Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+---+------------------------------+
| In the Matter of                 | * | ET Docket No. 98‑206         |
|                                  | * |                              |
| Amendment of Parts 2 and 25 of   | ) | RM‑9147                      |
| the Commission's Rules to Permit | * |                              |
| Operation of NGSO FSS Systems    | * | RM‑9245                      |
| Co‑Frequency with GSO and        |   |                              |
| Terrestrial Systems in the       | * |                              |
| Ku‑Band Frequency Range;         | * |                              |
|                                  | ) |                              |
| Amendment of the Commission's    | * |                              |
| Rules to Authorize Subsidiary    | * |                              |
| Terrestrial Use of the           |   |                              |
| 12.2‑12.7 GHz Band by Direct     | * |                              |
| Broadcast Satellite Licensees    | * |                              |
| and Their Affiliates; and        | ) |                              |
|                                  | * |                              |
| Applications of Broadwave USA,   | * |                              |
| PDC Broadband Corporation, and   |   |                              |
| Satellite Receivers, Ltd. to     | * |                              |
| Provide a Fixed Service in the   | * |                              |
| 12.2‑12.7 GHz Band               | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | \ |                              |
|                                  | ) |                              |
|                                  | \ |                              |
|                                  | ) |                              |
|                                  | \ |                              |
|                                  | ) |                              |
|                                  | \ |                              |
|                                  | ) |                              |
|                                  | \ |                              |
|                                  | ) |                              |
|                                  | \ |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
+----------------------------------+---+------------------------------+

> **SECOND FURTHER NOTICE OF PROPOSED RULE MAKING**
>
> **Adopted:** April 10, 2003 **Released:** April 15, 2003
>
> By the Commission:

Table of Contents

Heading Paragraph \#

I. INTRODUCTION and executive summary 1

II\. background 2

III\. discussion 8

A. Service Area 8

B. Build Out Requirement 16

C. Impact on Competitive Bidding 18

IV\. PROCEDURAL MATTERS 19

A. Initial Regulatory Flexibility Analysis 19

B. *Ex Parte* Rules -- Permit-But-Disclose Proceedings 21

C. Comment Dates 22

D. Further Information 27

V. ORDERING CLAUSES 29

APPENDIX A: INITIAL REGULATORY FLEXIBILITY ANALYSIS

APPENDIX B: PROPOSED RULES

Appendix C: Nielsen Letter

# INTRODUCTION and executive summary

1.  In this *Second Further Notice of Proposed Rule Making (Second
    Further Notice)*, we seek further comment on the appropriate service
    area definition for the Multichannel Video Distribution and Data
    Service (MVDDS) in the 12.2-12.7 GHz band (12 GHz band).
    Specifically, we seek comment on the most appropriate service area
    definition for the geographic licensing of MVDDS. We also seek
    comment on whether Designated Market Areas (DMAs) will facilitate
    delivery of advanced wireless services, such as video and data
    broadband services, to a wide range of populations, including those
    areas that are unserved and underserved. In addition, we seek
    comment on whether we should modify the MVDDS build out requirement
    as a means to foster expeditious deployment of advanced wireless
    services, such as video and data broadband services, to these
    communities as well.

# background

2.  In the *First Report and Order* in this proceeding, the Commission
    concluded that MVDDS could operate in the 12 GHz band on a
    co-primary non-harmful interference basis with incumbent Broadcast
    Satellite Service providers and on a co-primary basis with entities
    providing non-geostationary satellite orbit fixed-satellite
    services.[^1] At the same time, in the *Further Notice,* the
    Commission sought comment on service, technical, and licensing rules
    for the MVDDS, including but not limited to, the appropriate service
    area definition.[^2]

3.  In the *Second R&O,* the Commission adopted a geographic licensing
    approach for the service.[^3] In addition, the Commission decided to
    define the service areas for the MVDDS based on Component Economic
    Areas (CEAs).[^4] In reaching its decision to use CEAs, the
    Commission noted that it declined to use Nielsen Media Research's
    DMAs[^5], despite support in the record for such use,[^6] in part
    because Nielsen, the copyright owner of the DMA listing, had not
    given the Commission a blanket license to use the listing for the
    MVDDS.[^7] Thus, the Commission reasoned that absent a copyright
    license (through a blanket license agreement or some other
    arrangement) from Nielsen for use of the copyrighted material, a
    MVDDS licensee could not rely on the grant of a Commission
    authorization as a defense to any claim of copyright infringement
    brought by Nielsen. Consequently, the Commission concluded that
    economic benefits would accrue to MVDDS licenses from the
    establishment of a geographic licensing approach premised on service
    areas in the public domain.[^8]

