcasting Co.     |
|                                   |                                   |
| 180\. Rasbury, Murry P.           | 225\. West, Jeff                  |
|                                   |                                   |
| 181\. Raymond, Harry E.           | 226\. Wheaton, Gordon             |
|                                   |                                   |
| 182\. Retlaw Enterprises, Inc.    | 227\. Wiegand, John V.            |
|                                   |                                   |
| 183\. Rhodes, Richard and Sharon  | 228\. Williams, Gary O.           |
|                                   |                                   |
| 184\. Ripley, Richard             | 229\. Wilmington Telecasters,     |
|                                   | Inc.                              |
| 185\. Robinson, Alan T.           |                                   |
|                                   | 230\. Withers Broadcasting        |
| 186\. Roney, T.J.                 | Companies                         |
|                                   |                                   |
| 187\. Rovira-Burset, Raul A.      | 231\. Woodruff, Rick              |
|                                   |                                   |
| 188\. Sanderson, E.H.             | 232\. Wright, John                |
|                                   |                                   |
| 189\. Satellite Broadcasting and  | 233\. WWNY-TV                     |
|                                   |                                   |
| Communications Assn. (SBCA)       | 234\. Young, William A.           |
|                                   |                                   |
| 190\. Schick, Cynthia             |                                   |
|                                   |                                   |
| 191\. Schmidt, J.E.               |                                   |
|                                   |                                   |
| 192\. Schultz, William M.         |                                   |
|                                   |                                   |
| 193\. Seelinger, Brian M.         |                                   |
|                                   |                                   |
| 194\. Shapiro, Edward L.          |                                   |
|                                   |                                   |
| 195\. Shockley Communications     |                                   |
| Corp.                             |                                   |
|                                   |                                   |
| 196\. Small Cable Business Assn   |                                   |
| (SCBA)                            |                                   |
+-----------------------------------+-----------------------------------+

**REPLY COMMENTS**

1\. ABC, CBS, Fox, and NBC Television Network Affiliate Associations

2\. ACC Satellite TV

3\. Association for Maximum Service Television (MSTV)

4\. Association of Local Television Stations, Inc. (ALTV)

5\. Bassett, Keith W.

6\. Comanche County Memorial Hospital

7\. DirecTV, Inc.

8\. Echostar Communications Corporation

9\. Granite Broadcasting Corporation

10\. Gray Communications System, Inc.

11\. KXLT-TV

12\. McClure, Mary

13\. Mt. Mansfield Television, Inc.

14\. National Association of Broadcasters (NAB)

15\. National Rural Telecommunications Cooperative (NRTC)

16\. Nebraska Television Network

17\. New Mexico Broadcaster Association

18\. Pappas Telecasting, Inc., Morris Network, Inc., and Pikes Peak
Broadcasting Company

19\. Pegasus Communications Corporation

20\. Primestar Partners L.P.

21\. PrimeTime 24 Joint Venture

22\. Professional Service Association

23\. Satellite Broadcasting and Communications Association (SBCA)

24\. South Sacramento/Greenhaven Chamber of Commerce

25\. Superstar/Netlink Group LLC

26\. United Way of Lawton-Fort Sill

27\. U.S. Copyright Office

**SUPPLEMENTAL FILINGS**

1\. ABC, CBS, Fox, and NBC Television Network Affiliate Associations
(joint filing)

2\. National Association of Broadcasters (NAB)

**LATE-FILED COMMENTS**

+-----------------------------------+-----------------------------------+
| 1\. Allison, Lynda                | 45\. Fulks, Charles O.            |
|                                   |                                   |
| 2\. Austin, Ada                   | 46\. Gallagher, Charles A.        |
|                                   |                                   |
| 3\. Ball, Penny                   | 47\. Grand, Cey J.                |
|                                   |                                   |
| 4\. Ballard, Wynette              | 48\. Green, Mr. & Mrs. Austin     |
|                                   |                                   |
| 5\. Barcus, Ralph E.              | 49\. Griffey, Clyde L. & Cecilia  |
|                                   | P-N                               |
| 6\. Barker, Francis               |                                   |
|                                   | 50\. Grissom, Shirley             |
| 7\. Barnes, Billy T.              |                                   |
|                                   | 51\. Guynn, Ruth                  |
| 8\. Beard, Marcia                 |                                   |
|                                   | 52\. Hedrick, James E.            |
| 9\. Blackledge, John              |                                   |
|                                   | 53\. Heit, Raymond & Shirley      |
| 10\. Blum, Vera                   |                                   |
|                                   | 54\. Helleseth, T.L.              |
| 11\. Blythe, Norma L.             |                                   |
|                                   | 55\. Herman, Gary & Glenna        |
| 12\. Bostuck, William             |                                   |
|                                   | 56\. Hiddleston, W.M.             |
| 13\. Bowman, Jim                  |                                   |
|                                   | 57\. Hodges, Ann V.               |
| 14\. Bradley, Mrs. Homer C.       |                                   |
|                                   | 58\. Hoffman, Donald R. &         |
| 15\. Brown, Sharon                | Patricia A.                       |
|                                   |                                   |
| 16\. Burgess, Sharon              | 59\. Hoholek, Dolores             |
|                                   |                                   |
| 17\. Carlson, Christopher         | 60\. Hollar, Turner               |
|                                   |                                   |
| 18\. Cary, Emily                  | 61\. Holloway, James              |
|                                   |                                   |
| 19\. Clark, Mr. & Mrs. James      | 62\. Holmberg, Mr. & Mrs. Henry   |
|                                   |                                   |
| 20\. Cook, Jim                    | 63\. Hooks, Elizabeth             |
|                                   |                                   |
| 21\. Corbitt, James E.            | 64\. Hopkins, Larry W.            |
|                                   |                                   |
| 22\. Courtner, Robert             | 65\. Hosler, Wilbur & Violet      |
|                                   |                                   |
| 23\. Cox, Don A. & Joyce A.       | 66\. James, Trenton & Clark       |
|                                   |                                   |
| 24\. Craig, Joe & Rose            | 67\. Janson, Frederick C. Sr.     |
|                                   |                                   |
| 25\. Crouse, Mrs. L.R.            | 68\. Jensen, Russell L.           |
|                                   |                                   |
| 26\. Cyrus, Christopher A.        | 69\. Johnson, Ann                 |
|                                   |                                   |
| 27\. Daly, Robert                 | 70\. Johnson, J. Wayne            |
|                                   |                                   |
| 28\. Daniels, Raymond             | 71\. Johnson, Martha              |
|                                   |                                   |
| 29\. Davis, Pamela & Anthony      | 72\. Jones, Mark                  |
|                                   |                                   |
| 30\. DeForest, Robert & Norma     | 73\. Judge, Ralph D. & Sophia V.  |
|                                   |                                   |
| 31\. Doty, Harvey L.              | 74\. K&B Electronics              |
|                                   |                                   |
| 32\. Doyle, Sanford D.            | 75\. Keaton, Mrs. Rose            |
|                                   |                                   |
| 33\. Duchemin, Masena & James     | 76\. Keller, Dona J.              |
|                                   |                                   |
| 34\. Engley, Thomas W.            | 77\. Kieffer, Don                 |
|                                   |                                   |
| 35\. Entman, F.V.                 | 78\. Kinnis, Kevin                |
|                                   |                                   |
| 36\. Erler, Paul W.               | 79\. Koci, Paul                   |
|                                   |                                   |
| 37\. Farber, James F.             | 80\. Kuehnl, Mrs. Shirley         |
|                                   |                                   |
| 38\. Ferree, Connie               | 81\. Kurtz, David                 |
|                                   |                                   |
| 39\. Fike, Mabel M.               | 82\. Kyler, Donald                |
|                                   |                                   |
| 40\. Fisher, Thomas F.            | 83\. LaFever, Howard & Laura      |
|                                   |                                   |
| 41\. Fisk, Orville & Barbara      | 84\. Landon, James A.             |
|                                   |                                   |
| 42\. Floyd, Cathy L.              | 85\. Layton, Edna                 |
|                                   |                                   |
| 43\. Foley, Kathleen              | 86\. Leaks, Robert                |
|                                   |                                   |
| 44\. Frantz, Harold E.            | 87\. Little, Bill & Maxine        |
|                                   |                                   |
|                                   | 88\. Lockard, Gary O.             |
+-----------------------------------+-----------------------------------+
| 89\. Long, Carl R.                | 135\. Schlenker, Ralph            |
|                                   |                                   |
| 90\. Luce, Jack E. & Cynthia K.   | 136\. Schuster, D.                |
|                                   |                                   |
| 91\. Madsen, T.O.                 | 137\. Sheets, Mr. & Mrs. Stanley  |
|                                   |                                   |
| 92\. Martin, James                | 138\. Shipley, Robert             |
|                                   |                                   |
| 93\. Martin, Robert A.            | 139\. Shipman, Roberta & Robert   |
|                                   |                                   |
| 94\. Mazzeo, Robert J. (M.D.)     | 140\. Siebert, Carolin            |
|                                   |                                   |
| 95\. McAlary, Shelly              | 141\. Splan, Mrs. Florence        |
|                                   |                                   |
| 96\. McAlister, John H.           | 142\. Steele, Kenneth             |
|                                   |                                   |
| 97\. McBride, Lauren              | 143\. Stewart, Sandra             |
|                                   |                                   |
| 98\. McGarver, Herbert            | 144\. Stromberg, Paul             |
|                                   |                                   |
| 99\. McHale, Patricia & Charles   | 145\. Suit, Jim                   |
|                                   |                                   |
| 100\. McKenzie, Bonnie            | 146\. Suma, Mark Daniel           |
|                                   |                                   |
| 101\. McLoughlin, David           | 147\. Tackett, Vilma              |
|                                   |                                   |
| 102\. McMullin, Frank             | 148\. Tamosaitis, John            |
|                                   |                                   |
| 103\. McNeil, Stanley D.          | 149\. Teaster, Lucille            |
|                                   |                                   |
| 104\. Meeks, James G.             | 150\. Thomas, Joe W.              |
|                                   |                                   |
| 105\. Meigs, Rebecca H.           | 151\. Thompson, Rector A.         |
|                                   |                                   |
| 106\. Menton, William G.          | 152\. Totman, Stan & Betty        |
|                                   |                                   |
| 107\. Miller, Dale                | 153\. Trent, Billy Earl           |
|                                   |                                   |
| 108\. Miller, Forrest D.          | 154\. Troy, James R.              |
|                                   |                                   |
| 109\. Miller, Frank N.            | 155\. Tuttle, George Sr.          |
|                                   |                                   |
| 110\. Miller, Harold A.           | 156\. Twaddle, Michael L.         |
|                                   |                                   |
| 111\. Millhouse, Mr. & Mrs.       | 157\. Tyrone, Jimmy W.            |
| Richard                           |                                   |
|                                   | 158\. VanHorn, Robert & Lorraine  |
| 112\. Mitchell, Clair W.          |                                   |
|                                   | 159\. Wagoner, Brenda             |
| 113\. Morse, Charles H.           |                                   |
|                                   | 160\. Warren, Joyce E.            |
| 114\. Nichols, Lori               |                                   |
|                                   | 161\. Wetmore, Vernon             |
| 115\. O\'Dell, Janice G.          |                                   |
|                                   | 162\. Whipple, Harrison           |
| 116\. Page, Desiree M.            |                                   |
|                                   | 163\. Wildberger, Owen & Susan    |
| 117\. Parks, Mr. & Mrs. Joel      |                                   |
|                                   | 164\. Williams, Marcellus J.      |
| 118\. Patchen, Don & Betty        |                                   |
|                                   | 165\. Wilkinson, Jahnice J.       |
| 119\. Perrin, Ron & Jeri          |                                   |
|                                   | 166\. Wilson, Larry & Gina        |
| 120\. Perry, Earl                 |                                   |
|                                   | 167\. Wilson, William B.          |
| 121\. Peterson, Mr. & Mrs.        |                                   |
| Talbert                           | 168\. Woeppel, David W.           |
|                                   |                                   |
| 122\. Polhamus, Carol M.          | 169\. Wolford, Brenda L.          |
|                                   |                                   |
| 123\. Print, Mr. & Mrs. Howard B. | 170\. Wood, Edna                  |
| II                                |                                   |
|                                   |                                   |
| 124\. Pruitt, Nellie              |                                   |
|                                   |                                   |
| 125\. Puma, Morris M.             |                                   |
|                                   |                                   |
| 126\. Putnam, Joe & Judy          |                                   |
|                                   |                                   |
| 127\. Pyle, Shirley S.            |                                   |
|                                   |                                   |
| 128\. Robertson, Jimmy R.         |                                   |
|                                   |                                   |
| 129\. Root, Charles               |                                   |
|                                   |                                   |
| 130\. Rutland, Mark & Robin       |                                   |
|                                   |                                   |
| 131\. Sabitus, Mary               |                                   |
|                                   |                                   |
| 132\. Selwood, Eugene             |                                   |
|                                   |                                   |
| 133\. Scheck, Clifford            |                                   |
|                                   |                                   |
| 134\. Schlappi, Carl W. & Opal J. |                                   |
+-----------------------------------+-----------------------------------+

