**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

Amendment of Parts 1, 21 and 74 to Enable ) MM Docket No. 97-217

Multipoint Distribution Service )

and Instructional Television Fixed ) File No. RM-9060

Service Licensees To Engage in Fixed )

Two-Way Transmissions )

**NOTICE OF PROPOSED RULEMAKING**

**Adopted: October 7, 1997 Released: October 10, 1997**

**Comment Date: December 9, 1997**

**Reply Comment Date: January 8, 1998**

By the Commission:

**TABLE OF CONTENTS**

Paragraph

I. INTRODUCTION AND SUMMARY 1

II\. BACKGROUND 3

III\. DISCUSSION 8

A. Revised Definition of MDS 11

B. Technical Standards 16

1\. Channelization 16

2\. Spectral Mask 19

3\. Frequency Tolerance 24

4\. Type Acceptance 26

5\. RF Emissions 27

6\. Modulation Methods 28

C. Interference 32

D. Application Processing Issues 45

E. Proposals Specifically Regarding Use of

125 kHz Channels 58

F. Proposals and Issues Specific to ITFS 61

1\. ITFS Programming Requirements 65

2\. Shift of ITFS Programming Onto Other

Channels in the Wireless Cable System 70

3\. Autonomy of ITFS Licensees and Agency Role 78

4\. Accountability of ITFS Licensees 88

IV\. PROCEDURAL MATTERS 90

Appendix A: List of Petitioners and Commenters

Appendix B: Regulatory Flexibility Analysis

Appendix C: Proposed Rules

Appendix D: Proposed Method for Predicting Accumulated Signal Power

**I. INTRODUCTION AND SUMMARY**

Number range level0Number range level1Number range level2Number range
level3Number range level4Number range level5Number range level6Number
range level71. The Commission has before it a petition for rulemaking
filed by a group of over one hundred participants in the wireless cable
industry, including The Wireless Cable Association International, Inc.,
wireless cable system operators, Multipoint Distribution Service
(\"MDS\") and several Instructional Television Fixed Service (\"ITFS\")
licensees, equipment manufacturers and consultants, (collectively
\"Petitioners\"),[^1] requesting that the Commission amend its rules to
enhance the ability of MDS and ITFS licensees to provide two-way
communication services. The petition proposes enhancing MDS and ITFS
through the use of two-way audio, video and data communications from
\"response\" stations, the use of booster stations with program
origination capability in a cellular configuration designed to create
spectrum flexibility through frequency reuse, and the use of variable
bandwidth (\"subchanneling\" and \"superchanneling\") to create
additional flexibility. For these purposes, the Petitioners submitted a
comprehensive package of proposed rules.[^2] As discussed below, we
propose to substantially amend our rules to facilitate two-way
transmission services and other service improvements sought by the
Petitioners. We solicit comment on the technical, procedural and
economic effects of implementing the proposed rule changes.

Number range level0Number range level1Number range level2Number range
level3Number range level4Number range level5Number range level6Number
range level72. Our goals in instituting this proceeding are to
facilitate the most efficient use of the affected spectrum, to enhance
the competitiveness of the wireless cable industry, and to provide
benefits to the educational community through the use of two-way
services, such as high speed Internet service. Although the primary use
of MDS and ITFS frequencies has historically been the provision of video
services, our rules permit the use of these frequencies for other
services.[^3] Through this rulemaking, we seek to facilitate these other
uses when they would best serve the needs of the public.[^4]

**II. BACKGROUND**

Number range level0Number range level1Number range level2Number range
level3Number range level4Number range level5Number range level6Number
range level73. Under our Rules, educational institutions may obtain
licenses to use spectrum for the operation of facilities for the
transmission of educational and instructional material.[^5] The spectrum
that may be used for these purposes, which is in the 2500-2686 MHz
band,[^6] is shared with that used by MDS operators for the provision of
service to subscribers. Spectrum that is licensed to ITFS entities, but
is unused by them, may be leased to MDS operators, subject to certain
technical limitations and programming requirements. The ITFS/MDS
spectrum is primarily used for the provision of either one-way video
service to students, in the ITFS context, or wireless cable service to
subscribers, in the MDS context. However, as discussed more fully below,
some spectrum is utilized for the provision of two-way service by
licensees and users. This rulemaking proposes to modify our current
Rules in order to expand the opportunities for two-way service in the
spectrum by changing certain technical rules, amending some programming
rules and creating greater flexibility for spectrum users. This
rulemaking also proposes to modify some of our current application
procedures for ITFS/MDS to facilitate the flexible use that the proposed
technical and programming changes would accomplish.

Number range level0Number range level1Number range level2Number range
level3Number range level4Number range level5Number range level6Number
range level74. In our order in *Request for Declaratory Ruling on the
Use of Digital Modulation by Multipoint Distribution Service and
Instructional Television Fixed Service Stations, Declaratory Ruling and
Order*, 11 FCC Rcd 18839 (1996) (petitions for clarification and partial
reconsideration pending) (\"*Digital Declaratory Ruling*\"), we
authorized wireless cable operators to employ digital compression
technology in order to increase the number of usable channels available
to them, and also encouraged the use of digital technology by the
educational community.[^7] In spite of the increased capacity offered by
digital compression that the *Digital Declaratory Ruling* was intended
to facilitate, growth in the industry has remained limited due to
economic and technological constraints.[^8] Indeed, as discussed in our
*Annual Assessment of the Status of Competition in the Market for the
Delivery of Video Programming*, CS Docket No. 96‑133, FCC 96‑496, Third
Annual Report, 12 FCC Rcd 4358 (1997) (\"*1996 Competition Report*\"),
the wireless cable industry as a whole was not projected even to begin
operating with a positive cash flow until 1996.[^9]

Number range level0Number range level1Number range level2Number range
level3Number range level4Number range level5Number range level6Number
range level75. MDS operators are now facing challenges posed by the
convergence of different information delivery systems. For example,
cable operators who previously limited their operations to the one-way
provision of video programming are increasingly providing a variety of
two-way services, including Internet access.[^10] As has been discussed
in the press and as we noted in the *1996 Competition Report*, other
services, including direct broadcast satellite (\"DBS\")[^11], satellite
master antenna television services (\"SMATV\"), and the nascent local
multipoint distribution services (\"LMDS\"),[^12] are also moving toward
the provision of Internet services. In order to remain competitive, the
MDS industry will need to be able to offer comparable competitive
services. We believe the rule changes we propose in this proceeding will
enable the industry to meet the competitive challenge.

Number range level0Number range level1Number range level2Number range
level3Number range level4Number range level5Number range level6Number
range level76. In addition to the competitive benefits to the MDS
industry, and the resulting benefit to consumers because of a larger
number of choices, increased two-way capacity over the frequencies at
issue will benefit educational institutions by, for example, increasing
Internet access via ITFS frequencies and enhancing the value of their
spectrum. Such increased Internet abilities will help to further the
goal of providing fast, reliable and affordable Internet access to every
student in the country.[^13]

Number range level0Number range level1Number range level2Number range
level3Number range level4Number range level5Number range level6Number
range level77. We believe adoption of the proposed rules will also
further the mandate of Section 257 of the Telecommunications Act of
1996, which requires the Commission to identify and eliminate market
entry barriers for entrepreneurs and other small businesses to promote
diversity of media voices, vigorous economic competition, technological
advancement and promotion of the public interest.[^14] As discussed more
fully below, we believe that the proposed rule changes would simplify
our current licensing system and provide greater flexibility in the use
of the allotted spectrum to licensees.

**III. DISCUSSION**

Number range level0Number range level1Number range level2Number range
level3Number range level4Number range level5Number range level6Number
range level78. We note that our Rules already permit MDS to provide
non-video services.[^15] Furthermore, as Petitioners point out, we
specifically listed the transmission of high speed computer data as a
potential use of MDS facilities when we established the service.[^16]
Since that time, we consistently have recognized that MDS licensees
enjoy the flexibility to provide a variety of video and non-video
services, subject to compliance with, or the grant of a waiver of, our
rules.[^17] For example, the Mass Media Bureau has made clear that
leased ITFS frequencies (as well as MDS channels) can be used for
asymmetrical high speed digital data applications, including Internet
access, if that usage complies with our technical rules and the *Digital
Declaratory Ruling*.[^18] In this proceeding, Petitioners are asking
that we implement a series of technical rule changes that would give MDS
and ITFS licensees the needed flexibility to fully exploit digital
technology in delivering two-way communications services.

Number range level0Number range level1Number range level2Number range
level3Number range level4Number range level5Number range level6Number
range level79. Even though the Commission has permitted MDS licensees to
provide two-way service, Petitioners argue that the existing rules are
too cumbersome and impose too great a financial burden. For example, in
a recent authorization for two-way operation in the MDS band each
subscriber location was individually licensed.[^19] Petitioners argue
that this type of approach is not commercially viable for most two-way
wireless applications and is demonstrative of the impediments to
expansion. Instead, Petitioners propose a system under which licensees
would be permitted to utilize all or part of a 6 MHz channel for return
path transmissions from subscriber premises, to cellularize their
transmission systems to take advantage of spectrally efficient frequency
reuse techniques, and to employ modulation schemes consistent with
bandwidths either larger or smaller than 6 MHz, all while providing
incumbent MDS and ITFS licensees interference protection equivalent to
what they currently receive.

Number range level0Number range level1Number range level2Number range
level3Number range level4Number range level5Number range level6Number
range level710. Petitioners have emphasized that they are not seeking a
reallocation of spectrum, but instead are seeking to modify the
technical rules governing the spectrum already allotted to MDS and ITFS.
However, commenters Interactive Video Trade Association (\"ISTA\") and
WebCel Communications, Inc. (\"WebCel\") both have opposed Petitioners\'
proposal on the grounds that the contemplated rule changes would
fundamentally alter the nature of MDS and ITFS, undermine the auction
process, and unfairly harm potential competitors. We disagree with
ISTA\'s and WebCel\'s arguments. Both of these commenters overlook the
fact, discussed above, that the types of two-way service that the rule
changes would encourage already have been authorized to MDS
licensees.[^20]

**A. Revised Definition of MDS**

Number range level0Number range level1Number range level2Number range
level3Number range level4Number range level5Number range level6Number
range level711. Petitioners propose that we create a regulatory system
authorizing the use of response stations and response station hubs to
enable the two-way operation of wireless cable systems. Response
stations would be the means of transmission from a subscriber\'s
premises and could be implemented as separate transmitters or as parts
of a transverter (combined transmitter and receiver) and could use
either separate transmitting antennas for return paths or combined
transmitting/receiving antennas. Response station hubs would serve as
the collection points for signals from the response stations in a
multipoint-to-point configuration for upstream signal flow.

12\. Under our current regulatory scheme, MDS operators typically only
provide two-way service to subscribers using telephone return links or
individually licensed subscriber premises stations. This is an outgrowth
of the basic one-way approach to MDS transmission from which our current
rules originated. We propose to expand the definition of the Multipoint
Distribution Service in Section 21.2 of our Rules to fully incorporate
the concept of two-way transmission. The proposed definition would read:

Multipoint Distribution Service (MDS): A domestic public radio service
rendered on microwave frequencies from one or more fixed stations
transmitting to multiple receiving facilities located at fixed points
and/or from multiple Multipoint Distribution Service response stations
transmitting to response station hubs.

This changed definition is representative of the reorientation of the
regulatory approach to MDS, from that of an essentially one-way service
with two-way service permitted on a limited basis, to a fully flexible
service in which licensees can provide either one-way or two-way service
in response to the demands of the competitive marketplace. We solicit
comment on this new service paradigm.

13\. As fully set out in Appendix C, we also propose to amend the
definition for a \"Multipoint distribution service response station\" to
indicate that licensees would be permitted to utilize all or part of any
6 MHz MDS or ITFS channel as a response channel consistent with the
other technical and service rules proposed herein. The proposed
definition would read as follows:

Multipoint Distribution Service response station. A fixed station
operated by an MDS licensee, the lessee of MDS channel capacity or a
subscriber of either to communicate with a response station hub or
associated MDS station. A response station under this part may share
facilities with other MDS response stations and/or one or more
Instructional Television Fixed Service (ITFS) response stations
authorized pursuant to §74.939.

Commenter Caritas Telecommunications, Inc. (\"Caritas\") has proposed
that we limit the availability of response channels to MDS channels 1,
2, and 2A, converting those channels from the current use for
point-to-multipoint transmissions to subscribers\' homes to use for
transmission return paths. We tentatively decline to adopt this
counter‑proposal and agree with Petitioners that it would both
artificially limit the amount of spectrum that could be used for return
paths and unnecessarily prevent ITFS licensees from using their own
channels for return paths. In regard to Caritas\' belief that its
proposal would provide protection from harmful interference, we believe
that such protection can be achieved in other ways, as discussed more
fully below. We solicit comments on our proposals regarding the expanded
definition of response stations, including provision for transmissions
on all available MDS and ITFS channels, and on Caritas\'
counter‑proposal.

14\. A key element of Petitioners\' proposal is the use of \"response
station hubs,\" facilities that would receive the transmissions of
response stations. These hubs are intended to permit MDS response
stations to operate at lower power because the response stations hubs
will be located closer to subscriber premises than are current
transmitter sites. The hubs are expected to improve service reliability
and permit greater frequency reuse than if each subscriber were required
to communicate directly with their current primary transmitter site. We
therefore propose to add the following definition:

Response station hub. A fixed facility licensed for use in accordance
with § 21.909 that is operated by an MDS licensee or the lessee of an
MDS facility for the reception of information transmitted by one or more
MDS response stations. A response station hub licensed under this part
may share facilities with other MDS response station hubs and/or ITFS
response station hubs authorized pursuant to § 74.939.

The Petitioners suggest that channels adjacent to the channels received
at response station locations most probably will be used for response
station transmissions. Since the adjacent channels used in a wireless
cable system are usually assigned to different licensees as a result of
the interleaved channel allocation pattern in the 2.5 GHz band, it is
likely that most hubs and associated response stations will be
facilities shared by multiple licensees. In other words, a response
station hub and associated response stations will operate under multiple
authorizations, which will be identical in all respects other than in
the name of the licensee and the authorized channels of operation. We
seek comment on the proposed revised definition and its implications.

15\. We also propose to expand the definition for \"signal booster
stations\" such that it will be clear that those stations would be
authorized to originate transmissions, as well as to relay transmissions
from other stations. As envisioned by Petitioners, booster stations
would be used to cellularize wireless cable operations, which now may
operate in areas too large to be served by a single station. Permitting
boosters to originate as well as relay programming would facilitate
frequency reuse cellular configurations and two-way high speed Internet
access and other services. The location restriction in the current
definition would be removed because it unnecessarily duplicates a
restriction already contained in § 21.913 that is retained essentially
intact. The proposed definition would read:

Signal booster station. An MDS station licensed for use in accordance
with § 21.913 that operates on one or more MDS channels. Signal booster
stations are intended to augment service as part of a distributed
transmission system where signal booster stations retransmit the signals
of one or more MDS stations and/or originate transmissions on MDS
channels. A signal booster station licensed under this part may share
facilities with other MDS signal booster stations and/or one or more
ITFS signal booster stations authorized pursuant to § 74.985.

We seek comment on the definition and the proposal to expand the role of
booster stations in this manner.

**B. Technical Standards**

**1. Channelization**

16\. Petitioners request that we permit flexible subchannelization of
MDS and ITFS channels, *i.e.*, the division of a channel of a particular
bandwidth into multiple channels of smaller bandwidth. Currently,
licensees are assigned standard 6 MHz channels for point-to-multipoint
transmission of video signals and associated audio signals; response
channels of 125 kHz bandwidth are available for return path use. A
paired response channel is available for each ITFS channel and for E and
F MDS channel groups. In the *Digital Declaratory Ruling*, we permitted
the use of digital emissions in order to allow licensees to take
advantage of the fact that such emissions could facilitate the
transmission of multiple video and audio signals within the 6 MHz
bandwidth. However, licensees were not permitted by the *Digital
Declaratory Ruling* to alter in any way the overall bandwidth
limitations applicable to the channels in use (for example, power level
in interference analysis), despite the fact that a single channel of
video and associated audio, transmitted by either of these digital
emissions, would occupy no more than a fraction of a full 6 MHz channel.

17\. Petitioners point out that subchannelization would permit them to
use their authorized spectrum more effectively, in that it allows more
efficient channel reuse within a given service area, and can be used to
control the number of response stations operating within a channel and
optimize transmitter data rates commensurate with the particular
communications service being provided. Petitioners suggest that code
division multiple access (\"CDMA\") emissions could facilitate the use
of 4 or 5 channels of 1.25 to 1.5 MHz bandwidth each within a single 6
MHz channel for relatively low data rates, while Quadrature Phase Shift
Keying (\"QPSK\") and Quadrature Amplitude Modulation (\"QAM\") could
accommodate higher data rates using multiple channels within a 6 MHz
channel. With respect to 125 kHz channels now available for response
use, Petitioners believe that subdivision of these channels should also
be permitted, although such new subchannels would be limited to
relatively low data rates because of their very narrow bandwidth. To
make possible the use of spectral density analysis, for example, in
interference analysis involving subchannels, Petitioners ask that
proposed subchannels and superchannels be limited to digital
transmissions with uniform spectral power density across the 6 MHz
channel width.[^21] We seek comment on these proposals.

Number range level0Number range level1Number range level2Number range
level3Number range level4Number range level5Number range level6Number
range level718. Petitioners also request that we permit
superchannelization of MDS and ITFS channels, *i.e*., the combining of
more than one channel into a single, wider channel. For example, four 6
MHz channels could be aggregated to form one channel with a 24 MHz
bandwidth or four 125 kHz channels could be combined to create a single
500 kHz channel. These wide channels, Petitioners argue, could be used
for the transmission of high data rates and/or the use of spread
spectrum emissions. Petitioners contemplate that transmitting stations
using such wideband emissions would be licensed to multiple entities in
some instances, as the current channelization arrangement in both
services provides generally for the assignment of interleaved,
non-contiguous channels. We seek comments on Petitioners\' proposals.

**2. Spectral Mask**

19\. In the *Digital Declaratory Ruling*, we waived our rules with
respect to out-of-band emissions and permitted the use of a somewhat
relaxed spectral mask for digital transmission modes.[^22] On an interim
basis, the Commission waived its analog emission mask to provide for 38
dB attenuation at the channel edges, with uniformly sloping attenuation
to 60 dB at 3 MHz from the channel edges and beyond. This action was
taken because the Commission concluded that the application of the
current analog emission mask to digital emissions would be unnecessarily
restrictive and could increase the cost of digital equipment while
providing no benefit. In addition, the results of laboratory tests
submitted in connection with the Commission\'s consideration of this
issue demonstrated that a digital station using the relaxed mask is less
likely to cause interference than an analog station using the existing,
more restrictive, mask.

Number range level0Number range level1Number range level2Number range
level3Number range level4Number range level5Number range level6Number
range level720. Petitioners propose changes to sections 21.908 and
74.936 of the Commission\'s Rules to permanently incorporate the
out-of-band emission waiver of the *Digital Declaratory Ruling*,
although with certain modifications; specifically, changes are proposed
for primary system transmitters and single channel booster transmitters
with a power greater than -9 dBW EIRP. Likewise, for sub- and
superchannels, the attenuation of out-of-band emissions would begin at
the edges of the particular bandwidth in use, *e.g.*, for a 24 MHz
superchannel, 38 dB of attenuation would be required at the upper and
lower edges of the combined channels, with uniformly sloping attenuation
to 60 dB at 3 MHz from the edges of the combined channels and beyond the
24 MHz channel. For subchannels, 38 dB of attenuation would be required
at the subchannel edges.[^23] Where digital modulation is employed, the
amount of attenuation would be related to the licensed average power
level or, for subchannels, the appropriately adjusted value based on the
ratio of the channel to subchannel bandwidths. We seek comment on these
proposals.

Number range level0Number range level1Number range level2Number range
level3Number range level4Number range level5Number range level6Number
range level721. For booster stations with an EIRP of -9 dBW or less,
Petitioners request that no spectral mask whatever be applicable to the
out-of-band emissions of these stations. Petitioners argue that such low
power stations have only a very limited potential for interference, and
that applying strict emission limitations to them would significantly
increase the price of equipment with no benefit to the user or nearby
licensees in terms of added interference protection. We request comment
on whether eliminating a spectral mask for low power boosters presents
an undue interference risk, and, if so, which additional interference
safeguards should be adopted.

22\. For a booster station transmitting on multiple non-contiguous
channels carrying separate signals (\"broadband booster\"), with an EIRP
greater than -9 dBW and employing either digital or analog modulation,
Petitioners request that a somewhat less stringent spectral mask be
applied as compared to that applied to other high power stations
(*i.e.,* EIRP \> -9 dBW), based on laboratory tests done in connection
with the *Digital Declaratory Ruling* showing that satisfactory
performance and interference protection could be achieved with the
relaxed levels. (*See* proposed Section 21.908(b), Appendix C.) For a
response station using digital emissions in all or part of a 6 MHz
channel, Petitioners propose a spectral mask requiring attenuation of
the emission by 38 dB at the upper and lower edges of the 6 MHz channel
(irrespective of actual bandwidth used), with linearly sloping
attenuation to 60 dB at points 3 MHz above and below the 6 MHz channel
and beyond. In addition, Petitioners suggest that it may be necessary to
employ guardbands to meet the proposed spectral mask, which they
indicate might be helpful in providing a basis for type acceptance of
response station transmitters. For a response station using digital
emissions contiguously over more than one 6 MHz channel, Petitioners
propose a spectral mask requiring 38 dB attenuation of the emission at
the upper and lower edges of the superchannel, with linearly sloping
attenuation to 60 dB at points 3 MHz above and below the superchannel
and beyond. As an exception to the spectral masks for response stations
utilizing one or more of the 125 kHz response channels, Petitioners
would permit discrete spurious emissions above the upper and below the
lower authorized channel edges provided that: (1) each spur was
attenuated below the average power of the emission by at least 40 dB;
(2) no more than a single spur occurred each 10 MHz within 50 MHz of the
channel upper and lower edges; and (3) no spurs occurred beyond 50 MHz
of the upper and lower channel edges. We solicit comment on
Petitioners\' proposals.

23\. For all spectral mask calculations involving digital emissions,
Petitioners request that the average power of the emission across its
bandwidth be used, as was done in the *Digital Declaratory Ruling*
waiver, where we stated that digital emissions will be authorized with
an average power level (EIRP) equal to the peak visual power (EIRP) of
analog transmissions. At the same time, we also required that steps be
taken when using digital emissions to ensure substantially uniform power
density across the bandwidth in use, including at times when no data
input signal is present to modulate the transmitter. For digital
emissions on sub- and superchannels, Petitioners would require that
transmitted power be distributed uniformly in such a way that the power
per unit of bandwidth is always constant.[^24] For example, if a maximum
100 watts EIRP were available for a 6 MHz digital emission, then in a
subchannel with bandwidth 3 MHz a maximum of 50 watts EIRP would be
permissible and in a superchannel of 24 MHz a maximum of 400 watts EIRP
would be permissible. We seek comment on whether the degree of
attenuation proposed for these various schemes is sufficient to provide
adequate adjacent channel interference protection, and we welcome any
test results or data which shed further light on spectral masks. We also
seek comment on the means for measuring compliance with the spectral
mask requirements, including the appropriate resolution
bandwidth(s).[^25]

**3. Frequency Tolerance**

Number range level0Number range level1Number range level2Number range
level3Number range level4Number range level5Number range level6Number
range level724. With respect to frequency tolerance, Petitioners request
that, for all primary station transmitters and all booster stations with
power exceeding -9 dBW EIRP, the existing +/- 1 kHz standard be
continued because such stations often have large coverage areas and thus
significant opportunities to cause interference to neighboring systems.
For booster stations with - 9 dBW or less EIRP, and for all response
stations, Petitioners argue that no frequency tolerance requirement
should be imposed due to the limited coverage areas and limited
interference range of these stations. Such stations would simply be
required to maintain their emissions within the spectral mask specified
for them. In the *Digital Declaratory Ruling*, we noted that carrier
frequency tolerance is not relevant to digital modulation systems, and
we did not impose a frequency tolerance requirement for use of Vestigial
Sideband (\"VSB\") and QAM systems, including the pilot carrier
frequency in VSB systems. We therein encouraged additional testing of
the pilot carrier offset looking toward adoption of permanent rules for
digital systems. We seek comments on whether we should continue not to
impose a frequency tolerance requirement for digital transmissions.

25\. Petitioners propose to eliminate current Sections 21.908(a) and
(c)-(e) and Section 74.950(a)-(e), which set requirements for
transmitter installation and performance. Petitioners maintain that
these rules apply to analog transmissions but do not apply to digital
transmissions and should be eliminated. In the *Digital Declaratory
Ruling*, we waived Sections 21.908(a) and 74.950(a) with respect to
digital transmissions. We tentatively agree with Petitioners that these
rules are incompatible with digital transmissions. Parties are welcome
to comment on whether the targeted rules should be retained and modified
to apply to stations which only utilize analog video and audio
transmissions, or whether they should be deleted altogether.

**4. Type Acceptance**

26\. Included in Petitioners\' proposed regulatory scheme are provisions
for type acceptance of transmitters. The rules put forth by Petitioners
specifically provide for type acceptance of response station
transmitters,[^26] while boosters fall under general MDS and ITFS type
acceptance rules.[^27] We tentatively agree that type acceptance of
response station transmitters and boosters, including broadband
boosters, is appropriate, and we propose to adopt or retain the relevant
rules.[^28] We invite comment on this approach.

**5. RF Emissions**

Number range level0Number range level1Number range level2Number range
level3Number range level4Number range level5Number range level6Number
range level727. In their comments, Petitioners further suggest that the
Commission adopt rules, similar to those adopted recently for LMDS
licensees,[^29] to govern radio frequency (\"RF\") emissions for
MDS/ITFS return path transmissions. In the *LMDS Second Report and
Order*, we stated that it is incumbent upon LMDS licensees to act in
good faith and to exercise reasonable care to protect users and the
public from the operation of subscriber transceiver antennas. As a
further safeguard, we explained that \"we believe that requiring
licensees to provide user and installation information, and to label
subscriber antennas properly, provides adequate notice regarding the
potential safety hazards of LMDS subscriber transceivers. We will
therefore require LMDS licensees to attach labels to every antenna, in a
conspicuous fashion.\" *Id*. at ¶ 295. We added that we will not mandate
the specific language to be used on the labels, however we will require
use of the ANSI-specified warning symbol for RF exposure. *Id*. And
while we declined to require interlock features, we \"strongly
encourage\[d\]\" their use to enhance the safety of subscriber
transceivers where such features could be made available at reasonable
cost. *Id.* at ¶ 296. In modeling the LMDS RF radiation guidelines and
procedures after those applicable to MDS systems, we also acknowledged
\"the technical similarities between LMDS and MDS.\" *Id*. at ¶ 292. We
propose to adopt Petitioners\' suggestion and amend the provisions of
Section 1.1307 of our Rules that relate to MDS and ITFS, in the manner
set forth for LMDS licensees both in the *LMDS Second Report and Order*
and as recently modified in our order refining the guidelines for
evaluating the environmental effects of RF radiation.[^30] We seek
comment on this proposal.

**6. Modulation Methods**

Number range level0Number range level1Number range level2Number range
level3Number range level4Number range level5Number range level6Number
range level728. In the *Digital Declaratory Ruling*, we authorized the
use of QAM and VSB modulation. While we declined to consider the use of
other digital modulation methods in the context of that proceeding,[^31]
we stated that we would consider future requests for declaratory rulings
where the requesters submit appropriate data to demonstrate that other
modulation techniques could be used in a manner that would not interfere
with MDS and ITFS analog and digital operations.[^32] Petitioners intend
that the rules that they propose in the Petition accommodate future
Commission authorization of digital modulation techniques other than QAM
and VSB, but they assert that this proceeding is not the appropriate
forum to deal with the details of other modulation techniques.
Specifically, Petitioners propose to retain that portion of current
Section 21.905(b) of the Commission\'s Rules which provides that
\"different types of emissions may be authorized if the applicant
describes fully the modulation and bandwidth desired.\"[^33] Petitioners
further propose to replicate that provision in Section 74.936(a), and to
apply the principle to the 125 kHz channels.[^34] Thus, given an
adequate showing, Petitioners propose that any emission should be
permissible for any channel of any bandwidth at any class of MDS or ITFS
station, utilizing any permissible power, so long as the emission meets
the applicable out-of-band emission requirements and is capable of
causing no greater interference than 8-VSB or 64-QAM.

Number range level0Number range level1Number range level2Number range
level3Number range level4Number range level5Number range level6Number
range level729. Pace Telecommunications Consortium (\"Pace\") comments
that the Commission should immediately grant ITFS and MDS licensees the
flexibility to use whatever digital techniques best serve their needs,
with interference controlled through the use of power spectral density
limits and spectral masks. Pace particularly seeks the use of
frequency-shift keying (FSK) modulation and states that use of this
modulation would present great cost savings to ITFS licensees. Gulf
Coast MDS Service Company comments that the Commission should not impose
technology standards for two-way transmissions, because doing so would
undermine the development of perhaps more efficient innovations.

30\. As an initial matter, as in the *Digital Declaratory Ruling*,
\"\[w\]e are not now proposing to adopt one or more 'standard' digital
technologies.\"[^35] As requested by Petitioners, we will retain or add
provisions for accommodating the use of different modulation types.
Because we wish to encourage parties to continue to identify different
digital modulation schemes that could be useful in MDS and ITFS, we
emphasize that we remain open to considering future requests for
declaratory rulings in accordance with the *Digital Declaratory Ruling*,
upon submission of appropriate data.[^36] We invite comment on whether
there is a basis for concluding that use of particular digital
modulation types by MDS and ITFS stations other than VSB and QAM would
not be prone to interference, based on the current 45 dB/0 dB protection
ratios for cochannel and adjacent channel interference respectively,
*i.e.* that such modulation formats should be permitted without
requiring test data.[^37] For example, one modulation type may be a
subset of VSB and QAM and, therefore, is covered under the industry
tests used to support the *Digital Declaratory Ruling*.