4.  With respect to its decision to use CEAs, the Commission noted that
    adopting CEAs would provide similar benefits as DMAs, but would
    better promote its objectives and address commenters' concerns.[^9]
    Specifically, the Commission premised its decision on three factors.
    First, the smaller CEA service areas would better track actual
    deployment of fixed services. Second, CEAs would encourage rapid
    service deployment to less populated and rural regions because they
    will permit additional opportunities for small businesses to provide
    MVDDS. Third, the use of CEAs would encourage the meaningful
    participation of small businesses better than a nationwide or
    regional geographic licensing approach because the smaller areas
    would likely require a lower minimum investment. Further, the
    Commission noted that for those seeking a regional or national
    footprint, the use of CEAs would not prevent them from aggregating
    areas to create such larger networks.[^10]

5.  Subsequent to the release of the *Second R&O*, Commission staff
    continued discussions with Nielsen representatives regarding a
    blanket licensing agreement or some other arrangement by which
    Nielsen would consent to the Commission's use of the DMA listing in
    the MVDDS context.[^11] Although Nielsen does not wish to enter into
    a blanket license agreement with the Commission regarding use of
    DMAs for licensing MVDDS,[^12] it now appears that Nielsen would
    agree to extend a perpetual, royalty-free license to the Commission
    with certain conditions as discussed *infra.*[^13]

6.  On January 30, 2003, the Wireless Telecommunications Bureau (Bureau)
    sought comment on reserve prices, minimum opening bids, and other
    auction procedures regarding an MVDDS auction.[^14] The *Auction PN*
    sought comment on these issues as they would apply to an MVDDS
    auction based on either CEAs or DMAs in order to minimize any delay
    in the auction process resulting from a change in geographic license
    areas.[^15]

7.  On March 25, 2003, MDS America, Inc. (MDS America) filed an *ex
    parte* notification (*ex parte*) which describes its continued
    concern about the current build out requirements for the MVDDS.[^16]
    In the *Second R&O*, the Commission determined that it would apply a
    ten-year build out requirement with a demonstration of substantial
    service by the MVDDS licensee as the basis for its license renewal
    expectancy.[^17] In its ex parte, MDS America indicated that the
    current ten-year build out period for MVDDS licenses is too long. It
    also expressed concern that the build out requirement presented the
    potential for anti-competitive warehousing of the MVDDS spectrum. It
    noted that a five-year build out would better address the demand for
    rural broadband service.

# discussion

## Service Area

8.  Based on the differing responsive comments to the *Auction PN*
    received from Northpoint Technology, Ltd. (Northpoint)[^18] and MDS
    America,[^19] and our belief that initially MVDDS licensees will
    provide multichannel video programming distribution (MVPD) services,
    we take this opportunity to initiate this *Second Further Notice.*
    Based on the record in this proceeding, we continue to believe that
    initially MVDDS licensees will provide multichannel video
    distribution of local television programs and high-speed Internet
    access in the MVPD marketplace. Consequently, we believe that
    licensees will require ubiquitous coverage within their geographic
    service areas to compete.[^20] We also continue to believe that with
    the exception of the Direct Broadcast Satellite Service, most MVPD
    service remains local or regional service. We also recognize that
    generally, licensees deploy fixed services, such as high-speed
    Internet access, on a localized basis.

9.  Against this backdrop, we note that the absence of a blanket license
    agreement with Nielsen regarding the use of the DMA listing for the
    MVDDS was a significant decisional factor in the Commission's
    previous decision to forego using DMAs as the service area
    definition for MVDDS.[^21] Absent such license or other formal
    agreement, the Commission reasoned that establishing a designation
    that was in the public domain would be more appropriate for the
    MVDDS.[^22] Consequently, the Commission adopted CEAs \-- a service
    area definition that would provide similar benefits as DMAs, but
    without the copyright concerns.[^23]

10. In a letter received on March 26, 2003,[^24] counsel for Nielsen
    stated that Nielsen would agree to extend a perpetual, royalty-free
    license to the Commission, without the right to sublicense, to
    "Nielsen Media Research's DMA market and regions,"[^25] provided
    that the Commission:

    \(i\) agrees, and continues to communicate to prospective MVDDS
    suppliers, that a territorial license from the Commission to supply
    MVDDS does not confer the right to use Nielsen Media Research's DMA
    mark, regions or data, and that such right must be obtained from
    Nielsen Media Research on such terms as may be mutually acceptable
    to Nielsen Media Research and the supplier, in their sole and
    respective discretion, and (ii) does not republish DMA regions or
    data in any statute, regulation or rule or otherwise.[^26]

11. We are concerned that Nielsen's conditions on the use of DMAs may
    unduly limit the business plans and opportunities for MVDDS
    licensees. By its most recent letter, Nielsen makes it clear that it
    is unwilling to consent to allowing the Commission's MVDDS licensees
    use the DMA mark, regions or data in their MVDDS business without an
    individual license from Nielsen.[^27] Thus, it does not appear that
    the license Nielsen described would give Commission licensees
    sufficient flexibility to make practical use of the DMA designation
    in connection with their MVDDS operations. Additionally, although
    the Commission could cross-reference DMAs in its rules, Nielsen's
    limitations may interfere with our enforcement flexibility, since
    Nielsen does not want us to \"republish DMA regions or data in any
    statute, regulation or rule or otherwise.\"[^28] We seek comment on
    whether the conditions described by Nielsen are so restrictive that
    use of DMAs would be of limited utility.

12. While we do not prejudge the type of services licensees will offer
    in the 12 GHz band, we nonetheless believe that it is appropriate to
    adopt a service area definition that will afford MVDDS licensees the
    opportunity to provide a wide array of services. Based on the record
    in this proceeding, we believe that utilizing DMAs could be more
    effective in this regard. DMAs, as compared to CEAs, provide a
    better method to delineate television markets based on viewing
    patterns.[^29] In addition, MVDDS licensees may find it easier to
    compete with cable if our regulatory structure makes it easier for
    MVDDS licensees to organize their systems by DMAs. Northpoint has
    argued that cable systems are organized along these lines, and a
    compulsory copyright license is available for retransmitting local
    television broadcast stations within DMAs.[^30] It appears that the
    definition of \"cable system\" for purposes of rebroadcasting
    television programming under the compulsory copyright licensing
    provisions of the Copyright Act are quite broad and may extend to
    MVDDS licensees.[^31] We ask for comment on this possibility and
    whether MVDDS systems must be organized along DMA lines in order to
    gain the same type of benefits that are available to cable providers
    under the compulsory license. In addition, it appears that MVDDS
    licensees with service offerings involving the delivery of
    television programming may find the use of DMAs to be
    administratively easier due to the close nexus between the
    television viewer market areas as determined by the DMA delineation
    and the proposed use of the service. We ask for specific comment on
    any such administrative benefits and on any other additional
    economic benefits that may flow from the use of a DMA service area.

13. As to other uses, including fixed services, we believe that DMAs and
    CEAs are equally advantageous because they are both local in nature.
    While we recognize that CEAs are smaller than DMAs, we continue to
    believe that DMAs, which are county-based, provide a viable option
    in facilitating local access to cable, non-cable, and MVDDS service
    offerings.[^32] Consequently, we believe that both DMAs and CEAs
    would encourage rapid service deployment in unserved or underserved
    areas and encourage meaningful participation by small businesses.
    Additionally, entities desiring a national footprint, may aggregate
    either DMAs or CEAs to create such larger networks.

14. In conclusion, DMAs, as opposed to CEAs, may provide a better method
    of delineating service areas for those who seek to provide MVPD
    service offerings involving the retransmission of broadcast
    programming. In addition, DMAs may allow MVDDS licensees to compete
    more vigorously with cable systems who generally have a royalty-free
    statutory copyright license to retransmit local TV programming
    within the DMA of the station being rebroadcast.[^33] In addition,
    DMAs, as opposed to CEAs, may be administratively easier due to the
    close nexus between the television viewer market areas as determined
    by the DMA delineation and the proposed use of the service. However,
    as noted above, Nielsen's limitations on the use of DMAs may
    constrain both the Commission's and licensees use of DMAs. Thus, we
    seek comment on the appropriate service area designation for MVDDS.

15. In the event that we ultimately adopt a licensing system based on
    DMAs for the MVDDS, we propose to license MVDDS based on 214 service
    areas. Specifically, we would utilize the 210 DMAs delineated by
    Nielsen in its publication entitled \"U.S. Television Household
    Estimates\" dated September 2002. We also would include the
    following four FCC‑defined service areas: (1) Alaska ‑ Balance of
    State (all geographic areas of Alaska not included in Nielsen\'s
    three DMAs for the state: Anchorage, Fairbanks, and Juneau); (2)
    Guam and the Northern Mariana Islands; (3) Puerto Rico and the
    United States Virgin Islands; and (4) American Samoa. We seek
    comment on our proposals.