**JOINT STATEMENT OF CHAIRMAN WILLIAM E. KENNARD**

**AND COMMISSIONER SUSAN NESS**

Today the Commission takes several steps to help ensure that those
consumers who cannot receive acceptable over-the-air signals from their
local broadcast stations have a lawful alternative means to receive
network programming via satellite under the Satellite Home Viewer Act.
The Commission\'s ability to make significant changes in this area is
constrained by the terms of the SHVA, which says that only those viewers
who cannot receive an \"over-the-air signal of grade B intensity\" are
considered \"unserved\" and therefore eligible to receive distant
network signals. Thus, we could not, and have not, extended the SHVA to
permit delivery of satellite network broadcast signals to consumers who
*can* receive an adequate local over-the-air signal.

By our action today, however, we have created a more accurate method of
identifying those consumers who are truly unserved within the meaning of
the statute, and therefore eligible for satellite-delivered network
programming. Our action will help not only those individual subscribers
who, under other tests, might be considered to be \"served\" even though
they cannot receive an acceptable television picture, but will better
enable the DBS industry to become a true competitor to cable, which will
help all consumers.

We have tried to be as aggressive as possible \-- consistent with
Congressional intent \-- in protecting American consumers in this order.
Some commenters urged that we take the additional step of changing the
confidence factor in the predictive model that we endorse from 50% to
90%. If we believed that changing the predictive model to include a 90%
confidence factor would ensure that more unserved households would be
able to get satellite-delivered network signals, we certainly would have
voted to make this change. Indeed, at first blush, the concept of a 90%
confidence factor seems appealing. However, as discussed in the Report
and Order, adopting a 90% confidence factor would not ensure more
accuracy, but rather would significantly overpredict the number of
unserved households, undermining Congress\'s intent in the statute. The
model the Commission endorses in this order \-- which includes a 50%
confidence factor \-- is a more sound predictor of who is actually
served and unserved. Thus, it is more likely to be relied upon by the
parties and in turn will likely result in fewer actual measurements
having to be taken, which is, after all, the purpose of using a
predictive model.

We have gone as far as we can under the SHVA to enable consumers to
receive network programming via satellite. A more comprehensive solution
to this problem \-- including, for example, allowing delivery of local
broadcast signals into local markets \-- would require Congressional
action. We look forward to working with Congress to facilitate robust
competition between DBS and cable service providers, bringing more
choices and lower prices in video programming to the American public,
while not impairing the viability of over-the-air broadcasting.

We also call on the satellite and broadcast industries to cooperate in
ensuring that consumers receive the service which they are entitled to
receive under the SHVA.

**STATEMENT OF COMMISSIONER HAROLD FURCHTGOTT-ROTH,**

**DISSENTING IN PART**

**In re: Satellite Delivery of Network Signals to Unserved Households
for Purposes of the Satellite Home Viewer Act**

I commend the Cable Services Bureau, the Office of Engineering and
Technology, the Mass Media Bureau, and the International Bureau for
their fine work on this Report & Order. Unfortunately, I cannot join
Part III, which makes legislative recommendations to Congress regarding
the delivery of network signals via satellite.

As I have previously explained, I do not believe that, absent an express
request from Congress, making recommendations about how the law should
be changed is an appropriate function for the Federal Communications
Commission. *See, e.g,* 1997 Report on the Status of Competition, 13 FCC
Rcd 1034 (1998) (separate statement of Commissioner Harold
Furchtgott-Roth). The Commission is bound to take the law as Congress
makes it and to implement the law objectively; yet when we criticize
extant statutes, enacted by Congress and signed into law by the
President, we draw that objectivity into doubt. Moreover, as a creature
of Congress\' delegated authority, the Commission takes it direction
from that body, not the other way around.

Even if it were appropriate for the agency to suggest to Congress how it
ought to legislate (or how it has erred by enacting certain
legislation), such suggestions could plausibly involve, at most,
communications law and policy. This item, however, ventures with its
recommendations boldly into copyright law, an area in which the
Commission has no expertise or authority, as the item itself implicitly
acknowledges. *See supra* at para. 28. We simply do not know where, and
on what, we tread when we recommend a particular change in intellectual
property rights. We simply do not fully understand what problems such a
change might trigger in that body of law. If the Copyright Office made
recommendations to Congress on how to write communications statutes, I
do not think anyone would give them much weight. It seems to me that the
converse is equally true.

For these reasons, I would not have recommended legislative action to
Congress in this item, nor would I have indicated that existing statutes
are unfair or unwise.

[^1]: The other six million satellite subscribers obtain broadcast
    network programming via over-the-air antennas or via cable or do
    without broadcast network programming.

[^2]: 17 U.S.C. § 119 (1998). The SHVA is part of a copyright law.

[^3]: To be considered \"unserved,\" the SHVA also requires that the
    household not have subscribed to cable in the previous 90 days.
    *See, infra*, n. 12.

[^4]: *See* discussion of PrimeTime 24 lawsuits, *infra.*

[^5]: The NRTC petition was filed July 8, 1998 and placed on public
    notice on August 5, 1998. Federal Communications Commission Public
    Notice, Report No. 2290, RM 98-9335 (August 5, 1998). The EchoStar
    petition was filed August 18, 1998 and placed on public notice on
    August 26, 1998. Federal Communications Commission Public Notice, DA
    98-1710, RM 98-9345 (August 26, 1998).

[^6]: *Satellite Delivery of Network Signals to Unserved Households for
    Purposes of the Satellite Home Viewer Act*, Notice of Proposed
    Rulemaking, CS Docket No. 98-201, FCC 98-302 (November 17, 1998).
    Commenters are listed in Appendix C. *See also* Federal
    Communications Commission News, Report No. 98-16 (November 17,
    1998).

[^7]: A number of members of Congress have spoken of the importance of
    competition in relation to the SHVA, and specifically in relation to
    this rulemaking. Senator Leahy, chief Senate sponsor and floor
    manager of the SHVA in 1988, comments in this proceeding that
    competition is an important goal for the FCC. Leahy Comments at 1;
    *see also* Pegasus Reply at 6. The Senator\'s comments are
    consistent with statements he made during the floor debate over the
    1994 amendments to the SHVA, in which he voiced his goal of
    increasing \"accessibility for viewers,\" \"development of
    alternative technologies\", and creation of \"competitive
    situations.\" *Id.* On July 8, 1998, Senator McCain, Chairman of the
    Senate Commerce Committee, and Representative Bliley, Chairman of
    the House Commerce Committee, wrote the Commission, indicating that
    the Miami injunction \"threatens to undermine the progress the
    Congress has made in promoting competition.\" Letter to William E.
    Kennard from Senator John McCain and Representative Tom Bliley (July
    8, 1998). On August 7, 1998, Representative Boucher and 22 other
    members of Congress stated in a letter to the Commission that the
    court\'s preliminary injunction \"raises serious consumer and
    competitive issues that require immediate review and action by the
    Commission.\" Letter to William E. Kennard from Representative Rick
    Boucher, *et al.* (August 7, 1998). Representative Boucher repeated
    his concerns in a January 19, 1999 letter to Chairman Kennard,
    mentioning the \"pro-consumer and pro-competition intent behind the
    SHVA.\" Letter to William E. Kennard from Representative Rick
    Boucher (January 19, 1999).