Number range level0Number range level1Number range level2Number range
level3Number range level4Number range level5Number range level6Number
range level731. In considering Petitioners\' proposals for amendment of
the existing MDS and ITFS rules pertaining to channelization, spectral
mask, frequency tolerance and emissions, the benefits of such changes
appear to outweigh the negative effects they might engender. The
technical regulations now in place for these services to a large extent
reflect the engineering state-of-the-art at the time they were adopted,
and were never intended to freeze in place an outdated technology or
regulatory scheme to the detriment of better spectrum efficiency at some
time in the future. As we noted in the *Digital Declaratory Ruling*,
\"We expect that the introduction of digital technology will enhance the
service of wireless cable operators by allowing opportunities for
increased channel capacity and programming choices available to
consumers, sharper television pictures, a broader coverage area, and the
provision of video, voice and data services that cannot be offered
currently.\" 11 FCC Rcd at 18842 (footnote omitted). As an outgrowth of
that action, these proposals are a logical second step to expand the
Commission\'s technical framework for these services beyond the current,
narrowly drawn, bandwidth and emission restraints into a more flexible
and dynamic framework which can accommodate a vastly greater range of
uses. We therefore are proposing to amend our rules as requested by
Petitioners in the areas discussed above, expanding the technical
flexibility of this service as we have for other services numerous times
in the past when we determined that it could be accomplished with no
detrimental effect on the overall interference environment for existing
licensees and future applicants. We solicit comments on, and reasonable
alternatives to, all of these proposals.

**C. Interference**

32\. The Commission\'s current regulations in ITFS and MDS for
interference protection were designed to minimize the potential for
destructive cochannel and adjacent channel interference between systems
located in proximity to each other. The specific criteria for protection
are of two forms, namely, (1) cochannel and adjacent channel
desired-to-undesired signal (D/U) ratios and (2) limits on the magnitude
of a station\'s free space field as measured at the edge of the
station\'s protected service area. For cochannel interference
protection, an applicant must configure its system so that the signals
from each of its transmitters are at least 45 dB weaker than the signals
of the existing licensee\'s transmitters within the licensee\'s
protected service area and/or, in the case of ITFS licensees, at the
licensee\'s protected receiver sites. For adjacent channel protection,
the ratio must be at least 0 dB. In order to meet the second form of
protection, an applicant generally must be able to demonstrate that the
magnitude of the free space radiated field from each transmitter does
not exceed a particular limit (*i.e.*, a power flux density -73
dBW/m^2^) at the boundary of the applicant\'s service area.

33\. For purposes of providing interference protection for the system
configuration presented in the Petition, Petitioners propose to keep the
existing interference criteria in essentially unchanged form, and to
supplement them with similar new criteria to be applied to hub, booster
and response stations. The 45 dB cochannel and 0 dB adjacent channel
protection ratios would be applied at all hub station receivers within a
primary station\'s protected service area, and would continue to apply
within the 35-mile protected service areas. (These would not be
applicable for Basic Trading Area (\"BTA\") protection, for which
interference is prevented in part through the use of the power flux
density limit at the BTA boundaries.) For booster station transmitters,
the existing radiated field limitation (in terms of power flux density)
would be applied to the combined radiation of all boosters within a
system, rather than to individual boosters, and this combined radiation
level would be added to the radiated field of the primary station
transmitter to calculate the overall radiated field of the system at its
boundaries to determine compliance with the field limitation or
interference protection ratio.[^38] This change is necessary,
Petitioners argue, because their proposed \"cellularization\" of the
MDS/ITFS service areas will necessitate the use of large numbers of
booster transmitters, each covering a portion of the service area and
operating on a cochannel basis with other boosters and/or the primary
station within the service area.[^39] This system configuration could
result in numerous cochannel radiated fields which have the potential
for interfering with other nearby systems. We seek comment on
Petitioners\' arguments.

Number range level0Number range level1Number range level2Number range
level3Number range level4Number range level5Number range level6Number
range level734. For determining the interference potential of the
multitude of response stations associated with Petitioners\' proposed
cellularized system, Petitioners propose a 3-step process using
statistical analysis and worst-case assumptions, necessitated by the
fact that individual response station locations and interference
potential will not be available for making precise calculations.[^40]
This process is described in a document submitted by Petitioners
entitled \"Proposed Text of Attachment to Report And Order Setting Forth
Method for Predicting Accumulated Signal Power From a Multiplicity of
Statistically-Located Transmitters,\" attached as Appendix D to this
notice. In step one, the hub station response service area (\"RSA\") is
defined and a square grid of points is located within this area. The
grid of points established within the RSA would consist of the
intersections of a group of equidistant parallel straight lines oriented
in the north/south and east/west directions and of sufficient length
that the grid encompasses the entire RSA. An RSA could take any
geographical shape, with its boundaries defined by geographical
coordinates and a radius from the response station hub, or by other
means. The RSA could be subdivided into smaller geographical regions to
allow for response stations of different characteristics within regions
of differing population densities. The boundaries of each region would
be specified in a manner akin to that used to define the RSA. The
territory within a region would be contiguous and no two regions within
a RSA would be permitted to overlap. In order to estimate the likely
numbers and locations of response stations within an RSA, each of the
regions within the RSA would be evaluated to determine the uniformity of
its population density. The test for density uniformity would consist of
(1) determining the population, using U.S. Census data, of each ZIP Code
within a region, (2) dividing each ZIP Code population density by the
total population density of the region, and (3) identifying if the
resulting quotient is 3 or less in all instances. If so, then population
uniformity would be considered adequate within the region. If the
quotient is more than 3 for any ZIP Code, then the region would be
reconfigured, *i.e*., the boundaries changed, until adequate uniformity
was present. Population uniformity is an important facet of each region
because Petitioners assume, *a priori*, that the distribution of
response station transmitters will be closely matched to population
distribution within each region.

Number range level0Number range level1Number range level2Number range
level3Number range level4Number range level5Number range level6Number
range level735. In step two, Petitioners propose to identify the
technical characteristics of response stations which will be associated
with each point in the RSA grid. One or more classes of response
stations would be identified within the RSA, with each class being a
function of several variables, such as transmitted power (EIRP), antenna
height, frequency, bandwidth, or other factors pertinent to the
interference potential of the response station class. Within each region
of an RSA, at least one class of response station must be specified for
use in making interference calculations. In some regions, more than one
class of station would be specified, with each class relating to a
particular set of response stations with distinguishably similar
characteristics. For example, if a particular region encompassed a
valley and a large hill, one class of response stations might have
relatively low antennas and a second class of response stations might
have relatively high antennas. Further, the valley stations might
require higher transmitter power to reliably reach the response station
hub, thus resulting in two clearly distinguishable differences between
the two classes of stations. Petitioners argue that classifications are
essential for accurately calculating the interference potential of the
response stations within an RSA, in that clearly differentiable classes
will almost certainly have clearly differentiable potentials for
interference to neighboring systems, and these differing interference
potentials must be evaluated individually, as well as collectively, to
arrive at an accurate overall interference assessment.

36\. The final step in calculating response station interference would
require combining the radiated fields of all response stations of all
classes, of all regions, and of all RSAs within the primary station\'s
protected service area. In order to simplify this calculation, the
statistical population uniformity within each region would be used as a
basis for grouping proportionate numbers of the total number of response
stations of each class at the grid points laid out within each RSA. To
accomplish this, each grid point would be made to represent all of the
response stations of particular classes in proximity to it, *i.e*., in
the final analysis, all of the response station transmitters of all
classes and their associated antennas would be presumed (for calculation
purposes) to be sited at the grid point coordinates to which they are
nearest. For each class of response station assigned to a grid point
(multiple classes could share the same grid points), a set of worst-case
assumptions would be made concerning the transmitting antenna radiation
pattern, transmitter power (EIRP) and antenna height.[^41] The combined
radiated field for all of the transmitters for each class of response
station at each grid point would then be calculated by assuming that all
response stations in each class associated with each grid point are
characterized by the worst-case technical parameters assigned for each
class. For that purpose, the aggregated power (EIRP) is calculated by
dividing the number of simultaneous response station emitters in each
regional class by the number of grid points in that region. As a check
to determine if an adequate number of grid points has been created for
performing interference analyses, Petitioners propose to establish a
\"measurement line\" around each RSA, following the shape of the RSA
boundary and 0.5 miles outside of it. Measurement points would be placed
at intervals no greater than 0.5 miles along the measurement line.[^42]
Petitioners would then divide all of the RSA grid points into two
groups, checkerboard fashion, and calculate the power flux density from
each the grid points of both groups at each point on the measurement
line.[^43] Then, at each measurement point, the separate power flux
densities from all of the grid points in group one would be added
together to indicate the total power flux at each measurement point from
the group as a whole. A similar calculation would then be performed to
aggregate the power flux density at each measurement point produced by
all of the grid points in the second group. If the combined power flux
density from all of the grid points in the first group is within 3 dB of
the combined power flux density from all of the grid points in the
second group at all measurement points, Petitioners argue that a
sufficient number of grid points have been selected for the RSA. If the
difference is greater than 3 dB at any measurement point, Petitioners
would redraw the RSA grid so as to create additional grid points and
continue making comparison calculations between the two groups of grid
points until the difference was within 3 dB at all measurement points.

Number range level0Number range level1Number range level2Number range
level3Number range level4Number range level5Number range level6Number
range level737. Once an adequate grid had been created and tested as
described above, Petitioners would then use the equivalent stations at
the grid points from all RSAs to calculate compliance with the -73
dBW/m^2^ (or bandwidth prorated) field intensity limit and similar
compliance with the 45 dB and 0 dB cochannel and adjacent protection
requirements. Thus, where under current rules these values are
calculated on a per-transmitter basis, Petitioners\' proposed system
would necessitate that they be calculated on an aggregated basis,
covering hundreds or thousands of transmitters and their combined
interference potential to neighboring systems.[^44] According to the
methodology, because there is no *a priori* knowledge of the specific
locations of response station transmitters, certain assumptions must be
made about their distribution within defined geographical areas chosen
for their homogeneity. Petitioners propose that an application for a
response hub station specify all parameters involved in the analysis;
*e.g.*, for each regional class, the maximum station height above
ground, maximum EIRP, antenna sectorization (including polarization
values), combined worst-case antenna radiation pattern, and the maximum
number of assumed simultaneously operated response stations in the
regional class. *See* proposed rule Section 21.909(c), Appendix C.
Further, the maximum number of simultaneously transmitting response
stations within each class within a region must not exceed the numerical
limit proposed for a particular class in the associated response hub
application without notification to the Commission. However, if a
calculation of field intensities and D/U ratios indicated compliance
with maximum permissible values, Petitioners argue that licensees should
be free, upon notification to the Commission, to continue adding
response station transmitters within their system until such time as
calculations indicate that the permissible values (power flux density or
D/U rations) would be exceeded. Petitioners contend, by using worst-case
parameters for every class of response station, they have built in a
significant degree of extra interference protection which would serve as
a buffer for situations where a different mix of stations than
anticipated are activated in an RSA.

Number range level0Number range level1Number range level2Number range
level3Number range level4Number range level5Number range level6Number
range level738. The sort of system configuration contemplated by
Petitioners must involve interference considerations not present in
current systems, most especially the anticipated use of large numbers of
booster stations to facilitate cellularization of wide-area systems, and
the anticipated use of very large numbers of response stations. Inasmuch
as the specific locations of primary station transmitters and booster
station transmitters will continue to be known, the calculation of
interference from these stations, although certainly more complicated
than is now the case, nevertheless will be a relatively straightforward
process of summation of radiated field intensities at various distances
from the transmitters and calculation of D/U interference protection
ratios. For response stations, the process is obviously much more
complex and less certain, notwithstanding Petitioners\' proposals for
using Census Data within ZIP Codes for estimating transmitter locations.
Such an estimate tacitly assumes a one-to-one correspondence between
population density and response station density within a region which
has met Petitioners\' \"3 or less\" ratio. In addition, there is no
clear way to know the degree of use to which individual response
stations will be put, even though Petitioners propose to assume that all
of the maximum allowable number of stations are assumed to be
transmitting all of the time. The net result is that an assumption about
population density would be used as the basis for an assumption about
response station transmitter density and location, and these assumptions
would then be combined with assumptions about response station EIRP,
antenna radiation pattern and antenna height in order to form a
statistical picture of response station interference potential which,
according to Petitioners, gives a conservative, albeit uncertain,
approximation of the operating environment.

39\. Petitioners conducted a test in Tucson, Arizona of their proposal
involving power accumulation at measurement points and adequacy of grid
points. A small system (radius 5 miles; 93 response stations; 72
measurement points on the RSA boundary line) was put in place and
measurements made which were compared to theoretical calculations. In
general, actual measured signal levels were, as expected, lower than
calculated levels and the comparisons of grid square halves generally
yielded values which were within 3 dB of each other. Although this test
was certainly useful, its results may not be generally applicable to the
very diverse geographical and interference environments in which MDS and
ITFS systems operate. In particular, the transmitters in the test each
utilized a separate, narrowband, channel for transmission to the hub
station receiver. In real systems, many transmitters might be sharing
the same spectrum simultaneously, creating an environment rich in the
potential for cochannel and adjacent channel interference (albeit,
perhaps interference internal to the system), complicated by the
presence of emissions with very narrow to very wide bandwidths.
Additionally, the terrain in the Tucson test area is nearly ideal for
tests of a microwave line-of-sight system, because it is almost
uniformly flat and free of tall obstacles which could possibly present
reflection and diffraction problems that significantly complicate the
process of aggregating radiated fields and calculating interference
levels. The Tucson area is also relatively devoid of foliage, which
further could skew the differences between predicted and measured
values.

40\. In considering Petitioners\' proposals, we have raised concerns, as
noted above, that some facets are so complex that they may prove to be
very difficult to implement and enforce. In particular, we are concerned
that, with the licensing system proposed by Petitioners, numerous
filings will result over time as response and booster stations are added
and calculations must be redone repeatedly, to account for the
additional interference potential and to account for response station
locations which did not fit within the original statistical analysis and
RSA grid system. This could present a considerable burden for existing
licensees and system operators faced with the need to analyze these
filings to verify that no harmful interference will result to their
systems. Notwithstanding our reservations, however, we believe that
Petitioners\' overall goal of facilitating cellularization of the
services is very forward-looking, and we believe that it warrants an
opportunity to proceed despite the complications and uncertainties which
could arise. We therefore are considering adopting Petitioners\'
modifications to our interference standards for MDS and ITFS as they
have been proposed, with only slight further modification.

41\. Petitioners propose that, within a given system, the aggregated
power from a primary station and all associated booster stations be used
for one set of interference calculations, and that a separate set of
interference calculations be performed using the aggregated power from
response stations, which might operate on adjacent channels. Each of
these calculations would then separately be compared to the relevant
allowable maximum field values and the permissible D/U ratios. Such a
methodology could only be indicative of reality, however, if the
response stations were not using all or part of the same spectrum as the
primary and booster stations. In instances where all three types of
stations share, partially or completely, common spectrum, then the
calculations for compliance with the interference standards must come
from an aggregation of the power of all three types of stations, and we
also are proposing that this be done where the response stations would
operate on adjacent channels.

42\. We also are proposing to place a limit of 18 dBW EIRP on response
station transmitters in cellularized systems. We propose that higher
power facilities be separately authorized and require a site specific
interference analysis. Given the extremely complex interference
situation attendant to cellularized operations and the heavily
encumbered nature of MDS and ITFS environments, we do not believe that
it would be prudent to permit essentially unlimited numbers of response
station transmitters with 2000 watts (33 dBW EIRP) of radiated power, as
Petitioners requested. We will not so constrain boosters, which we
propose to permit to operate up to the maximum power levels permitted
for MDS and ITFS. We note that in some areas, it may be more cost
effective to use fewer higher power boosters to overcome propagation
hindrances.

43\. We solicit comment on these proposals, including Petitioners\'
interference analysis methodology represented in Appendix D, and any
alternative methods by which interference to, and from, cellularized
systems could be calculated. We invite specific comment on Petitioners\'
methodologies for statistically predicting response station locations
and the creation of classes and regions for worst-case analyses. We also
solicit comment specifically on any means or methods of facilitating the
timely review and consideration of cellularized system filings and their
associated interference showings. For example, are there less complex
solutions or partial solutions for analyzing cellular and/or two-way
systems of the nature proposed herein? To what extent could \"worst
case\" analysis serve a sufficient approximation to a more exact
analysis, such as a determination of noninterference based solely on
terrain shadowing? Under Petitioners\' methodology for interference
analysis the effects of all cells in the service area are aggregated,
which may be sufficient for relatively small service areas, but to what
geographical extent should individual response station areas be
aggregated in large BTAs? Petitioners propose that the protected signal
level of response station hubs be \"the minimum received signal level
that the proposed response station hub can actually utilize in the
provision of service, specified in dBW/m²/Hz.\" *See* proposed Section
21.909(c)(2)(iii), Appendix C. Should such an important element in the
interference analysis be permitted to be specified by a system operator
without some objective basis which could be validated or, alternatively,
could a suitably representative value be determined for this purpose?

44\. Finally, in their Reply Comments, Petitioners espouse the idea that
licensees of booster stations or response station hubs need not cure all
actual interference caused by their operations. Petitioners explain that
predictions of interference are based on certain assumptions, such as
receive antenna height and gain and discrimination characteristics, and
MDS and ITFS licensees have not been entitled to interference protection
where their facilities have departed from those characteristics, for
instance where the receive antenna is installed at a height greater than
30 feet. Nevertheless, we emphasize that where the receive antenna does
meet the characteristics set forth in our Rules, the station causing
harmful interference is responsible for curing it. This responsibility
is a well-settled principle in our Rules.[^45] We also have declared
with respect to MDS stations and ITFS facilities being leased or used
for non-ITFS purposes, that if a station causes harmful interference
within the protected service area of another existing station and the
interference is not *de minimis*, \"we will require the offending
station to cease operations until the interference is eradicated. The
station alleging that it is being interfered with will be required to
make a clear and convincing showing that the interference is
occurring.\" [^46]

**D. Application Processing Issues**

Number range level0Number range level1Number range level2Number range
level3Number range level4Number range level5Number range level6Number
range level745. Petitioners have proposed a substantial number of
changes in the way we would process MDS and ITFS applications. These
changes would represent a fundamental shift in the review function of
the Commission in this area and call for substantially increased
diligence on the part of MDS and ITFS licensees in regard to tracking
and monitoring the impact of applications by other parties on their own
service. We note here, however, that no changes have been proposed to
Sections 74.901, 74.913, 74.931 and 74.932 of our Rules which would
modify the basic eligibility requirements or responsibilities of ITFS
licensees. Similarly, no changes have been proposed with respect to
Section 74.990 of our Rules, pertaining to the use of available ITFS
frequencies by wireless cable entities and, therefore, no changes have
been proposed to Section 74.990(e), governing the preferences between
mutually exclusive ITFS applicants and MDS applicants for vacant ITFS
channels, although, as discussed below, we ask whether some changes
should be considered. Nonetheless, the changes that are proposed would
significantly alter the way applications are processed and reviewed. As
explained below, we propose to adopt some of Petitioners\' proposals,
modify some and reject others.

46\. Petitioners propose that we adopt a rolling, one-day filing window
system to govern the filing of new or modified MDS/ITFS applications for
response station hubs or boosters. Such applications when filed on the
same day would not be considered mutually exclusive, but rather would
all be granted. Under the contemplated system, each applicant will be
required to demonstrate protection to facilities existing or proposed
prior to the filing of its application. The Petitioners ask that in
cases where closely-spaced facilities are proposed on the same day, the
filers will be left to resolve any incompatibilities and the
Commission\'s staff will thereby be freed from having to determine and
resolve mutual exclusivity. Petitioners\' proposal in this area presents
a promising start, but still leaves a number of concerns and questions
unresolved. Commenter CTN has raised the concern that the one-day
rolling filing window will create an undue burden on ITFS licensees, who
may find themselves required to evaluate a continuing stream of
applications. We solicit comment on how such a concern could be resolved
in the context of the one-day rolling filing window. We also solicit
comment on whether we should retain our current periodic filing window
system used for ITFS applications and what advantages and disadvantages
exist between the existing system and the proposed system.

47\. In addition to concerns regarding the burden on ITFS licensees,
Petitioners\' proposal leaves a number of significant questions
unresolved regarding the processing of conflicting applications. For
example what should be the result in the event that same-day filers of
closely-spaced conflicting applicants cannot resolve their differences?
Should the applicants be ordered into binding arbitration for which they
will assume the cost and whose outcome will be finally subject to
Commission approval? If so, what standards and criteria should govern
the arbitration? Should the Commission simply freeze the applications
until the parties are able to resolve their differences? Should the
Commission\'s staff function as a referee in such cases? Should the
staff impose a resolution and, if so, should it adopt any sort of
comparative criteria to guide its decisions? Should the staff adopt some
type of point system to rate competing applicants? We seek comment on
these questions in particular and on Petitioners\' proposal regarding
the application process in general.

48\. We also seek comment on what form the engineering section of a
station application under the new rules should take. As discussed in
Section C, above, any service proposal under these new rules could have
significant interference implications. In connection with the
engineering portion of the applications, we seek comment on the
reliability of interference agreements entered into by the parties. We
also seek comment on whether ITFS licensees are subjected to undue
pressure to provide \"no objection\" letters and, if so, what actions
would be useful and effective in reducing the problem.

49\. In order to further expedite the processing of response station hub
and booster applications and to reduce the burden on Commission
resources, Petitioners propose that such applications would be placed on
public notice without prior staff review of the accompanying
interference studies, and that the applications would be automatically
granted on the 61st day after that notice unless a petition to deny was
filed or the Commission notified the applicant prior to that date that a
grant would not be made. Petitioners argue that this approach would mean
that the only time the staff would be required to review the complex
interference studies accompanying a two-way application would be in
those situations where the applicant could not secure consent to its
proposal, and/or a petition to deny is filed. Although we tentatively
accept Petitioners\' proposal to place the applications on public notice
without prior staff review of the interference studies, we tentatively
reject their proposal for an automatic grant of the applications. We
believe that placing the applications on public notice without prior
interference analysis will serve to speed the review process by making
the relevant data available to all interested parties as quickly as
possible. However, we believe that an automatic grant at the end of the
proposed 60 day public notice period will not provide an adequate
opportunity for interested parties or, where necessary, for Commission
staff, to review the interference studies or for the Commission to make
a reasoned determination in complex cases. We solicit comment on our
conclusions.

50\. A number of commenters share our concerns that ITFS licensees will
not have adequate time or resources to evaluate proposed service plans
under the terms of Petitioners\' proposal.[^47] These commenters argue
that Petitioners\' proposal would increase the burden on ITFS licensees
to monitor and evaluate ITFS and MDS filings. This would result in a
particular burden on these ITFS licensees because of the limited
technical, legal and financial resources of educational institutions.
These commenters are particularly concerned that they or other
educational institutions may find themselves pressured or coerced by
neighboring licensees or strong wireless cable operators, in part
because those parties would control access to the information needed to
adequately evaluate the impact of any particular service proposal. We
solicit further comment on this issue and especially solicit comment
from small ITFS operators.

Number range level0Number range level1Number range level2Number range
level3Number range level4Number range level5Number range level6Number
range level751. Relatedly, commenter ComSpec has raised concerns
regarding the availability to other affected parties of information
concerning agreements between adjoining licensees. ComSpec urges that we
require parties to inform us of changes in the technical parameters of
their response station hub receiving antenna systems and specify any
such changes. Commenter Northeastern urges that a database be maintained
containing the actual operating parameters of every MDS and ITFS system
so that third parties may be able to determine how new applications
might affect existing stations. We solicit comment on these proposals of
ComSpec and Northeastern.

52\. We tentatively propose the following processing rules, taking into
consideration the concerns of the various commenters. Under these rules,
applicants would file an original and two copies of their system
proposal and serve a copy of the proposal on any party whose MDS/ITFS
interests may be affected by the proposal. A complete application would
then be placed on public notice for a 60-day initial comment period.
Prior to the expiration of the 60-day period, interested parties could
file comments, petitions to deny or requests for extension of time to
file comments or petitions to deny. Although it is our policy that
requests for extension of time shall not be granted,[^48] and we do not
propose to change that policy, we anticipate that the limited resources
available to an ITFS party to review a potentially complex two-way
service proposal will be a factor considered in whether we grant a
request for extension of time. In the alternative, we would consider
adopting a 120-day initial comment period, with requests for extensions
of time considered only in extraordinary circumstances. We seek comment
on these proposals and solicit detailed alternate proposals. We
especially seek comment on what time period parties believe would be
necessary to adequately review a service proposal without unduly
delaying the processing of such a proposal.

Number range level0Number range level1Number range level2Number range
level3Number range level4Number range level5Number range level6Number
range level753. Rather than adopt Petitioners\' proposed automatic
grant, we tentatively conclude that, at the end of any comment period
that we may adopt and following any further staff review, the Commission
staff, pursuant to delegated authority, would issue a grant or denial of
any authorization pursuant to the revised rules. If no oppositions have
been filed in a particular proceeding and the Commission staff has
determined that a service proposal would not cause interference in
violation of our Rules, we anticipate that such a grant would be
accomplished quickly. We seek comment on both our proposed approach and
on Petitioners\' proposed automatic grant.

54\. Petitioners speculate that a large number of applications are
likely to be filed once the new rules become effective and that many of
the applications submitted at that time will conflict with others filed
simultaneously. In order to smooth the transition to the rolling one-day
filing window application processing system, the Petitioners propose
that a special one-week window be employed when the new rules first go
into effect, and that all applications filed during this window be
deemed filed as of the same day. Following the publication of a public
notice announcing the tendering for filing of applications submitted
during that window, applicants would have a period of 60 days to amend
their applications to resolve conflicts, provided such amendments do not
result in any increase in interference to any previously proposed or
authorized station (including facilities proposed during the window),
absent consent of the applicant for or licensee of the station that
would receive such interference. During this 60-day period, no
additional applications could be filed, affording those who filed during
the one-week window an opportunity to resolve any conflicts without fear
that, during the pendency of settlement discussions, third parties will
propose facilities that will have to be protected.

55\. At the conclusion of that 60-day period, Petitioners propose that
the Commission would publish a public notice announcing the acceptance
for filing of all applications submitted during the initial window, as
amended during the 60-day period. Petitioners propose that all petitions
to deny and comments on the applications be filed within 60 days of the
second public notice. Under Petitioners\' proposal, each application
submitted during the initial window would then be automatically granted
on the 61st day after the Commission shall have given notice of its
acceptance for filing, unless prior to such date an interested party
files a formal petition to deny or the Commission notifies the applicant
that its application will not be automatically granted. Following
Petitioners\' plan, on the 61st day after the publication of such second
public notice, applications for authorizations for response station hubs
and for booster stations would henceforth be accepted and processed
under the rolling one-day filing window approach. Petitioners argue that
there is ample precedent for this approach.[^49] We tentatively conclude
to accept in part and deny in part this portion of Petitioners\'
proposal.

Number range level0Number range level1Number range level2Number range
level3Number range level4Number range level5Number range level6Number
range level756. We believe the adoption of the one-week initial filing
window will lessen the burden on all affected parties, including the
Commission\'s staff, during the first round of application filing. We
also believe that providing parties with an initial 60-day period during
which they can resolve any apparent conflicts and then amend their
applications without prejudice will provide for quicker and easier
processing. We believe issuing a public notice announcing the acceptance
for filing of all applications as amended will serve an important notice
function for all potentially affected parties. As discussed above,
however, we do not propose to accept Petitioners\' automatic grant
proposal. We solicit comments on these issues. Finally, Petitioners have
not addressed procedures for amendment of booster station and response
station hub applications. We seek comment on how to conform our MDS and
ITFS rules to provide for such amendments.

57\. In their Comments, Petitioners urge that we adopt a system whereby
an applicant, once authorization for service has been granted, may
switch from common carrier to non-common carrier service and back
without seeking subsequent authorization.[^50] In order to be eligible
for this type of flexibility, an applicant would have had to have
requested it at the time it filed its application. We seek comment on
this aspect of Petitioners\' proposal. We also seek comment on whether
operators should be required to give the Commission notice when they are
switching back and forth between common carrier and non-common carrier
service, even if prior approval is not required.

**E. Proposals Specifically Regarding Use of 125 kHz Channels**

Number range level0Number range level1Number range level2Number range
level3Number range level4Number range level5Number range level6Number
range level758. Petitioners propose the continued use of the 125 kHz
channels as response channels by licensees of channels with which they
are associated pursuant to current Section 74.939(d) of the
Commission\'s Rules. These channels would provide further capacity as
return paths in the cellularized two-way scheme, and could be
superchannelized or subchannelized pursuant to proposed Section
74.939(i). However, in response to the March 31, 1997 *Public
Notice*\'*s* invitation to propose ways to permit even broader
flexibility than initially suggested in the Petition, Petitioners add
that the Commission should also permit the use of the 125 kHz channels
for point-to-multipoint transmissions and that they should be licensed
and afforded interference protection in the same manner as other
point-to-multipoint MDS and ITFS facilities. Petitioners explain that
for systems using digital technologies, there is a need to transmit
downstream control signals over side channels that require less than a
full 6 MHz channel, for instance for control over digital set top
decoders or control over two-way communication systems. Petitioners
maintain that use of the 125 kHz channels for such applications is
beneficial in that it preserves the 6 MHz channels for transmissions
that require greater bandwidth, and it can lead to reduced equipment
costs. Petitioners also propound that to further offer flexibility to
create channels with bandwidths exceeding 125 kHz, the Commission should
remove the current rule provisions which require that the 125 kHz
channels only be used in conjunction with their associated 6 MHz
channels under current Section 74.939(d). Finally, Petitioners submit
that to avoid confusion where the 125 kHz channels are not used as
response channels, each of these channels should receive an independent
designation, rather than be referenced to the primary 6 MHz channel with
which it is associated. While also proposing that the 125 kHz channels
be used for additional point-to-multipoint spectrum, Caritas goes a step
further than Petitioners, advancing that the Commission should
reallocate the 125 kHz channels to be combined into one continuous piece
of spectrum to be used for such purposes.