## Build Out Requirement

16. Given that we are revisiting the service area definition, we also
    take this opportunity to explore whether the current build out
    requirement sufficiently promotes expeditious deployment of service.
    We seek to ensure that we generate a complete record as to the best
    approach to fostering advanced wireless services to the various
    communities, particularly those communities that are traditionally
    unserved or underserved. As indicated earlier, the *Second R&O*
    establishes a ten-year build out requirement for the MVDDS licensees
    based on substantial service as a basis for a renewal expectancy.
    The Commission reasoned that given the complexity and contention
    surrounding the issues involving band sharing that a ten‑year build
    out period will provide ample time and flexibility for the MVDDS
    licensees to work with other service providers in the 12 GHz band as
    they determine the best method to deploy valuable services to the
    public. MDS America has expressed concern that a ten-year build out
    period for MVDDS licenses was too long given the potential for
    anti-competitive warehousing of spectrum in this service and the
    great demand for rural broadband service.[^34] Specifically, MDS
    America supports a five-year build out period, a requirement
    advocated by other commenters in this record.[^35]

17. We believe that this *Second Further Notice* is a good opportunity
    to seek additional comment on the practicality of the current build
    out requirement for this service. We, however, do not believe, nor
    has any party suggested that we should revisit the substantial
    service requirement. Rather, we seek limited comment on the timing
    of whether a ten-year build out requirement is optimal for fostering
    expeditious delivery of advanced wireless services to all
    communities, in particular communities that are traditionally
    unserved or underserved. In addition, we seek comment on whether a
    shorter build out requirement will facilitate more effective
    deployment of these services. If so, what is the appropriate
    benchmark for a build out requirement? For example, should the
    Commission consider a hybrid approach, requiring MVDDS licensees to
    submit a showing of service deployed, five years from license grant
    with an additional showing of substantial service by the tenth year.
    We also ask whether the substantial service requirement would be
    appropriate as a construction requirement some time earlier in the
    license term, as well as at the end of the license term. So instead
    of just meeting the substantial service requirement once at the end
    of the license term, the licensee would have to meet it twice - at
    year 10 to justify a renewal expectancy and at an earlier time to
    meet the license build-out requirement. We seek comment on these
    matters and any alternative proposals.

## Impact on Competitive Bidding

18. Currently, the auction of MVDDS licenses is scheduled to commence on
    June 25, 2003.[^36] Consequently, we are seeking comment on these
    issues in an expeditious manner in order not to unduly disrupt the
    auction process or the efforts that interested parties have
    undertaken in preparation for participating in such process.
    Accordingly, we also request comment on the potential impact on
    business plans if we change the service area designation or the
    build out requirement. Additionally, we invite comment on whether
    revising the service area definition or the build out requirement at
    this time is more likely to speed deployment of advanced services to
    consumers. Commenters also should discuss whether a change in the
    service areas at this time would adversely affect the Commission's
    objectives in establishing the licensing and service rules for the
    MVDDS. In this regard, we note that the Commission's expressed
    objectives were to provide a regulatory framework to encourage
    robust competition in the MVPD marketplace, provide opportunities
    for small businesses to provide niche services across the nation,
    encourage innovation and advances in MVDDS technology that will not
    only complement other MVPD offerings, but will expand those
    offerings.[^37]

# PROCEDURAL MATTERS

## Initial Regulatory Flexibility Analysis

19. As required by Section 603 of the Regulatory Flexibility Act, the
    Commission has prepared an Initial Regulatory Flexibility Analysis
    (IRFA) of the expected impact on small entities of the proposals
    suggested in this document.[^38] Appendix A contains the IRFA. We
    request written public comments on the IRFA. In order to fulfill the
    mandate of the Contract with America Advancement Act of 1996
    regarding the Final Regulatory Flexibility Analysis, we ask a number
    of questions regarding the prevalence of small businesses in the
    affected industries.