[^8]: The expedited effective date for this rule is warranted in light
    of the permanent injunction scheduled to take effect on February 28,
    1999, which will affect 700,000-1,000,000 satellite subscribers. To
    the extent parties may seek the court\'s permission to use the new
    measurement methodology promulgated in this *Order*, as well as the
    prediction model endorsed by the Commission, we believe the
    expedited effective date will facilitate the court\'s review of such
    requests. The Commission has requested permission from the Office of
    Management and Budget for expedited clearance for the Paperwork
    Reduction Act.

[^9]: H.R. Rep. No. 103-703, at 5 (1994); S. Rep. No. 103-407, at 5 n.2
    (1994); H.R. Rep. No. 100-187(I), at 14-15, 18, 26, *reprinted in*
    1988 U.S.C.C.A.N. 5638 (1988).

[^10]: More specifically, the license is available to satellite carriers
    defined as follows:

    The term \"satellite carrier\" means an entity that uses the
    facilities of a satellite or satellite service licensed by the
    Federal Communications Commission and operates in the
    Fixed‑Satellite Service under part 25 of title 47 of the Code of
    Federal Regulations or the Direct Broadcast Satellite Service under
    part 100 of title 47 of the Code of Federal Regulations, to
    establish and operate a channel of communications for
    point‑to‑multipoint distribution of television station signals, and
    that owns or leases a capacity or service on a satellite in order to
    provide such point‑ to‑multipoint distribution, except to the extent
    that such entity provides such distribution pursuant to tariff under
    the Communications Act of 1934, other than for private home viewing.

[^11]: Under 17 U.S.C. § 119(d)(2), the term \"network station\" means:

    \(A\) a television broadcast station, including any translator
    station or terrestrial satellite station that rebroadcasts all or
    substantially all of the programming broadcast by a network station,
    that is owned or operated by, or affiliated with, one or more of the
    television networks in the United States which offer an
    interconnected program service on a regular basis for 15 or more
    hours per week to at least 25 of its affiliated television licensees
    in 10 or more States; or

    \(B\) a noncommercial educational broadcast station (as defined in
    section 397 of the Communications Act of 1934).

[^12]: The SHVA also contains a \"superstation\" compulsory copyright
    license with no geographic restrictions. 17 U.S.C. §§ 119(a)(1) and
    (d)(9).

[^13]: There were approximately two million C-Band units in use in 1988.
    *See* Commission\'s 1990 cable report to Congress, *Competition,
    Rate Deregulation and the Commission\'s Policies Relating to the
    Provision of Cable Television Service*, 5 FCC Rcd 5016, at ¶ 103, n.
    148 (1990).

[^14]: SkyTRENDS Annual Report 1997-98 at 10.

[^15]: *Id*. at 16. *See also* discussion of DTH in *Annual Assessment
    of the Status of Competition in Markets for the Delivery of Video
    Programming, Fifth Annual Report*, (\"Competition Report\") FCC
    98-335 (Released December 23, 1997) at ¶¶ 61-80; and SkyREPORT.Com
    or http://www.skyreport.com/dth_us.htm.

[^16]: 17 U.S.C. § 119(d)(10)(A). A second requirement for a household
    to be regarded as \"unserved,\" which is not directly relevant here,
    is that the household:

    has not, within 90 days before the date on which that household
    subscribes, either initially or on renewal, to receive secondary
    transmissions by a satellite carrier of a network station affiliated
    with that network, subscribed to a cable system that provides the
    signal of a primary network station affiliated with that network. §
    119(d)(10)(B).

[^17]: 17 U.S.C. § 119(a)(5)(D).

[^18]: *See* H.R. Rep. 100-887(I) at 19-20; H.R. Rep. 100-887(II) at
    26-28 (1988), *reprinted in* 1988 U.S.C.C.A.N. 5577.

[^19]: *See* Radio Act of 1927, § 9, Pub. L. No. 632, (current version
    at 47 U.S.C. § 307(b) (1997).

[^20]: For a comprehensive discussion of issues raised by the compulsory
    copyright licensing process in general and the Satellite Home Viewer
    Act in particular, *see* Report of the Register of Copyrights, \"A
    Review of the Copyright Licensing Regimes Covering Retransmission of
    Broadcast Signals\" (August 1, 1997).

[^21]: H.R. Rep. No. 100-887(II) at 20.

[^22]: 17 U.S.C. § 119(d)(10)(A); 47 C.F.R. § 76.683.

[^23]: *See* Television Broadcast Service, *Third Notice of Further
    Proposed Rule Making*, Appendix B, 16 FR 3072, 3080 (April 7, 1951)
    (\"TV Allocations *Third Notice*\"), *adopted by* Amendment of
    Section 3.606 of the Commission\'s Rules and Regulations, Amendment
    of the Commission\'s Rule, Regulations and Engineering Standards
    Concerning the Television Broadcast Service, Utilization of
    Frequencies in the Band 470 to 890 mcs for Television Broadcasting,
    *Sixth Report and Order*, 41 FCC 148, FCC 52‑294 (1952) (\"TV
    Allocations *Sixth Report and Order*\").

[^24]: *See* O\'Connor, Robert A., \"Understanding Television\'s Grade A
    and Grade B Service Contours,\" IEEE Transactions on Broadcasting at
    139 (December 1968) (\"O\'Connor, *Understanding Television\'s Grade
    A and Grade B Service Contours*\").

[^25]: The \"median observer\" is not the \"average\" observer; rather,
    it is the observer who provides the middle value of data when all
    values of data from all observers are ranked in order. In other
    words, 50% of the observers recorded values equal to or higher in
    value and 50% of the observers recorded values equal to or lower in
    value than the median observer. *See* TV Allocations *Third Notice*,
    16 FR 3072, 3080 and TV Allocations *Sixth Report and Order*, 41 FCC
    148. *See also* NAB Comments Attachment C, Jules Cohen Statement, at
    2 and Network Affiliate Associations Comments at 3 and n. 110.

[^26]: There are also Grade A and \"city grade\" field strength values,
    which represent stronger signals. Because they are stronger, Grade A
    contour and city grade service are generally found closer to a
    station\'s transmitter. *See* 47 C.F.R. §§ 73.683 and 73.685.[Grade
    ACity Grade]{.underline}

    Channels 2‑6 \...\...\...\...\.... 68 dBu 74 dBu

    Channels 7‑13 \...\...\...\..... 71 dBu 77 dBu

    Channels 14‑69 \...\...\...\... 74 dBu 80 dBu

[^27]: *See* TV Allocations *Third Notice*, 16 FR at 3080, *adopted by*
    TV Allocations *Sixth Report and Order*. *See also* NAB Comments,
    Attachment C, Jules Cohen Statement at 2; Network Affiliate Assn
    Comments at 3 and n. 110.

[^28]: For example, qualified local noncommercial educational television
    stations are defined for must carry purposes as those stations whose
    Grade B service contour encompasses the cable system\'s principal
    headend, as defined in Section 73.683(a), as in effect on March 29,
    1990 or any successor regulations. 47 U.S.C. § 535(l)(2)(B). *See
    also,* 47 U.S.C. § 522(11) (defining Grade B contour in connection
    with cable regulations as computed in accordance with regulations
    promulgated by the Commission); 15 C.F.R. § 2301.4(b)(3)(ii) (in
    connection with National Telecommunications and Information Agency,
    or NTIA, broadcast applications, source of public telecommunications
    signal is distant when beyond the grade B contour of origination
    facility); 47 C.F.R. §§ 22.657(d)‑(g) (in connection with distance
    separation requirements for public mobile operations to reduce
    interference with television stations at the grade B contour, which
    is defined for this purpose as a circle with a 55 mile radius,
    centered on the protected television station location and along
    which the median television field strength is 64 dBu).

[^29]: *See Television Broadcast Service, Notice of Further Proposed
    Rule Making*, Appendix A, 14 FR 4483, 4485 (1949); and *Third Notice
    of Further Proposed Rule Making*, Appendix A, 16 FR 3072, 3075
    (1951).

[^30]: The \"time variability\" planning factor used in the Grade B
    construct may create some confusion. This arises from the difference
    between receiving a signal of Grade B intensity (considered a
    television signal that produces an acceptable picture) and receiving
    adequate television service. Adequate television service has been
    defined as receiving an acceptable television picture 90% of the
    time. In some cases, for example, 50% of the locations along a Grade
    B contour are said to receive *a signal of Grade B intensity* at
    least 50% of the time. In other cases, 50% of the locations along a
    Grade B contour are said to receive *an acceptable television
    picture* 90% of the time. In fact, there is no real difference,
    which is explainable in two complementary ways. First, when a
    particular location receives a signal of Grade B intensity 50% of
    the time, it is, in fact, receiving a signal strong enough to
    provide an acceptable television picture 90% of the time. Put
    another way, a signal of Grade B intensity is stronger than what is
    required to provide an acceptable picture on an average television
    receiver. The apparent inconsistency arises from an adjustment the
    Commission adopted for the Grade B signal strength values when it
    originally established them. For example, on channels 2-6, a signal
    strength of 41 dBu is needed for an acceptable picture. In order for
    this signal strength to be available 90% of the time, the median or
    F(50,50) field strength is raised by 6 dBu and set at 47 dBu.
    Likewise, for channels 7-13, the median field strength is raised 4
    dBu and set at 56 dBu, and for channels 14-69, the median field
    strength is raised 5 dBu and set at 64 dBu. *See, e.g.,* O\'Connor,
    \"Understanding Television\'s Grade A and Grade B Service
    Contours,\" at 139, 141; TV & Cable Factbook, TV Stations Volume
    (1998 edition page A‑15); TV Allocations *Sixth Report and Order*,
    41 FCC at 177; *see also* TV Allocations *Third Notice* 16 Fed. Reg.
    3072 at Appendices A and B.