59\. Instructional Telecommunications Foundation, Inc. (\"Foundation\")
vigorously opposes Petitioners\' revised proposal on the basis of the
Foundation\'s contention that dissociating the 125 kHz channels from
specifically designated 6 MHz channels would open up commercial
licensing of the 125 kHz channels associated with ITFS channels. They
add that creating upstream channels with bandwidth exceeding 125 kHz can
be accomplished by allowing ITFS licensees to trade response channels on
a routine basis, so that these channels are no longer interleaved. In
their reply to the Foundation, Petitioners deny that the 125 kHz
channels associated with ITFS channels would be available for licensing
directly to wireless cable operators.

60\. We are proposing rules in accordance with the most flexible
framework ultimately requested by Petitioners for use of the 125 kHz
channels, including allowing superchannelization or subchannelization of
these stations regardless of whether they are used as response stations
or for point-to-multipoint transmissions.[^51] We believe that these
changes are sufficient to derive the benefits explained by Petitioners,
and that a reallocation and the complications associated with that is
not necessary. We solicit comment on these proposals regarding use of
the 125 kHz channels, especially those which would permit the channels
to be used for point-to-multipoint transmissions and which would remove
requirements that each 125 kHz channel be used solely in conjunction
with a specifically associated 6 MHz channel.

**F. Proposals and Issues Specific to ITFS**

Number range level0Number range level1Number range level2Number range
level3Number range level4Number range level5Number range level6Number
range level761. Section 74.931 of the Commission\'s Rules describes the
purpose and permissible service of ITFS stations, and also sets forth
the minimum ITFS programming requirements for ITFS licensees.[^52] ITFS
stations are operated by educational organizations and are \"intended
primarily to provide a formal educational and cultural development in
aural and visual form,\" to students enrolled for credit in accredited
secondary schools, colleges and universities.[^53] Section 74.931(e)(9)
specifies that an ITFS licensee who leases excess channel capacity to a
wireless cable operator must provide a total average of at least 20
hours per channel per week of ITFS programming on its authorized
channels. ITFS licensees in such lease arrangements also retain the
right to recapture \"an average of an additional 20 hours per channel
per week for simultaneous programming on the number of channels for
which it is authorized.\"[^54] In addition, Section 74.931(e)(9) allows
an ITFS licensee to shift its required educational programming onto
fewer than its authorized number of channels via channel loading or
channel mapping. The licensee may further agree to transmission of
recapture time on channels not authorized to it but which are included
in the wireless cable system of which it is a part.

Number range level0Number range level1Number range level2Number range
level3Number range level4Number range level5Number range level6Number
range level762. All of the commenting ITFS parties support the concepts
and goals underlying the Petition. However, several ITFS commenters
express fear that the rule changes proposed in the Petition will
undermine the primary educational purpose of ITFS. For instance, CTN
sees a \"resounding commercial emphasis\" of the proposed rules and
fears that they fail to take into account the needs of ITFS educators.
In its reply comments, CTN deduces that the disparity between the number
of ITFS and commercial entities commenting on the Petition confirms its
initial observation that the proposed rules have been generated
primarily from the perspective of the wireless cable industry. In
contrast, CMPBA, the licensee of ITFS station WHR-535 in Charlotte,
North Carolina, contends that to the extent the wireless cable industry
succeeds as the result of adoption of the proposed rules, the ITFS
community stands to reap the benefits of technological innovations and
the enhanced ability to serve its constituency.

63\. Some ITFS commenters also claim that the Petition overemphasizes
the financial benefits to ITFS licensees which Petitioners anticipate
will result from the proposed rule changes. Pace, for instance, insists
that any changes to the rules must promote educational use of ITFS
spectrum over the financial benefits which may accrue through leasing of
ITFS channels. In addition, WebCel, a prospective bidder in the upcoming
LMDS auctions, charges that the leasing of ITFS channels \"has
increasingly supplanted the public interest aspect of ITFS in favor of
commercial subsidies, an erosion that would become virtually complete\"
if the Commission implements the rule changes proposed in the Petition.
Other ITFS commenters, however, tout the importance of the potential
financial benefits to ITFS licensees. Thirty-three applicants for ITFS
facilities in North Carolina, each of whom filed separate but identical
comments, comment that a system integrating video and two-way digital
services will attract more subscribers, thereby increasing overall
revenue and fees due to ITFS licensees, and ITFS licensees will be able
to use this additional income to provide much needed services for their
students. CMPBA believes that the Petition strikes proper balances, and
concedes that the ITFS community \"has come to rely substantially on its
commercial partners.\" Without a commercially viable wireless cable
industry, CMPBA adds, the deployment of ITFS spectrum would become much
less broad in scope and purpose.

64\. The Archdiocese notes how planned lease agreements for its ITFS
channels will enable it to finance the extension of its programming to
its schools and parishes in outlying counties. We believe that enhancing
the competitive viability of wireless cable service through maximization
of flexibility and service offerings promotes the underlying educational
purpose of ITFS. The growth of wireless cable has led to the continued
development of ITFS by supporting and funding approximately 95 percent
of all new ITFS applicants.[^55] As we have stated, \"revenues are key
to this ITFS-MMDS partnership. Leasing channel capacity for the
transmission of commercial programming generates revenues that may be
vital to the continuing operations of authorized ITFS systems, to the
successful deployment in many markets of ITFS service, and to the
service\'s public interest benefits.\"[^56] In evaluating the comments
submitted in this proceeding and proposing changes to rules governing
permissible service of ITFS stations, ITFS programming requirements, and
usage of ITFS spectrum, we are mindful both of our emphasis on the
primary educational purpose of ITFS, as well as our desire to in part
promote that purpose through enhancements to the competitive viability
of wireless cable service.

**1. ITFS Programming Requirements**

Number range level0Number range level1Number range level2Number range
level3Number range level4Number range level5Number range level6Number
range level765. Petitioners\' proposed changes to Section 74.931(e)
would revise the absolute 20 hours per channel per week recapture time
requirement to provide that the ITFS programming requirements constitute
a total of 40 hours per channel per week, including both actual
programming and recapture time. The Petition does not contemplate any
changes to the required minimum of 20 hours per channel per week of
actual ITFS programming. Thus, under the proposed changes, if an ITFS
licensee actually provides more than an average of 20 hours per channel
per week of ITFS programming, reserved recapture time would only need to
make up the difference to achieve a total of 40 hours per channel per
week. Petitioners argue that the Commission historically only required a
total of 40 hours, and that the current absolute requirement of 20 hours
per channel per week of ready recapture time was an inadvertent revision
to the Rules. CTN comments that retaining the 20 hour minimum actual
programming requirement is inadequate, and insists that as digital
compression increases the number of channel paths, there must be a
proportionate increase in the number of paths available for education,
including data services. Implementing this increase, CTN contends, would
ensure that the intended purpose of the ITFS spectrum is not so
diminished as to effect a *de facto* reallocation to commercial use. In
their reply, Petitioners urge that we reject CTN\'s suggestion, and they
state that we decided in the *Digital Declaratory Ruling* not to impose
any increase in ITFS programming requirements where digital modulation
is employed. Petitioners claim that many ITFS licensees are finding it
difficult to satisfy the existing ITFS minimum programming requirements.
Petitioners further pose that adoption of CTN\'s proposal would create a
disincentive for ITFS licensees to introduce the new technologies
contemplated by the Petition, which would undermine realization of the
benefits that Petitioners assert these technologies are sure to bring
ITFS licensees. We solicit comment from ITFS licensees on these
comments.

66\. When the Commission first imposed a recapture time requirement, it
explained that \"the intended use of the spectrum will be preserved by
requiring that a minimum of forty hours per week . . . must be dedicated
for ITFS programming on each channel, so that if only twenty to
thirty-nine hours can be currently programmed, additional hours will be
. . . subject to ready recapture.\"[^57] Subsequently, in the *Wireless
Cable Reconsideration Order*, the Commission added the absolute 20 hour
recapture time language in its revisions to Section 74.931(e)(2). At
this time, we find no grounds for retreat from the absolute 20 hour
recapture time requirement of Section 74.931(e), especially at this
juncture when several wireless cable systems currently enjoy or
imminently stand to reap the benefits of increased spectrum capacity
through use of digital compression techniques. While we acknowledge the
great value to wireless cable operators of maximization of spectrum
available for leasing, even the more so in the context of the two-way
scheme proposed in this proceeding, we also emphasize the primary
educational purpose of ITFS and the importance of maintaining sufficient
capacity for programming by ITFS licensees which fulfills that purpose.
Indeed, it is this balance which underlies the existence and substance
of the ready recapture provisions of Section 74.931(e).

Number range level0Number range level1Number range level2Number range
level3Number range level4Number range level5Number range level6Number
range level767. In the *Digital Declaratory Ruling*, we declined to
impose any changes in ITFS programming requirements during the interim
period governed by it, instead deferring consideration of the issue \"to
a future rulemaking.\"[^58] In attempting to treat our interim
reluctance to increase ITFS programming requirements as dispositive of
the issue before us, Petitioners misconstrue what we decided in the
*Digital Declaratory Ruling*, and likewise fail to acknowledge our order
that nothing therein would prejudice the outcome of a future rulemaking
proceeding establishing rules to govern issues relating to digital
transmissions in MDS and ITFS.[^59] In fact, this is the very type of
proceeding within which we anticipated that we would address the effect
that digital modulation would have on the ITFS service.[^60]

Number range level0Number range level1Number range level2Number range
level3Number range level4Number range level5Number range level6Number
range level768. We specifically seek comment on several issues related
to the question of whether to change our ITFS programming requirements
in light of the use of digital technology by ITFS licensees. Should
there be different rules depending on whether the wireless cable system
employs digital transmissions?[^61] If so, how should our treatment
vary? Should it take the form of an increase in required levels of
actual ITFS programming, an increase in ready recapture time, or both?
Would an increase burden ITFS licensees, or would it help them in lease
negotiations with wireless cable operators to keep programming levels or
reserve recapture time needed for instructional use?[^62] How should any
increased requirements be measured, e.g., additional hours or additional
paths?[^63]

Number range level0Number range level1Number range level2Number range
level3Number range level4Number range level5Number range level6Number
range level769. With the flexibility in implementation of ITFS
programming requirements currently allowed or proposed, such as channel
loading and shifting of required programming onto other channels within
a wireless cable system, should we retain our existing program content
requirements and, if not, how should they be modified? For example,
should data transmission count towards minimum ITFS programming
requirements? Should voice transmission count? If data and/or voice
transmission were to count, how would they be measured with respect to
fulfillment of minimum ITFS programming requirements? Should time-of-day
requirements be instituted for these uses to help ensure that they are
really being put towards ITFS programming? Furthermore, should counting
one or both of them have an effect on the amount of actual programming
or ready recapture time required?[^64] If we increase the minimum
programming requirements or ready recapture requirements, how should
that affect our content requirements? Petitioners state that \"content
used in connection with the education of students\" would flow from
receive sites to response station hubs, as well as to receive sites from
primary or booster stations. We also invite comment on whether
education-related uplink transmissions should be applied towards
satisfaction of minimum ITFS programming requirements. While we note our
initial impression that counting uplink transmissions will be overly
complicated and impractical, given the anticipated multitudes of
response stations and the difficulty in predicting or tracking exactly
when they are being used for educational purposes, we nonetheless
welcome suggestions on how they would be measured with respect to
fulfillment of minimum ITFS programming requirements.

**2. Shift of ITFS Programming Onto Other Channels in the Wireless Cable
System**

Number range level0Number range level1Number range level2Number range
level3Number range level4Number range level5Number range level6Number
range level770. Petitioners anticipate that system developers will
attempt to utilize contiguous 6 MHz channels for two-way services in
order to minimize the amount of spectrum that would be lost to the
proposed spectral mask whenever a return path is adjacent to a downlink
channel. Furthermore, depending on the demand for two-way services,
entire ITFS channel groups may need to be devoted for return paths.
Thus, Petitioners propose to amend Section 74.931(e)(9) to allow ITFS
licensees, at their sole discretion, to satisfy their programming
requirements on other channels within the wireless cable system, and not
mandate that licensees meet these requirements using at least one of
their own channels. Petitioners emphasize, however, that an ITFS
licensee would not be forced to shift its programming off of its
channels. Petitioners also note that the last sentence of current
Section 74.931(e)(9) allows ITFS licensees to shift their recapture time
onto other channels within the wireless cable system.

71\. The proposal to allow ITFS licensees to shift their programming
onto other channels within the wireless cable system, without retaining
the requirement that they use at least one of their own authorized
channels for such programming, would be the next step in a progression
of rule changes that have afforded ITFS licensees increased flexibility
in the implementation of their minimum programming requirements.[^65] In
the *ITFS Channel Loading Order*, we adopted the view that \"it is most
practicable to view a licensee\'s group of four ITFS channels as an
integral constituent of a market-wide set of channels.\"[^66]

Number range level0Number range level1Number range level2Number range
level3Number range level4Number range level5Number range level6Number
range level772. Some commenters express concern that full implementation
of the proposed changes to Section 74.931(e)(9) may compromise the
autonomy of ITFS licensees. CTN contends that the Petition\'s proposal
for programming shifting needs modification because it does not provide
a mechanism for ITFS to maintain and expand its instructional character
in a way that corresponds to future cost and interactive communications
needs of educators. Citing the *Wireless Cable Reconsideration Order*
and the *ITFS Channel Loading Order*, CTN adds that the Commission has
previously rejected proposals to allow ITFS licensees to lease their
entire capacity. Other ITFS commenters generally support the proposed
changes to Section 74.931(e)(9) as they relate to shifting of ITFS
programming onto other channels within the wireless cable system. While
supporting the proposed changes, Northeastern expresses that the
Commission should also propose rules in conjunction which ensure that
\"substantial use\" of the frequencies is maintained for instructional
purposes. SWM additionally propounds the \"trading\" of frequencies
within a wireless cable system, and suggests that this would limit the
potential for interference to traditional analog ITFS operations in
lease arrangements with wireless cable operators, allow continuation of
such operations, and avoid \"forced participation in a digital video
project.\"

73\. In addition to programming shifting, an almost necessary component
of this scheme to devote significant blocks of the MDS and ITFS spectrum
to return paths involves the continued allowance of channel loading. In
the *ITFS Channel Loading Order*, we provided that the channel loading
rules adopted there would remain in effect until we assessed the impact
of digital compression on MDS and ITFS in a future notice and comment
rulemaking proceeding.[^67] Over three years later, and over a year
since we adopted the *Digital Declaratory Ruling*, we believe that this
proceeding, in which we consider changes to our rules to allow ITFS and
MDS licensees to engage in fixed two-way digital transmissions, is the
appropriate juncture to reassess our channel loading rules. To this end,
as an initial matter, we request that interested parties comment on
whether our channel loading rules adopted three years ago have been
beneficial to ITFS licensees and wireless cable operators, or whether
they have been detrimental. Because we believe that our channel loading
rules have provided additional much-needed flexibility to ITFS licensees
and wireless cable operators, and we propose to retain them, any parties
commenting that these rules have been detrimental should also focus on
solutions to permit the continued application of them while rendering
them more universally beneficial.

Number range level0Number range level1Number range level2Number range
level3Number range level4Number range level5Number range level6Number
range level774. Because the two-way scheme advanced in the Petition
could be enhanced by allowing ITFS licensees to shift their programming
onto other channels, and because the suggested changes to Section
74.931(e)(9) would not call for any dilution or elimination of minimum
ITFS programming requirements, we are considering changes which would
enable ITFS licensees to satisfy some or all of their minimum ITFS
programming requirements on other channels in the wireless cable system
of which their stations are part. The flexibility that the changes would
accord to ITFS licensees to lease their channel capacity, along with the
maintenance of minimum ITFS programming requirements, could also
encourage educators to apply for new ITFS stations and lead to more
educational programming. Several proposals have been put forth looking
towards providing maximum flexibility in usage of the channels within a
wireless cable system, while at the same time safeguarding the continued
reservation of spectrum for downstream transmission of ITFS educational
programming so that the licensee can continue to deliver such
programming if its relationship with the wireless cable operator ends.
The DLA ITFS Parties suggest that each ITFS licensee be required to
preserve at least one downstream video channel. They continue that in
order to make this possible and still permit contiguous channel
groupings to be converted to return link use, the Commission should
institute a procedure whereby it would routinely grant applications by
ITFS licensees to exchange individual ITFS channels between channel
groups. The Foundation agrees that the Commission should liberally allow
channel exchanges in a given metropolitan area, but would go a step
farther than the DLA ITFS Parties and require that each ITFS licensee
devote at least half of its capacity for downstream use.[^68] SWM also
encourages the Commission to go a step farther than the DLA ITFS Parties
request, by prompting the Commission to facilitate the \"trading\" of
channels between the ITFS and MDS bands. SWM adds that the Commission
should adopt a rule with the effect of requiring that wherever an
exchange of ITFS channels is permitted, reimbursement of all costs of
channel changes should occur, in a manner similar to that required where
microwave incumbents relocate to accommodate PCS operators. Caritas
advances a different framework altogether; it counter‑proposes that the
Commission institute a five to ten year plan to convert MDS channels 1,
2, and 2A from their current point-to-multipoint use to be reallocated
for upstream multipoint-to-point transmissions, leaving the rest of the
ITFS and MDS spectrum for point-to-multipoint use.

Number range level0Number range level1Number range level2Number range
level3Number range level4Number range level5Number range level6Number
range level775. In their reply, Petitioners state that they do not
object to the approach suggested by the DLA ITFS Parties, but that they
would prefer if that approach was implemented contractually rather than
by Commission fiat. Petitioners strongly support SWM\'s channel exchange
idea, touting that it will afford wireless cable operators and MDS and
ITFS licensees increased flexibility by helping to address interference
concerns, while at the same time providing further safeguards of
downstream channel usage for ITFS licensees if their leases terminate.
Regarding Caritas\' counter‑proposal, Petitioners assert that the
Commission should not restrict return paths to MDS channels 1 and 2/2A.
Doing so, Petitioners explain, would deny ITFS licensees the ability to
employ their spectrum more flexibly to use their own channels for return
paths, and would artificially limit the amount of spectrum eligible for
use by a wireless cable operator for the provision of return paths,
while it is anticipated that many wireless cable systems will require
more than the 10-12 MHz available on MDS channels 1 and 2/2A for return
paths. Furthermore, Petitioners argue, the interference protection rules
proposed in the Petition fulfill the Caritas counter‑proposal\'s
objective of minimizing the potential for harmful electrical
interference from return paths.

76\. We seek comments on the merits of these proposals and on several
related issues. We particularly seek comment on the effects of allowing
complete flexibility in the number of channels \"turned around\" for
return paths, and in the shifting of required ITFS programming onto
other channels in the wireless cable system and what restrictions, if
any, should be adopted. We also seek comment on whether we should
require ITFS licensees to retain one or more channels for downstream
transmissions and the ramifications of such a requirement. Further, we
seek comment on whether ITFS channel swaps should only be just between
ITFS channels, or whether ITFS licensees should be able to swap their
spectrum for channels in the MDS band. Besides addressing these
questions and ideas, we solicit further proposals for providing
flexibility in usage of ITFS channels while ensuring that ITFS licensees
are not deprived of capacity for downstream programming.

77\. Finally, the proposed changes to Section 74.931(e)(9) would include
a provision specifying that the use of channel mapping or channel
loading, including the shifting of programming onto other channels in
the wireless cable system, would \"not be considered adversely to the
ITFS licensee in seeking a license renewal or otherwise.\" The DLA ITFS
Parties consider the adoption of this provision critical to the proposed
two-way scheme, though they also express concern that the programming
shifting proposal could be reviewed by the U.S. Court of Appeals in
connection with a license renewal dispute involving an ITFS station
taking advantage of that flexibility. We believe that consideration of
renewal expectancy is beyond the scope of this proceeding.

**3. Autonomy of ITFS Licensees and Agency Role**

78\. Several of the ITFS commenting parties express concern that the
proposed two-way scheme presents threats to the independence of ITFS
licensees and their future ability to use spectrum capacity for
instructional purposes. CTN, for instance, charges that any new rules
and policies must preserve the ability of ITFS licensees to maintain
independent control of their stations whether or not they participate in
the cellularized system. Pace further cautions that because the Petition
proposes a massive shift towards industry control over ITFS
applications, the Commission must ensure that individual ITFS licensees
\"do not lose their freedom of choice\" over the use of their channels,
through coercion by neighboring licensees or strong wireless cable
operators. CMPBA, however, believes that the proposed rules adequately
protect the interests of ITFS entities, primarily because the rules do
not obligate ITFS licensees to take part in the two-way system, enter
into a lease agreement, file FCC applications, or accept harmful signal
levels. CMPBA instead sees a \"reality\" that the ITFS licensee \"has
complete and unfettered discretion over how to deploy its channels.\"
Petitioners express their belief that because the post-relationship
needs of each ITFS licensee will be different depending on what
configuration the licensee chooses to go forward with, the Commission
should generally allow the parties to address post-relationship issues
by contract.

79\. Some of the concerned ITFS commenting parties focus on the effect
that the proposed rules may have on the engineering autonomy of ITFS
licensees. The DLA ITFS Parties pose the question of what would happen
if an excess capacity agreement comes to an end, and the ITFS licensee
has previously converted its channels to two-way use and has shifted
some or all of its programming onto other channels in the wireless cable
system. Similarly, CTN asks what the impact of cellularization of a
market would be on one or more ITFS licensees within it who elect not to
cellularize, as well as whether a single ITFS licensee who strives to
cellularize its operations would be dependent on other licensees in the
market. CTN also insists that any proposal to cellularize ITFS
frequencies must be permissive, not mandatory. In that regard, the
Foundation raises the issue of involuntary modifications in the two-way
digital environment, and hopes that the Commission ultimately prevents
the filing of such applications that threaten existing and future
instructional service.

80\. HITN further comments that the rules must contain provisions
\"which explicitly state that an ITFS signal may not be originated,
retransmitted, shifted to a different channel configuration or altered
in any way without the express consent of the underlying licensee.\"
Addressing in this context the more narrow issue of whether to allow
wireless cable operators to file construction notifications for low
power booster stations, instead of vesting this right solely in the
pertinent ITFS or MDS licensees, the DLA ITFS Parties state that they do
not object to such an approach, so long as it is clear that the operator
may not unilaterally continue to operate the booster on the ITFS
channels if the agreement between the operator and the ITFS licensee
expires or terminates. In their reply, Petitioners maintain that one of
the \"fundamental precepts of the Petition\" is that no ITFS or MDS
licensee can be forced to devote its channels to a cellularized
transmission system without its consent. Petitioners also reassure that
they propose no rule change that would prevent an ITFS licensee from
mandating, in its lease with the wireless cable operator, that its
programming be transmitted on its own channels.

81\. Petitioners assert that the two-way scheme is not designed to force
any licensee to devote its channels to a cellularized transmission
system.[^69] Those ITFS licensees desiring to abstain from
cellularization are free to deny efforts by wireless cable lessees to
modify leases for cellularization, and ITFS licensees also may decline
altogether to lease their excess airtime. We emphasize that
cellularization would be permissive only. We will not authorize a
two-way framework which involves the mandatory participation of any ITFS
licensee.[^70] Uncertainty regarding future disposition of capacity for
ITFS programming may be mitigated if, as we expect, the ITFS licensee
\"know\[s\] in advance the channel or channels within the transmission
system on which to receive its own shifted, recapture-time
programming.\"[^71]

Number range level0Number range level1Number range level2Number range
level3Number range level4Number range level5Number range level6Number
range level782. Notwithstanding all of these safeguards against
diminution of the spectrum capacity available for instructional
services, we realize that there may be factors or scenarios that we have
not considered. Accordingly, we seek additional comment on specific
potential threats to the engineering autonomy of ITFS licensees which
could result from institution of the proposed two-way framework; in
conjunction with such comment, we further seek proposed solutions. As
discussed above, some proposed solutions include channel swapping and
reimbursement of costs of channel changes, upholding that participation
of ITFS licensees in cellularization is not mandatory, and potentially
increasing reservation of ready recapture time for ITFS
programming.[^72] Do any of these ideas individually, or a combination
of them, provide a sufficient foundation for meeting the expanding needs
of some ITFS licensees? Commenters are also encouraged to address the
general question of whether the Commission should establish solutions by
rule, or whether solutions should be achieved by contract, as advocated
by Petitioners.

Number range level0Number range level1Number range level2Number range
level3Number range level4Number range level5Number range level6Number
range level783. In addition to potential threats to the engineering
autonomy of ITFS licensees, CTN and Northeastern identify issues
relating to possible encroachment upon the financial autonomy of ITFS
licensees by implementation of the proposed two-way framework. They
question whether the costs of equipment in a cellularized system will
render ITFS licensees dependent on wireless cable operators, and whether
ITFS licensees will be able to continue operating in a cellular mode if
the commercial enterprise is unsuccessful. Petitioners reply that given
the breadth of situations that can arise and the varying requirements of
wireless cable investors, there is no single solution that will be
appropriate in even a majority of circumstances, and this is reflected
in the fact that neither CTN nor Northeastern proposes any specific
rules to address this problem. Moreover, according to Petitioners, as
with challenges to the engineering autonomy of ITFS licensees,
contractual arrangements are the appropriate mechanism for addressing
concerns about potential threats to ITFS licensee financial autonomy. We
seek comment on this issue.

84\. Several commenters also addressed the degree of oversight the
Commission should maintain in regulating the wireless cable industry and
ITFS. In the past, the Commission has adopted rules and procedures to
accommodate and protect the special needs of educational institutions
and organizations, believing that \"educational institutions should be
treated differently from commercial entities in many situations due to
limited financial and staff resources, governmental constraints, and
similar factors.\"[^73] In addition, ITFS licensees and applicants are
required to file their excess capacity lease agreements, which are
reviewed by the staff for overly restrictive provisions affecting the
licensee\'s rights and obligations, and compliance with the
Commission\'s leasing policies.[^74]

Number range level0Number range level1Number range level2Number range
level3Number range level4Number range level5Number range level6Number
range level785. As discussed above, several ITFS commenters expressed
concern about the impact of the proposal \-- which Pace characterizes as
\"a massive shift away from the present system of government oversight
towards industry control over the timing, filing, and resolution of ITFS
applications\" \-- on their autonomy. The Archdiocese asks that the
Commission \"ensure that individual licensees do not lose their freedom
of choice through coercion,\" explaining that \"\[s\]chools have limited
technical and legal resources . . . . As a result, schools must depend
increasingly upon their wireless cable operators for such support.
However, with each level of incremental reliance, a school cedes a
corresponding measure of control.\" The Foundation states that in its
experience, wireless cable operators typically regard instructional
programming as \"inimical to their goal of offering as many commercial
channels as possible\" and thus, \"have negotiated aggressively to
restrict instructional program schedules to the minimum permitted by
regulation.\" According to the Foundation, \"\[i\]t is common for
licensees to utilize their lessees\' consulting engineers and attorneys,
despite the fact that such arrangements leave them without independent
advice\" and warns that \"\[t\]he lack of independent legal and
engineering counsel can be disastrous.\"[^75] On the other hand, CMPBA
believes that the proposed rules adequately protect the interests of
ITFS licenses, primarily because the proposed rules do not impose
obligations on ITFS licensees who do not wish to become part of a
two-way cellular design, and warns that \"the Commission should be wary
of being unnecessarily 'paternalistic\' when it comes to protecting the
ITFS community.\" We welcome comment on these concerns.

Number range level0Number range level1Number range level2Number range
level3Number range level4Number range level5Number range level6Number
range level786. In order to ensure that educators retain control of
their facilities and to protect their interests, the Foundation proposes
that the Commission require that two-way digital applications and
interference consents be reviewed by legal and engineering counsel that
do not represent commercial interests, and that these independent
advisors \"certify that in their professional opinion the submission
will not be harmful to future instructional service.\" In response,
Petitioners assert that the proposal is unworkable, in that no one can
predict the impact of an application or consent on \"future
instructional service,\" and is also inappropriate. According to
Petitioners, it is the licensee educators, not lawyers or consulting
engineers, who are in the best position to determine the educational
needs of their community. We have declined in the past to require all
leasing parties to hire separate counsel, finding this \"safeguard\"
unnecessary and relying instead on the staff\'s review and monitoring of
lease.[^76] We see no reason to change our position on this issue and
seek comment on this issue.

Number range level0Number range level1Number range level2Number range
level3Number range level4Number range level5Number range level6Number
range level787. SW&M also proposes that in order to protect the rights
of incumbent ITFS licenses, the Commission require that leases approved
or submitted under the previous rules \"be amended to make clear that
the wireless cable lessee and the ITFS licensee have together considered
the rule changes adopted and made any appropriate changes to lease
terms, prior to the commencement of commercial operations on the
frequencies using cellularization, sectorization or differing
channelization plans.\" Petitioners oppose this proposal, stating that
the parties to the excess capacity lease agreements, and not the
Commission are best positioned to determine whether proposed system
changes require contract revisions. Accordingly, we seek comment on
SW&M\'s proposal. We also seek comment on what impact the proposed rule
changes would have on our requirements regarding excess capacity lease
agreements. For example, the Commission has consistently maintained an
ITFS licensee should be permitted to purchase the ITFS equipment
necessary to maintain its operation in the event the lease is
terminated.[^77] In addition, we also require that the licensee maintain
ultimate control over its licensed facilities. Several commenters have
expressed concern that given the complexity and cost of Petitioner\'s
proposal, ITFS licensees will be unable to sever their relationship with
the wireless cable operator and acquire the equipment to either continue
cellular operations or return to non-two-way transmissions. We
particularly seek comment on this matter and on what type of equipment
MDS lessees of ITFS channels should be required to make available to the
ITFS licensees upon termination of a lease. For example, should it only
be digital equipment comparable to that in use on the system at the time
the lease is terminated or should it be equipment that would make it
possible for the ITFS licensee to restore analog video operation, if
necessary? Finally, with respect to Petitioners\' proposal that ITFS
licensees be allowed to utilize their entire channel for return paths
and shift their ITFS programming to other channels, we request comment
on whether the parties should be required to file written agreements
governing the ITFS licensee\'s lease of an ITFS programming channel, and
whether our present requirements for excess capacity leases, including
those dealing with control issues, length of lease, and rights on
termination, should apply.