20. Interested parties must file comments in accordance with the same
    filing deadlines as comments filed in this *Notice*, but they must
    have a separate and distinct heading designating them as responses
    to the IRFA. The Commission's Consumer Information Bureau, Reference
    Information Center, SHALL SEND a copy of this *Notice*, including
    the IRFA, to the Chief Counsel for Advocacy of the Small Business
    Administration in accordance with Section 603(a) of the Regulatory
    Flexibility Act.[^39]

## *Ex Parte* Rules -- Permit-But-Disclose Proceedings

21. This is a permit-but-disclose notice and comment rule making
    proceeding. Our rules permit e*x parte* presentations, except during
    the Sunshine Agenda period, provided they are disclosed as provided
    in the Commission\'s rules. *See generally* 47 C.F.R. §§ 1.1202,
    1.1203, 1.2306(a).

## Comment Dates

22. Pursuant to Sections 1.415 and 1.419 of our Rules, interested
    parties may file comments on or before **7 days from the date of
    publication in the Federal Register** and reply comments on or
    before **14 days from the date of publication in the Federal
    Register**.[^40] Comments may be filed using the Commission\'s
    Electronic Comment Filing System (ECFS),
    <http://www.fcc.gov/e-file/ecfs.html>, or by filing paper
    copies.[^41]

23. Comments filed through the ECFS can be sent as an electronic file
    via the Internet to <http://www.fcc.gov/e-file/ecfs.html>.
    Generally, only one copy of an electronic submission must be filed.
    If multiple docket or rulemaking numbers appear in the caption of
    this proceeding, however, commenters must transmit one electronic
    copy of the comments to each docket or rulemaking number referenced
    in the caption. In completing the transmittal screen, commenters
    should include their full name, U.S. Postal Service mailing address,
    and the applicable docket or rulemaking number. Parties may also
    submit an electronic comment by Internet e-mail. To get filing
    instructions for e-mail comments, commenters should send an e-mail
    to ecfs@fcc.gov, and should including the following words in the
    body of the message, \"get form \<your e-mail address.\" A sample
    form and directions will be sent in reply.

24. Parties who choose to file by paper must file an original and four
    copies of each filing. If more than one docket or rule making number
    appear in the caption of this proceeding, commenters must submit two
    additional copies for each additional docket or rulemaking number.
    Filings can be sent by hand or messenger delivery, by commercial
    overnight courier, or by first-class or overnight U.S. Postal
    Service mail (although we continue to experience delays in receiving
    U.S. Postal Service mail). The Commissioner's contractor, Vistronix,
    Inc., will receive hand-delivered or messenger-delivered paper
    filings for the Commission's Secretary at 236 Massachusetts Avenue,
    N.E., Suite 110, Washington, D.C. 20002. The filing hours at this
    location are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held
    together with rubber bands or fasteners. Any envelopes must be
    disposed of before entering the building. Commercial overnight mail
    (other than U.S. Postal Service Express Mail and Priority Mail) must
    be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743. U.S.
    Postal Service first-class mail, Express Mail, and Priority Mail
    should be addressed to 445 12th Street, S.W., TW‑A325, Washington,
    D.C. 20554. All filings must be addressed to the Commissioner's
    Secretary, Office of the Secretary, Federal Communications
    Commission.

25. Parties who choose to file by paper should also submit their
    comments on diskette. Such a submission should be on a 3.5-inch
    diskette formatted in an IBM compatible format using Microsoft Word
    or compatible software. The diskette should be accompanied by a
    cover letter and should be submitted in "read only" mode. The
    diskette should be clearly labeled with the commenter's name,
    proceeding (including the lead docket number, type of pleading
    (comment or reply comment), date of submission, and the name of the
    electronic file on the diskette. The label should also include the
    following phrase "Disk Copy -- Not an Original." Each diskette
    should contain only one party's pleading, preferably in a single
    electronic file. In addition, commenters must send diskette copies
    to the Commission's copy contract, Qualex International, Portals II,
    445 12^th^ Street, SW., Room CY-B402, Washington, D.C. 20554,
    telephone 202-863-2893, facsimile 202-863-2898, or via e-mail
    <qualexint@aol.com>.

26. Alternative formats (computer diskette, large print, audio cassette
    and Braille) are available to persons with disabilities by
    contacting Brian Millin at (202) 418-7426, TTY (202) 418-7365 or via
    e-mail to [bmillin@fcc.gov](mailto:bmillin@fcc.gov/oet). This
    *Notice* can also be downloaded at
    [http://www.fcc.gov/wtb](http://www.fcc.gov/oet).