[^31]: *CBS, Inc. et al. v. PrimeTime 24 Joint Venture*, Order Affirming
    in Part and Reversing in Part Magistrate Judge Johnson\'s Report and
    Recommendations, 9 F.Supp.2d 1333 (S.D. FL., May 13, 1998) (\"*CBS
    v. PrimeTime 24*, Order\"); *CBS, Inc. et al. v. PrimeTime 24 Joint
    Venture*, Supplemental Order Granting Plaintiffs\' Motion for
    Preliminary Injunction, Case No. 96-3650-CIV (S.D. FL., July 10,
    1998) (\"*CBS v. PrimeTime 24*, Supplemental Order\"); *CBS, Inc. et
    al. v. PrimeTime 24 Joint Venture*, Findings of Fact and Conclusions
    of Law, Case No. 96-3650-CIV-NESBITT (S.D. FL., December 23, 1998)
    (\"*CBS v. PrimeTime 24*, Final Ruling\"); *CBS, Inc. et al. v.
    PrimeTime 24 Joint Venture*, Final Judgment and Permanent
    Injunction, Case No. 96-3650-CIV-NESBITT (S.D. FL., December 30,
    1998) (\"*CBS v. PrimeTime 24*, Permanent Injunction\").

[^32]: *CBS v. PrimeTime 24*, Final Ruling at 34, 37.

[^33]: *Id.* at 28.

[^34]: *Id.* at 13-14, 19.

[^35]: *Id.* at 48-50.

[^36]: *CBS v. PrimeTime 24*, Permanent Injunction at 2. *See also* *CBS
    v. PrimeTime 24*, Preliminary Injunction at 2-3.

[^37]: *CBS v. PrimeTime 24*, Permanent Injunction at 3-4. The test
    should be \"conducted in accordance with the procedures outlined in
    the Expert Report of Jules Cohen and the Supplemental Expert Report
    of Jules Cohen.\"

[^38]: *CBS v. PrimeTime 24*, Permanent Injunction at 4.

[^39]: Letter from William E. Kennard, Chairman, Federal Communications
    Commission, to Senator John McCain and Representative Tom Bliley,
    September 4, 1998 (figures based on publicly available information).

[^40]: *Id.* As noted, the court chose the preliminary injunction\'s
    March 11, 1997 date because that is when CBS and Fox filed their
    lawsuit against PrimeTime 24.

[^41]: *ABC, Inc. v. PrimeTime 24, Joint Venture*, 17 F.Supp.2d 467
    (M.D. N.C., July 16, 1998) (\"*ABC v. PrimeTime 24*, Court
    Opinion\").

[^42]: *ABC, Inc. v. PrimeTime 24, Joint Venture*, 17 F.Supp.2d 478, 490
    (M.D. N.C., Aug. 19, 1998) (\"*ABC v. PrimeTime 24*, Permanent
    Injunction\").

[^43]: 1998 WL 544297, \*2.

[^44]: *ABC v. PrimeTime 24*, Permanent Injunction, 1998 WL 544297, \*2;
    *ABC v. PrimeTime 24*, Court Opinion, 1998 WL 544286, \*9.

[^45]: 1998 WL 544297, \*2, \*6; 1998 WL 544286, \*9.

[^46]: *Kannan Communications, Inc. v. Primetime 24 Joint Venture*, No.
    2-96-CV-086 (N.D. Tex.).

[^47]: *Echostar Communications Corp. et al. v. CBS, Inc., et al.*,
    Civil Action No. 98-B-2285 (D. Colo. filed October, 1998).

[^48]: *Id.* EchoStar\'s 95 / 95 / 50 court request contrasts with the
    request in its petition before the Commission, in which it asks for
    a 99 / 99 / 99 model.

[^49]: *CBS Broadcasting, Inc., et al. v. Echostar Communications Corp.,
    et al.*, Case No. 98-2651-CIV-Middlebrooks (S.D. Fla. filed
    November, 1998).

[^50]: *See* H.R. Rep. 100-887(I), at 1 (\"The purpose of the proposed
    legislation is to create an interim statutory license in the
    Copyright Act for satellite carriers to retransmit television
    broadcast signals of superstations and network stations to earth
    station owners for private home viewing\"); 17 U.S.C. § 119(d)(1)
    (definition of distributor refers to secondary transmission of
    network signals to \"individual subscribers\"); § 119(d)(8)
    (definition of subscriber refers to an \"individual\" who receives
    satellite service); H.R. Rep. 100-887(I), at 5-6 (1998), *reprinted
    in* 1988 U.S.C.C.A.N. 5577 (before the 1988 SHVA, \"\[v\]ery little
    attention was paid to copyright issues posed by satellite
    transmissions directly to individuals for private home viewing . . .
    it is appropriate for Congress to intercede and delineate this
    Nation\'s intellectual property laws\").

[^51]: *See* 47 C.F.R. §§ 73.683, 73.684, and 73.686.

[^52]: The Copyright Office describes the intent of the House
    Subcommittee on Courts, Civil Liberties and the Administration of
    Justice in drafting the SHVA as \"defining an \`unserved household\'
    as one that received a signal at the household (not street) antenna
    location that was so weak that, assuming receiving equipment of
    decent quality and maintenance, the household would not receive an
    acceptable picture most, if not all, of the time.\" U.S.Copyright
    Office Reply at 5.

[^53]: H.R. Rep. No. 103-703, at 5 (1994). Representative Boucher, in a
    January 19, 1999 letter to Chairman Kennard, stated that Congress
    intended to help \"the millions of people across the United States
    who want to receive network programming but because of terrain and
    other obstacles cannot receive that programming from local
    stations.\"

[^54]: S. Rep. No. 103-407, at 5 n.2 (1994).

[^55]: H.R. Rep. No. 100-187(I) at 14-15, 18, 26, *reprinted in* 1988
    U.S.C.C.A.N. 5638 (1988).

[^56]: NAB Comments at 10-11; Network Affiliate Comments at 2;
    Hearst-Argyle Comments at 3.

[^57]: Waterman Broadcasting Comments at 6; Media Venture Comments at 3.

[^58]: The term \"white area\" is generally used to indicate areas that
    cannot receive adequate signal strength.

[^59]: Network Affiliate Comments at 6; Walt Disney Co. Comments at 16.

[^60]: Network Affiliate Comments at 11; MSTV Comments at 22.

[^61]: NAB Comments at 63; MSTV Comments at 5; Entravision Comments at
    10; CBS Corp. Comments at 5.

[^62]: A.H.Belo Comments at 8; NBC Comments at 8.

[^63]: NAB Comments at 56-61; Network Affiliates Comments at 12.

[^64]: MSTV Comments at 4; NBC Comments at 2.

[^65]: Network Affiliates Comments at 10; NBC Comments at 8.

[^66]: KKCO-TV Comments at 5; Network Affiliates at 10.

[^67]: *See, e.g.,* KEYC-TV Comments at 3; WWNY-TV Comments at 3;
    KKCO-TV Comments at 5.

[^68]: NAB Comments at 3.

[^69]: PrimeTime 24 Comments at 7; Superstar/Netlink Comments at 13;
    SBCA Comments at 5.

[^70]: Echostar Comments at 4; SBCA Comments at 5.

[^71]: SBCA Comments at 5; Pegasus Communications Comments at 9; DirecTV
    Comments at 7.

[^72]: DirecTV Comments at 8; PrimeTime 24 Comments at 7; Pegasus
    Communications Comments at 10.

[^73]: Pegasus Communications Comments at 5; PrimeTime 24 Comments at 6.

[^74]: Superstar/Netlink Comments at 14; SBCA Comments at 6.

[^75]: SBCA Comments at 9; Primestar Partners Comments at 6.

[^76]: Senator Leahy states that no subscriber to distant network
    signals via satellite should be disconnected \"if the customer is
    unable to receive local TV broadcasts over‑the‑air.\" Leahy Comments
    at 1. The Copyright Office describes the intent of the House in
    drafting the SHVA as \"defining an \`unserved household\' as one
    that received a signal at the household (not street) antenna
    location that was so weak that, assuming receiving equipment of
    decent quality and maintenance, the household would not receive an
    acceptable picture most, if not all, of the time.\" U.S.Copyright
    Office Reply at 5.\"

[^77]: Commenters in this proceeding have offered contradictory views on
    the meaning of \"conventional outdoor rooftop antenna.\" Congress
    did not define this term in the SHVA. *See* Copyright Office Reply
    at 8-9; *CBS v. PrimeTime 24*, Permanent Injunction, slip op. at
    16-17 (complying with the SHVA requires a rooftop antenna, properly
    oriented and in good working order).

[^78]: NPRM at ¶ 22.

[^79]: *See* NAB Comments at 27-33.

[^80]: *See, e.g.,* DirecTV Comments at 7; SBCA Comments at 5; and
    Echostar Reply at 2(Had Congress intended a term frozen in time it
    would have picked a dBu number from the then-Commission\'s rules and
    frozen it by inclusion in the statutory text.). *See also*
    Electronics Technicians Association, International, Inc. (ETAI)
    Comments at 10 and U.S. Copyright Office Reply at 2-5.

[^81]: U.S. Copyright Office Reply at 5.

[^82]: 17 U.S.C. § 119(d)(10)(A) (emphasis added).

[^83]: *See Lukhard v. Reed*, 481 U.S. 368 (1989); and *Helvering v.
    Wilshire*, 308 U.S. 90 (1939).

[^84]: *Lukhard v. Reed*, 481 U.S. at 379.

[^85]: *Helvering v. Wilshire*, 308 U.S. at 101.

[^86]: *See* discussion, *infra* at ¶ 43.

[^87]: *See Miami Decision*, slip op. at 31 (\"strictly objective
    standard\").

[^88]: 47 C.F.R. § 73.683(a).

[^89]: *Television Broadcast Service, Third Notice of Further Proposed
    Rule Making* (\"*Third FNPRM*\"),16 FR 3072, 3075 (1951), adopted by
    *Television Broadcast Service, Sixth Report and Order*, 41 FCC 148
    (1952).

[^90]: *Third FNPRM*, 16 FR at 3075.