**4. Accountability of ITFS Licensees**

Number range level0Number range level1Number range level2Number range
level3Number range level4Number range level5Number range level6Number
range level788. CTN further comments that the proposal to permit
transmissions of more or less than 6 MHz on contiguous channels, which
may be licensed to different entities, raises issues of accountability
for such transmissions. CTN points to the proposal to eliminate Section
74.982 of the Commission\'s Rules, the ITFS call sign transmission
requirement, as a manifestation of this problem. Petitioners assert that
lessors and lessees would be held accountable for transmissions on
superchannels on the same basis as they today are held accountable for
transmissions. Specifically regarding the proposal to eliminate Section
74.982, Petitioners argue that continued enforcement of the ITFS call
sign transmission requirement in a two-way environment will impose
substantial costs on ITFS licensees. Petitioners conclude that because
it is proposed that the Commission\'s records will reflect who is
transmitting on what channels at all times, the burdens of the call sign
transmission requirement far outweigh the benefits.

89\. In the *Digital Declaratory Ruling*, we declined to waive the call
sign transmission requirements for ITFS stations employing digital
technology, instead deferring consideration of the wisdom of
continuation of these requirements until a future rulemaking proceeding.
We did, however, allow that \"the burdens of requiring ITFS licensees to
transmit call signs may outweigh the benefits, especially where the
channels are leased to a wireless cable operator, whose identity is
readily discernible and whose licensing status is readily
ascertainable.\"[^78] Nevertheless, we recognize the complexity of the
interference environment that would result from implementation of the
two-way scheme, and the difficulty that this may pose in determining
sources of harmful interference. Thus, we seek comment on the proposed
elimination of Section 74.982. Where commenters oppose its elimination,
we seek proposals for more flexible application of its requirements in a
two-way environment, balancing the perceived need to use this device for
ITFS licensee accountability against the costs to ITFS licensees and
wireless cable operators of doing so. We also solicit alternative
solutions for maintaining the accountability of ITFS licensees.

**IV. PROCEDURAL MATTERS**

Number range level0Number range level1Number range level2Number range
level3Number range level4Number range level5Number range level6Number
range level790. For purposes of this nonrestricted notice and comment
rulemaking proceeding, members of the public are advised that *ex parte*
presentations are permitted, except during the Sunshine Agenda period,
provided they are disclosed under the Commission\'s rules. *See
generally* 47 C.F.R. Sections 1.1202, 1.1203 and 1.1206(a).

91\. Pursuant to applicable procedures set forth in 47 C.F.R. Sections
1.415 and 1.419, interested parties may file comments on or before
December 9, 1997 and reply comments on or before January 8, 1998.[^79]
All relevant and timely comments will be considered by the Commission
before final action is taken in this proceeding. To file formally in
this proceeding, participants must file an original and five copies of
all comments, reply comments, and supporting comments. If participants
want each Commissioner to receive a personal copy of their comments, an
original plus ten copies must be filed. Participants should send
comments and reply comments to Office of the Secretary, Federal
Communications Commission, Washington, D.C. 20554. Comments and reply
comments will be available for public inspection during regular business
hours in the FCC Reference Center (Room 239) at the Federal
Communications Commission, 1919 M Street, N.W., Washington, D.C. 20554.

Number range level0Number range level1Number range level2Number range
level3Number range level4Number range level5Number range level6Number
range level792. As required by Section 603 of the Regulatory Flexibility
Act of 1980, Pub. L. No. 96-354, 94 Stat. 1164, 5 U.S.C. Section 601,
*et. seq.*, the Commission has prepared an Initial Regulatory
Flexibility Analysis of the expected impact on small entities of the
proposals suggested in this document. *See* Appendix B. We request
written public comment on the analysis. Such comments must be filed in
accordance with the same filing deadlines as comments filed in this
rulemaking proceeding, but they must have a separate and distinct
heading designating them as responses to the Initial Regulatory
Flexibility Analysis. IT IS ORDERED that the Commission\'s Office of
Managing Director SHALL SEND a copy of this *Notice*, including the
Initial Regulatory Flexibility Analysis, to the Chief Counsel for
Advocacy of the Small Business Administration.

93\. For further information on this proceeding, please contact Michael
J. Jacobs at (202) 418-7066 or Dave Roberts at (202) 418-1600, Video
Services Division, Mass Media Bureau.

FEDERAL COMMUNICATIONS COMMISSION

William F. Caton

Acting Secretary

**APPENDIX A**

**LIST OF PETITIONERS AND COMMENTING PARTIES**

**PETITIONERS**

ADC Telecommunications Corp. George Mason University

Aims Community College Instructional Alamosa Public Schools Foundation,
Inc.

Alda Wireless Holdings, Inc. Humanities Instructional

Television

American Communications Services, Inc. Hybrid Networks, Inc.

American Foundation for Instructional TV Indiana Higher Education
American Telecasting, Inc. Telecommunication System

Aquinas and St. Mary\'s Catholic Schools Indio Wireless Partnership

Augustina College Instructional Media Center, Barnesville Public School
California State University,

Broadband Networks, Inc. Chico Broadcast Cable, Inc. ITS Corporation
Bruning Public School Ivy Tech State College

C.D.V. Incorporated Kessler and Gehman Associates,

CAI Wireless Systems, Inc. Inc.

California Amplifier Lance Industries California Human Development
Corporation Lucas County Educational Service

California State University, Stanislaus Center

Center for Economic & Social Justice Magellan University

Central Community College Foundation Malcolm Public Schools

Central Oregon Community College McConnell Communications, Inc.

CFW Cable, Inc. Microwave Filter Company, Inc.

Clarendon Foundation Milwaukee Regional Medical ITS,

Communications & Energy Corp., Inc. Inc. Community School of Naples
Missouri Baptist College, ITFS Comwave Montrose School District Concord
Community Schools Multimedia Development Concordia College Corporation

Conifer Corporation National Digital Network,

Cooperative Educational Services Agency #7 Inc.

Cornerstone Christian School System, Inc. National Wireless Holdings,
Inc.

Cross Country Wireless, Inc. Northern Arizona University

CS Wireless Systems, Inc. Oklahoma City University

DeLawder Communications, Inc. Oklahoma EducationalTelevision

Delta-Montrose Area Vocational Technical Center Authority

Denver Public Schools Omni Microwave

Digital & Wireless Television Oregon Public Broadcasting

DiviCom Inc. Pacific Monolithics, Inc.

Durand Community Unit School District #322 Pacific Telesis Group EMCEE
Broadcast Products PCTV Gold, Inc.

First Assembly of God, Kahului, Maui, Inc. Pecatonica Community School
People\'s Choice TV Corp.

Pikes Peak Community College

Polk Community College

Portland Community College

Preferred Entertainment, Inc.

Pueblo Community College

Pueblo School District 60

Purdue University

Raymond Central School

School District of Oakfield

South Florida Television, Inc.

Specchio Developers Ltd.

Springfield Board of Education

St. Norbert College

Stanford Telecommunications, Inc.

Suncoast Wireless Communications Corporation

Superchannels of Las Vegas, Inc.

Tennessee Wireless

Teton Wireless Television

The Knowledge Network of Greater Omaha

University of Colorado at Colorado Springs

University of Northern Colorado, Academic

Technology Services

University of South Dakota

University of Southern Colorado/KTSC-TV

University of South Florida

Valley Lutheran High School

Views on Learning, Inc. Virginia Communications, Inc.

W.A.T.C.H. TV Company

Weld County School District RE-1

Winnebago Community Unit District 323

Wireless Cable Association International, Inc.

Wireless Cable Digital Alliance

Wireless Cable of Indianapolis

Wireless Holdings, Inc. (Videotron USA)

Wireless One, Inc.

Wireless One of North Carolina, LLC

Yellowstone Education Center

Yuba Community College

Zenith Digital Media Group

A-2

**COMMENTERS**

ADC Telecommunications Corp. et al. (\"Petitioners\")

Archdiocese of Los Angeles Education and Welfare Corporation

Arizona State Board of Regents et al.

Asheville-Buncombe Technical Community College

Asheville Christian Academy

Belmont Abbey College

Bladen Community College

Brunswick Community College

Caritas Telecommunications, Inc.

Catholic Television Network, Inc.

College of the Albemarle

ComSpec Corporation

The Crary School

Currituck County Board of Education

Dallas County Community College District et al.

Davidson County Community College

Durham Technical Community College

Edgecombe Community College

Fayetteville Technical Community College

Gaston College

Gulf Coast MDS Service Company

Halifax Community College

Hispanic Information and Telecommunications Network

Instructional Telecommunications Foundation, Inc.

Interactive Video Data Trade Association, Inc.

Isothermal Community College

James Sprunt Community College

Johnston Community College

Lenoir Community College

Meredith College

Mitchell Community College

Moore County Schools

Nash Community College

The National ITFS Association

Northeastern University

Pace Telecommunications Consortium

Pamlico Community College

Randolph Community College

Richmond Community College

Roanoke Bible College

Roanoke Rapids Graded School District

Robeson Community College

Sandhills Community College

A-3

Schwartz, Woods & Miller

Spartansburg County School District Two

University of North Carolina

Wake Technical Community College

Wayne Community College

WebCel Communications, Inc.

**REPLY COMMENTERS**

ADC Telecommunications Corp. et al. (\"Petitioners\")

Catholic Television Network, Inc.

Charlotte-Mecklenburg Public Broadcasting Authority

WebCel Communications, Inc.

**APPENDIX B**

**Initial Regulatory Flexibility Analysis**

As required by the Regulatory Flexibility Act (RFA),^mm^[^80] the
Commission has prepared this present Initial Regulatory Flexibility
Analysis (IRFA) of the expected significant economic impact on small
entities by the policies and rules proposed in this *Notice of Proposed
Rule Making* in MM Docket No. 97-217 (\"*Notice*\"). Written public
comments are requested on this IRFA. Comments must be identified as
responses to the IRFA and must be filed by the deadlines for comments on
the *Notice* provided above in paragraph 92. The Commission will send a
copy of the *Notice*, including this IRFA, to the Chief Counsel for
Advocacy of the Small Business Administration (SBA). *See* 5 U.S.C. §
603(a). In addition, the *Notice* and IRFA (or summaries thereof) will
be published in the Federal Register. *See id*.

**Need for, and Objectives of, the Proposed Rules:** The Commission is
instituting this rulemaking to determine whether, and if so, how, to
amend its rules to promote the ability of MDS and ITFS licensees to
provide two-way digital services. The objective of this proceeding is to
encourage the efficient use of the spectrum allotted to MDS and ITFS by
simplifying our current two-way licensing system and providing greater
flexibility in the use of the allotted spectrum where such flexibility
would best serve the needs of the public. In addition, we intend to
enhance the competitiveness of the wireless cable industry and the
resultant choices available to consumers, and to increase Internet
access for educational institutions and their students via ITFS
frequencies.

**Legal Basis:** Authority for the action proposed in this proceeding
may be found in Sections 4(i) and (j), 301, 303(g) and (r), and 403 of
the Communications Act of 1934, as amended, 47 U.S.C. Sections 154(i),
154(j), 301, 303(g), 303(r), and 403.

**Description and Estimate of the Number of Small Entities to Which the
Proposed Rules Will Apply:** The RFA generally defines \"small entity\"
as having the same meaning as the terms \"small business,\" \"small
organization,\" and \"small business concern.\"^nn^[^81] In addition,
the term \"small business\" has the same meaning as the term \"small
business concern\" under the Small Business Act.^oo^[^82] 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.^pp^[^83]

[MDS]{.underline}: The Commission has defined \"small entity\" for the
auction of MDS as an entity that, together with its affiliates, has
average gross annual revenues that are not more than \$40 million for
the preceding three calendar years.^qq^[^84] This definition of a small
entity in the context of MDS auctions has been approved by the
SBA.^rr^[^85] The Commission completed its MDS auction in March 1996 for
authorizations in 493 basic trading areas (BTAs). Of 67 winning bidders,
61 qualified as small entities.^ss^[^86]

MDS is also heavily encumbered with licensees of stations authorized
prior to the auction. The SBA has developed a definition of small
entities for pay television services, which includes all such companies
generating \$11 million or less in annual receipts.^tt^[^87] This
definition includes multipoint distribution systems, and thus applies to
MDS licensees and wireless cable operators which did not participate in
the MDS auction. Information available to us indicates that there are
832 of these licensees and operators that do not generate revenue in
excess of \$11 million annually. We tentatively conclude that for
purposes of this IRFA, there are approximately 892 small MDS providers
as defined by the SBA and the Commission\'s auction rules, and some of
these providers may be impacted by the outcome of this *Notice*. We seek
comment on this tentative conclusion.

[ITFS]{.underline}: There are presently 2032 ITFS licensees. All but 100
of these licenses are held by educational institutions (these 100 fall
in the MDS category, above). Educational institutions may be included in
the definition of a small entity.^uu^[^88] ITFS is a non-pay,
non-commercial broadcast service that, depending on SBA categorization,
has, as small entities, entities generating either \$10.5 million or
less, or \$11.0 million or less, in annual receipts.^vv^[^89] However,
we do not collect, nor are we aware of other collections of, annual
revenue data for ITFS licensees. Thus, we tentatively conclude that up
to 1932 of these educational institutions are small entities. We seek
comment on this conclusion.

**Description of Reporting, Recordkeeping and Other Compliance
Requirements:** The Commission seeks comment on proposals to amend its
rules to promote the ability of MDS and ITFS licensees to provide
two-way digital services, including implementation of simplified
procedures governing application for, and authorization of, booster
stations and response station hubs. Because the proposed rule changes
would enable licensees to apply for and receive authorizations for new
types of booster stations and for response station hubs, certain
commensurate new reporting and recordkeeping obligations would follow as
part of this process, though the nature of the obligations and the MDS
and ITFS rules directly addressing them^ww^[^90] would remain the same.
At the same time, however, the proposed rule changes would make the
overall licensing process for two-way digital services much less
cumbersome than the current process, which requires individual licensing
of each response station and booster station. In the *Notice*, we
request comment on whether we should increase ITFS programming
requirements, and if so, in which way and to what degree. While the
proposed two-way scheme would result in more complicated interference
analysis requirements for MDS and ITFS entities seeking to establish or
modify service, regardless of whether the entities themselves choose to
engage in fixed two-way transmissions, these interference safeguards are
necessary to promote the objectives of this proceeding. We seek comment
on these conclusions and how we can modify any proposed new requirements
so as to reduce the burden on small entities and still meet the
objectives of this proceeding.

**Steps Taken to Minimize Significant Economic Impact on Small Enities,
and Significant Alternative Considered:** As described in the *Notice*,
in response to a March 31, 1997 *Public Notice* soliciting comment on
the Petition, several of the ITFS commenting parties express concern
that the proposed two-way scheme presents threats to the independence of
ITFS licensees and their future ability to use spectrum capacity for
instructional purposes. Pace, for instance, cautions that because the
Petition proposes a massive shift towards industry control over ITFS
applications, the Commission must ensure that individual ITFS licensees
\"do not lose their freedom of choice\" over the use of their channels,
through coercion by neighboring licensees or strong wireless cable
operators. Other commenting ITFS parties, however, do not perceive such
a threat. For instance, CMPBA believes that the proposed rules
adequately protect the interests of ITFS entities, primarily because the
rules do not obligate ITFS licensees to take part in the two-way system,
enter into a lease agreement, file FCC applications, or accept harmful
signal levels. Nevertheless, in order to find solutions that would allay
the concerns of some ITFS licensees, in the *Notice* we seek suggestions
on ways to provide maximum flexibility in usage of ITFS channels while
ensuring that capacity is reserved for downstream ITFS programming, pose
the question of whether solutions should be established by rule or by
contract and what role the Commission or other third parties should play
in reviewing excess capacity lease agreements, and confirm that
cellularization by ITFS licensees would be permissive only, and not
mandatory.

CTN raises the concern that Petitioners\' one-day rolling application
filing window plan and automatic grant proposal will create an undue
burden on ITFS licensees who may find themselves required to evaluate a
continuing stream of applications. We solicit comment on how such a
concern could be resolved in the context of a one-day rolling filing
window or whether we should retain a periodic filing window system.
Furthermore, we tentatively reject the automatic grant component of
Petitioners\' application processing proposal, and instead propose a
\"comment period\" of 60 or 120 days, after which applications would be
processed pursuant to current procedures. In proposing the comment
period alternative, we acknowledge the complexity of the engineering
information in the response hub or booster station applications, and the
substantial number of affected parties, particularly ITFS licensees,
that frequently have very limited resources and that often would not be
able to file a petition against an application before the application is
automatically granted. Thus, in the *Notice*, we particularly solicit
comment from small ITFS operators. Similarly, we express concern that
the proposed interference prediction methodology is so complex that it
may lead to numerous filings updating system configurations, which would
present considerable burdens upon existing licensees and operators
needing to analyze these filings. We therefore solicit suggestions for
other possible prediction methodologies.

In some instances, a proposed rule will impact different classes of
small entities in different ways. For instance, in considering whether
to increase ITFS programming requirements, including ready recapture
time, we acknowledge in the *Notice* the balance which underlies the
existence and substance of the ready recapture provisions of 47 C.F.R. §
74.931(e): the great value to wireless cable operators of maximization
of spectrum available for leasing, and the importance of maintaining
sufficient capacity for programming by ITFS licensees which fulfills the
primary educational purpose of ITFS. We decline to retreat from the
current recapture time requirements of Section 74.931(e), but we solicit
comment in the *Notice* on whether we should adopt any changes to the
number of hours required for ready recapture by ITFS licensees.

Other proposals, tentative conclusions, or questions that we pose in the
*Notice* are designed to minimize the impact on all small entities
involved. For example, we tentatively reject Caritas\' proposal to limit
the availability of response channels to MDS channels 1, 2, and 2A,
because it would both artificially limit the amount of spectrum that
could be used for return paths and unnecessarily prevent ITFS licensees
from using their own channels for return paths, while providing no
interference protection benefits that cannot be derived in other ways.

CTN and SWM both put forth procedural suggestions for this proceeding.
CTN proposes that rather than proceeding with the instant rulemaking, we
pursue a negotiated rulemaking procedure and convene a federal advisory
committee to evaluate Petitioners\' proposals and work out the most
effective method to implement them. CTN asserts that this would provide
substantial, useful information and facilitate the process initiated by
Petitioners. We believe that the instant rulemaking process will provide
us with sufficient information to adequately evaluate Petitioners\'
proposals. In addition, the need for swift consideration of these
proposals, in order to enhance the competitiveness of the wireless cable
industry and expedite educational institutions\' access to the Internet
via ITFS frequencies, may be defeated by implementing a potentially
lengthy negotiated rulemaking procedure. Thus, we reject CTN\'s proposal
for a negotiated rulemaking at this time. Should circumstances warrant,
however, we reserve the option to revisit our decision on this issue at
a later date. Conversely, SWM requests the issuance of an NPRM in this
proceeding, and noting that many of the parties which filed comments in
the initial round of this proceeding are ITFS entities, requests an
early Fall comment date in light of the academic schedules which
predominate amongst these entities. The comment period that we establish
here, therefore, should enhance the ability of ITFS entities to file
carefully considered comments and reply comments. We solicit comment in
the *Notice* on other substantive and procedural alternatives to
adoption of the proposed two-way digital transmission scheme.

**Federal Rules that Overlap, Duplicate or Conflict with the Proposed
Rule:** None.

**APPENDIX C**

Parts 1, 21 and 74 of Title 47 of the Code of Federal Regulations are
proposed to be amended as follows:

**PART 1 - PRACTICE AND PROCEDURE**

1\. Section 1.1307 would be amended by adding the following language
directly following the reference to MDS stations:

MDS licensees are required to attach a label to subscriber transceiver
or transverter antennas that (1) provides adequate notice regarding
potential radio frequency safety hazards, *e.g.*, information regarding
the safe minimum separation distance required between users and
transceiver antennas; and (2) references the applicable FCC-adopted
limits for radio frequency exposure specified in §1.1310 of this
chapter.

1a. Section 1.1307 likewise would be amended by adding the following
language directly following the reference to Part 74, Subpart I
stations:

ITFS licensees are required to attach a label to subscriber transceiver
or transverter antennas that (1) provides adequate notice regarding
potential radio frequency safety hazards, *e.g.*, information regarding
the safe minimum separation distance required between users and
transceiver antennas; and (2) references the applicable FCC-adopted
limits for radio frequency exposure specified in §1.1310 of this
chapter.

**PART 21 - DOMESTIC PUBLIC FIXED RADIO SERVICES**

2\. The authority citation for Part 21 continues to read as follows:

Authority: 47 U.S.C. 154, 303, 334.

3\. Section 21.2 would be amended by revising the definitions of
\"Multipoint distribution service,\" \"Multipoint distribution service
response station\" and \"Signal Booster Station\" and by adding a
definition for \"Response Station Hub\" to read as follows:

**§21.2 Definitions.**

\* \* \* \* \*

*Multipoint Distribution Service (MDS)*. A domestic public radio service
rendered on microwave frequencies from one or more a fixed stations
transmitting to multiple receiving facilities located at fixed points
and/or from multiple Multipoint Distribution Service response stations
transmitting to response station hubs.

*Multipoint Distribution Service response station*. A fixed station
operated by an MDS licensee, the lessee of MDS channel capacity or a
subscriber of either to communicate with a response station hub or
associated MDS station. A response station under this part may share
facilities with other MDS response stations and/or one or more
Instructional Television Fixed Service (ITFS) response stations
authorized pursuant to §74.939.

\* \* \* \* \*

*Response Station Hub*. A fixed facility licensed for use in accordance
with §21.909 that is operated by an MDS licensee or the lessee of an MDS
facility for the reception of information transmitted by one or more MDS
response stations. A response station hub licensed under this part may
share facilities with other MDS response station hubs and/or ITFS
response station hubs authorized pursuant to §74.939.

\* \* \* \* \*

*Signal Booster Station*. An MDS station licensed for use in accordance
with §21.913 that operates on one or more MDS channels. Signal booster
stations are intended to augment service as part of a distributed
transmission system where signal booster stations retransmit the signals
of one or more MDS stations and/or originate transmissions on MDS
channels. A signal booster station licensed under this part may share
facilities with other MDS signal booster stations and/or one or more
ITFS signal booster stations authorized pursuant to §74.985.

\* \* \* \* \*

4\. Section 21.27 would be revised by adding a new subsection (d) to
read as follows:

**§21.27 Public notice period.**

\* \* \* \* \*

\(d\) Effective as of \[date of adoption of new rules\], there shall be
one one‑week window at such time as the Commission shall announce by
public notice for the filing of applications for booster stations and
response station hub authorizations, during which all applications shall
be deemed to have been filed as of the same day for purposes of §§21.909
and 21.913. Following the publication of a public notice announcing the
tendering for filing of applications submitted during that window,
applicants shall have a period of sixty (60) days to amend their
applications, provided such amendments do not result in any increase in
interference to any previously proposed or authorized station (including
facilities proposed during the window) absent consent of the applicant
for or licensee of the station that would receive such interference. At
the conclusion of that sixty (60) day period, the Commission shall
publish a public notice announcing the acceptance for filing of all
applications submitted during the initial window, including those
amended during the sixty (60) day period. All petitions to deny
applications filed during the one‑week window must be filed within sixty
(60) days of such second public notice. On the sixty‑ first (61st) day
after the publication of such second public notice, applications for new
or modified response station hub and booster station authorizations may
be filed and will be processed in accordance with the provisions of §§
21.909 and 21.913.

5\. In Section 21.30, paragraph (a)(4) would be revised to read as
follows:

**§21.30 Opposition to applications.**

\(a\) \* \* \*

\* \* \* \* \*

\(4\) except as provided in §21.901(d)(1) regarding Instructional
Television Fixed Service licensees, in §21.909 regarding MDS response
station hubs and in §21.913 regarding MDS booster stations, be filed
within thirty (30) days after the date of public notice announcing the
acceptance for filing of any such application or major amendment
thereto, or identifying the tentative selectee of a random selection
proceeding in the Multichannel Multipoint Distribution Service or for
Multipoint Distribution Service H‑channel stations (unless the
Commission otherwise extends the filing deadline); and

\* \* \* \* \*

6\. In Section 21.42, paragraph (c) would be revised to read as follows:

**§21.42 Certain modifications not requiring prior authorization.**

\* \* \* \* \*

\(c\) Modifications that may be made without prior authorization under
paragraph (b) of this section are:

\* \* \* \* \*

\(9\) A change to a sectorized antenna system comprising an array of
directional antennas, provided that such system does not change
polarization or result in an increase in radiated power by more than one
dB in any direction.

7\. In Section 21.101(a), note 2 would be revised to read as follows:

**§21.101 Frequency tolerance.**

\(a\) \* \* \*

^2^Beginning November 1, 1991, equipment authorized to be operated in
the frequency bands 2150‑2162 MHz, 2596‑2644 MHz, 2650‑2656 MHz,
2662‑2668 MHz, and 2674‑2680 MHz for use in the Multipoint Distribution
Service shall maintain a frequency tolerance within ±1 kHz of the
assigned frequency. MDS booster stations authorized pursuant to
§21.913(b) shall maintain a frequency tolerance within ±1 kHz of the
assigned frequencies. MDS booster stations authorized pursuant to
§21.913(e) and MDS response stations authorized pursuant to §21.909
shall employ transmitters with sufficient frequency stability to ensure
that the emission stays within the authorized frequency block.

\* \* \* \* \*

8\. In Section 21.118, paragraph (c) would be revised to read as
follows:

**§21.118 Transmitter construction and installation.**

\* \* \* \* \*

\(c\) Each transmitter employed in these services shall be equipped with
an appropriately labeled pilot lamp or meter which will provide
continuous visual indication at the transmitter when its control
circuits have been placed in a condition to activate the transmitter.
Such requirement will not be applicable to MDS response stations or MDS
booster stations authorized pursuant to § 21.913(e). In addition,
facilities shall be provided at each transmitter to permit the
transmitter to be turned on and off independently of any remote control
circuits associated therewith.

\* \* \* \* \*

9\. Section 21.201 would be revised to read as follows:

**§21.201 Posting of station authorization information.**

Each licensee shall post at the station, the booster station authorized
pursuant to §21.913(b) or the MDS response station hub the name, address
and telephone number of the custodian of the station license or other
authorization if such license or authorization is not maintained at the
station or response station hub. Each authorized operator of an MDS
booster station authorized pursuant to §21.913(e) shall post at the
booster station the name, address and telephone number of the custodian
of the notification filed pursuant to §21.913(e) if such notification is
not maintained at the station.

10\. In Section 21.901, paragraphs (a), (b) and (d) would be revised,
and new paragraph (g) would be added, to read as follows:

**§21.901 Frequencies.**

\(a\) Frequencies in the bands 2150-2162 MHz, 2596-2644 MHz, 2650-2656
MHz, 2662-2668 MHz, 2674-2680 MHz and 2686-2690 MHz are available for
assignment to fixed stations in this service. Frequencies in the band
2150-2160 MHz are shared with nonbroadcast omnidirectional radio systems
licensed under other parts of the Commission\'s Rules, and frequencies
in the band 2160-2162 MHz are shared with directional radio systems
authorized in other common carrier services. Frequencies in the
2596-2644 MHz band are shared with Instructional Television Fixed
Service stations licensed under Part 74 of the Commission\'s Rules.
Channels H4e, H4m, H4f and H4n, listed in §74.939(i) of this chapter,
are assigned to fixed stations in the 2596-2620 band, and are shared
with Instructional Television Fixed Service Stations licensed under Part
74 of the Commission\'s Rules to operate in this band; grandfathered
channels H4u, H4cc, H4v and H4dd, listed in §74.939(i) of this chapter,
are licensed under Part 21 or Part 74 of the Commission\'s Rules, as
applicable.

\(b\) Applicants may be assigned a channel(s) according to one of the
following frequency plans:

\(1\) At 2150-2156 MHz (designated as Channel 1), or

\(2\) At 2156-2162 MHz (designated as Channel 2), or

\(3\) At 2156-2160 MHz (designated as Channel 2A), or

\(4\) At 2596-2602 MHz, 2608-2614 MHz, 2620-2626 MHz, and 2632-2638 MHz
(designated as Channels E1, E2, E3 and E4, respectively, with the four
channels to be designated the E-group channels), and Channels H4e and
H4m listed in §74.939(i),^1^ or

\(5\) At 2602-2608 MHz, 2614-2620 MHz, 2626-2632 MHz and 2638-2644 MHz
(designated as Channels F1, F2, F3 and F4, respectively, with the four
channels to be designated the F-group channels), and Channels H4f and
H4n, listed in §74.939(i),^1^ or

\(6\) At 2650-2656 MHz, 2662-2668 MHz and 2674-2680 MHz (designated as
Channels H1, H2 and H3, respectively, with the three channels to be
designated the H-group channels).^1^

\* \* \* \* \*

\(d\) Frequencies in the band 2596-2644 MHz and associated 125 kHz
channels listed in Section 74.939(i) will be assigned only in accordance
with the following conditions.

\* \* \* \* \*

\(g\) Frequencies in the bands 2150‑2162 MHz, 2596‑2644 MHz, 2650‑2656
MHz, 2662‑2668 MHz and 2674‑2680 MHz are available for
point‑to‑multipoint use and/or for communications between MDS response
stations and response station hubs when authorized in accordance with
the provisions of §21.909, provided that such frequencies may be
employed for MDS response stations only when transmitting using digital
modulation.

NOTES:

^1^ No 125 kHz channels are provided for Channels E3, E4, F3, F4, H1, H2
and H3, except for those grandfathered for Channels E3, E4, F3 and F4.

11\. Section §21.902 would be revised by adding a new paragraph (l) to
read as follows:

**§21.902 Frequency interference.**

\* \* \* \* \*

\(l\) Special rules relating to response station hubs and booster
service areas are set forth in §§21.909, 21.913, 74.939 and 74.985. To
the extent those specific rules are inconsistent with any rules set
forth above, those specific rules shall control.

12\. In Section 21.903, paragraph (a) would be revised to read as
follows:

**§21.903 Purpose and permissible service.**

\(a\) Multipoint Distribution Service channels are available for
transmissions from MDS stations and associated MDS signal booster
stations to receive locations, and from MDS response stations to
response station hubs. When service is provided on a common carrier
basis, subscriber supplied information is transmitted to points
designated by the subscriber. When service is provided on a non‑common
carrier basis, transmissions may include information originated by
persons other than the licensee, licensee‑manipulated information
supplied by other persons, or information originated by the licensee.
Point‑to‑point radio return links from a subscriber\'s location to a MDS
operator\'s facilities may also be authorized in the 18,580 through
18,820 MHz and 18,920 through 19,160 MHz bands. Rules governing such
operation are contained in Subpart I of Part 101 of this chapter, the
Point‑to‑Point Microwave Radio Service.