## Further Information

27. For further information concerning this *Notice of Proposed Rule
    Making*, contact Jennifer Burton, Public Safety and Private Wireless
    Division, Wireless Telecommunications Bureau at (202) 418-0680,
    email <jburton@fcc.gov>.

28. The World Wide Web addresses/URLs that we give here were correct at
    the time this document was prepared but may change over time. They
    are included herein in addition to the conventional citations as a
    convenience to readers. We are unable to update these URLs after
    adoption of this *Notice*, and readers may find some URLs to be out
    of date as time progresses. We also advise readers that the only
    definitive text of FCC documents is the one that is published in the
    FCC Record. In case of discrepancy between the electronic documents
    cited here and the FCC Record, the version in the FCC Record is
    definitive.

# ORDERING CLAUSES

29. IT IS ORDERED that the Commission's Consumer and Governmental
    Affairs Bureau, Reference Information Center, SHALL SEND a copy of
    this *Second Further Notice of Proposed Rule Making*, including the
    Initial Regulatory Flexibility Analysis, to the Chief Counsel for
    Advocacy of the Small Business Administration in accordance with
    Section 603(a) of the Regulatory Flexibility Act, 5 U.S.C. § 603(a).

30. IT IS FURTHER ORDERED, that pursuant to the authority contained in
    Sections 4, 4(i), 7, 303, 303(g), 303(r), 307 and 332(c)(7) of the
    Communications Act of 1934, as amended, 47 U.S.C. §§ 154, 154(i),
    157, 303, 303(g), 303(r), 307, this *Second Further Notice of
    Proposed Rule Making* IS ADOPTED.

    FEDERAL COMMUNICATIONS COMMISSION

    Marlene H. Dortch

    Secretary

# APPENDIX A: INITIAL REGULATORY FLEXIBILITY ANALYSIS {#appendix-a-initial-regulatory-flexibility-analysis .unnumbered}

1.  As required by the Regulatory Flexibility Act of 1980, as amended
    (RFA),[^42] the Commission has prepared this present Initial
    Regulatory Flexibility Analysis (IRFA) of the possible significant
    economic impact on a substantial number of small entities by the
    policies and rules proposed in this *Second Further Notice of
    Proposed Rule Making (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 in paragraph 124 of the item. The Commission will
    send a copy of this *Notice*, including this IRFA, to the Chief
    Counsel for Advocacy of the Small Business Administration
    (SBA).[^43] In addition, the *Notice* and IRFA (or summaries
    thereof) will be published in the Federal Register.[^44]

**Need for, and Objectives of, the Proposed Rule**

2.  In this *Notice*, we revisit the issues of the geographic licensing
    scheme for MVDDS and build-out requirements. In the *Second Report
    and Order*, the Commission adopted geographic license service areas
    for MVDDS on the basis of Component Economic Areas (CEAs). Based on
    the previously-established record in this proceeding, and on
    subsequent discussions between Commission staff and Nielsen
    representatives which indicate that, although Nielsen remains unable
    to enter into a formal agreement to allow the Commission to use its
    Designated Market Area (DMA) designation for the MVDDS service
    areas, Nielsen does not object to the Commission's use of DMAs in
    this manner, subject to certain parameters.[^45] Specifically, in a
    letter received on March 26, 2003,[^46] it appears that Nielsen
    would agree to extend a perpetual, royalty-free license to the
    Commission, without the right to sublicense, to its DMA mark and
    regions, provided that the Commission:

    \(i\) agrees, and continues to communicate to prospective MVDDS
    suppliers, that a territorial license from the Commission to supply
    MVDDS does not confer the right to use Nielsen Media Research's DMA
    mark, regions or data, and that such right must be obtained from
    Nielsen Media Research on such terms as may be mutually acceptable
    to Nielsen Media Research and the supplier, in their sole and
    respective discretion, and (ii) does not republish DMA regions or
    data in any statute, regulation or rule or otherwise.[^47]