[^91]: *Id.*

[^92]: *Id.* at 3080. The receiving antenna assumed in the planning
    factors for Grade A is a simple dipole, while for Grade B it is a
    directional antenna with 6 dB gain for low and high VHF and 13 dB
    gain for UHF.

[^93]: *See* Engineering Aspects of Television Allocation, Report of the
    Television Allocations Study Organization, March 16, 1959; and
    O\'Connor, Robert A., \"Understanding Television\'s Grade A and
    Grade B Service Contours,\" IEEE Transactions on Broadcasting, 139
    (December 1968). *See also* PrimeTime 24 Comments, Hassinger
    Declaration and attachments and Miami Decision, slip op. at 15
    (\"there is a strong correlation between signal intensity and
    picture quality when multiple, neutral observers evaluate picture
    quality using properly functioning rooftop antennas\").

[^94]: *See* O\'Connor, *supra.*

[^95]: *Id.*

[^96]: *See, e.g.*, Superstar/Netlink Group Comments at 18; PrimeStar
    Partners at 5; PrimeTime 24 Comments at 10; J.E. Schmidt Comments at
    1; Michael W. LaBoone Comments at 1; Elizabeth Hooks Comments at 1;
    Penny R. Ball Comments at 1; Robert J. Mazzeo M.D. Comments at 1;
    Larry & Gina Wilson Comments at 1; John Tamosaitis Comments at 1;
    and Dale Miller Comments at 1.

[^97]: PrimeTime 24 Comments at 10-13.

[^98]: *Compare* PrimeTime 24 Comments at 10-13 with SBCA Comments at
    13.

[^99]: PrimeTime 24 Comments, Hassinger Declaration at 9-11.

[^100]: *Id.* at 12-15.

[^101]: *Id.* at 16. In ghosting, also known as multipathing, as the
    signal strength increases, the \"noise\" in the picture is reduced.
    Unfortunately, noise (e.g., electrical noise in the tuner or
    environment) masks ghosting. Thus, as the noise is reduced, which is
    a benefit to picture quality in the absence of multipath problems,
    the ghosting disturbance becomes more noticeable.

[^102]: SBCA Comments at 13.

[^103]: SBCA Comments Engineering Statement at 5 and Appendix 2.

[^104]: PrimeTime 24 Reply at 12, n. 9. *See also* SBCA Comments at 13;
    NRTC Comments at 18 (To ask viewers used to high quality distant
    network satellite service to return to analog, over-the-air local
    pictures deemed \"acceptable\" pursuant to some 1950s standard is
    completely inappropriate as well as counterproductive to the
    development of a vibrant, competitive MVPD market).

[^105]: PrimeTime 24 Reply at 13.

[^106]: *See, e.g.,* Fox Broadcasting Co. Comments at 4-5; Network
    Affiliate Associations Comments at 42.

[^107]: *See, e.g.,* Network Affiliate Associations Reply at 7 and n. 13
    citing *Television and FM Field Strength Curves, Report and Order*,
    FCC 75-636, 34 Rad.Reg. 2d (P&F) 361 (1975) (Every time the
    Commission or staff consider revising the Grade B values, they
    conclude no revision is warranted, and in 1975, the proposal was to
    lower \-- not raise \-- Grade B field strength values because
    equipment refinements justified a reduction in estimated receiver
    noise, an increase in antenna gain, and reduction for transmission
    line loss.); Association for Maximum Service Television Comments at
    6, 17-20 (The FCC has reexamined the premises and technical
    rationale for the Grade B standard over the years and on every
    occasion has determined that the standard should be retained. The
    long history and careful evaluation and reevaluation of the Grade B
    standard must not be jettisoned through an expedited rulemaking.);
    NAB Comments at 35; and Affiliates Association Comments at 27. *See
    also* Staff Report, *Comparability For UHF Television: A Preliminary
    Analysis*, 180‑83 (Sept. 1979) and Final Staff Report,
    *Comparability for UHF Television*, 246 (Sept. 1980) and NAB Reply
    at 9.

[^108]: Jules Cohen Engineering Statement on Behalf of Maximum Service
    Television, Inc. Comments (\"Cohen MSTV Statement\") at ¶ 8.
    *Contra,* PrimeTime 24 Reply at 12.

[^109]: Cohen MSTV Statement, *supra*, at ¶ 9.

[^110]: *See, e.g.,* MSTV Comments at 5, 15, 24; Entravision Holdings
    LLC Comments at 2, 9; The Post Company (KIFI-TV) at 7;Withers
    Broadcasting Companies Comments at 4; ABC, CBS, NBC & Fox Joint
    Comments at 78.

[^111]: Echostar Reply at 12.

[^112]: PrimeTime 24\'s consulting engineer, William Hassinger, points
    to two viewer studies, one by Neil Smith in 1971 and another
    conducted in Charlotte in 1996. *See* PrimeTime 24 Comments,
    Declaration of William Hassinger, Neil Smith Study, and *ex parte*
    presentation of January 14, 1999. Neither study was conducted in
    accordance with the accepted standard for viewer studies, ITU
    Recommendation 500-4, \"Method for the Subjective Assessment of the
    Quality of Television Pictures.\" Neil Smith acknowledged that his
    sample was too small to be sufficient for any generalizations. Neil
    Smith Study at 18-19. The Charlotte study did not use study subjects
    from the general public and viewing conditions were not appropriate
    for a scientific study.

[^113]: *See* Engineering Aspects of Television Allocation, March 16,
    1959, *supra*.

[^114]: Recommendation 500-4, \"Methods for Subjective Assessment of
    Picture Quality of Television Pictures,\" Recommendations and
    Reports of the CCIR, Vol. XI, Part 1, Dubrovnik, 1986 and Subjective
    Assessment of Cable Impairments on television Picture Quality,
    Bronwen Lindsay Jones, 1992 NCTA Technical Papers.

[^115]: *See* PrimeTime 24 Comments, Declaration of William Hassinger at
    9-11; and SBCA Comments, Engineering Statement of Hatfield & Dawson
    at 3.

[^116]: *See, e.g., Comparability for UHF Television*: Final Staff
    Report (1980), at 228 (UHF noise figure significantly reduced and
    further improved by Commission requirements).

[^117]: *Amendment of Sections 73.333 and 73.699, Field Strength Curves
    for FM and TV Broadcast Stations; Amendment of Part 73 of the Rules
    Regarding Field Strength Measurements for FM and TV Broadcast
    Stations* (\"1975 Field Strength Order\"), 53 FCC 2d 855 (1975).

[^118]: *Id.* and PrimeTime 24 Comments, Hassinger Declaration, Neil M.
    Smith Study at 23.

[^119]: 53 FCC 2d. at ¶ 49. But note that even these changes were stayed
    and never made effective. 47 C.F.R. § 73.684(k) and (l) \"are stayed
    indefinitely.\" 42 FR 25736 (1977).

[^120]: *1975 Field Strength Order*, 53 FCC 2d at ¶¶ 21 and 49.

[^121]: *UHF Comparability* at 228.

[^122]: *See DTV Sixth Report and Order*, 12 FCC Rcd 14588, 14607 and
    14676; and 47 C.F.R § 73.622(e) (DTV service areas; field strength
    evaluated using Longley-Rice point-to-point propagation model) and §
    73.622(f)(1) (reference to Grade B contour, as defined in § 73.683,
    for corresponding analog TV station coverage).

[^123]: It is possible that environmental and technology changes, as
    well as altered viewer expectations, warrant change in the Grade B
    values to keep pace with the standard of acceptability established
    in the 1950s but do not require change to Grade A values where,
    perhaps, environmental changes are not so great. Nevertheless, when
    Grade A and Grade B are used for their original purpose of creating
    contours, the Grade B contour must not meet or overlap the Grade A
    contour. Thus, we agree with commenters who say our ability to
    change the Grade B values is naturally constrained by the Grade A
    values.

[^124]: *See, e.g.,* NAB Comments at 26 (\"massive ripple effects
    throughout the Commission\'s entire regulatory scheme.\").

[^125]: *See, e.g.,* PrimeTime 24 Supplemental Comments, Declaration of
    William Hassinger, at 2 and 16 (desirable to include interference
    and other picture impairment factors in the Grade B standard but
    case-by-case analysis is the only substantive way to address this).

[^126]: *See* *CBS v. PrimeTime 24*, Final Ruling at 48-49 (\"the
    ultimate test for eligibility of any particular household is through
    an actual signal intensity test\").

[^127]: 47 C.F.R. § 73.686(b) (\"Collection of field strength data *for
    propagation analysis*\"); §73.686(c) (\"Collection of field strength
    data to determine television service in specific *communities*\").
    Propagation analysis generally involves determination of the
    strength of a signal over specified paths or areas. Propagation
    models may incorporate the effects of terrain elevations along the
    path and other inherent physical characteristics of the environment.

[^128]: *See, e.g.*, Pegasus Comments at 11-12; U.S. Copyright Office
    Reply at 2, 5-7; PrimeTime 24 Comments at 5; NAB Comments at 43;
    SBCA Comments at 9-10; EchoStar Comments at 10; Network Affiliates
    Comments at 65; DirecTV Comments at 27; NRTC Comments at 15-16, 20;
    SNG Comments at 20; SBCA Reply at 22; and NAB Reply at 36.

[^129]: PrimeTime 24 Comments at 28.

[^130]: PrimeStar Partners Comments at 9.

[^131]: Network Affiliate Associations Comment at 73 and Reply, Exhibit
    B, *Settlement and Compliance Agreement* Between ABC, Inc., CBS
    Broadcasting, Inc., Fox Broadcasting Company, National Broadcasting
    Company, and Certain ABC, CBS, Fox, and NBC Network Stations; the
    National Association of Broadcasters; the ABC Television Affiliates
    Association, the CBS Television Network Affiliates Association, the
    Fox Television Affiliates Association, and the NBC Television
    Affiliates Association AND Primestar Partners, L.P., Netlink USA,
    and Telluride Cablevision, Inc., Schedule 7.

[^132]: 47 C.F.R. § 73.686(b)(2).