\* \* \* \* \*

13\. In Section 21.904, paragraph (c) would be revised to read as
follows:

**§21.904 Transmitter power.**

\* \* \* \* \*

\(c\) An increase in station transmitter power, above
currently‑authorized or previously proposed values, to the maximum
values provided in paragraphs (a) and (b) of this section, may be
authorized, if the requested power increase would not cause harmful
interference to any authorized or previously proposed co‑channel or
adjacent‑channel station entitled to interference protection under the
Commission\'s rules or if an applicant demonstrates that:

\(1\) A station, that must be protected from interference, potentially
could suffer interference that would be eliminated by increasing the
power of the interfered‑with station; and

\(2\) The interfered‑with station may increase its own power consistent
with the rules and without causing interference to any MDS booster
station or response station hub which operates as part of the same
coordinated system as the interfered‑with station; and

\(3\) The applicant requesting authorization of a power increase agrees
to pay all expenses associated with the increase in power to the
interfered‑with station.

\* \* \* \* \*

14\. In Section 21.905, paragraph (b) would be revised to read as
follows:

**§21.905 Emissions and bandwidth.**

\* \* \* \* \*

\(b\) For purposes other than standard television transmission,
different types of emissions may be authorized if the applicant
describes fully the modulation and bandwidth desired, and demonstrates
that the bandwidth desired is no wider than needed to provide the
intended service. The licensee may subchannelize its authorized
bandwidth, provided that digital modulation is employed and the
aggregate power does not exceed the authorized power for the channel,
and may utilize all or a portion of its authorized bandwidth for MDS
response stations authorized pursuant to §21.909. The licensee may also,
jointly with affected adjacent channel licensees, transmit utilizing
bandwidth in excess of its authorized frequencies, provided that digital
modulation is employed, all power spectral density requirements set
forth in this Part are met and the out‑of‑band emissions restrictions
set forth in §21.908 are met at the edges of the channels employed.

\* \* \* \* \*

15\. In Section 21.906, paragraphs (a) and (d) would be revised to read
as follows:

**§21.906 Antennas.**

\(a\) Transmitting antennas shall be omnidirectional, except that a
directional antenna with a main beam sufficiently broad to provide
adequate service may be used either to avoid possible interference with
other users in the frequency band, or to provide coverage more
consistent with distribution of potential receiving points. In lieu of
an omnidirectional antenna, a station may employ an array of directional
antennas in order to reuse spectrum efficiently. When an applicant
proposes to employ a directional antenna, or a licensee notifies the
Commission pursuant to §21.42 of the installation of a sectorized
antenna system, the applicant shall provide the Commission with
information regarding the orientation of the directional antenna(s),
expressed in degree of azimuth, with respect to true north, and the make
and model of such antenna(s).

\* \* \* \* \*

\(d\) Directive receiving antennas shall be used at all points other
than response station hubs and shall be elevated no higher than
necessary to assure adequate service. Receiving antenna height shall not
exceed the height criteria of Part 17 of this chapter, unless
authorization for use of a specific maximum antenna height (above ground
and above mean sea level) for each location has been obtained from the
Commission prior to the erection of the antenna. Requests for such
authorization shall show the inclusive dates of the proposed operation.
(See Part 17 of this chapter concerning the construction, marking and
lighting of antenna structures.)

16\. Section 21.907 would be deleted in its entirety.

17\. In Section 21.908, the title would be revised, current paragraphs
(a), (d) and (e) would be deleted, current paragraph (b) would be
redesignated as paragraph (a), new paragraph (b) would be added and
paragraph (c) would be revised to read as follows:

**§21.908 Transmitting equipment.**

\(a\) On or after November 1, 1991, the maximum out‑of‑band power of a
transmitter or of a booster transmitting on a single channel with an
effective isotropic radiated power in excess of ‑9 dBW employing analog
modulation shall be attenuated 38 dB relative to the peak visual carrier
at the channel edges and constant slope attenuation from this level to
60 dB relative to the peak visual carrier at 1 MHz below the lower band
edge and 0.5 MHz above the upper band edge. All out‑of‑band emissions
extending beyond these frequencies shall be attenuated at least 60 dB
below the peak visual carrier power. The maximum out‑of‑band power of a
transmitter or of a booster transmitting on a single channel or a
portion thereof with an effective isotropic radiated power in excess of
‑9 dBW employing digital modulation shall be 38 dB attenuation relative
to the licensed average power level (or, when subchannels are used, the
appropriately adjusted value based upon the ratio of the channel‑to‑
subchannel bandwidths) at the licensed channel edges, constant slope
attenuation from that level to 60 dB attenuation at 3 MHz above the
upper and below the lower licensed channel edges, and 60 dB attenuation
below the licensed average power level (or, when subchannels are used,
the appropriately adjusted value based upon the ratio of the
channel‑to‑subchannel bandwidths) at all other frequencies.
Notwithstanding the foregoing, in situations where a booster station
transmits, or where adjacent channel licensees jointly transmit, a
single signal over more than one channel utilizing digital modulation,
the maximum out‑of‑band power shall be 38 dB attenuation relative to the
licensed average power level of each channel at the channel edges of
those combined channels, constant slope attenuation from that level to
60 dB attenuation at 3 MHz above the upper and below the lower edges of
those combined channels, and 60 dB attenuation below the licensed
average power level of each channel at all other frequencies. However,
should harmful interference occur as a result of emissions outside the
assigned channel, additional attenuation may be required. A transmitter
licensed prior to November 1, 1991, that remains at the station site
initially licensed, and does not comply with this subsection, may
continue to be used for its life if it does not cause harmful
interference to the operation of any other licensee. Any non‑conforming
transmitter replaced after November 1, 1991, must be replaced by a
transmitter meeting the requirements of this subsection.

\(b\) The maximum out‑of‑band power of a booster transmitting on
multiple channels carrying separate signals (a \"broadband\" booster)
with an effective isotropic radiated power in excess of ‑9 dBW,
employing either analog or digital modulation, shall be attenuated 38 dB
relative to the peak visual carrier at the channel edges of channels
occupied by analog signals and relative to the licensed average power
level at the edges of channels occupied by digital signals. Within
unoccupied channels within the overall passband of the booster, the
maximum out‑of‑band power shall be attenuated 50 dB at 3 MHz above the
upper and below the lower edges of occupied channels. For boosters
operating in the frequency range 2.150‑2.160/2 GHz, the maximum
out‑of‑band power shall be attenuated 60 dB at 3 MHz and beyond above
the upper and below the lower of these frequencies. For boosters
operating in the range 2.500‑2.690 GHz, the maximum out‑of‑band power
shall be attenuated 50 dB at 3 MHz above the upper and below the lower
of these frequencies, constant slope attenuation to 60 dB at 20 MHz
above the upper and below the lower of these frequencies, and 60 dB
attenuation at all frequencies beyond. Boosters operating with an
effective isotropic radiated power less than ‑9 dBW shall have no
particular out‑of‑band power attenuation requirement, except that if
they cause harmful interference, their operation shall be terminated
within 2 hours of notification by the Commission until the interference
can be cured.

\(c\) The maximum out‑of‑band power of a response station using all or
part of a 6 MHZ channel and employing digital modulation shall be 38 dB
attenuation relative to the rated power level at the 6 MHZ channel
edges, constant slope attenuation from that level to 60 dB attenuation
at 3 MHZ above the upper and below the lower channel edge, and 60 dB
attenuation below the rated power level at all other frequencies.
Notwithstanding the foregoing, in situations where response stations
transmit over more than one 6 MHZ channel utilizing digital modulation,
the maximum out‑of‑band power shall be 38 dB attenuation relative to the
rated power level within each channel at the channel edges of those
combined channels, constant slope attenuation from that level to 60 dB
attenuation at 3 MHZ above the upper and below the lower edges of those
combined channels, and 60 dB attenuation below the rated power level of
each channel at all other frequencies. Notwithstanding either of the two
foregoing sentences, the out‑of‑band power for discrete spurious signals
above the upper and below the lower channel edge shall not be less than
40 dB attenuation, provided that such signals occur no more frequently
than once in any 10 MHZ within 50 MHZ of a channel edge and none occur
more than 50 MHZ from a channel edge). Notwithstanding any provision
hereof, should harmful interference occur as a result of emissions
outside the assigned channel, additional attenuation may be required.

18\. In Section 21.909, paragraphs (a), (b) and (c) would be revised and
new paragraphs (d), (e), (f), (g), (h), (i), (j), (k), (l) and (m) would
be added to read as follows:

**§21.909 MDS response stations.**

\(a\) An MDS response station is authorized to provide communication by
voice, video and/or data signals with its associated MDS response
station hub. An MDS response station may be operated only by the
licensee of the MDS response station hub, by any lessee of the MDS
response station hub, or by a subscriber of either. More than one
response station may be operated at the same or different receiving
locations. When a 125 kHz channel is employed for communications to a
response station hub, the specific frequency channel which may be used
by the response station is determined by the channel assigned to the
licensee of the MDS station, in accordance with §74.939(i). The
specified frequency channel may be subdivided to provide a distinct
operating frequency for each of more than one response station. An MDS
response station may also transmit utilizing bandwidth in excess of that
authorized to the licensee jointly with affected adjacent channel
licensees, provided that digital modulation is employed, all power
spectral density requirements set forth in this Part are met and the
out‑of‑band emissions restrictions set forth in §21.908(b) are met at
the edges of the channels employed.

\(b\) MDS response stations that utilize the bands 2150‑2162 MHz,
2596‑2644 MHz, 2650‑2656 MHz, 2662‑2668 MHz and 2674‑2680 MHz or the 125
kHz channels may be installed and operated without an individual license
to communicate with a response station hub authorized under a response
station hub authorization, provided that the conditions set forth in
§21.909(f) are complied with and that MDS response stations operating in
the bands 2150‑2162 MHz, 2596‑2644 MHz, 2650‑2656 MHz, 2662‑2668 MHz and
2674‑2680 MHz employ only digital modulation.

\(c\) An application for a response station hub authorization shall be
filed on FCC Form 304 and shall in addition to the requirements of that
form, include the following:

\(1\) The geographic coordinates, street address, and the height of the
center line of the reception antenna(s) above mean sea level for the
proposed response station hub; and

\(2\) A specification of:

\(i\) the response service area in which the applicant or its lessee
proposes to install MDS response stations to communicate with the
response station hub, any regions into which the response service area
will be subdivided for purposes of interference analysis, and any
regional classes of response station characteristics which will be used
to define the operating parameters of groups of response stations within
each region for purposes of interference analysis, including:

\(A\) the maximum height above ground level of the transmission antenna
that will be employed by any response station in the regional class and
that will be used in interference analyses without the receipt of
additional, site‑ specific authorization; and

\(B\) the maximum equivalent isotropic radiated power (EIRP) that will
be employed by any response station in the regional class and that will
be used in interference analyses; and

\(C\) any sectorization that will be employed, including the
polarization to be employed by response stations in each sector and the
geographic orientation of the sector boundaries, and that will be used
in interference analyses; and

\(D\) the combined worst‑case outer envelope plot of the patterns of all
models of response station transmission antennas that will be employed
by any response station in the regional class to be used in interference
analyses; and

\(E\) the maximum number of response stations that will be operated
simultaneously in each region using the characteristics of each regional
class applicable to each region.

\(ii\) the channel plan (including any guardbands at the edges of the
channel) to be used by MDS response stations in communicating with each
response station hub, including a statement as to whether the applicant
will employ the same frequencies on which response stations will
transmit to also transmit on a point‑to‑multipoint basis from an MDS
station or MDS booster station; and

\(iii\) the minimum received signal level that the proposed response
station hub can actually utilize in the provision of service, specified
in dBW/m²/Hz; and

\(3\) A demonstration that:

\(i\) The proposed response station hub is within a protected service
area to which the applicant is entitled either (i) by virtue of its
being the licensee of an incumbent MDS station whose channels are being
converted for MDS response station use, or (ii) by virtue of its holding
a Basic Trading Area or Partitioned Service Area authorization. In the
case of an application for response stations to utilize one or more of
the 125 kHz response channels, such demonstration shall establish that
the response service area is within the protected service area of the
station authorized to utilize the associated channel E1, E2, F1 or F2;
and

\(ii\) The entire proposed response service area is within a protected
service area to which the applicant is entitled either (i) by virtue of
its being the licensee of an incumbent MDS station whose channels are
being converted for MDS response station use, or (ii) by virtue of its
holding a Basic Trading Area or Partitioned Service Area authorization.
In the alternative, the applicant may demonstrate that the licensee
entitled to any protected service area which is overlapped by the
proposed response service area has consented to such overlap. In the
case of an application for response stations to utilize one or more of
the 125 kHz response channels, such demonstration shall establish that
the response service area is entirely within the protected service area
of the station authorized to utilize the associated channel E1, E2, F1
or F2, or, in the alternative, that the licensee entitled to any
cochannel protected service area which is overlapped by the proposed
response service area has consented to such overlap; and

\(iii\) The combined signals of all MDS response stations within all
response service areas and oriented to transmit towards their respective
response station hubs will not generate a power flux density in excess
of ‑73 dBW/m² (or the pro rata power spectral density equivalent based
on the bandwidth actually employed in those cases where less than a 6
MHz channel is to be employed (e.g., ‑89.8 dBW/m² for 125 kHz channels
or subchannels)) outside the boundaries of the applicant s protected
service area, except to the extent that consents have been granted
pursuant to §21.909(b)(3)(B) to an extension of the response service
area beyond the boundaries of the protected service area; and

\(iv\) The combined signals of all MDS response stations within all
response service areas and oriented to transmit towards their respective
response station hubs will result in a desired to undesired signal ratio
of at least 45 dB (or the appropriately adjusted value based upon the
ratio of the channel‑to‑subchannel bandwidths) (i) within the protected
service area of any authorized or previously proposed cochannel
incumbent MDS or ITFS station with a 56.33 km (35 miles) protected
service area with center coordinates located within 160.94 km (100
miles) of the proposed response station hub, (ii) within the booster
service area of any cochannel booster station entitled to such
protection pursuant to §§21.913(f) or 74.985(f) and located within
160.94 km (100 miles) of the proposed response station hub, or (iii) at
any cochannel response station hub entitled to such protection pursuant
to §§21.909(h) or 74.939(g) and located within 160.94 km (100 miles) of
the proposed response station hub, or, in the alternative, that the
licensee of or applicant for such cochannel station or hub consents to
the application; and

\(v\) The combined signals of all MDS response stations within all
response service areas and oriented to transmit towards their respective
response station hubs will result in a desired to undesired signal ratio
of at least 0 dB (or the appropriately adjusted value based upon the
ratio of the channel to subchannel bandwidths) (i) within the protected
service area of any authorized or previously proposed adjacent channel
incumbent MDS or ITFS station with a 56.33 km (35 miles) protected
service area with center coordinates located within 160.94 km (100
miles) of the proposed response station hub, (ii) within the booster
service area of any adjacent channel booster station entitled to such
protection pursuant to §§21.913(f) or 74.985(f) and located within
160.94 km (100 miles) of the proposed response station hub, or (iii) at
any adjacent channel response station hub entitled to such protection
pursuant to §§21.909(h) or 74.939(g) and located within 160.94 km (100
miles) of the proposed response station hub, or, in the alternative,
that the licensee of or applicant for such adjacent channel station or
hub consents to the application; and

\(vi\) The combined signals of all MDS response stations within all
response service areas and oriented to transmit towards their respective
response station hubs will result in a desired to undesired signal ratio
of at least 45 dB (or the appropriately adjusted value based upon the
ratio of the channel to subchannel bandwidths) at any registered receive
site of any authorized or previously‑proposed cochannel ITFS station or
booster station, or at any ITFS response station hub, located within 80
km (50 miles) of the proposed response station hub, or, in the
alternative, that the licensee of or applicant for such cochannel
station or hub consents to the application; and

\(vii\) The combined signals of all MDS response stations within all
response service areas and oriented to transmit towards their respective
response station hubs will result in a desired to undesired signal ratio
of at least 0 dB (or the appropriately adjusted value based upon the
ratio of the channel to subchannel bandwidths) at any registered receive
site of any authorized or previously‑proposed adjacent channel ITFS
station or booster station, or at any ITFS response station hub, located
within 80 km (50 miles) of the proposed response station hub, or, in the
alternative, that the licensee of or applicant for such adjacent channel
station or hub consents to the application; and

\(viii\) The proposed response station hub can receive transmissions
from the response service area without interference.

\(4\) A certification that the application has been served upon

\(i\) the licensee of any station (including any booster station or
response station hub) with a protected service area which is overlapped
by the proposed response service area;

\(ii\) the holder of any authorization (including any booster station or
response station hub authorization) with a protected service area that
adjoins the applicant s protected service area;

\(iii\) every licensee of or applicant for (a) any authorized or
previously proposed incumbent MDS or ITFS station with a 56.33 km (35
miles) protected service area with center coordinates located within
160.94 km (100 miles) of the proposed response station hub, or (b) any
associated booster station or response station hub authorized to the
holder of a license for a facility described in (a); and

\(iv\) every licensee of or applicant for any authorized or previously
proposed ITFS station (including any booster station or response station
hub) located within 80 km (50 miles) of the proposed response station
hub.

\(d\) Notwithstanding the provisions of §21.901(d)(4) and except as set
forth in §21.27(d), applications for response station hub authorizations
may be filed at any time. Notwithstanding any other provision of Part 21
(including §21.31), applications for response station hub authorizations
meeting the requirements of §21.909(c) shall cut‑off applications that
are filed on a subsequent day for facilities that would cause harmful
electromagnetic interference to the proposed response station hubs. A
response station hub shall not be entitled to protection from
interference caused by facilities proposed on or prior to the day the
application for the response station hub authorization is filed.
Response stations shall not be required to protect from interference
facilities proposed on or after the day the application for the response
station hub authorization is filed.

\(e\) Notwithstanding the provisions of §21.30(b)(4) and except as set
forth in §21.27(d), any petition to deny an application for a response
station hub authorization shall be filed no later than the sixtieth
(60th) day after the date of public notice announcing the filing of such
application or major amendment thereto.

\(f\) An MDS response station hub authorization shall be conditioned
upon compliance with the following:

\(1\) No MDS response station shall be located beyond the response
service area of the response station hub with which it communicates; and

\(2\) No MDS response station shall operate with an EIRP in excess of
that specified in the application for the response station hub pursuant
to §21.909(c)(2)(i)(B) for the particular regional class of
characteristics with which the response station is associated, and such
response station shall not operate at an excess of 18 dBW EIRP without a
demonstration that no interference shall occur from that facility
operating at a higher power level; and

\(3\) Each MDS response station shall employ a transmission antenna
oriented towards the response station hub with which the MDS response
station communicates, and such antenna shall be no less directional than
the worst case outer envelope pattern specified in the application for
the response station hub pursuant to §21.909(c)(2)(i)(D) for the
regional class of characteristics with which the response station is
associated; and

\(4\) The combined out‑of‑band emissions of all response stations using
all or part of a 6 MHz channel and employing digital modulation shall
comply with §21.908(b). The combined out‑of‑band emissions of all
response stations using a 125 kHz channel shall comply with §21.909(j).
However, should harmful interference occur as a result of emissions
outside the assigned channel, additional attenuation may be required;
and

\(5\) The response stations transmitting simultaneously at any time
within any given region of the response service area utilized for
purposes of analyzing the potential for interference by response
stations shall conform to the numerical limits for each class of
response station proposed in the application for the response station
hub authorization. Notwithstanding the foregoing, the licensee of a
response station hub authorization may alter the number of response
stations of any class operated simultaneously in a given region without
prior Commission authorization, provided that the licensee first
notifies the Commission of the altered number of response stations of
such class(es) to be operated simultaneously in such region, provides
the Commission with an analysis establishing that such alteration will
not result in any increase in electrical interference to any existing or
proposed MDS or ITFS station, booster station or response station hub or
to any MDS Basic Trading Area or Partitioned Service Area authorization
holder entitled to protection pursuant to §21.909(c)(3), or that the
applicant or licensee of such facility has consented to such
interference, and serves a copy of such notification and analysis upon
each party entitled to be served pursuant to §21.909(c)(4); and

\(6\) The height employed at any location shall not exceed the criteria
set forth in §17.7 of this chapter.

\(g\) The response channels associated with Channels E3, E4, F3, F4, H1,
H2 and H3 are allocated to the private operational‑fixed service (Part
101).

\(h\) Commencing upon the filing of an application for an MDS response
station hub authorization and until such time as the application is
dismissed or denied or, if the application is granted, a certificate of
completion of construction is filed, the incumbent MDS station whose
channels are being utilized shall be entitled both to interference
protection pursuant to §§21.902(b)(3) and (4) and 21.938(b)(2) and to
protection of the response station hub pursuant to the following
provisions of this subsection. Upon the filing of a certificate of
completion of construction for an MDS response station hub where the
channels of an incumbent MDS station are being utilized, unless the
application for the response station hub authorization specifies that
the same frequencies will be employed for point‑to‑multipoint
transmissions by MDS stations and/or MDS booster stations, the incumbent
MDS station whose channels are being utilized shall no longer be
entitled to interference protection pursuant to §§21.902(b)(3) and (4)
and 21.938(b)(2) within the response service area with regard to any
portion of any 6 MHz channel employed solely for response station
communications. In such situations, in lieu of the requirements set
forth in §§21.902, 21.938(b)(2) and 74.903, an applicant for any new or
modified MDS or ITFS station (including any response station or booster
station) shall be required to demonstrate that the predicted desired to
undesired signal ratio at each response station hub to which the
proposed new or modified MDS or ITFS station has an unobstructed signal
path will be at least 45 dB cochannel or 0 dB adjacent channel (or the
appropriately adjusted values based upon the ratios of the
channel‑to‑subchannel bandwidths) as a result of the new or modified MDS
or ITFS station. In making such demonstration, the applicant shall
assume installation of an omnidirectional unity gain plane‑polarized
receive antenna mounted with its centerline as specified in the
application for the response station hub in lieu of the reference
antenna specified in §§21.902 and 74.903. Upon the certification of
completion of construction of an MDS response station hub where the
channels of an incumbent MDS station are being utilized and the
application for the response station hub authorization specifies that
the same frequencies will be employed for point‑to‑multipoint
transmissions, the incumbent MDS station whose channels are being
utilized shall be entitled both to interference protection pursuant to
§§21.902(b)(3) and (4) and 21.938(b)(2) and to protection of the
response station hub pursuant to the preceding provisions of this
subsection.

\(i\) For purposes of §21.11, §21.38, §21.39, §§21.43 ‑ 21.45, and
§21.303 of this Part, an MDS response station hub authorization shall be
deemed a license and subject to the requirements of those sections as if
such authorization were a license.

\(j\) 125 kHz wide response channels shall be subject to the following
requirements: The 125 kHz wide channel shall be centered at the assigned
frequency. If amplitude modulation is used, the carrier shall not be
modulated in excess of 100%. If frequency modulation is used, the
deviation shall not exceed ± 25 kHz. Any emissions outside the channel
shall be attenuated at the channel edges at least 35 dB below peak
output power when analog modulation is employed or 35 dB below average
output power when digital modulation is employed (or, when subchannels
are used, the appropriately adjusted value based upon the ratio of the
channel‑to‑subchannel bandwidths). Any emissions more than 125 kHz from
either channel edge, including harmonics, shall be attenuated at least
60 dB below peak output power when analog modulation is employed or 60
dB below average output power when digital modulation is employed (or,
when subchannels are used, the appropriately adjusted value based upon
the ratio of the channel‑to‑subchannel bandwidths). Notwithstanding the
foregoing, in situations where adjacent channel licensees jointly
transmit over more than one channel utilizing digital modulation, the
maximum out‑of‑band power shall be 35 dB attenuation relative to the
licensed average power level of each channel at the channel edges of
those combined channels. Emissions more than 125 kHz from either edge of
the combined channels, including harmonics, shall be attenuated at least
60 dB below peak analog power or average digital power of each channel,
as appropriate. Notwithstanding the foregoing, the out‑of‑band power for
discrete spurious signals above the upper and below the lower channel
edge shall not be less than 40 dB attenuation, provided that such
signals occur no more frequently than once in any 10 MHz within 50 MHz
of a channel edge and none occur more than 50 MHz from a channel edge).
Different types of emissions may be authorized for use on 125 kHz wide
channels if the applicant describes fully the modulation and bandwidth
desired, and demonstrates that the modulation selected will cause no
more interference than is permitted under this subsection. Greater
attenuation may be required if interference is caused by out‑of‑channel
emissions.

\(k\) The transmitter of a response station may be operated unattended.
The overall performance of the response station transmitter shall be
checked as often as necessary to ensure that it is functioning in
accordance with the requirements of the Commission\'s rules. The
licensee of a response station hub is responsible for the proper
operation of associated response station transmitters at all times. The
transmitters shall be installed and protected in such manner as to
prevent tampering or operation by unauthorized persons.

\(l\) The transmitting apparatus employed at MDS response stations shall
have received type acceptance.

\(m\) An MDS response station shall be operated only when engaged in
communication with its associated MDS response station hub or MDS
station, or for necessary equipment or system tests and adjustments.
Radiation of an unmodulated carrier and other unnecessary transmissions
are forbidden.

Note 1: Calculations required under this rule shall be performed in
accordance with Method For Predicting Accumulated Signal Power From a
Multiplicity of Statistically‑located Transmitters as published as
Appendix \_\_ to the \[cite to the Report and Order adopting proposed
rules\].

18\. Section 21.913 would be revised in its entirety to read as follows:

**§21.913 Signal booster stations.**

\(a\) Authorizations for Multipoint Distribution Service (MDS) booster
stations may be granted to an MDS conditional licensee or licensee, or
to a third party with a fully‑executed lease or consent agreement with
an MDS conditional licensee or licensee. An MDS booster station may
reuse channels to repeat the signals of MDS stations or for the
origination of signals on MDS channels. An MDS booster station
authorized pursuant to subsection (b) may only be licensed to an MDS
licensee or conditional licensee, and may operate only on one or more
MDS channels that are licensed to the licensee of the MDS booster
station. An MDS booster station authorized pursuant to subsection (e)
may be licensed to an MDS licensee or conditional licensee or to a third
party with a fully‑executed lease or consent agreement with an MDS
conditional licensee or licensee, and may operate only on one or more
MDS channels that are licensed to or leased by the licensee of the MDS
booster station. No booster station may be authorized for the reuse of
channels authorized to an MDS station without the written consent of the
licensee of the station whose channels are reused, and such consent must
be included with the booster station application. The aggregate power
flux density generated by an MDS station and all associated signal
booster stations may not exceed ‑73 dBW/m² (or, when subchannels are
used, the appropriately adjusted value based upon the ratio of the
channel‑to‑subchannel bandwidths) at or beyond the boundaries of the
protected service area of any MDS station whose channel is being reused,
as measured at locations for which there is an unobstructed signal path,
unless the consent of the adjoining cochannel protected service area
licensee is obtained.

\(b\) Any eligible party under §21.913(a) may secure an authorization
for an MDS signal booster that has a maximum power level in excess of ‑9
dBW EIRP (or, when subchannels are used, the appropriately adjusted
value based upon the ratio of the channel‑to‑subchannel bandwidths) by
submitting an application on FCC Form 304 and including, in addition to
the requirements of that form;

\(1\) A demonstration that the proposed booster station site is within
the protected service area, as defined in §§21.902(d), 21.933 and
74.903(d), of every incumbent MDS or ITFS stations whose channels are to
be reused; and

\(2\) A study which demonstrates that the aggregate power flux density
of the MDS station and all associated booster stations at or beyond the
boundary of the protected service areas of the MDS station whose
channels are to be reused does not exceed ‑73.0 dBW/m² (or, when
subchannels are used, the appropriately adjusted value based upon the
ratio of the channel‑to‑subchannel bandwidths) at locations for which
there is an unobstructed signal path unless the consent of the adjoining
protected service area licensee has been obtained; and

\(3\) In lieu of the requirements of §§21.902(c) and (i), a study which
demonstrates that the proposed booster station will cause no harmful
interference to co‑channel and adjacent‑channel existing or
previously‑proposed ITFS and MDS stations with protected service area
center coordinates as specified in §21.902(d) or, in the case of ITFS
stations without protected service areas, transmitters, within 160.9
kilometers (100 miles) of the proposed booster station\'s transmitter
site, or any ITFS or MDS response station hubs or booster stations
within 160.94 kilometers (100 miles) of the proposed booster station s
transmitter site. In the alternative, a statement from the MDS or ITFS
permittee, licensee or conditional licensee stating that it does not
object to operation of the MDS signal booster station may be submitted;
and

\(4\) A written consent statement of the licensee of each MDS and ITFS
station whose channel is reused; and

\(5\) A specification of the area to be served by the booster (the
booster service area ), which may not overlap the booster service area
of any other booster authorized to or proposed by the applicant; and

\(6\) A demonstration either

\(i\) that the booster service area is entirely within the protected
service area to which each licensee of a station whose channels are
being reused is entitled either

\(A\) by virtue of its being the licensee of an incumbent MDS station
whose channels are being converted for MDS response station use, or

\(B\) by virtue of its holding a Basic Trading Area or Partitioned
Service Area authorization; or

\(ii\) that the licensee entitled to any protected service area which is
overlapped by the proposed booster service area has consented to such
overlap; and

\(7\) A demonstration that the proposed booster service area can be
served by the proposed booster without interference; and

\(8\) A certification that copies of the materials set forth in this
§21.913(b) have been served upon the licensee, conditional licensee or
permittee of each station (including each response station hub and
booster station) required to be studied pursuant to §21.913(b)(3) and
the holder of any Basic Trading Area or Partitioned Service Area
authorization adjoining the proposed booster service area.

\(c\) Notwithstanding the provisions of §21.901(d)(4) and except as
provided in §21.27(d), applications for booster station authorizations
may be filed at any time. Notwithstanding any other provision of Part 21
(including §21.31), applications for booster authorizations meeting the
requirements of §21.913(b) shall cut‑off applications that are filed on
a subsequent day for facilities that would cause harmful electromagnetic
interference to the proposed booster stations. A booster station shall
not be entitled to protection from interference caused by facilities
proposed on or prior to the day the application for the booster station
authorization is filed. Booster stations shall not be required to
protect from interference facilities proposed on or after the day the
application for the booster station authorization is filed.