3.  We are concerned that Nielsen's conditions on the use of DMAs may
    unduly limit the business plans and opportunities for MVDDS
    licensees. By its most recent letter, Nielsen makes it clear that it
    is unwilling to consent to allowing the Commission's MVDDS licensees
    use the DMA mark, regions or data in their MVDDS business without an
    individual license from Nielsen.[^48] Thus, it does not appear that
    the license Nielsen described would give Commission licensees
    sufficient flexibility to make practical use of the DMA designation
    in connection with their MVDDS operations. Additionally, although
    the Commission could cross-reference DMAs in its rules, Nielsen's
    limitations may interfere with our enforcement flexibility, since
    Nielsen does not want us to \"republish DMA regions or data in any
    statute, regulation or rule or otherwise.\"[^49] We seek comment on
    whether the conditions described by Nielsen are so restrictive that
    use of DMAs would be of limited utility to small businesses. We also
    request comment on the potential impact on small business plans if
    we change the service area designation.

```{=html}
<!-- -->
```
31. Given that we are revisiting the service area definition, we also
    take this opportunity to explore whether the current build out
    requirement sufficiently promotes expeditious deployment of service,
    particularly for those communities that are traditionally unserved
    or underserved. As indicated earlier, the *Second R&O* establishes a
    ten-year build out requirement for the MVDDS licensees based on
    substantial service as a basis for a renewal expectancy. MDS America
    has expressed concern that a ten-year build out period for MVDDS
    licenses was too long given the potential for anti-competitive
    warehousing of spectrum in this service and the great demand for
    rural broadband service.[^50] MDS America supports a five-year build
    out period, a requirement advocated by other commenters in this
    record.[^51]

```{=html}
<!-- -->
```
4.  We seek limited comment on the timing of whether a ten-year build
    out requirement is optimal for fostering expeditious delivery of
    advanced wireless services to all communities, in particular
    communities that are traditionally unserved or underserved. In
    addition, we seek comment on whether a shorter build out requirement
    will facilitate more effective deployment of these services as well
    as the appropriate benchmark for a buildout requirement. Finally, we
    seek comment on the potential impact on small business plans if we
    change the build out requirement.

5.  We seek comment on the following issues under consideration in this
    *Notice:*

-   The appropriate service area designation for MVDDS.

-   The appropriate buildout requirement for MVDDS.

**Legal Basis**

3.  The proposed action is authorized under the Administrative Procedure
    Act, 5 U.S.C. § 553; and Sections 1.4(i), 7, 301, 303, 308 and
    309(j) of the Communications Act of 1934, as amended, 47 U.S.C. §§
    154(i), 157, 301, 303, 308 and 309(j).

**Description and Estimate of the Number of Small Entities to Which the
Proposed Rules Will Apply**

1.  The RFA directs agencies to provide a description of, and, where
    feasible an estimate of, the number of small entities that may be
    affected by the rules adopted herein.[^52] The RFA generally defines
    the term "small entity" as having the same meaning as the terms
    "small business," "small organization," and "small governmental
    jurisdiction."[^53] In addition, the term "small business" has the
    same meaning as the term "small business concern" under the Small
    Business Act.[^54] 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 Small Business Administration (SBA).[^55]

2.  Small *Multichannel Video Programming Distributors (MVPDs).* SBA has
    developed a definition of small entities for cable, which includes
    all such companies generating \$11 million or less in annual
    receipts.[^56] This definition includes cable system operators and
    DBS services. According to the Census Bureau data from 1992, there
    were 1,758 total cable and other pay television services and 1,423
    had less than \$11 million in revenue.[^57] We address below each
    service individually to provide a more precise estimate of small
    entities.

-   [Cable Services]{.underline}*.* The Commission has developed, with
    SBA\'s approval, our own definition of a small cable system operator
    for the purposes of rate regulation. Under the Commission\'s rules,
    a \"small cable company\" is one serving 400,000 or fewer
    subscribers nationwide.[^58] We last estimated that there were 1439
    cable operators that qualified as small cable companies.[^59] Since
    then, some of those companies may have grown to serve over 400,000
    subscribers, and others may have been involved in transactions that
    caused them to be combined with other cable operators. Consequently,
    using this definition, we estimate that there are fewer than 1439
    small entity cable system operators that may be affected by the
    decisions and rules adopted in the *Second Report and Order*.

-   The Communications Act defines a small cable system operator as \"a
    cable operator that, directly or through an affiliate, serves in the
    aggregate fewer than one percent of all subscribers in the United
    States and is not affiliated with any entity or entities whose gross
    annual revenues in the aggregate exceed \$250,000,000.\"[^60] The
    Commission has determined that there are 61,700,000 subscribers in
    the United States. Therefore, an operator serving fewer than 617,000
    subscribers shall be deemed a small operator under the
    Communications Act definition, if its annual revenues, when combined
    with the total annual revenues of all of its affiliates, do not
    exceed \$250 million in the aggregate. Based on available data, we
    find that the number of cable operators serving 617,000 subscribers
    or less totals approximately 1450.[^61] Although it seems certain
    that some of these cable system operators are affiliated with
    entities whose gross annual revenues exceed \$250,000,000, we are
    unable at this time to estimate with greater precision the number of
    cable system operators that would qualify as small cable operators
    under the definition in the Communications Act.