[^133]: *See,* *e.g., EchoStar Communications Corp., et al, v. CBS
    Broadcasting, Inc., et al*, Plaintiff\'s Original Complaint and
    Request for Declaratory Judgment, Civil Action No. 98-B-2285 (D.
    Colo.) (October 19, 1998) (testing averages \$150 per household).

[^134]: The Miami court ruled that the signal strength test should be
    \"conducted in accordance with the procedures outlined in the
    Declaration of Jules Cohen, filed on March 11, 1997.\" Mr. Cohen
    states in his Declaration that the procedure \"was based on that
    prescribed by the FCC in 47 C.F.R. § 73.686.\" Declaration of Jules
    Cohen in *CBS, et al., v. PrimeTime 24 Joint Venture*, CIV-Nesbitt
    No. 96-3650 at 8 (executed on March 8, 1998). Mr. Cohen describes
    the measuring procedure in the following terms. At an accessible
    road closest to a household, a 100-foot mobile run is made with a
    conventional rooftop antenna elevated to 30 feet. During the run, a
    station\'s field intensity is recorded and the data is stored in a
    computer. Analysis of the data, made with the aid of a computer
    program, permits the extraction of the maximum, minimum, and median
    field intensity found, together with the standard deviation. Median
    field intensity minus standard deviation is a measure of the least
    signal intensity likely to be found at the specific location of the
    household.

    In contrast, EchoStar has proposed a signal strength test, in a
    lawsuit filed in October 1998, that focuses more directly on a
    single point at a household. *EchoStar Communications Corp., et al,
    v. CBS Broadcasting, Inc., et al*, Plaintiff\'s Original Complaint
    and Request for Declaratory Judgment, Civil Action No. 98-B-2285 (D.
    Colo.) (October 19, 1998). Its procedure involves placement of a
    conventional outdoor rooftop antenna within three feet of the home
    and raised to the height of the roof. The antenna is oriented to
    maximize signal strength for the one local station that the consumer
    watches most often. A length of standard household cable is attached
    to the antenna, and a number of splitters are attached to duplicate
    the number of splitters the consumer uses to service multiple
    televisions. A signal measurement is then conducted. If the signal
    strength is not stable, the antenna is relocated and the same
    procedure utilized until a stable signal strength is achieved.
    Readings are taken approximately every thirty seconds for a period
    of five minutes. If any of the signal strength readings register
    less than the Grade B signal strength threshold as established by
    Congress and the FCC, the consumer will be deemed an \"unserved
    household\" eligible to receive distant network signals.

[^135]: 17 U.S.C. § 119(d)(10)(A).

[^136]: The measurement rule itself is found in Appendix B.

[^137]: A dipole is a wire or telescoping metallic antenna consisting of
    two straight collinear conductors of equal length separated by a
    small gap where the transmission line is attached. The \"rabbit
    ears\" on a television set are a type of dipole. A \"half-wave\"
    dipole has an overall electrical length equal to half the wavelength
    of the frequency of interest. For example, the wavelength of a radio
    signal at 300 MHz is one meter. A half-wave dipole for receiving a
    300 MHz signal, therefore, would have an overall length of one-half
    meter (approximately 20 inches). However, the physical length of an
    actual half-wave dipole is approximately 5% shorter due to the
    thickness of the conductor or the end effect of a wire antenna.

[^138]: A \"gain antenna\" is an antenna that provides a stronger signal
    (if it is a \"positive\" gain antenna) to the receiver than the
    reference antenna. The \"reference\" antenna is usually either a
    dipole or an isotropic radiator. There are \"negative\" gain
    antennas, but they are not generally used for television reception.
    An isotropic radiator (antenna) is a hypothetical antenna that
    radiates equally well in all directions ‑ up, down, left, right. It
    has no directional characteristics and has no practical application
    other than as a reference antenna.

[^139]: This conclusion is consistent with the settlement agreement
    reached in the Primestar/Netlink Agreement, which requires five
    measurements taken in a cluster in the home\'s driveway or otherwise
    close to the home. Primestar/Netlink Settlement Agreement, Schedule
    7, item (d) at 1. *See also* NAB Comments at 44-45.

[^140]: *See, e.g.,* Network Affiliate Associations Comments, Appendix 1
    at 14; SBCA Comments at 21; and NAB Comments at 44-45.

[^141]: There are three significant types of signal interference \--
    co-channel, adjacent channel, and UHF taboo. Co‑channel (same
    channel number but assigned to a different market) and adjacent
    channel (channel numbers that are adjacent in the spectrum, which
    are also assigned to different markets) stations are generally
    assigned well outside of a station\'s Grade B contour. However,
    UHF-taboo related stations (adjacent in the UHF part of the
    spectrum) are in many cases located inside a station\'s Grade B
    contour.

[^142]: Interference from other television stations may have no effect
    on measured signal strength even though it affects the picture
    quality.

[^143]: Because all sides acknowledge that interference affects picture
    quality and because the Longley-Rice prediction model recommended
    below is capable of considering interference in its predictions, we
    include interference in the version of Longley-Rice that we endorse
    in this proceeding. *See* ¶ 84 *infra*.

[^144]: *See, e.g.,* PrimeTime 24 Comments at 17.

[^145]: *See, e.g.,* Network Affiliates Association Reply at 69-72.

[^146]: *See., e.g.,* PrimeTime 24 Comments, Declaration of Richard Biby
    at 2; DirecTV Comments at 27; SBCA Comments at 20.

[^147]: Requiring that the testing antenna be elevated to greater than
    30 feet would increase the complexity and expense associated with
    the test. Requiring that the tester climb on the roof of a single
    family home or townhouse creates potential liability problems.
    Therefore, the test methodology does not include these requirements.

[^148]: Primestar/Netlink Agreement at Schedule 7, p. 1; *see* NAB
    Comments at 45.

[^149]: The Copyright Office has specifically urged the Commission to
    adopt a standard for measurement to account for these circumstances.
    U.S. Copyright Office Reply at 8. The technique we adopt is
    consistent with that suggested by the NAB. NAB Comments, Exhibit C,
    Engineering Statement of Jules Cohen at 13.

[^150]: There is support in the record for measuring in the vicinity of
    the master antenna, if there is one, or on the balcony or patio
    where the dish is located. *See* NAB Comments, Exhibit C,
    Engineering Statement of Jules Cohen at 13.

[^151]: The right of consumers to erect an antenna or other over-the-air
    reception device in areas under his or her exclusive use is
    protected pursuant to Section 207 of the Telecommunications Act of
    1996. *See Over-the-Air Reception Devices Rule*, 47 C.F.R. § 1.4000.

[^152]: 47 C.F.R. § 73.686.

[^153]: *See* NAB Comments at 45 and Network Affiliate Associations
    Reply, Exhibit B, PrimeStar/Netlink Agreement at Schedule 7.

[^154]: *See, e.g.,* DirecTV Comments at 26; DirecTV Reply at 13-14;
    NRTC Comments at 24; SBCA Comments at 18.

[^155]: *See, e.g.,* NAB Reply at 44; Media Venture Management Comments
    at 3; ETAI at 26; Network Affiliate Associations Reply at 67-68;
    Biby Comments at 6 and 18.

[^156]: *See, e.g.,* Association of America\'s Public Television
    Stations (APTS) Comments at 6; Network Affiliate Associations Reply
    at 64; Walt Disney Company (ABC) Comments at 19-21; Shockley
    Communications Corp. et al. Comments at 5; and Cordillera
    Communications et al. Comments at 14 (statute clearly requires
    actual measurements, precludes Commission mandating a model, but use
    of accurate model by satellite carriers can dramatically reduce the
    number of households that would have to be tested). *But see*
    Capitol Broadcasting Comments at 4 (urges Commission to use
    predictive model in lieu of actual measurement).

[^157]: *See, e.g.,* Shockley Communications Corp. Comments at 5;
    Wilmington Telecasters Comments at 5; National Communications
    Comments at 5; JME Media Comments at 5.

[^158]: *See, e.g.,* DirecTV Comments at 15-16.

[^159]: *See, e.g.,* NRTC Comments at 21, 23; DirecTV Comments at 5-6,
    26.

[^160]: DirecTV Comments at 26; DirecTV Reply at 13-14.

[^161]: 47 C.F.R. § 73.684.

[^162]: *See, e.g.,* PrimeTime 24 Comments at 5 (tests too expensive to
    be economically feasible); Superstar/Netlink Comments at 4; and SBCA
    Comments at 14.

[^163]: *See* National Telecommunications and Information Agency (NTIA)
    Comments on NRTC Petition at 1-2; PrimeTime 24 Comments on NRTC
    Petition at 4, 7, 13; PrimeTime 24 Comments on Echostar Petition at
    3-4; DirecTV Joint Comments on Petitions for Rulemaking at 17;
    PrimeStar Partners Comments at 6-7; NRTC Comments at 20; and DirecTV
    Reply Comments at 11-12.

[^164]: *See* 17 U.S.C. § 119(a)(5)(D).

[^165]: *But see* ¶ 97.

[^166]: For example, we note that some broadcasters have entered into
    agreements with Primestar and Netlink (satellite television
    providers) to resolve disputes arising from the SHVA requirements.
    These settlements assign five-digit zip codes to each station and
    classify each zip code as \"red light\" if more than 50% of the zip
    code\'s population is served \-- based on Longley-Rice propagation
    data \-- and as \"green light\" if 50% or less of the population in
    the zip code is served. Primestar and Netlink agreed in this
    settlement that they will not sign up new subscribers who are in a
    \"red light zip code\" unless the station grants a waiver or the
    satellite carrier conducts a signal intensity test that shows the
    household does not receive a Grade B intensity signal. The agreement
    also describes a simplified testing methodology for measuring signal
    intensity at a home and provides that the \"loser pays\" for any
    tests that are conducted. *See Settlement and Compliance Agreement*
    Between ABC, Inc., CBS Broadcasting, Inc., Fox Broadcasting Company,
    National Broadcasting Company, and Certain ABC, CBS, Fox, and NBC
    Network Stations; the National Association of Broadcasters; the ABC
    Television Affiliates Association, the CBS Television Network
    Affiliates Association, the Fox Television Affiliates Association,
    and the NBC Television Affiliates Association AND Primestar
    Partners, L.P., Netlink USA, and Telluride Cablevision, Inc. This
    settlement is a part of the public record in this proceeding.