\(d\) Notwithstanding the provisions of §21.30(b)(4), any petition to
deny an application for a booster station authorization shall be filed
no later than the sixtieth (60th) day after the date of public notice
announcing the filing of such application or major amendment thereto.

\(e\) An eligible party pursuant to §21.913(a) may install and commence
operation of a signal booster station that has a maximum power level of
‑9 dBW EIRP (or, when subchannels are used, the appropriately adjusted
value based upon the ratio of the channel‑to‑subchannel bandwidths),
subject to the condition that for sixty (60) days after installation, no
objection or petition to deny is filed by an authorized co‑channel or
adjacent‑channel ITFS or MDS station with a transmitter within 8.0
kilometers (5 miles) of the coordinates of the signal booster. An
eligible party pursuant to §21.913(a) seeking to install a signal
booster under this rule must, within 48 hours after installation, submit

\(1\) a description of the signal booster technical specifications
(including an antenna envelope plot or, if the envelope plot is on file
with the Commission, the make and model of the antenna, antenna gain and
azimuth), the coordinates of the booster, the height of the center of
radiation above mean sea level, the street address of the signal booster
and a description of the area to be served by the signal booster (the
booster service area ),

\(2\) a demonstration that the booster service area is entirely within
the protected service area to which each licensee of a station whose
channels are being reused is entitled either

\(i\) by virtue of its being the licensee of an incumbent MDS station
whose channels are being converted for MDS response station use, or

\(ii\) by virtue of its holding a Basic Trading Area or Partitioned
Service Area authorization, or, in the alternative, that the licensee
entitled to any protected service area which is overlapped by the
proposed booster service area has consented to such overlap; and a
demonstration that the proposed booster service area can be served by
the proposed booster without interference;

\(3\) either a certification that no Federal Aviation Administration
determination of No Hazard to Air Navigation is required under Part 17
of this chapter or, if such determination is required, either:

\(i\) a statement of the FCC Antenna Structure Registration Number; or

\(ii\) if an FCC Antenna Structure Registration Number has not been
assigned for the antenna structure, the filer must indicate the date the
application by the antenna structure owner to registered the antenna
structure was filed with the FCC in accordance with Part 17 of this
chapter. and

\(4\) a certification that:

\(i\) The maximum power level of the signal booster transmitter does not
exceed ‑9 dBW EIRP (or, when subchannels are used, the appropriately
adjusted value based upon the ratio of the channel‑to‑subchannel
bandwidths); and

\(ii\) No registered receiver of an ITFS E or F channel station,
constructed prior to May 26, 1983, is located within a 1.61 km (1 mile)
radius of the coordinates of the booster, or in the alternative, that a
consent statement has been obtained from the affected ITFS licensee; and

\(iii\) No environmental assessment location as defined at §1.1307 of
this chapter is affected by installation and/or operation of the signal
booster; and

\(iv\) Each MDS and/or ITFS station licensee (including the licensees of
booster stations and response station hubs) with protected service areas
or registered receivers within a 8.0 km (5 mile) radius of the
coordinates of the booster has been given notice of its installation;
and

\(v\) Consent has been obtained from each MDS station licensee whose
signal is reused by the signal booster; and

\(vi\) The signal booster site is within the protected service area of
the MDS stations whose channels are to be reused, and

\(vii\) The aggregate power flux density of the MDS stations to be
reused and their associated booster stations at or beyond the boundary
of the protected service areas of the MDS stations to be reused does not
exceed ‑73.0 dBW/m^2^ (or, when subchannels are used, the appropriately
adjusted value based upon the ratio of the channel‑to‑subchannel
bandwidths) at locations for which there is an unobstructed signal path;
and,

\(viii\) The MDS booster station filer understands and agrees that in
the event harmful interference is claimed by the filing of an objection
or petition to deny, the licensee must terminate operation within two
(2) hours of written notification by the Commission, and must not
recommence operation until receipt of written authorization to do so by
the Commission.

\(f\) An applicant for any new or modified MDS or ITFS station
(including a response station hub authorization or a booster station)
shall demonstrate compliance with the desired to undesired signal ratio
protected service area protection requirements set forth in §§21.902,
21.938 and 74.903 with respect to the portion of any previously proposed
or authorized booster service area that is within the protected service
area of a primary incumbent MDS station by using the transmission
parameters of the MDS booster station (including EIRP, polarization(s)
and antenna height) with respect to those channels authorized to an
incumbent MDS station that are being reused. Upon the filing of a
certification of completion of construction for an MDS booster station
applied for pursuant to §21.913(b) or upon the filing of an MDS booster
station notification pursuant to §21.913(e), each incumbent MDS station
whose channels are being reused by the MDS signal booster shall no
longer be entitled to interference protection pursuant to §§21.902(b)(3)
and (4), 21.938(b)(2) and (3) and 74.903 within the booster service area
based on the transmission parameters of the incumbent MDS station whose
channels are being reused. A booster station shall not be entitled to
protection from interference caused by facilities proposed on or prior
to the day the application or notification for the booster station is
filed. Booster stations shall not be required to protect from
interference facilities proposed on or after the day the application or
notification for the booster station is filed.

20\. In Section 21.925, paragraph (b) would be revised to read as
follows:

**§21.925 Applications for BTA authorizations and MDS station
licenses.**

\* \* \* \* \*

\(b\) Separate long‑form applications must be filed for each individual
MDS station license sought within the protected service area of a BTA or
PSA, including:

\(1\) an application for each E‑channel group, F‑channel group, and
single H, 1, and 2A channel station license sought;

\(2\) an application for each MDS response station hub authorization
sought;

\(3\) an application for each MDS booster station that will operate with
an EIRP in excess of ‑9 dBW (or, when subchannels are used, the
appropriately adjusted value based upon the ratio of the
channel‑to‑subchannel bandwidths); and

\(4\) an application for authority to operate at an MDS station in the
area vacated by an MDS station incumbent that has forfeited its station
license; and

\(5\) an application for each ITFS‑channel group station license sought
in accordance with §§74.990 and 74.991.

\* \* \* \* \*

21\. In Section 21.938, paragraph (b) would be revised to read as
follows:

**§21.938 BTA and PSA technical and interference provisions.**

\* \* \* \* \*

\(b\) Unless the affected parties have executed a written interference
agreement in accordance with §21.937, and subject to the provisions of
§§21.909, 21.913, 74.939 and 74.985 regarding the protection of response
station hubs and booster stations from harmful electromagnetic
interference, stations licensed to a BTA or PSA authorization holder
must not cause harmful electromagnetic interference to the following:

\(1\) the protected service area of other authorization holders in
adjoining BTAs or PSAs.

\(2\) the 56.33 km (35 mile) protected service areas of authorized or
previously proposed MDS stations (incumbents).

\(3\) registered receive sites and protected service areas of authorized
or previously proposed stations in the Instructional Television Fixed
Service pursuant to the manner in which interference is defined in
§74.903(a).

\* \* \* \* \*

**PART 74 - EXPERIMENTAL, AUXILIARY, AND SPECIAL BROADCAST AND OTHER
PROGRAM DISTRIBUTION SERVICES**

22\. The authority citation for Part 74 continues to read as follows:

Authority: 47 U.S.C. 154, 303, 334.

23\. Section 74.901 would be revised by amending the definition of an
ITFS response station and by adding definitions for Response station hub
and Signal booster station to read as follows:

**§74.901 Definitions.**

\* \* \* \* \*

*ITFS response station*. A fixed station operated by an ITFS licensee,
the lessee of ITFS channel capacity or a subscriber of either to
communicate with a response station hub or associated ITFS station. A
response station under this part may share facilities with other ITFS
response stations and/or one or more Multipoint Distribution Service
(MDS) response stations authorized pursuant to §21.909.

\* \* \* \* \*

*Response Station Hub*. A fixed facility licensed to an ITFS licensee
and operated by an ITFS licensee or the lessee of an ITFS channel for
the reception of information transmitted by one or more ITFS or MDS
response stations. A response station licensed under this part may share
facilities with other ITFS response station hubs and/or one or more MDS
response station hubs authorized pursuant to §21.909.

\* \* \* \* \*

*Signal Booster Station*. An ITFS station licensed for use in accordance
with §74.985 that operates on one or more ITFS channels. Signal booster
stations are intended to augment service as part of a distributed
transmission system where signal booster stations retransmit the signal
of an ITFS station and/or originate information. A signal booster
station licensed under this part may share facilities with other ITFS
signal booster stations and/or one or more MDS signal booster stations
authorized pursuant to §21.913.

\* \* \* \* \*

24\. In Section 74.902, paragraphs (c) and (d) would be amended to read
as follows:

**§74.902 Frequency assignments.**

\* \* \* \* \*

\(c\) Channels 2596-2602, 2602-2608, 2608-2614, 2614-2620, 2620-2626,
2626-2632, 2632-2638, and 2638-2644 MHz and the corresponding 125 kHz
channels listed in §74.939(i) are shared with the Multipoint
Distribution Service. No new Instructional Television Fixed Service
applications for these channels filed after May 25, 1983 will be
accepted. In those areas where Multipoint Distribution Service use of
these channels is allowed pursuant to §21.902, Instructional Television
Fixed Service users of these channels will continue to be afforded
protection from harmful co-channel and adjacent channel interference
from Multipoint Distribution Service stations.

\(d\) (1) A licensee is limited to the assignment of no more than four 6
MHz and four 125 kHz channels for use in a single area of operation, all
of which should be selected from the same Group listed in paragraph (a)
of this section unless good cause to utilize channels from multiple
Groups is shown. An area of operation is defined as the area 20 miles or
less from the ITFS transmitter. Applicants shall not apply for more
channels than they intend to construct within a reasonable time, simply
for the purpose of reserving additional channels. The number of channels
authorized to an applicant will be based on the demonstration of need
for the number of channels requested. The Commission will take into
consideration such factors as the amount of use of any currently
assigned channels and the amount of proposed use of each channel
requested, the amount of, and justification for, any repetition in the
schedules, and the overall demand and availability of ITFS channels in
the community. For those applicant organizations formed for the purpose
of serving accredited institutional or governmental organizations,
evaluation of the need will only consider service to those specified
receive sites which submitted supporting documentation pursuant to
§74.932(a)(4).

\(2\) An applicant leasing excess capacity and proposing a schedule
which complies in all respects with the requirements of §74.931(e) will
have presumptively demonstrated need, in accordance with paragraph
(d)(1) of this section, for no more than four channels. This presumption
is rebuttable by demonstrating that the application does not propose to
comport with our educational programming requirements, that is, to
transmit some formal educational programming, as defined in §74.931(a),
and to transmit the requisite minimum programming of §74.931(e) for
genuinely educational purposes and to receive sites when students are
there.

\* \* \* \* \*

25\. In Section 74.903, paragraph (a)(3) would be amended and paragraph
(b)(6) would be added to read as follows:

**§74.903 Interference.**

\(a\) \* \* \*

\(3\) For purposes of this section and except as set forth in §74.939
regarding the protection of response station hubs, all interference
calculations involving receive antenna performance shall use the
reference antenna characteristics shown in Figure 1, §74.937(a) or, in
the alternative, utilize the actual pattern characteristics of the
antenna in use at the receive site under study. If the actual receive
antenna pattern is utilized, the applicant must submit complete details
including manufacturer, model number(s), co‑polar and cross‑polar gain
patterns, and other pertinent data.

\* \* \* \* \*

\(b\) \* \* \*

\(6\) Special rules relating to response service areas and booster
service areas are set forth in §§21.909, 21.913, 74.939 and 74.985. To
the extent those special rules are inconsistent with any rules set forth
above, those special rules shall control.

\* \* \* \* \*

26\. In Section 74.911, paragraph (a)(1) would be amended and a new
paragraph (e) would be added to read as follows:

**§74.911 Processing of ITFS station applications.**

\(a\) \* \* \*

\(1\) In the first group are applications for new stations or major
changes in the facilities of authorized stations. These applications are
subject to the provisions of paragraph (c) of this section. A major
change for an ITFS station will be any proposal to add new channels,
change from one channel (or channel group) to another, change
polarization, increase the EIRP in any direction by more than 1.5 dB,
increase the transmitting antenna height by 25 feet or more, or relocate
a facility\'s transmitter site by 10 miles or more. Applications
submitted pursuant to §§74.939 and 74.985 shall not be considered major
change applications. However, the Commission may, within 15 days after
the acceptance of an application, or 15 days after the acceptance of any
other application for modification of facilities, advise the applicant
that such application is considered to be one for a major change, and
subject to the provisions of paragraph (c) of this section.

\* \* \* \* \*

\(e\) Notwithstanding any other provisions of this Part 74, effective as
of \[date of adoption of new rules\], there shall be one one‑week window
at such time as the Commission shall announce by public notice for the
filing of applications for booster stations and response station hub
authorizations, during which all applications shall be deemed to have
been filed as of the same day for purposes of §§74.939 and 74.985.
Following the publication of a public notice announcing the tendering
for filing of applications submitted during that window, applicants
shall have a period of sixty (60) days to amend their applications,
provided such amendments do not result in any increase in interference
to any previously proposed or authorized station (including facilities
proposed during the window) absent consent of the applicant for or
licensee of the station that would receive such additional interference.
At the conclusion of that sixty (60) day period, the Commission shall
publish a public notice announcing the acceptance for filing of all
applications submitted during the initial window, as amended during the
sixty (60) day period. All petitions to deny such applications must be
filed within sixty (60) days of such second public notice.

27\. In Section 74.912, paragraph (a) would be revised to read as
follows:

**§74.912 Petitions to deny.**

\(a\) Any party in interest may file with the Commission a petition to
deny any application for new facilities or major changes in the
facilities of authorized stations, provided such petitions are filed by
the date established pursuant to the cut‑off provisions of §74.911(c).
In the case of all other applications, except those excluded under
Section 309(c) of the Communications Act of 1934, as amended, and except
as provided in §§74.939 and 74.985, petitions to deny must be filed not
later than 30 days after issuance of a public notice of the acceptance
for filing of the applications. In the case of applications for renewal
of license, petitions to deny may be filed after the issuance of a
public notice of acceptance for filing of the applications and up until
the first day of the last full calendar month of the expiring license
term. Any party in interest may file with the Commission a petition to
deny any notification regarding ITFS booster stations within the 60 day
period provided for in §74.985(e).

\* \* \* \* \*

28\. In Section 74.931, paragraphs (a)(1), (b) and (e) would be revised
to read as follows:

**§74.931 Purpose and permissible service.**

(a)(1) Instructional television fixed stations are intended primarily to
provide a formal educational and cultural development in aural and
visual form, to students enrolled in accredited public and private
schools, colleges and universities. Authorized instructional television
fixed station channels must be used to transmit formal educational
programming offered for credit to enrolled students of accredited
schools or for response channels employed in connection with formal
educational courses offered for credit to enrolled students of
accredited schools, with limited exceptions as set forth in paragraph
(e)(9) of this section and §§74.990 through 74.992 of this part.

\(2\) \* \* \*

\(b\) Such stations may also be used for the additional purpose of
transmitting other visual and aural educational, instructional and
cultural material to selected receiving locations, including in‑service
training and instruction in special skills and safety programs,
extension of professional training, informing persons and groups engaged
in professional and technical activities of current developments in
their particular fields, and other similar endeavors, and for
transmitting associated information from ITFS response stations to
response station hubs.

\* \* \* \* \*

\(e\) A licensee may use excess capacity on each channel to transmit
material other than the ITFS subject matter specified in paragraphs (a),
(b), (c), and (d) of this section subject to the following conditions:

\(1\) \* \* \*

\(2\) If the time or capacity leased is to be used for \"wireless
cable\" operations (the provision of video, voice and/or data services
to subscribers), before leasing excess capacity on any one channel, the
licensee must provide at least 20 hours per week of ITFS programming on
that channel, except as provided in paragraph (e)(3) of this section.
All hours not used for ITFS programming may be leased to a \"wireless
cable\" operator. An additional 20 hours per week per channel must be
reserved for recapture by the ITFS licensee for its ITFS programming,
subject to one year\'s advance, written notification by the ITFS
licensee to its \"wireless cable\" lessee. These hours of recapture are
not restricted as to time of day or day of the week, but may be
established by negotiations between the ITFS licensee and the \"wireless
cable\" lessee.

\* \* \* \* \*

\(9\) A licensee may shift its requisite ITFS programming onto fewer
than its authorized number of channels, via channel mapping technology
or channel loading, so that it can lease full‑time channel capacity on
its ITFS station, associated ITFS booster stations or on ITFS response
stations and associated response station hubs to a wireless cable
operator, subject to the condition that it provide a total average of at
least 20 hours per channel per week of ITFS programming either on its
authorized channels or on channels not authorized to it, but which are
included in the wireless system of which it is a part. The use of
channel mapping or channel loading in accordance with the preceding
sentence shall not be considered adversely to the ITFS licensee in
seeking a license renewal or otherwise. The licensee also retains the
unbridgeable right to recapture, subject to six months\' written
notification to the wireless cable operator, an average of an additional
20 hours per channel per week for simultaneous programming on the number
of channels for which it is authorized. The licensee may agree to the
transmission of this recapture time on channels not authorized to it,
but which are included in the wireless system of which it is a part.

\* \* \* \* \*

29\. Sections 74.936 would be revised in its entirety to read as
follows:

**§74.936 Emissions and bandwidth.**

\(a\) An instructional television fixed station shall normally employ
amplitude modulation (C3F) for the transmission of the visual signal and
frequency modulation (F3E) or (G3E) for the transmission of the aural
signal when transmitting a standard television signal. For purposes
other than standard television transmission, different types of
emissions may be authorized if the applicant describes fully the
modulation and bandwidth desired, and demonstrates that the bandwidth
desired is no wider than needed to provide the intended service.

\(b\) On or after November 1, 1991, the maximum out‑of‑band power of a
transmitter or of a booster transmitting on a single channel with
effective isotropic radiated power in excess of ‑9 dBW operating in this
service utilizing analog modulation shall be attenuated 38 dB relative
to the peak visual carrier at the channel edges and constant slope
attenuation from this level to 60 dB relative to the peak visual carrier
at 1 MHz below the lower band and 0.5 MHz above the upper band edge. All
out‑of‑band emissions extending beyond these frequencies shall be
attenuated at least 60 dB below the peak visual carrier power. The
maximum out‑of‑band power of a transmitter or of a booster transmitting
on a single channel or portion thereof with effective isotropic radiated
power in excess of 9 dBW employing digital modulation shall be 38 dB
attenuation relative to the licensed average power level (or, when
subchannels are used, the appropriately adjusted value based upon the
ratio of the channel‑to‑subchannel bandwidths) at the licensed channel
edges, constant slope attenuation from that level to 60 dB attenuation
at 3 MHz above the upper and below the lower licensed channel edges, and
60 dB attenuation below the licensed average power level (or, when
subchannels are used, the appropriately adjusted value based upon the
ratio of the channel‑to‑subchannel bandwidths) at all other frequencies.
Notwithstanding the foregoing, in situations where a booster station
transmits, or where adjacent channel licensees jointly transmit, over
more than one channel utilizing digital modulation, the maximum
out‑of‑band power shall be 38 dB attenuation relative to the licensed
average power level of each channel at the channel edges of those
combined channels, constant slope attenuation from that level to 60 dB
attenuation at 3 MHz above the upper and below the lower edges of those
combined channels, and 60 dB attenuation below the licensed average
power level of each channel at all other frequencies. However, should
interference occur as a result of emissions outside the assigned
channel, additional attenuation may be required. A transmitter licensed
prior to November 1, 1991, that remains at the station site initially
licensed, and does not comply with this subsection, may continue to be
used for its life if it does not cause harmful interference to the
operation of any other licensee. Any non‑conforming transmitter replaced
after November 1, 1991, shall be replaced by a transmitter meeting the
requirements of this subsection.

\(c\) The maximum out‑of‑band power of a booster transmitting on
multiple channels carrying separate signals (a broadband booster) with
an effective isotropic radiated power in excess of ‑9 dBW, employing
either analog or digital modulation, shall be attenuated 38 dB relative
to the peak visual carrier at the channel edges of channels occupied by
analog signals and relative to the licensed average power level at the
edges of channels occupied by digital signals. Within unoccupied
channels within the overall passband of the booster, the maximum
out‑of‑band power shall be attenuated 50 dB at 3 MHz above the upper and
below the lower edges of occupied channels. For boosters operating in
the range 2.500‑2.690 GHz, the maximum out‑of‑band power shall be
attenuated 50 dB at 3 MHz above the upper and below the lower of these
frequencies, constant slope attenuation to 60 dB at 20 MHz above the
upper and below the lower of these frequencies, and 60 dB attenuation at
all frequencies beyond. Boosters operating with an effective isotropic
radiated power less than ‑9 dBW shall have no particular out‑of‑band
power attenuation requirement, except that if they cause harmful
interference, their operation shall be terminated within 2 hours upon
notification by the Commission until the interference can be cured.

\(d\) The maximum out‑of‑band power of a response station using all or
part a 6 MHz channel and employing digital modulation shall be 38 dB
attenuation relative to the rated power level at the 6 MHz channel
edges, constant slope attenuation from that level to 60 dB attenuation
at 3 MHz above the upper and below the lower channel edge, and 60 dB
attenuation below the rated power level at all other frequencies.
Notwithstanding the foregoing, in situations where response stations
transmit over more than one 6 MHz channel utilizing digital modulation,
the maximum out‑of‑band power shall be 38 dB attenuation relative to the
rated power level within each channel at the channel edges of those
combined channels, constant slope attenuation from that level to 60 dB
attenuation at 3 MHz above the upper and below the lower edges of those
combined channels, and 60 dB attenuation below the rated power level of
each channel at all other frequencies. Notwithstanding either of the two
foregoing sentences, the out‑of‑band power for discrete spurious signals
above the upper and below the lower channel edge shall not be less than
40 dB attenuation, provided that such signals occur no more frequently
than once in any 10 MHz within 50 MHz of a channel edge and none occur
more than 50 MHz from a channel edge). However, should harmful
interference occur as a result of emissions outside the assigned
channel, additional attenuation may be required.

\(e\) The requirements of §73.687(c)(2) will be considered to be
satisfied insofar as measurements of operating power are concerned if
the transmitter is equipped with instruments for determining the
combined visual and aural operating power. However, licensees are
expected to maintain the operating powers within the limits specified in
§74.935. Measurements of the separate visual and aural operating powers
must be made at sufficiently frequent intervals to insure compliance
with the rules, and in no event less than once a month. However, the
provisions of §73.687(c)(2) and of this subsection shall not be
applicable to ITFS response stations or to low power ITFS booster
stations authorized pursuant to §74.985(e).

30\. In Section 74.937, paragraphs (a) and (b) would be revised to read
as follows:

**§74.937 Antennas.**

\(a\) In order to minimize the hazard of harmful interference from other
stations, directive receiving antennas should be used at all receiving
locations other than response station hubs. The choice of receiving
antennas is left to the discretion of the licensee. However, for the
purpose of interference calculations, except as set forth in §74.939,
the general characteristics of the reference receiving antenna shown in
Figure 1 of this section (i.e., a 0.6 meter (2 foot) parabolic reflector
antenna) are assumed to be used in accordance with the provisions of
§74.903(a)(3) unless pertinent data is submitted of the actual antenna
in use at the receive site. Licensees may install receiving antennas
with general characteristics superior to those of the reference receive
antenna. Nevertheless, should interference occur and it can be
demonstrated by an applicant that the existing antenna at the receive
site is inappropriate, a more suitable yet practical receiving antenna
should be installed. In such cases, the modification of the receive site
will be in the discretion, and will be the responsibility, of the
licensee serving the site.

\(b\) Except as set forth in §74.931(e)(7), directive transmitting
antennas shall be used whenever feasible so as to minimize interference
to other licensees. The radiation pattern shall be designed to minimize
radiation in directions where no reception is intended. When an ITFS
station is used for point‑to‑point service, an appropriate directional
antenna must be used.

\* \* \* \* \*

31\. Section 74.938 would be revised to read as follows:

**§74.938 Transmission Standards.**

The width of an ITFS channel is 6 MHz. However, the licensee may
subchannelize its authorized bandwidth, provided that digital modulation
is employed and the aggregate power does not exceed the authorized power
for the channel, and may utilize all or a portion of its authorized
bandwidth for ITFS response stations authorized pursuant to §74.939. The
licensee may also, jointly with affected adjacent channel licensees,
transmit utilizing bandwidth in excess of its authorized bandwidth,
provided that digital modulation is employed, all power spectral density
requirements set forth in this Part are met and the out‑of‑band
emissions restrictions set forth in §74.936 are met at the edges of the
channels employed. ITFS transmitters must be type accepted by the
Commission for the particular signals that will be employed in actual
operation. Either the manufacturer or the licensee must obtain
transmitter type acceptance for the transmitter by filing an application
for type acceptance with appropriate information concerning the signal
waveforms and measurements.

\* \* \* \* \*

32\. Section 74.939 would be revised in its entirety to read as follows:

**§74.939 Special rules governing ITFS response stations.**

\(a\) An ITFS response station is authorized to provide communication by
voice, video and/or data signals with its associated ITFS response
station hub. An ITFS response station may be operated only by the
licensee of an instructional television fixed station and only at an
authorized receiving location of the instructional television fixed
station, by any lessee of excess capacity, or by a subscriber of any
lessee of excess capacity. More than one ITFS response station may be
operated at the same or different locations by the same licensee. The
specific frequency channel may be subdivided to provide a distinct
operating frequency for each of more than one response station, provided
that digital modulation is employed and the aggregate power does not
exceed the authorized power for the channel. An ITFS response station
may also transmit utilizing bandwidth in excess of that authorized to
the licensee jointly with effective adjacent channel licensees, provided
that digital modulation is employed, all power spectral density
requirements set fort in this Part are met and the out‑of‑band emission
restrictions set forth in §74.936 are complied with.

\(b\) ITFS response stations that utilize the bands 2500‑2650 MHz,
2656‑2662 MHz, 2668‑2674 MHz and/or 2680‑2686 MHz or the 125 KHz
channels identified in §74.939(f) may be installed and operated without
an individual license to communicate with a response station hub
authorized to an ITFS licensee under a response station hub
authorization, provided that the conditions set forth in §74.939(f) are
complied with and that ITFS response stations operating in the bands
2500‑2650 MHz, 2656‑2662 MHz, 2668‑2674 MHz and/or 2680‑2686 MHz only
employ digital modulation.

\(c\) An application for a response station hub authorization shall be
filed with the Commission in Washington, D.C., on FCC Form 330. Section
VI of that form shall supply the following information for each response
station hub:

\(1\) The geographic coordinates, street address, and the height of the
center line of the reception antenna(s) above mean sea level for the
response station hub; and

\(2\) A specification of:

\(i\) The response service area in which the applicant or its lessee
proposes to install ITFS response stations to communicate with the
response station hub, any regions into which the response service area
will be subdivided for purposes of interference analysis, and any
regional classes of response station characteristics which will be used
to define the operating parameters of groups of response stations within
each region for purposes of interference analysis, including:

\(A\) the maximum height above ground level of the transmission antenna
that will be employed by any response station in the regional class and
that will be used in interference analyses without the receipt of
additional, site‑ specific authorization; and

\(B\) the maximum equivalent isotropic radiated power (EIRP) that will
be employed by any response station in the regional class and that will
be used in interference analyses; and

\(C\) any sectorization that will be employed, including the
polarization to be employed by response stations in each sector and the
geographic orientation of the sector boundaries, and that will be used
in interference analyses; and

\(D\) the combined worst‑case outer envelope plot of the patterns of all
models of response station transmission antennas that will be employed
by any response station in the regional class to be used in interference
analyses; and

\(E\) the maximum number of response stations that will be operated
simultaneously in each region using the characteristics of each regional
class applicable to each region.