[^167]: Commenters note that consumers and industry need certainty in
    this area. *See, e.g.,* PrimeTime 24 NRTC Comments at 8-9, 13;
    Superstar Echostar Comments at 8-10; DirecTV Joint Comments at 2,
    10-11, 19.

[^168]: 17 U.S.C. §119(a)(5)(D).

[^169]: *CBS v. PrimeTime 24*, Preliminary Injunction at 3; *CBS v.
    PrimeTime 24*, Final Ruling, slip op. at 49; *CBS v. PrimeTime 24*,
    Permanent Injunction, slip op., at 2 (court uses Longley-Rice
    Version 1.2.2 per Commission\'s OET Bulletin No. 69 to determine
    which households may receive network programming from PrimeTime 24).

[^170]: *See* ¶¶ 93, 97 *infra.*

[^171]: *NPRM* at ¶ 33; *see* 47 C.F.R. §§ 73.684(d) and 73.686(b)
    (traditional Grade B contour method); OET Bulletin 69 (Longley-Rice
    methodology).

[^172]: *See* 47 C.F.R. § 73.683(c). *See also* Superstar/Netlink
    Comments at 17 (noting that the rule cautions that these contours
    are limited in estimating levels of field strength and asserting
    that these contours give no assurance of service to any specific
    percentage of receiver locations) *Id.* at n. 38.

[^173]: *See* 47 C.F.R. §§ 73.684(d) and 73.686(b) and (c).

[^174]: 47 C.F.R. §§ 73.683 and 73.684(a).

[^175]: The Commission also declined to use the traditional methodology
    in the DTV allocations proceeding, favoring instead one variation of
    Longley-Rice model 1.2.2. *See Advanced Television Systems and Their
    Impact upon the Existing Television Broadcast Service, Sixth Report
    and Order*, 12 FCC Rcd 14588, 14676 (1997) (\"DTV Sixth Report and
    Order\").

[^176]: *See, e.g.,* Superstar/Netlink Comments at 18; DirecTV Comments
    at 21-22.

[^177]: SBCA Comments, Hatfield & Dawson Engineering Statement at 7.

[^178]: *See, e.g.,* Network Affiliate Assn. Comments at 60.

[^179]: *See, e.g.*, NAB Comments at 38-39; MSTV Comments at 25; Network
    Affiliate Assn. Comments at 60. (\"Both the broadcasting and
    satellite industries are familiar with Longley-Rice, and, as the
    Commission determined in the DTV proceeding, a better predictive
    model has not been developed.\").

[^180]: *See, e.g.,* Network Affiliate Assn. Comments at 60.

[^181]: *See, e.g.,* Walt Disney Company Comments at 20.

[^182]: *See, e.g.,* Cordillera Communications*, et al.,* Comments at
    12.

[^183]: The Longley-Rice model used for analysis of DTV and analog TV
    service in the DTV proceeding is described in \"Longley-Rice
    Methodology for Evaluating TV Coverage and Interference,\" OET
    Bulletin 69, Federal Communications Commission (July 2, 1997) \<
    http://www.fcc.gov/oet/info/documents/bulletins/#69 \>. Longley-Rice
    is the Commission\'s designated methodology for determining where
    service is provided by a DTV station. *See* 47 C.F.R. § 73.622(e).
    *See also Advanced Television Systems: Sixth Report and Order*
    (\"DTV Sixth Report and Order\"), 12 FCC Rcd 14588, 14672-76.

[^184]: *See CBS v. PrimeTime 24*, Final Ruling, slip op. at 23-25. *See
    also* NAB Comments, Declaration of Jules Cohen at 14-15.

[^185]: Network Affiliate Assn. Comments at 60.

[^186]: *See, e.g.,* Hearst-Argyle Comments at 12; Network Affiliate
    Assn. Comments at 61 and Reply at 20.

[^187]: *See, e.g.,* Network Affiliate Associations Comments at 62 and
    Reply at 45-47; MSTV Comments at 12; and NAB Reply at 29-30.

[^188]: *See, e.g.,* NRTC Comments at 22; PrimeTime 24 Comments at 17;
    SBCA Comments at 15.

[^189]: *See, e.g.*, SBCA Comments at 15; Pegasus Communications
    Comments at 21; NRTC Comments at 23-24; Echostar Comments at 8-9.

[^190]: *See, e.g.,* PrimeTime 24 Comments at 5; Primestar Partners
    Comments at 8-9.

[^191]: PrimeTime 24 Comments at 15.

[^192]: The DTV Longley-Rice model also used Longley-Rice version 1.2.2.

[^193]: When the time variability factor for the predicted field
    strength is 50%, an acceptable quality picture should be available
    90% of the time.

[^194]: As stated in Section 73.683(c), field strength contours are
    considered for three purposes only, none of which include
    determination of signal intensity at individual locations: (1)
    estimating coverage resulting from the selection of a particular
    transmitter site, (2) in connection with problems of coverage
    related to the Commission\'s duopoly rules (47 C.F.R. §73.3555), and
    (3) determining compliance with §73.685(a) concerning the minimum
    field strength to be provided over the principal community. Section
    73.683 makes it clear that field strength contours are insufficient
    tools for determining what is happening at any particular location:

    Under actual conditions, \[a signal\'s\] true coverage may vary
    greatly from these estimates because the terrain over any specific
    path is expected to be different from the average terrain on which
    the field strength charts were based.

    \* \* \*

    \[T\]he actual extent of service will usually be less than indicated
    by these estimates due to interference from other stations. Because
    of these factors, the predicted field strength contours give no
    assurance of service to any specific percentage of receiver
    locations within the distances indicated.

[^195]: *See, e.g.,* NRTC Comments at 13; Richard Biby Comments at 2;
    Professional Service Association Comments at 27; Network Affiliate
    Associations Comments at 61; Grant Broadcasting Comments at 4; and
    Walt Disney Comments at 21.

[^196]: In answer to concerns raised by some broadcasters, the
    predictive model can recognize that many households, particularly in
    rural areas, are served by \"translator stations.\" *See, e.g.*, New
    Mexico Broadcasters Association Comments at 12 and Exhibit A. The
    ILLR model, like the on-site measurement, will consider the signal
    of either the affiliate station or its translator, as appropriate,
    to determine whether a household is receiving adequate signal
    strength.

[^197]: *See* discussion at ¶ 15 n.30 *supra.*

[^198]: *See* ¶ 79 for discussion on the location variability factor.

[^199]: *See, e.g.,* Network Affiliate Assn Comments at 62-63 (\"current
    Grade B field strength values already incorporate a time fading
    factor to achieve the desired level of statistical reliability, viz.
    that the best 50% of locations at the contour receive an acceptable
    picture at least 90% of the time. The Longley-Rice time variability
    input should only be changed to 90% if time fading factor is
    subtracted.\"); NAB Reply at 29 (90% time variability is already
    built into Grade B value, which is used in the DTV Longley-Rice
    model). *See also*, MSTV Comments at 11; ETAI Comments at 7;
    Primestar Partners Comments at 4; PrimeTime 24 Comments at 28.

[^200]: *See* Hufford, G.A., Longley, A.G., Kissick, W.A., *A Guide to
    the Use of the ITS Irregular Terrain Model in the Area Prediction
    Mode*, NTIA Report 82-100, U.S. Department of Commerce at 30, 36-37
    (April 1982). This confidence factor differs from the \"confidence
    interval\" that is used to test a hypothesis in a statistical
    probability model. Mr. Hufford explains that \"to an individual
    receiver of a broadcast station, \[confidence\] will be a measure of
    a combined situation and location variability.\" *Id.* at 36.

[^201]: \"To predict TV service . . . the FCC sets location variability
    at 50% and the time variability at 90%. The percent confidence is
    set at 50%, indicating that we are interested in median
    situations.\" OET Bulletin No. 69 at 7.

[^202]: *See, e.g.,* NAB Supplemental Comments at 2-3 and Affiliate
    Associations Supplemental Comments at 12-13.

[^203]: SBCA Reply, Hatfield and Dawson Engineering Statement at 8-9.
    *See also* Network Affiliate Assn Supplemental Comments at 14. *See*
    discussion of TIREM model, ¶ 86 *infra.*

[^204]: According to one expert source, situational variability is
    caused by environmental changes or the effects of random elements in
    nature. He writes, \"If we use like appearing situations \-- that
    is, if we change operations from one area to another very similar
    area or if we merely change the sampling scheme somewhat \-- then
    the observed changes in the location variability we call *situation
    variability*.\" Hufford Report at 30.

[^205]: Hufford Report at 37.

[^206]: *See* OET Bulletin No. 69 at 8.

[^207]: *Id.*

[^208]: *See* ¶ 58. We note that in some instances measurements in a
    high-rise MDU may be made at a height greater than 30 feet. MDU
    residents may require specialized attention due to their unusual
    circumstances, which will vary from person to person and building to
    building.

[^209]: The Network Affiliate Associations maintain that the empirical
    foundation for Longley‑Rice incorporates some buildings and
    vegetation data and assert that adding additional vegetation or
    building data to the model would require that the empirical data be
    \"backed out\" of the model. Network Affiliate Assn Supplemental
    Comments at 1‑3.

[^210]: *Id.* at 2 and Hufford *et al.*, Guide at 12.

[^211]: Network Affiliates Assn Reply at 29 and NAB *ex parte* comments
    on January 21, 1999. Network Affiliate Associations also contend
    that Congress intended the SHVA to provide network signals via
    satellite to rural areas, not to cities. Therefore, they argue, it
    is unnecessary to adjust the predictive model to account for
    buildings. Network Affiliate Assn Supplemental Comments at 1‑3.

[^212]: Network Affiliate Associations also assert that \"there is no
    complete and reliable database in existence for buildings on a
    national basis.\" They also contend the USGS database provides
    insufficient detail to be of use in signal strength predictions.
    Network Affiliate Assn Supplemental Comments at 1‑4; and *ex parte*
    comments by Fox Network/News Corporation on January 5, 1999.

[^213]: *See* USGS Web page at \<
    http://edcwww.cr.usgs.gov/Webglis/glisbin/glismain.pl \>.

[^214]: *See* ¶ 57 *supra*.

[^215]: *Id.* at 7.

[^216]: *Id.*

[^217]: NAB Reply at 30.

[^218]: Network Affiliate Assn Reply at 40.

[^219]: As Hatfield and Dawson noted, the DTV implementation of
    Longley-Rice errs on the side of broadcasters by assuming service.
    If we change the model\'s assumption of service so that it assumes
    no service, we risk shifting the satellite carriers\' burden of
    proving (through actual testing) that a household is \"unserved\" in
    such a way that appears to contravene the statute.

[^220]: *See, e.g.,* SBCA Comments at 16; Echostar Comments at 9; and
    NRTC Comments at 21-24.

[^221]: The original version of TIREM was developed by the
    Electromagnetic Compatibility Analysis Center (ECAC) within the
    Defense Department in the 1960s and has continued to be modified by
    that organization. ECAC\'s name was recently changed to the Joint
    Spectrum Center.

[^222]: *Ex parte* presentation by Fox/News Corporation (January 5,
    1999); SBCA Comments, Hatfield & Dawson Engineering Statement at 8.

[^223]: *Ex parte* presentation by the NAB (January 21, 1999). *See
    also* Network Affiliate Assn Supplemental Comments at 9-10.

[^224]: *Id.*

[^225]: *Id.*

[^226]: *See* Letter to William Kennard from Larry Irving, Assistant
    Secretary of Commerce for Communications and Information, at 2 n.6
    (January 29, 1999) (*ex parte* filing in CS Docket 98-201) (\"NTIA
    TIREM Letter\").

[^227]: *See* NTIA TIREM Letter at 2 n.6, *describing* TIREM Version 4
    and noting its limited distribution pursuant to the Arms Control Act
    (22 U.S.C. 2751, *et seq.*) or Executive Order 12460.

[^228]: *See* NTIA TIREM Letter at 2.

[^229]: *Id.* For example, for WBTV-3 in Charlotte, the traditional
    Grade B contour encompasses 1,132,000 households, the TIREM Version
    3 contour encompasses 1,541,000 households, and the contour created
    with the NTIA\'s variation of Longley-Rice encompasses 1,111,000
    households. TIREM Version 3 is the one available from NTIA\'s
    website and appears to be the version advocated by SBCA. *See* SBCA
    *ex parte* Comments of January 26, 1999, statement by Hatfield &
    Dawson at 1.

[^230]: *See* SBCA *ex parte* submission of January 26, 1999, Hatfield
    and Dawson statement at 1-2.

[^231]: *See* SBCA Comments, Hatfield & Dawson Engineering Statement at
    11 (list of advantages of TIREM over Longley-Rice 1.2.2, including
    more sophisticated calculation of loss due to terrain obstructions,
    minimization of \"abrupt discontinuities in calculated loss along a
    path,\" and ability to handle receiving sites that are close to
    obstructions without issuing error codes).

[^232]: 17 U.S.C. § 119(a)(9) (loser pays for signal intensity
    measurement; recovery of measurement costs in a civil action).

[^233]: The statute also provides that if a network station makes a
    \"reasonable attempt\" to conduct a test but the household denies
    the station access to conduct the test, and the station cannot
    otherwise conduct a test, the satellite carrier must terminate
    network service to that household. 17 U.S.C. § 119(a)(10).

[^234]: *See* 17 U.S.C. § 119(a)(8)(B)(ii) and (C)(ii). Section
    119(a)(8) expired on December 31, 1996. *Satellite Home Viewer Act
    of 1994*, § 6(c), Pub. L. 103-369 (Oct. 18, 1994).

[^235]: 17 U.S.C. § 119(a)(8)(B). A network station could challenge a
    satellite carrier regarding whether a particular subscriber was
    unserved. The satellite carrier could respond to the challenge by
    either terminating the subscriber or conducting a signal test at the
    challenged household. If the test found that the household was
    served, the satellite carrier was required to terminate service. If
    the test found that the household was unserved, the station that had
    challenged the service was required to reimburse the satellite
    carrier for the cost of the test The SHVA also created a 5% cap on
    the number of challenges that stations could require and be
    compensated for. 17 U.S.C. § 119(a)(8)(C).

[^236]: *CBS v. PrimeTime 24*, Final Ruling, slip op. at 36-37. The
    permanent injunction in the Miami case specifies that the loser pays
    provision in the SHVA shall apply to the \"reasonable costs of
    tests\" conducted pursuant to the injunction.Miami Final Judgment
    and Permanent, slip op. at 2-4. Tests are an option provided by the
    injunction if PrimeTime 24 wants to provide network programming by
    satellite to a household within the Grade B area of the Longley-Rice
    propagation maps. Alternatively, PrimeTime 24 may obtain a written
    waiver from the affected station. In the absence of either a waiver
    or signal test results showing the household is unserved, PrimeTime
    24 is prohibited from providing network service by satellite to any
    household with the Longley-Rice predicted Grade B area. *Id.*

[^237]: *See, e.g.,* NAB Reply at 44; Media Venture Management Comments
    at 3; ETAI at 26; Network Affiliate Associations Reply at 71.

[^238]: *See, e.g.,* Association of America\'s Public Television
    Stations Comments at 10; Network Affiliate Assn Reply at 68-72 and
    Exhibit B, Primestar/Netlink Agreement at Schedule 7; *see also* ¶66
    *supra*.

[^239]: *See, e.g.,* DirecTV Reply at 14.

[^240]: *See, e.g.,* DirecTV Comments at 26; DirecTV Reply at 13-14;
    NRTC Comments at 23; SBCA Comments at 18.

[^241]: *See, e.g.,* NAB Reply at 45-46; Network Affiliate Assn Reply at
    63-68 (satellite carriers\' attempt to turn loser pays into
    \"challenger pays\" is another example of overreaching and greed;
    presumption would shift the burden of proving eligibility onto local
    stations and away from satellite carriers contrary to the SHVA;
    would give satellite carriers an incentive to be unreasonable
    because there would be no economic downside to forcing a broadcaster
    to test an \"obviously served\" household that had been predicted as
    unserved).

[^242]: *See* Annual Assessment of the Status of Competition in Markets
    for the Delivery of Video Programming, *Fifth Annual Competition
    Report*, CS Docket No. 98-102, FCC 98-335 at ¶¶ 6, 12 (1998).

[^243]: *See, e.g.,* NAB Comments at 51; Walt Disney Co. Comments at
    27-28; Cordillera Communications Comments at 15.

[^244]: In testimony before the Antitrust Subcommittee of the Senate
    Judiciary Committee on January 27, 1999, EchoStar\'s Charlie Ergen
    stated that surveys have found 8 of 10 potential satellite customers
    don\'t buy because they will not be able to receive local signals.
    *Reported in* Communications Daily, January 28, 1999.

[^245]: Charlie Ergen Testimony before the Antitrust Subcommittee of the
    Senate Judiciary Committee, January 27, 1999, *as reported in*
    Communications Daily, January 28, 1999.

[^246]: The APA generally requires publication in the Federal Register
    of substantive rules 30 days prior to their effective date but
    permits substantive rules to become effective with less than 30 days
    advance publication for good cause. 5 U.S.C. § 553(d)(1) and (3).
    *See also* 47 C.F.R. 427(b).

[^247]: *See* *CBS v. PrimeTime 24*, Final Ruling, slip op. at 5-6.

[^248]: 17 U.S.C. § 119.

[^249]: 5 U.S.C. § 604(a)(3).

[^250]: 5 U.S.C. § 604(a)(3).

[^251]: 15 U.S.C. § 632.

[^252]: 13 C.F.R. § 121.201, Standard Industrial Code (\"SIC\") 4833
    (1996).

[^253]: Economics and Statistics Administration, Bureau of Census, U.S.
    Department of Commerce, 1992 CENSUS OF TRANSPORTATION,
    COMMUNICATIONS AND UTILITIES, ESTABLISHMENT AND FIRM SIZE, Series
    UC92-S-1, Appendix A-9 (1995) (\"1992 CENSUS OF TRANSPORTATION\").

[^254]: *Id*. *See* *also* OMB SIC Manual at 283, which describes
    \"Television Broadcasting Stations (SIC Code 4833) as:

    Establishments primarily engaged in broadcasting visual programs by
    television to the public, except cable and other pay television
    services. Included in this industry are commercial, religious,
    educational and other television stations. Also included here are
    establishments primarily engaged in television broadcasting and
    which produce taped television program materials.

[^255]: 1992 CENSUS OF TRANSPORTATION, Series UC92-S-1, Appendix A-9.

[^256]: *Id*. SIC 7812 (Motion Picture and Video Tape Production); SIC
    7922 (Theatrical Producers and Miscellaneous Theatrical Services
    (producers of live radio and television programs).

[^257]: FCC News Release No. 31327, Jan. 13, 1993.

[^258]: *See Broadcast Station Totals As Of May 31, 1998*, FCC News
    Release, June 19, 1998.

[^259]: Given the nature of LPTV stations, we will presume that all
    LPTV\'s qualify as small entities.

[^260]: Census for Communications\' establishments are performed every
    five years ending with a \"2\" or \"7\". *See* Economics and
    Statistics Administration, Bureau of Census, U.S. Department of
    Commerce.

[^261]: The amount of \$10 million was used to estimate the number of
    small business establishments because the relevant Census categories
    stopped at \$9,999,999 and began at \$10,000,000. No category for
    \$10.5 million existed. Thus, the number is as accurate as it is
    possible to calculate with the available information.

[^262]: 13 C.F.R. § 121.201, SIC Code 4899.

[^263]: 1992 CENSUS OF TRANSPORTATION , Series UC92-S-1, Table 2D,
    Employment Size of Firms: 1992, SIC Code 4899.

[^264]: 47 C.F.R. 100 *et seq.*