\(ii\) The channel plan (including any guardbands at the edges of the
channels) to be used by ITFS response stations in communicating with the
response station hub, including a statement as to whether the applicant
will employ the same frequencies on which response stations will
transmit to also transmit on a point‑to‑multipoint basis from an MDS
station or MDS booster station; and

\(iii\) The minimum received signal level that the proposed response
station hub can actually utilize in the provision of service, specified
in dBW/m²/Hz; and

\(3\) A demonstration that:

\(i\) The proposed response station hub is within the protected service
area of the ITFS station whose channels will be used for communications
to the response station hub (for purposes of this rule, an ITFS station
that is not engaged in leasing of excess capacity will be deemed to have
a 35 mile radius protected service area centered at its transmitter
site) or, in the case of an application for response stations to utilize
one or more of the 125 kHz response channels, the response station hub
is within the protected service area of the station authorized to
utilize the associated channel; and

\(ii\) The entire proposed response service area is within the protected
service area of the ITFS station whose channels will be used for
communications to the response station hub, (for purposes of this rule,
an ITFS station that is not engaged in leasing of excess capacity will
be deemed to have a 35 mile radius protected service area centered at
its transmitter site) or, in the alternative, the applicant may
demonstrate that the licensee of any protected service area which is
overlapped by the proposed response service area has consented to such
overlap. In the case of an application for response stations to utilize
one or more of the 125 kHz response channels, such demonstration shall
establish that the response service area is entirely within the
protected service area of the station authorized to utilize the
associated 125 kHz channel, or, in the alternative, that the licensee
entitled to any cochannel protected service area which is overlapped by
the proposed response service area has consented to such overlap; and

\(iii\) The combined signals of all ITFS response stations within all
response service areas and oriented to transmit towards their respective
response station hubs will not generate a power flux density in excess
of ‑73 dBW/m² (or the pro rata power spectral density equivalent based
on the bandwidth actually employed in those cases where less than a 6
MHz channel is to be employed (e.g., ‑89.8 dBW/m² for 125 kHz channels
or subchannels)) outside the boundaries of the applicant s protected
service area, except to the extent that consents have been granted
pursuant to §74.931(b)(1)(B)(ii) to an extension of the response service
area beyond the boundaries of the protected service area; and

\(iv\) The combined signals of all ITFS response stations within all
response service areas and oriented to transmit towards their respective
response station hub will result in a desired to undesired signal ratio
of at least 45 dB (or the appropriately adjusted value based upon the
ratio of the channel‑to‑subchannel bandwidths)

\(A\) within the protected service area of any authorized or previously
proposed cochannel MDS or ITFS station with center coordinates located
within 160.94 km (100 miles) of the proposed response station hub,

\(B\) within the booster service area of any cochannel booster station
entitled to such protection pursuant to §§21.913(f) or 74.985(f), or

\(C\) at any cochannel response station hub entitled to such protection
pursuant to §§21.909(h) or 74.939(g), or, in the alternative, that the
licensee of or applicant for such cochannel station or hub consents to
such application; and

\(v\) The combined signals of all ITFS response stations within all
response service areas and oriented to transmit towards their respective
response station hub will result in a desired to undesired signal ratio
of at least 0 dB (or the appropriately adjusted value based upon the
ratio of the channel‑to‑subchannel bandwidths) (i) within the protected
service area of any authorized or previously proposed adjacent channel
MDS or ITFS station with center coordinates located within 160.94 km
(100 miles) of the proposed response station hub, (ii) within the
booster service area of any adjacent channel booster station entitled to
such protection pursuant to §§21.913(f) or 74.985(f), or (iii) at any
adjacent channel response station hub entitled to such protection
pursuant to §§21.909(h) or 74.939(g), or, in the alternative, that the
licensee of or applicant for such adjacent channel station or hub
consents to such application; and

\(vi\) The combined signals of all ITFS response stations within all
response service areas and oriented to transmit towards their respective
response station hub will result in a desired to undesired signal ratio
of at least 45 dB (or the appropriately adjusted value based upon the
ratio of the channel‑to‑subchannel bandwidths) at any registered receive
site of any authorized or previously‑proposed cochannel ITFS station
located within 80 km (50 miles) of the proposed response station hub,
or, in the alternative, that the licensee of or applicant for such
cochannel station or hub consents to such application; and

\(vii\) The combined signals of all ITFS response stations within all
response service areas and oriented to transmit towards their respective
response station hub will result in a desired to undesired signal ratio
of at least 0 dB (or the appropriately adjusted value based upon the
ratio of the channel‑to‑subchannel bandwidths) at any registered receive
site of any authorized or previously‑proposed adjacent channel ITFS
station located within 80 km (50 miles) of the proposed response station
hub, or, in the alternative, that the licensee of or applicant for such
adjacent channel station or hub consents to such application; and

\(viii\) The proposed response station hub can receive transmissions
from the response service area without interference.

\(4\) A certification that the application has been served upon

\(i\) the licensee of any station (including any booster station or
response station hub) with a protected service area which is overlapped
by the proposed response service area;

\(ii\) the holder of any authorization (including any booster station or
response station hub authorization) with a protected service area that
adjoins the applicant s protected service area;

\(iii\) every licensee of or applicant for

\(A\) any authorized or previously proposed incumbent MDS or ITFS
station with a 56.33 km (35 miles) protected service area with center
coordinates located within 160.94 km (100 miles) of the proposed
response station hub, or

\(B\) any associated booster station or response station hub authorized
to the holder of a license for a facility described in (A); and

\(iv\) every licensee of or applicant for any authorized or previously
proposed ITFS station (including any booster station or response station
hub) located within 80 km (50 miles) of the proposed response station
hub

\(d\) Applications for response station hub authorizations meeting the
requirements of §74.939(c) shall be deemed minor change applications and
shall cut‑off applications that are filed on a subsequent day for
facilities that would cause harmful electromagnetic interference to the
proposed response station hubs. A response station hub shall not be
entitled to protection from interference caused by facilities proposed
on or prior to the day the application for the response station hub
authorization is filed. Response stations shall not be required to
protect from interference facilities proposed on or after the day the
application for the response station hub authorization is filed.

\(e\) Notwithstanding the provisions of §74.912 and except as provided
by §74.911(e), any petition to deny an application for a response
station hub authorization shall be filed no later than the sixtieth
(60th) day after the date of public notice announcing the filing of such
application or major amendment thereto.

\(f\) An ITFS response station hub authorization establishing a response
service area shall be

conditioned upon compliance with the following:

\(1\) No ITFS response station shall be located beyond the response
service area of the response station hub with which it communicates; and

\(2\) No ITFS response station shall operate with an EIRP in excess of
that specified in the application for the response station hub pursuant
to §74.939(c)(2)(i)(B) for the particular regional class of
characteristics with which the response station is associated, and such
response station shall not operate at an excess of 18 dBW EIRP without a
demonstration that no interference shall occur from that facility
operating at a higher power level; and

\(3\) Each ITFS response station shall employ a transmission antenna
oriented towards the response station hub with which the ITFS response
station communicates, and such antenna shall be no less directional than
the worst case outer envelope pattern specified in the application for
the response station hub pursuant to §74.939(c)(2)(i)(D) for the
regional class of characteristics with which the response station is
associated; and

\(4\) The combined out‑of‑band emissions of all response stations using
all or part of a 6 MHz channel and employing digital modulation shall
comply with §74.936(c). The combined out‑of‑band emissions of all
response stations using a 125 kHz channel shall comply with §74.939(i).
However, should harmful interference occur as a result of emissions
outside the assigned channel, additional attenuation may be required;
and

\(5\) The response stations transmitting simultaneously at any time
within any given region of the response service area utilized for
purposes of analyzing the potential for interference by response
stations shall conform to the numerical limits for each class of
response station proposed in the application for the response station
hub authorization; Notwithstanding the foregoing, the licensee of a
response station hub authorization may alter the number of response
stations of any class operating simultaneously in a given region without
prior Commission authorization, provided the licensee first notifies the
Commission of the altered number of response stations of such class(es)
to be operated simultaneously in such region, provides the Commission
with an analysis establishing that such alteration will not result in
any increase in electrical interference to any existing or proposed MDS
or ITFS station, booster station or response station hub or to any MDS
Basic Trading Area or Partitioned Service Area authorization holder
entitled to protection pursuant to §74.939(c)(3), or that the applicant
or licensee of such facility has consented to such interference, and
serves a copy of such notification and analysis upon each party entitled
to be served pursuant to §74.939(c)(4).

\(g\) See Part 17 of this chapter concerning notification to the Federal
Aviation Administration of proposed antenna construction or alteration.
The provisions of §§74.967 and 74.981(a)(5) of this subpart, concerning
antenna painting and lighting requirements, apply to ITFS response
stations as well as main ITFS stations.

\(h\) Commencing upon the filing of an application for an ITFS response
station hub authorization and until such time as the application is
dismissed or denied or, if the application is granted, a certificate of
completion of construction is filed, the incumbent ITFS station whose
channels are being utilized shall be entitled both to interference
protection pursuant to §§21.902(b)(3) and (4), 21.938(b)(2) and 74.903,
and to protection of the response station hub pursuant to the following
provisions of this subsection. Upon the filing of a certificate of
completion of construction of an ITFS response station hub, unless the
application for the response station hub authorization specifies that
the same frequencies will be employed for transmissions from ITFS
response stations and point‑to‑ multipoint transmissions from ITFS
stations and/or ITFS booster stations, the ITFS station whose channels
are being utilized shall no longer be entitled to interference
protection pursuant to §§21.902(b)(3) and (4), 21.938(b)(2) and 74.903
within the response service area with regard to any portion of any 6 MHz
channel employed for response station communications. In such
situations, in lieu of the requirements set forth in §§21.902,
21.938(b)(2) and 74.903, an applicant for any new or modified MDS or
ITFS station (including any response station or booster station) shall
be required to demonstrate that the predicted desired to undesired
signal ratio at the response station hub of each previously‑proposed
response service area to which the proposed new or modified MDS or ITFS
station has an unobstructed signal path will be at least 45 dB cochannel
or 0 dB adjacent channel (or the appropriately adjusted values based
upon the ratios of the channel‑to‑subchannel bandwidths). In making such
demonstration, the applicant shall assume installation of an
omnidirectional unity gain plane‑polarized receive antenna mounted with
its centerline as specified in the application for the response station
hub in lieu of the reference antenna specified in §§21.902 and 74.903.
Upon the filing of a certificate of completion of construction of an
ITFS response station hub where the application for the response station
hub authorization specifies that the same frequencies will be employed
for transmissions from ITFS response stations and from ITFS stations and
ITFS booster stations, the ITFS station whose channels are being
utilized shall be entitled both to interference protection pursuant to
§§21.902, 21.938(b)(2) and 74.903 and to protection of the response
station hub pursuant to the preceding provisions of this subsection.

\(i\) ITFS response stations may operate on either all or part of a 6
MHz channel assigned a licensee, on any 125 kHz channel assigned a
licensee, or on adjacent frequencies authorized to multiple licensees
where such stations are operated jointly. The 125 kHz channels listed in
the following table shall be assigned to the licensees of MDS and ITFS
stations for use as response stations or for licensing for
point-to-multipoint transmissions, in accordance with the table. The
specified 125 kHz frequency channel may be subdivided to provide a
distinct operating frequency for each of more than one station, may be
combined with adjacent channels, or may be exchanged with the licensee
of another MDS or ITFS station for use of another 125 kHz channel
assigned to the other licensee.

[Frequency (MHz)]{.underline} [Primary Channel Designation]{.underline}
[125 kHz Channel Designation]{.underline}

2686.0625 A1 H4a

2686.1875 B1 H4b

2686.3125 C1 H4c

2686.4375 D1 H4d

2686.5625 E1 H4e

2686.6875 F1 H4f

2686.8125 G1 H4g

2686.9375 H1 H4h

2687.0625 A2 H4i

2687.1875 B2 H4j

2687.3125 C2 H4k

2687.4375 D2 H4l

2687.5625 E2 H4m

2687.6875 F2 H4n

2687.8125 G2 H4o

2687.9375 H2 H4p

2688.0625 A3 H4q

2688.1875 B3 H4r

2688.3125 C3 H4s

2688.4375 D3 H4t

2688.5625 E3 H4u

2688.6875 F3 H4v

2688.8125 G3 H4w

2688.9375 H3 H4x

2689.0625 A4 H4y

2689.1875 B4 H4z

2689.3125 C4 H4aa

2689.4375 D4 H4bb

2689.5625 E4 H4cc

2689.6875 F4 H4dd

2689.8125 G4 H4ee

\(j\) An 125 kHz wide ITFS response channel is 125 kHz wide and is
centered at the assigned frequency. If amplitude modulation is used, the
carrier shall not be modulated in excess of 100%. If frequency
modulation is used, the deviation shall not exceed ± 25 kHz. Any
emissions outside the channel shall be attenuated at the channel edges
at least 60 dB 35 dB below peak output power when analog modulation is
employed or 35 dB below average output power when digital modulation is
employed (or, when subchannels are used, the appropriately adjusted
value based upon the ratio of the channel‑to‑subchannel bandwidths). Any
emissions more than 125 kHz from either channel edge, including
harmonics, shall be attenuated at least 60 dB below peak output power
when analog modulation is employed or 60 dB below average output power
when digital modulation is employed (or, when subchannels are used, the
appropriately adjusted value based upon the ratio of the
channel‑to‑subchannel bandwidths). Notwithstanding the foregoing, in
situations where adjacent channel licensees jointly transmit over more
than one channel utilizing digital modulation, the maximum out‑of‑band
power shall be 35 dB attenuation relative to the licensed average power
level of each channel at the channel edges of those combined channels.
Emissions more than 125 kHz from either edge of the combined channels,
including harmonics, shall be attenuated at least 60 dB below peak
analog power or average digital power of each channel, as appropriate.
Notwithstanding the foregoing, the out‑of‑band power for discrete
spurious signals above the upper and below the lower channel edge shall
not be less than 40 dB attenuation, provided that such signals occur no
more frequently than once in any 10 MHz within 50 MHz of a channel edge
and none occur more than 50 MHz from a channel edge). Different types of
emissions may be authorized for use on 125 kHz wide channels if the
applicant describes fully the modulation and bandwidth desired, and
demonstrates that the modulation selected will cause no more
interference than is permitted under this subsection. Greater
attenuation may be required if interference is caused by out‑of‑channel
emissions.

\(k\) The transmitter of an ITFS response station may be operated
unattended. The overall performance of the ITFS response station
transmitter shall be checked as often as necessary to ensure that it is
functioning in accordance with the requirements of the Commission\'s
rules. The licensee of an ITFS response station hub is responsible for
the proper operation of the transmitters of associated response stations
at all times. The transmitters shall be installed and protected in such
manner as to prevent tampering or operation by unauthorized persons.

\(l\) The transmitting apparatus employed at ITFS response stations
shall have received type acceptance in accordance with §74.952.

\(m\) An ITFS response station shall be operated only when engaged in
communication with its associated ITFS response station hub or ITFS
station, or for necessary equipment or system tests and adjustments.
Radiation of an unmodulated carrier and other unnecessary transmissions
are forbidden.

Note 1: For purposes of subsections (c)(3)(i), (ii), and (iii), an ITFS
station that is not engaged in leasing of excess capacity will be deemed
to have a 35 mile radius protected service area centered at its
transmitter site.

Note 2: Calculations required under this rule shall be performed in
accordance with Method For Predicting Accumulated Signal Power From a
Multiplicity of Statistically‑located Transmitters as published as
Attachment \_ to the \[cite to the Report and Order adopting proposed
rules\].

33\. In Section 74.950, current paragraphs (a) through (e) would be
deleted in their entirety and current paragraph (f) would be
redesignated as paragraph (a).

34\. In Section 74.951, paragraph (b) would be revised to read as
follows:

**§74.951 Modification of transmission systems.**

\* \* \* \* \*

\(b\) Any change in the antenna system affecting the direction of
radiation, directive radiation pattern, antenna gain, or radiated power;
provided, however, that a licensee may install a sectorized antenna
system without prior consent if such system does not change polarization
or result in an increase in radiated power by more than one dB in any
direction and notice of such installation is provided to the Commission
on FCC Form 330 within ten (10) days of installation.

\* \* \* \* \*

35\. In Section 74.961, paragraph (a) would be revised to read as
follows:

**§74.961 Frequency tolerance.**

\(a\) The frequency of the visual carrier for any ITFS station or ITFS
booster station authorized pursuant to §74.985(b) shall be maintained
within ±1 kHz of the assigned frequency at all times when the station is
in operation. ITFS booster stations authorized pursuant to §74.985(e)
and ITFS response stations authorized pursuant to §74.939 shall employ
transmitters with sufficient frequency stability to ensure that the
emission stays within the authorized frequency block. A transmitter
licensed prior to November 1, 1991, that remains at the station site
initially licensed and does not comply with this paragraph may continue
to be used for its life if it does not cause harmful interference to the
operation of any other licensee. Any non‑conforming transmitter replaced
after November 1, 1991, must be replaced by a transmitter meeting the
requirements of this paragraph.

\* \* \* \* \*

36\. Section 74.965 would be revised to read as follows.

**§74.965 Posting of station license.**

\(a\) The instrument of authorization, a clearly legible photocopy
thereof, or the name, address and telephone number of the custodian of
the instrument of authorization shall be available at each station and
response station hub. Each authorized operator of an ITFS booster
station shall post at the booster station the name, address and
telephone number of the custodian of the notification filed pursuant to
§74.985 if such notification is not maintained at the booster station.

\(b\) If an ITFS station, an ITFS booster station or an ITFS response
station hub is operated unattended, the call sign and name of the
licensee shall be displayed such that it may be read within the vicinity
of the transmitter enclosure or antenna structure.

37\. Section 74.982 would be deleted in its entirety.

38\. Section 74.985 would be revised in its entirety to read as follows:

**§ 74.985 Signal booster stations.**

\(a\) Authorizations for Instructional Television Fixed Service (ITFS)
booster stations may be granted to an ITFS licensee, or to a third party
with a fully‑executed lease agreement with an ITFS applicant or licensee
in the case of booster stations authorized pursuant to §74.985(e). The
eligibility requirements of §74.932 will not apply to such third‑party
booster station applicants. An ITFS booster station may reuse channels
to repeat the signals of ITFS stations or for the origination of signals
on ITFS channels except as provided for in §74.985(e), but no booster
station may be authorized for the reuse of channels authorized to an
ITFS station without the written consent of the licensee of the station
whose channels are reused, and such consent must be included with the
booster station application. The aggregate power flux density generated
by an ITFS station and all associated signal booster stations may not
exceed ‑73 dBW/m² (or, when subchannels are used, the appropriately
adjusted value based upon the ratio of the channel‑to‑subchannel
bandwidths) at or beyond the boundaries of the protected service area of
the ITFS station whose channel is being reused, as measured at locations
for which there is an unobstructed signal path. For purposes of the
preceding sentence and §§74.985(b)(1) and (2) and (c)(5) and (6), an
ITFS station will be deemed to have a protected service area pursuant to
§21.902(d) regardless of whether it is leasing excess capacity.

\(b\) Any ITFS licensee may secure an authorization for an ITFS signal
booster that has a maximum power level in excess of ‑9 dBW EIRP (or,
when subchannels are used, the appropriately adjusted value based upon
the ratio of the channel‑to‑subchannel bandwidths) by submitting an
application on FCC Form 330 and including, in addition to the
requirements of that form:

\(1\) A demonstration that the proposed signal booster station site is
within the protected service area, as defined in §§21.902(d) of this
chapter, of the ITFS station whose channels are to be reused; and

\(2\) A demonstration that the booster service area is entirely within
the protected service area of the ITFS station whose channels are being
reused, or in the alternative, that the licensee entitled to any
cochannel protected service area which is overlapped by the proposed
booster service area has consented to such overlap; and

\(3\) A demonstration that the booster service area can be served by the
proposed

booster without interference; and

\(4\) A demonstration that the aggregate power flux density of the ITFS
station and all associated booster stations does not exceed ‑73.0
dBW/m^2^ at (or, when subchannels are used, the appropriately adjusted
value based upon the ratio of the channel‑to‑subchannel bandwidths) or
beyond the edge of the a protected service area for the primary ITFS
transmitter station, as defined by §21.902(d) of this chapter, whose
channels are to be reused; and.

\(5\) In lieu of the requirements of §74.903, a demonstration that the
proposed signal booster station will cause no harmful interference to
co‑channel or adjacent‑channel, authorized or previously‑proposed ITFS,
MDS, or MMDS stations with protected service area center coordinates as
specified in §21.902(d) or, in the case of ITFS stations without
protected service areas, transmitters within 160.94 kilometers (100
miles) of the proposed booster station\'s transmitter site, or any ITFS
or MDS response station hubs or booster stations within 160.94
kilometers (100 miles) of the proposed booster station\'s transmitter
site. In the alternative, a statement from the MDS or ITFS licensee or
conditional licensee stating that it does not object to operation of the
ITFS signal booster station may be submitted; and

\(6\) A specification of the area to be served by the booster (the
booster service area ), which may not overlap the booster service area
of any other booster authorized to or proposed by the applicant, and a
demonstration that the booster service area is entirely within the
protected service area of the station whose channels are being reused
and can be served by the proposed booster without interference; and

\(7\) A certification that copies of the materials set forth in
§94.985(b) have been served upon the licensee, conditional licensee or
permittee of each station (including each response station hub and
booster station) required to be studied pursuant to §74.985(b)(3).

\(c\) Notwithstanding the provisions of §74.911(c)(1), applications for
booster station authorizations may be filed at any time. Notwithstanding
any other provision of Part 74, applications for booster authorizations
meeting the requirements of §74.985(b) shall cut‑off applications that
are filed on a subsequent day for facilities that would cause harmful
electromagnetic interference to the proposed booster stations. A booster
station shall not be entitled to protection from interference caused by
facilities proposed on or prior to the day the application for the
booster station authorization is filed. Booster stations shall not be
required to protect from interference facilities proposed on or after
the day the application for the response station hub authorization is
filed.

\(d\) Notwithstanding the provisions of §74.912 and except as provided
in §74.911(e), any petition to deny an application for a response
station hub authorization shall be filed no later than the sixtieth
(60th) day after the date of public notice announcing the filing of such
application or major amendment thereto.

\(e\) A signal booster station that has a maximum power level of ‑9 dBW
EIRP (or, when subchannels are used, the appropriately adjusted value
based upon the ratio of the channel‑to‑ subchannel bandwidths) may be
installed and operated by an ITFS conditional licensee or licensee for
the purpose of retransmitting the signals of the ITFS station or for
originating signals. A signal booster station that has a maximum power
level of ‑9 dBW EIRP (or, when subchannels are used, the appropriately
adjusted value based upon the ratio of the channel‑to‑subchannel
bandwidths) may be installed and operated by a third party with a
fully‑executed lease or consent agreement with an ITFS conditional
licensee or licensee for the purpose of retransmitting the signals of
the ITFS station. In either case, such installation and operation shall
be subject to the condition that for sixty (60) days after installation,
no objection or petition to deny is filed by an authorized co‑channel or
adjacent‑channel ITFS or MDS station with a transmitter within 8.0
kilometers (5 miles) of the coordinates of the signal booster. An
eligible party seeking to install a signal booster under this rule must,
within 48 hours after installation, submit

\(1\) a description of the signal booster technical specifications
(including an antenna envelope plot or, if the envelope plot is on file
with the Commission, the make and model of the antenna, antenna gain and
azimuth), the coordinates of the booster, the height of the center of
radiation above mean sea level, the street address of the signal
booster, and a description of the area to be served by the booster (the
booster service area ),

\(2\) a demonstration that the booster service area is entirely within
the protected service area of the station whose channels are being
reused, or, in the alternative, that the licensee entitled to any
protected service area which is overlapped by the proposed booster
service area has consented to such overlap,

\(3\) either a certification that no Federal Aviation Administration
determination of No Hazard to Air Navigation is required under Part 17
of this chapter or, if such determination is required, either:

\(i\) a statement of the FCC Antenna Structure Registration Number; or

\(ii\) if an FCC Antenna Structure Registration Number has not been
assigned for the antenna structure, the filer must indicate the date the
application by the antenna structure owner to registered the antenna
structure was filed with the FCC in accordance with Part 17 of this
chapter; (iv) a demonstration that the proposed booster service area can
be served by the proposed booster without interference, and (v) a
certification that:

\(A\) The maximum power level of the signal booster transmitter does not
exceed ‑9 dBW EIRP (or, when subchannels are used, the appropriately
adjusted value based upon the ratio of the channel‑to‑subchannel
bandwidths); and

\(B\) No registered receiver of an ITFS E or F channel station,
constructed prior to May 26, 1983, is located within a 1 mile (1.61 km)
radius of the coordinates of the booster, or in the alternative, that a
consent statement has been obtained from the affected ITFS licensee; and

\(C\) No environmental assessment location as defined at §1.1307 of this
chapter is affected by installation and/or operation of the signal
booster; and

\(D\) Each MDS and/or ITFS station licensee (including the licensees of
booster stations and response station hubs) with protected service areas
or registered receivers within a 8 km (5 mile) radius of the coordinates
of the booster has been given notice of its installation; and

\(E\) The signal booster site is within the protected service area of
the ITFS MDS station whose channels are to be reused, if the signal of
an MDS station is repeated; and

\(F\) The aggregate power flux density at or beyond the boundary edge of
the protected service area of the ITFS station whose channels are to be
reused and associated booster stations does not exceed ‑73.0 dBW/m^2^
(or, when subchannels are used, the appropriately adjusted value based
upon the ratio of the channel‑to‑subchannel bandwidths) at locations for
which there is an unobstructed signal path and

\(G\) The antenna structure will extend less than 6.10 meters (20 feet)
above the ground or natural formation or less than 6.10 meters (20 feet)
above an existing manmade structure (other than an antenna structure);
and

\(H\) The ITFS licensee understands and agrees that in the event harmful
interference is claimed by the filing of an objection or petition to
deny, the licensee must terminate operation within two (2) hours of
written notification by the Commission, and must not recommence
operation until receipt of written authorization to do so by the
Commission.

\(f\) An applicant for any new or modified MDS or ITFS station
(including any response station authorization or booster station) shall
demonstrate compliance with the protected service area protection
requirements set forth in §§21.902, 21.938 and 74.903 with respect to
any previously proposed or authorized booster service area using the
transmission parameters of the ITFS booster station (including EIRP,
polarization(s) and antenna height). Upon the filing of a certificate of
completion of construction of an ITFS booster station filed pursuant to
§74.985(b) or upon the filing of an ITFS booster station notification
pursuant to §74.985(e), each incumbent ITFS station whose channels are
being reused by the ITFS signal booster shall no longer be entitled to
interference protection pursuant to §§21.902(b)(3) and (4), 21.938(b)(2)
and (3) and 74.903 within the booster service area based on the
transmission parameters of the ITFS station whose channels are being
reused. A booster station shall not be entitled to protection from
interference caused by facilities proposed on or prior to the day the
application or notification for the booster station is filed. Booster
stations shall not be required to protect from interference facilities
proposed on or after the day the application or notification for the
response booster is filed.

**APPENDIX D**

**PROPOSED TEXT OF ATTACHMENT TO REPORT AND ORDER SETTING FORTH METHOD
FOR PREDICTING ACCUMULATED SIGNAL POWER FROM A MULTIPLICITY OF
STATISTICALLY-LOCATED TRANSMITTERS**

Major Steps

In carrying out the interference studies required in this section, the
aggregate power of the interfering signals to be expected from the
response station transmitters shall be determined using a process
comprising three major steps, as described below. First, a grid of
points statistically representative of the distribution of transmitters
to be expected within the response service area shall be defined.
Second, any regions and any classes of response stations to be used
shall be defined. Third, the equivalent power of each of the
representative transmitters shall be determined and used in the various
required interference studies.

Defining Grid of Points for Analysis

Since it is impossible to know a priori where response stations will be
located, a grid of points is used to represent statistically in a
relatively small number locations the potentially much larger number of
response stations that are likely to be installed in the areas
surrounding each of them.

Defining the representative grid of points to use in all the
interference studies required in Sections 21.909 and 74.939 begins by
geographically defining the response service area (RSA) of the response
station hub (RSH). This can be done using a list of coordinates, a
radius from the response station hub location, a line on a map, or a
similar method sufficient to allow others to duplicate the interference
studies to be conducted. Similarly, the coverage areas of any sectors in
the RSH receiving antenna must be described geographically. Any overlaps
of the sector patterns should be bisected in order to provide definitive
borders for interference analysis purposes. The polarization in each
sector must be identified.

The RSA may be subdivided into regions to allow different
characteristics to be used for response stations in different portions
of the RSA. (For details on regions and their use, see the section below
on Defining Regions and Classes for Analysis.) Any regions to be used
when analyzing interference must also be described in a manner similar
to that used to describe the RSA itself. Analysis of the regions
involves use of one or more classes of response station characteristics
that include combinations of the values for maximum antenna height and
for maximum effective isotropic radiated power (EIRP) and of the worst
case antenna patterns that will be allowed in practice in installations
of response stations associated with the various classes within the
respective regions. (For details on classes and their use, see the
section below on Defining Regions and Classes for Analysis.) Maximum
numbers of simultaneous transmissions from response stations associated
with each class within each region must be specified as part of the
application process.

A line is established surrounding the RSA, following the shape of the
RSA boundary, ½ mile outside the RSA, and never more than ½ mile from
the RSA boundary at any point. This is termed the "measurement line" and
will be used in determining that an adequate number of points
representing transmitters is being used in the interference analyses. A
starting point is defined on the measurement line due north (true) of
the response station hub. A series of measurement points is then spaced
along the measurement line with the starting point being one of those
points. The measurement points must occur at least every ½ mile along
the measurement line or every 5 degrees (as seen from the response
station hub), whichever yields the largest number of measurement points.
When an RSA has a non-circular shape, the choice of distance along the
measurement line or angle from the response station hub must be made for
each portion of the line so as to maximize the number of measurement
points in that portion. The measurement points are to be described by
their geographic coordinates. (The results of this method are that, for
a circular RSA, a minimum of 72 measurement points will be used, and
that, for portions of the measurement line of any RSA more than 5.73
miles from the response station hub, the distance method will be used.)

Now, a grid of points is defined within the RSA to statistically
represent the response stations. The grid uses uniform, square spacing
of the points with the first square surrounding the RSH and with its
points equidistant from it. The lines connecting the points on one side
of any grid square point true north, east, south, or west. The grid is
defined so as to include all points within or on the boundary of the
RSA. Any points falling at locations at which it would be physically
impossible to install a response station (such as in the middle of a
lake, but not the middle of a forest) are removed from the grid. The
points of the grid are to be described by their geographic coordinates.

The grid of points is then divided into two groups. The division is to
be done using a checkerboard (or quincunx) pattern so that alternating
points along the east-west and north-south axes belong to opposite
groups and points along any diagonal line belong to the same group.

The combination of the grid of points within the RSA and the points on
the measurement line is next used to determine that the number of grid
points is truly representative of a uniform distribution of response
station transmitters within the RSA. This is done by conducting a power
flux density analysis from each grid point within the RSA to each point
on the measurement line. For this analysis, a single response station
should be assumed to be located at each grid point, the response station
having the combined worst case antenna pattern without regard to
polarization of all response station classes assigned to that grid point
and the maximum EIRP of any response station class assigned to that grid
point. (For details on the method for determining the combined worst
case antenna pattern, see the section below on Defining Regions and
Classes for Analysis.) The response station antennas all should be
oriented toward the response station hub.

The analysis should be done using free space path loss over flat earth
only and should not include the effects of terrain in the calculation of
received signal levels. At each point on the measurement line, the power
flux density from all grid points in each group of the checkerboard
pattern should be aggregated. This is done by converting power received
from each assumed transmitter from dBW/m^2^ to W/m^2^, summing the power
in W/m^2^ from all transmitters in each group, and then converting the
sum back to dBW/m^2^.

Once the aggregated power flux density from each of the two groups has
been calculated, the received power flux densities from the two groups
are compared at each of the points on the measurement line. The power
flux densities from the two groups must be within 3 dB of one another at
each of the points on the measurement line. If they are within 3 dB at
every measurement point, a sufficient number of grid points is included
for use in further analyses. If they are not within 3 dB at every
measurement point, a larger number of grid points (i.e., closer spacing
of grid points) must be used so that the 3 dB criterion is met.

Defining Regions and Classes for Analysis

To provide flexibility in system design and to assure that the
clustering of response stations likely within higher population density
areas is properly reflected in interference analyses, regions may
optionally be created or may be required within response service areas.
Regions may be of arbitrary size, shape, and location but must be
evaluated on the basis of the uniformity of their population densities
in order to preclude unidentified clustering of response stations. The
territory within a region must be contiguous. Regions within a single
RSA may not overlap one another. Within regions, response stations are
apt to be randomly distributed and for analysis purposes are to be
assumed to be uniformly distributed. Regions are to be defined by their
boundaries in the same manner as is the response service area. (For
details on describing boundaries, see the section above on Defining Grid
of Points for Analysis.)

While regions may be established virtually arbitrarily, they must be
tested to determine that the population densities they represent are
reasonably uniform. This is done using postal zip code territories. For
each postal zip code within a region, the population of the zip code and
its area (in square miles or square kilometers) are used. If a zip code
is divided between two (or more) regions, the proportion of the zip code
area falling in each region should be calculated and the same proportion
of the population of the zip code then should be ascribed to each
associated region.

The test for population density uniformity consists of calculating the
population density of each zip code within a region and dividing it by
the average population density of that region taken as a whole. The
resulting value must be three (3) or less. The required relationship can
be expressed by the following inequality:

> ![](media/image1.wmf){width="1.2631944444444445in" height="1.1in"}1
> Where ![](media/image1.wmf){width="2.9583333333333335in"
> height="1.2in"}2
>
> Within each region, at least one class of response station with
> defined characteristics must be specified to balance the interference
> expected to be caused and the types of installations to be made. The
> classes are to be used in interference analyses and to provide
> limitations on the installations that may be made in the related
> region. The characteristics of each such class of response stations
> will include the maximum height above ground level (AGL) for antennas,
> the maximum effective isotropic radiated power (EIRP), and the
> combined worst-case antenna radiation pattern -- for each polarization
> when both are used -- for all response stations of that class
> installed. For each defined class of response stations within a
> region, the maximum number of such response stations that will
> transmit simultaneously on any channel or subchannel must be
> specified.
>
> The combined worst-case antenna radiation pattern is required to be
> specified collectively for all of the classes of response stations
> located at each grid point (in the procedure above, in the section on
> Defining of Grid of Points for Analysis, for confirming that the
> required number of grid points is specified) and individually for each
> of the classes defined for each region of the RSA. In the case of the
> collective pattern used to determine adequacy of the number of grid
> points, if both polarizations are used in the system, the horizontal
> and vertical patterns of each antenna should be treated as deriving
> from separate antennas and should be combined with one another and
> with the patterns from all the other antennas at that grid point. In
> the case of the individual patterns for each class used for
> interference analyses, if both polarizations are used in the system,
> the horizontal and vertical combined worst-case patterns should be
> determined separately for all classes defined. Similarly, the
> cross-polarized worst-case pattern should be determined for each
> polarization.
>
> These combined worst-case patterns are derived by setting the maximum
> forward signal power of all antenna types to be used within the class
> or classes to the same value and then using the highest level of
> radiation in each direction from any of the antennas as the value in
> that direction for the combined antenna pattern. The same method is
> used to determine both plane- and cross-polarized patterns, which are
> used separately in interference analyses. The combined worst-case
> plane- and cross-polarized patterns for each class will be used in all
> of the interference studies and are not to be exceeded in real
> installations of response stations within a class to which the pattern
> applies.
>
> Calculating Aggregated Power from Transmitters
>
> The final major step is the calculation of the effective isotropic
> radiated power (EIRP) to be attributed in each regional class to each
> of the grid points in the various interference studies so as to be
> representative of the number of response stations that are expected to
> be in operation simultaneously within the RSA. This calculation starts
> by assigning a number of transmitters in each regional class to each
> grid point. The population of response stations is assumed to be
> uniformly distributed within each region, therefore divide the number
> of simultaneous transmitters specified in each regional class by the
> number of grid points in the region and assign the resulting number to
> each grid point. If there are no grid points within a region, assign
> the number of simultaneously operating transmitters equally to those
> grid points immediately surrounding the region in addition to those
> assigned to them from the regions within which they are located. If a
> specific location is known for one or a group of transmitters, an
> additional point off the grid may be established to represent them.
> The total number of transmitters assigned to the grid points and any
> additional points must equal the maximum number of transmitters
> specified to be in operation at one time on each channel or
> subchannel.
>
> Next, the total EIRP to be assumed for each regional class at each of
> the grid points or additional points for interference studies is
> calculated. This is done by converting the maximum EIRP for each
> regional class at each grid point or additional point, expressed in
> dBW, to Watts, multiplying by the number of simultaneously operating
> transmitters in the regional class assigned to that grid point or
> additional point, and converting the resulting power in Watts back to
> dBW. The values so calculated are the aggregate powers of all the
> response station transmitters of each regional class represented by
> each grid point or additional point.
>
> In a system using both polarizations, the response stations
> represented by each grid point are to be assumed to use the
> polarization of the response station hub antenna sector in which they
> are located. The appropriate plane-polarized or cross-polarized
> combined worst-case antenna pattern is to be used in interference
> studies depending upon the polarization of the station receiving
> interference. In a system using only one polarization, the effect of
> antenna sectors can be ignored and the choice between plane- and
> cross-polarization patterns made identically for all grid points with
> respect to any particular neighboring system.
>
> Finally, the aggregate power of each regional class at each grid point
> is used in conducting the required interference studies described in
> this section. For example, to determine that the ‑73 dBW/m^2^
> limitation is met, a field strength contour is calculated by first
> calculating a matrix of field strengths from each regional class at
> each grid point in the RSA in the region of the PSA or other boundary
> to be protected using an appropriate terrain-based propagation
> analysis tool (e.g. free space path loss plus reflection and multiple
> diffractions). The matrix represents an array of locations on a square
> grid separated by a short distance (no more than ½-mile). Once the
> matrix is calculated for each regional class at each grid point or
> additional point, the matrices are summed by first converting from
> dBW/m^2^ to W/m^2^, adding the field strength values from all regional
> classes at all grid points at each matrix point, and converting from
> W/m^2^ back to dBW/m^2^. The summed matrix is then used to route a
> contour by interpolating between matrix points. The contour so
> determined should not cross the boundary under consideration.
>
> Similar methods should be used in conducting the other interference
> studies required in this section. These include the
> desired-to-undesired (D/U) signal ratio studies for co-channel and
> adjacent channel interference. In all of these studies, the analysis
> should use the aggregate power of each regional class at each grid
> point or additional point, the worst case plane- or cross-polarized
> antenna pattern, as appropriate, for each regional class, with the
> antennas at each grid point aimed toward the response station hub, and
> the maximum antenna height above ground specified for each regional
> class at each grid point or additional point.

[^1]: A complete list of the Petitioners can be found in Appendix A.
    Petitioners filed their Petition for Rulemaking on March 14, 1997
    and it was placed on Public Notice March 31, 1997. \"Pleading Cycle
    Established for Comments on Petition for Rulemaking to Amend Parts
    21 and 74 of the Commission\'s Rules to Enhance the Ability of
    Multipoint Distribution Service and Instructional Television Fixed
    Service Licensees to Engage in Fixed Two-Way Transmissions,\"
    *Public Notice* RM 9060, DA 97-637 (rel. March 31, 1997.) Numerous
    parties filed comments on May 14, 1997 and reply comments were filed
    on May 29, 1997. A complete list of commenters and reply commenters
    is also found in Appendix A.

[^2]: The complete text of all of the proposed rule changes is contained
    in Appendix C. As discussed in the text, we propose to adopt some of
    Petitioners\' suggestions, modify some, and reject others. We also
    note here that the proposed rule changes of both MDS and ITFS are
    complimentary and basically the same. By this proceeding, we seek
    comment on all the proposed rules set out in Appendix C.

[^3]: *See* *Report and Order on Amendment of Parts 21 and 74 of the
    Commission\'s Rules With Regard to Filing Procedures in the
    Multipoint Distribution Service and in the Instructional Television
    Fixed Service and Implementation of Section 309 (j) of the
    Communications Act - Competitive Bidding,* MM Docket No. 94-131 and
    PP Docket No. 92-253, 10 FCC Rcd 9589, 9619 (1995) (\"*MDS Auction
    Order*\"); 47 C.F.R. § 21.903(b).

[^4]: Commenter Catholic Television Network (\"CTN\") has proposed that,
    rather than proceed with the instant rulemaking, we pursue a
    negotiated rulemaking procedure and convene a federal advisory
    committee to evaluate Petitioners\' proposals and work out the most
    efficient method to implement them. CTN claims that this would
    provide substantial, useful information and facilitate the process
    initiated by the Petitioners. We believe that the instant rulemaking
    process will provide us with the information needed to adequately
    evaluate Petitioners\' proposals and we decline to adopt CTN\'s
    proposal for a negotiated rulemaking at this time. Should
    circumstances warrant, we reserve the right to revisit our decision
    on this issue at a later date.

[^5]: 47 C.F.R. § 74.932.

[^6]: 47 C.F.R § 74.902.

[^7]: *Digital Declaratory Ruling*, 11 FCC Rcd at 18840.

[^8]: *Wireless Cable Investor*, at 9 (Dec. 31. 1996).

[^9]: *1996 Competition Report* at 4388.

[^10]: *See, e.g.,* \"Wireless Cable Futures,\" *Wireless Cable
    Investor*, at 8 (Dec. 31, 1996); Tedesco, \"Cable Modems Move from
    Concept to Reality,\" *Broadcasting and Cable*, at 106 (Dec. 9,
    1996).

[^11]: Breznick, \"Data from Outer Space,\" *Cable World*, at 53 (Dec.
    9, 1996).

[^12]: *1996 Competition Report* at 4393 and 4406.

[^13]: *See* \"Background on Clinton-Gore Administration\'s
    Next-Generation Internet Initiative: Qs and As on Next-Generation
    Internet Initiative,\" *Office of the Vice President*, at 4 (rel.
    Oct 10, 1996); Remarks of Chairman Reed Hundt, Technology and
    Learning Conference, National School Board Association, Dallas,
    Texas (October 24, 1996).

[^14]: *Telecommunications Act of 1996,* P.L. 104-104, 110 Stat 56
    (1996).

[^15]: *See, e.g.,* 47 C.F.R. 21.903(b); *MDS Auction Order*, 10 FCC Rcd
    at 9619.

[^16]: *Amendment of Parts 1, 2, 21, and 43 of the Commission\'s Rules
    and Regulations to Provide for Licensing and Regulation of Common
    Carrier Radio Stations in the Multipoint Distribution Service*, 45
    FCC 2d 616, 617 (1974) (\"*MDS Order*\").

[^17]: *See, e.g., Amendment of Parts 21 and 74 of the Commission\'s
    Rules With Regard to Filing Procedures in The Multipoint
    Distribution Service and in the Instructional Television Fixed
    Service*, 10 FCC Rcd 13821, 13825 (1995).

[^18]: *See* \"The Mass Media Bureau Implements Policy for Provision of
    Internet Service on MDS and Leased ITFS Frequencies,\" *Public
    Notice*, DA 96-1720 (rel. Oct. 17, 1996).

[^19]: *See* Applications of Atlantic Microsystems, Inc., File Nos.
    BMDP-9701115KI through BMDP-970115KM (granted Jan. 27, 1997).

[^20]: ISTA also argues that adoption of the proposed rule changes would
    be akin to fraud, breach of contract, and unconstitutional taking of
    property. ISTA bases its claims on the assertion that Interactive
    Video and Data Service (\"IVDS\") operators obtained at auction a
    monopoly to provide certain two-way services that other providers,
    *i.e.* MDS and ITFS licensees, could not. However, two-way service
    by MDS and ITFS operators was publicly discussed and permitted
    before the IVDS auction took place in 1994. *See, e.g., MDS Order,*
    45 FCC 2d at 617. Furthermore, the Commission has never promised the
    claimed monopoly and ISTA has not cited to any Commission
    pronouncements that established the claimed monopoly. Therefore, we
    reject ISTA\'s claims on this issue.

[^21]: Uniform energy dispersion is a requirement for interim digital
    operations pursuant to the *Digital Declaratory Ruling*.

[^22]: Out-of-band analog emission limitations for MDS and ITFS stations
    are set out at § 21.908(b) and § 74.936(b) of the Commission\'s
    Rules, and require that such emissions be suppressed at least 38 dB
    relative to the peak visual carrier at the channel edges and have a
    uniformly sloping attenuation from this level to 60 dB at 1 MHz
    below the lower band edge of the 6 MHz channel and 0.5 MHz above the
    upper band edge of the 6 MHz channel. All out-of-band emissions
    above or below these limits must be attenuated a minimum of 60 dB
    below the peak visual carrier.

[^23]: The effect of this requirement would be to permit equipment
    operating in subchannels away from the edges of a 6 MHz channel to
    have very low suppression of emissions which fall outside of the
    subchannel, so long as the suppression was great enough to meet the
    overall limits at the edges of the 6 MHz channel and beyond. Only
    equipment operating on subchannels near either edge of the 6 MHz
    channel would need significant suppression of out-of-band emissions
    (and then only in one direction) in order to meet the overall 6 MHz
    suppression requirements.

[^24]: A radiated field magnitude with uniform power flux density would
    be expressed in terms of watts per unit area per unit bandwidth,
    *e.g.*, dBW/m^2^/Hz.

[^25]: In the *Digital Declaratory Ruling*, we specified a resolution
    bandwidth of 100 kHz. 11 FCC Rcd at 18854.

[^26]: *See* proposed §§ 21.909(l) and 74.939(l).

[^27]: *See, e.g.*, 47 C.F.R. §§ 21.120 and 74.938.

[^28]: We recently have proposed to streamline the equipment
    authorization program, and combine the type acceptance and
    certification programs into a common procedure referred to as
    \"certification.\" *Amendment of Parts 2, 15, 18 and Other Parts of
    the Commission\'s Rules to Simplify and Streamline the Equipment
    Authorization Process for Radio Frequency Equipment, Notice of
    Proposed Rulemaking* in ET Docket No. 97-94, FCC 97-84 (released
    March 27, 1997). Thus, equipment approval requirements for boosters
    and response station transmitters would follow any revised
    procedures that we adopt in that proceeding.

[^29]: *See Rulemaking To Amend Parts 1, 2, 21, and 25 of the
    Commission\'s Rules to Redesignate the 27.5-29.5 GHz Frequency Band,
    To Reallocate the 29.5-30.0 GHz Frequency Band, To Establish Rules
    and Policies for Local Multipoint Distribution Service and for Fixed
    Satellite Services, Second Report and Order, Order on
    Reconsideration, and Fifth Notice of Proposed Rulemaking* in CC
    Docket No. 92-297 and PP-22, FCC 97-82 (released March 13, 1997)
    (hereinafter *LMDS Second Report and Order*).

[^30]: *Second Memorandum Opinion and Order and Notice of Proposed
    Rulemaking* in WT Docket No. 97-192, ET Docket No. 93-62, and
    RM-8577, FCC 97-303 (released August 25, 1997).

[^31]: *See Digital Declaratory Ruling*, 11 FCC Rcd at 18847, 18865.

[^32]: *Id*. at 18848.

[^33]: 47 C.F.R. § 21.905(b).

[^34]: *See* proposed Sections 21.909(j) and 74.939(j).

[^35]: *Digital Declaratory Ruling*, 11 FCC Rcd at 18848-49.

[^36]: *See* *Digital Declaratory Ruling*, 11 FCC Rcd at 18848 n.31.

[^37]: We find that we do not currently have adequate information to
    evaluate Pace\'s proposal to use FSK modulation in this proceeding.

[^38]: For this calculation, as well as all others proposed by
    Petitioners, the maximum level of field permitted would be adjusted
    to account for the actual bandwidth in use, *e.g.,* -73 dBW/m^2^ for
    6 MHz channels and -89.8 dBW/m^2^ for 125 kHz channels or
    subchannels. A similar adjustment is necessary in the calculation of
    the field strengths in connection with the 45 dB and 0 dB cochannel
    and adjacent protection ratios. All of these adjustments are needed
    in order to properly account for the spectral flux density of the
    particular signals being considered.

[^39]: Cellularization, in this context, is similar to the well known
    cellular telephone system, in that large numbers of low power
    transmitters and localized receivers permit efficient spectrum
    reuse. Booster stations could serve relatively small geographical
    areas and could use directional, rather than omnidirectional,
    antennas to achieve sectoring, *i.e*., the simultaneous transmission
    of the same channel in several different directions with different
    information in each direction.

[^40]: *See,* Appendix D.

[^41]: All response station transmitter antennas are assumed to be
    oriented towards the associated response hub station. The worst-case
    antenna pattern would be derived by combining the azimuthal (both
    plane and cross-polarized) radiation patterns of all antennas in use
    at response stations within a class in such a way that the resulting
    pattern represents, in all azimuthal directions, the lowest
    suppression of side lobes present in any of the antennas being
    combined. Thus, the boresight main lobe of the worst-case pattern
    may originate with one antenna, while the sidelobes of the
    worst-case pattern may result from one or more other antennas. In
    this way, the worst-case pattern will always be more conservative
    than what would result from the use of any single pattern.

[^42]: For a circular RSA of radius 5 miles (circumference = 31.4 miles)
    a minimum of 69 points would be required. Alternatively, Petitioners
    suggest that measurements be taken every 5 degrees around the
    measurement line, as measured from the response station hub
    location, if that would yield a larger number of points.

[^43]: For this calculation, a single station at each grid point would
    be assumed having the combined worst-case antenna pattern, the
    highest EIRP and the highest antenna of any class of station at that
    grid point.

[^44]: It should be noted that, due to the sub- and superchannelization
    proposals by Petitioners, the aggregation of power from response
    stations, as well as booster and primary stations, must take into
    account the bandwidths of the individual stations being aggregated.
    For example, if one booster station utilized a 24 MHz bandwidth and
    a second booster used 6 MHz of that 24 MHz, then the aggregated
    power would be one value over an 18 MHz bandwidth and a higher value
    over the re-used 6 MHz bandwidth. In an environment with hundreds,
    or thousands, of stations transmitting and receiving with a complex
    mixture of sub- and superchannels and high frequency reuse, the
    number of combinations of frequency overlap will be enormous. This
    situation also reinforces the need for uniform spectral power flux
    density within digital signals so that a simple additive process can
    be used for combining radiated fields, as Petitioners suggest,
    wherein the flux in dBW is converted to Watts for each field, then
    fields are then added together, and the result then reconverted to
    dBW.

[^45]: *See* 47 C.F.R. §§ 21.902(b)(2), 21.938(d), and 21.939.

[^46]: *Amendment of Parts 21, 74 and 94 of the Commission\'s Rules and
    Regulations with regard to the technical requirements applicable to
    the Multipoint Distribution Service, the Instructional Fixed
    Television Service and the Private Operational-Fixed Microwave
    Service (OFS)*, 98 FCC 2d 68, 93 (1984).

[^47]: *See* Comments of CTN, Dallas Community College District, *et
    al.* (\"Dallas\"), Northeastern University (\"Northeastern\"), Pace,
    ComSpec Corporation (\"ComSpec\"), Arizona State Board of Regents,
    *et al.* (\"Arizona\") and the Archdiocese of Los Angeles
    (\"Archdiocese\").

[^48]: 47 C.F.R. § 1.46.

[^49]: *Citing Amendment of Parts 1, 21, 22, 74, and 94 of the
    Commission\'s Rules to Establish Service and Technical Rules for
    Government and non-Government Fixed Service Usage of the Frequency
    Bands 932-935 MHz and 941-944 MHz,* 4 FCC Rcd 2012, 2014 (1989). We
    note that the case cited by Petitioners does not deal with an
    automatic grant system, but does deal with a system whereby the
    Commission adopted a one-week filing period for initial applications
    that was then converted into a rolling one-day filing window system.

[^50]: For existing requirements for MDS licensees to provide
    common-carrier service, *see* 47 C.F.R. § 21.903.

[^51]: However, in an explanatory note to Petitioners\' revised
    proposal, Petitioners state that proposed changes to Section
    74.902(d)(1) are intended to have the effect that \"the
    Commission\'s restriction on the number of ITFS channels normally
    available to a licensee only governs the 6 MHz channels, and does
    not include the 125 kHz channels.\" Regardless of what Petitioners
    intend, we clarify the proposed changes to Section 74.902(d)(1) to
    provide that an ITFS licensee is limited to the assignment of no
    more than four 6 MHz and four 125 kHz channels for use in a single
    area of operation.

[^52]: *See* 47 C.F.R. § 74.931.

[^53]: 47 C.F.R. § 74.931(a)(1).

[^54]: 47 C.F.R. § 74.931(e)(9).

[^55]: *MDS Auction Order*, 10 FCC Rcd at 9594.

[^56]: *Amendment of Part 74 of the Commission\'s Rules Governing Use of
    the Frequencies in the Instructional Television Fixed Service,
    Report and Order*, 9 FCC Rcd 3360, 3364 (1994) (*\"ITFS Channel
    Loading Order\"*). We have elaborated previously that wireless cable
    strengthens ITFS significantly by providing a source of funds to
    promote the educational purposes of ITFS, even if educational
    programming is not transmitted on all ITFS channels. *Id.* We also
    have agreed that the 20 hours per channel per week ITFS programming
    standard for licensees leasing excess capacity helps to insure that
    ITFS licenses are not secured merely to realize financial gain from
    wireless cable operators. *Amendment of Parts 21, 43, 74, 78, and 94
    of the Commission\'s Rules Governing Use of the Frequencies in the
    2.1 and 2.5 GHz Bands Affecting: Private Operational-Fixed Service,
    Multipoint Distribution Service, Multichannel Multipoint
    Distribution Service, Instructional Television Fixed Service, &
    Cable Television Relay Service, Order on Reconsideration*, 6 FCC Rcd
    6764, 6773-74 (1991) (\"*Wireless Cable Reconsideration Order*\").
    *See Amendment of Part 74 of the Commission\'s Rules Governing Use
    of the Frequencies in the Instructional Television Fixed Service,
    Notice of Proposed Rulemaking*, 8 FCC Rcd 2828, 2829 (1993) (\"*ITFS
    Channel Loading NPRM*\").

[^57]: *Amendment of Part 74 of the Commission\'s Rules and Regulations
    in Regard to the Instructional Television Fixed Service, Second
    Report and Order (Proceeding Terminated)*, 101 FCC 2d 49, 87 (1985)
    (\"*Second Report and Order in MM Docket No. 83-523*\"); *see also
    Memorandum Opinion and Order*, 59 RR 2d 1355, 1393 (1986).

[^58]: 11 FCC Rcd at 18873.

[^59]: *See id*. The petitioners in that proceeding conceded that an
    interim ruling would not prejudice any rules that might ultimately
    be adopted establishing the recapture rights of ITFS licensees with
    respect to the increased capacity made available by digital
    compression. *Id*. at 18872-73.

[^60]: Thus, we also reject the assumption expressed by Arizona that the
    rules adopted in this proceeding are not intended to foreclose, and
    are subject to the outcome of, our consideration of a separate
    petition for declaratory ruling on ITFS programming requirements
    filed by the National ITFS Association (\"NIA\"). As we decided in
    the *Digital Declaratory Ruling*, this rulemaking proceeding is the
    appropriate forum for consideration of these issues.

[^61]: Commenters addressing this question should also address how to
    resolve the scenarios where licensees employ digital operations on
    one or more, but not necessarily all, of their authorized channels,
    and where licensees switch from analog to digital and digital to
    analog modulation among channels and on the same channel. In the
    *Digital Declaratory Ruling*, we allowed licensees to play out these
    scenarios. *Digital Declaratory Ruling*, 11 FCC Rcd at 18865.

[^62]: This latter question also implicates questions of the role that
    the Commission should have in protecting ITFS licensees in lease
    negotiations with wireless cable operators. *See* ¶ 85, *infra*.

[^63]: If an increase in ready recapture time is deemed appropriate,
    what should be the notification period to the wireless cable
    operator in order for the ITFS licensee to exercise its recapture
    rights? Commenters addressing this latter question should discuss
    whether the six month, reduced notification where channel loading is
    employed suffices,

    and what impact it would have in a system of widespread channel
    shifting and swapping.

[^64]: *Cf. Second Report and Order in MM Docket No. 83-523*, 101 FCC 2d
    at 87 n.43: \"It is notable that compliance with these \[day-of-week
    programming\] standards is further eased by the expansion of the
    definition of \"permissible use\" programming which will meet this
    qualification.\"

[^65]: *See Wireless Cable Reconsideration Order*, 6 FCC Rcd at 6774
    (allowing the use of channel mapping technology); *ITFS Channel
    Loading Order*, 9 FCC Rcd 3360 (allowing the use of channel loading,
    which is the functional equivalent of channel mapping but more cost
    efficient).

[^66]: 9 FCC Rcd at 3365.

[^67]: *ITFS Channel Loading Order*, 9 FCC Rcd at 3368. In the *ITFS
    Channel Loading NPRM*, we had proposed to authorize channel loading
    \"for between three and five years, until digital compression
    technology is a viable alternative, technologically and
    economically.\" 8 FCC Rcd at 2831.

[^68]: Noting the comments of ComSpec regarding response hub
    interference protection, the Foundation surmises that certain
    frequencies will be permanently assigned to upstream use on a
    region-wide basis, and thus will be unavailable for future
    downstream use.

[^69]: Section 21.913(a) as proposed by Petitioners contains a provision
    that \"\[n\]o booster station may be authorized for the reuse of
    channels authorized to an MDS station without the written consent of
    the licensee of the station whose channels are reused.\" In specific
    response to concerns expressed by HITN and the DLA ITFS Parties
    regarding operation of low power boosters on the ITFS channels by
    wireless cable operators after expiration or termination of their
    lease agreements with ITFS licensees, we propose to replicate that
    provision in Section 74.985(a)

    and apply it to the reuse of channels authorized to an ITFS station.

[^70]: *Cf. ITFS Channel Loading Order*, 9 FCC Rcd at 3367 (reminding
    ITFS licensees that channel loading is permissive only, and not
    mandatory). In light of our intentions that cellularization not be
    mandatory for ITFS licensees, we ask that parties consider ITF\'s
    request that we prevent the filing of involuntary modification
    applications that jeopardize existing and future instructional
    service. Specifically, is abuse of this mechanism upon
    implementation of two-way digital services anticipated? Should we
    restrict the scope of Section 74.986 of the Commission\'s Rules to
    involuntary modifications that are consistent with downstream
    transmissions only? In speculating as to how this mechanism may be
    utilized in a two-way environment, commenting parties may also
    recount the extent to which it is currently employed.

[^71]: *ITFS Channel Loading Order*, 9 FCC Rcd at 3366.

[^72]: The Commission previously has stated that ready recapture time
    \"is the primary means of providing the capacity to meet expanding
    needs.\" *Second Report and Order in MM Docket No. 83-523*, 101 FCC
    2d at 90 n.46.

[^73]: *Report and Order* in Gen. Docket No. 90-54, 5 FCC Rcd 6410, 6411
    (1990).

[^74]: *Second Report and Order*, 101 FCC 2d at 90-91.

[^75]: For example, the Foundation states that on more than one
    occasion, its wireless cable operator asked it to sign \"no
    objection\" letters to technical proposals from adjacent markets the
    same operator was developing, only to discover that the proposals
    produced \"serious levels of predicted interference.\" The
    Foundation also asserts that \"at times operators simply do not
    fulfill their lease commitments\" and that \"ITF can attest from
    direct experience that more than one of today\'s prominent,
    publicly-held wireless cable companies has nakedly ignored
    contractual commitments.\"

[^76]: *Second Report and Order*, 101 FCC 2d at 91.

[^77]: *See Turner Independent School District*, 8 FCC Rcd 3153, 3155
    (1993).

[^78]: *Digital Declaratory Ruling*, 11 FCC Rcd at 18868.

[^79]: Noting that many of the parties which filed comments in the
    initial round of this proceeding are ITFS entities, SWM requested an
    early Fall comment date in light of the academic schedules which
    predominate amongst these entities. The comment period that we
    establish here, therefore, should enhance the ability of ITFS
    entities to file carefully considered comments and reply comments.

[^80]: ^m^ ^mmm^ *See* 5 U.S.C. § 603. The RFA, *see* 5 U.S.C. § 601
    *et. seq*., has been amended by the Contract With America
    Advancement Act of 1996, Pub. L. No. 104-121, 110 Stat. 847 (1996)
    (CWAAA). Title II of the CWAAA is the Small Business Regulatory
    Enforcement Fairness Act of 1996 (SBREFA).

[^81]: ^n^ ^nnn^ 5 U.S.C. § 601(6).

[^82]: ^o^ ^ooo^ 5 U.S.C. § 601(3) (incorporating by reference the
    definition of \"small business concern\" in 15 U.S.C. § 632).
    Pursuant to 5 U.S.C. § 601(3), the statutory definition of small
    business applies unless an agency after consultation with the Office
    of Advocacy of the Small Business Administration and after an
    opportunity for public comment, establishes one or more definitions
    of such term which are appropriate to the activities of the agency
    and publishes definitions in the Federal Register.

[^83]: ^p^ ^ppp^ Small Business Act, 15 U.S.C. § 632.

[^84]: ^q^ ^qqq^ 47 C.F.R. § 21.961(b)(1).

[^85]: ^r^ ^rrr^ *See* *Amendment of Parts 21 and 74 of the
    Commission\'s Rules With Regard to Filing Procedures in the
    Multipoint Distribution Service and in the Instructional Television
    Fixed Service and Implementation of Section 309(j) of the
    Communications Act - Competitive Bidding,* MM Docket No. 94-31 and
    PP Docket No. 93-253, Report and Order, 10 FCC Rcd 9589 (1995).

[^86]: ^s^ ^sss^ One of these small entities, O\'ahu Wireless Cable,
    Inc., was subsequently acquired by GTE Media Ventures, Inc., which
    did not qualify as a small entity for purposes of the MDS auction.

[^87]: ^t^ ^ttt^ 13 C.F.R. § 121.201.

[^88]: ^u^ ^uuu^ *See* 5 U.S.C. §§ 601 (3)-(5).

[^89]: ^v^ ^vvv^ *See* 13 C.F.R. § 121.210 (SIC 4833, 4841, and 4899).

[^90]: ^w^ ^www^ *See, e.g.*, 47 C.F.R. § 21.911.