-   *[DBS Service]{.underline}*. Because DBS provides subscription
    services, DBS falls within the SBA definition of Cable Networks
    (NAIC 513210) and Cable and Other Program Distribution (NAIC
    513220). This definition provides that a small entity is expressed
    as one with \$11 million or less in annual receipts. The operational
    licensees of DBS services in the United States are governed by Part
    100 of the Commission's Rules. The Commission, however, does not
    collect annual revenue data for DBS and, therefore, is unable to
    ascertain the number of small DBS licensees meeting this definition
    that could be impacted by these rules. DBS service requires a great
    investment of capital for operation, and we acknowledge that there
    are entrants in this field that may not yet have generated \$11
    million in annual receipts, and therefore may be categorized as a
    small business by the SBA, if independently owned and operated.

3.  *Auxiliary, Special Broadcast and other program distribution
    services*. This service involves a variety of transmitters,
    generally used to relay broadcast programming to the public (through
    translator and booster stations) or within the program distribution
    chain (from a remote news gathering unit back to the station). The
    Commission has not developed a definition of small entities
    applicable to broadcast auxiliary licensees. Therefore, the
    applicable definition of small entity is the definition under the
    SBA rules applicable to radio networks (NAICS 513111), radio
    stations (NAICS 513112), and television broadcasting (NAICS 513120).
    These definitions provide, respectively, that a small entity is one
    with either \$5 million or less in annual receipts or \$10.5 million
    in annual receipts. The numbers of these stations are very small.
    The Commission does not collect financial information on these
    auxiliary broadcast facilities. We continue to believe, however,
    that most, if not all, of these auxiliary facilities could be
    classified as small businesses by themselves. We also recognize that
    most of these types of services are owned by a parent station which,
    in some cases, would be covered by the revenue definition of small
    business entity discussed above. These stations would likely have
    annual revenues that exceed the SBA maximum to be designated as a
    small business (as noted, either \$5 million for a radio station or
    \$10.5 million for a TV station). Furthermore, they do not meet the
    SBA's definition of a "small business concern" because they are not
    independently owned and operated.

4.  *Private Operational Fixed Service*. Incumbent microwave services in
    the 12.2‑12.7 GHz bands include common carrier, private operational
    fixed (POF), and BAS services. Presently, there are approximately
    22,015 common carrier licensees, and approximately 61,670 POF
    licensees and broadcast auxiliary radio licensees in the microwave
    service. Inasmuch as the Commission has not yet defined a small
    business with respect to these incumbent microwave services, we
    utilized the SBA's definition applicable to cellular and other
    wireless telecommunications companies (NAICS 513322); *i.e.*, an
    entity with no more than 1500 persons. We estimate, for this
    purpose, that all of the Fixed Microwave licensees (excluding
    broadcast auxiliary licensees) would qualify as small entities under
    the SBA definition for radiotelephone companies.

5.  The rules set forth in the *Second Report and Order* will affect all
    entities that intend to provide terrestrial MVDDS operations in the
    12.2‑12.7 GHz band. In the *Second Report and Order*, the Commission
    stated that licensees are permitted to use MVDDS spectrum for, among
    other things, fixed one‑way direct‑to‑home/business video and data
    services.

6.  Additionally, in the *Second Report and Order*, the Commission
    adopted definitions for three tiers of small businesses for the
    purpose of providing bidding credits to small entities.
    Specifically, we defined the three tiers of small business as: (a)
    an "entrepreneur" is an entity with average annual gross revenues
    not exceeding \$40 million for the preceding three years; (b) a
    "small business" is an entity with average annual gross revenues not
    exceeding \$15 million for the preceding three years; and (c) a
    "very small business" is an entity with average annual gross
    revenues not exceeding \$3 million for the preceding three
    years.[^62] We will not know how many auction participants or
    licensees will qualify under these definitions as entrepreneurs,
    small businesses, or very small businesses until an auction is held.
    However, upon reviewing the record in the MVDDS proceeding, we
    assume that, for purposes of our evaluations and conclusions in the
    FRFA, a number of the prospective licensees will be entrepreneurs,
    small businesses, or very small businesses under our adopted
    definitions.

**Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements**

7.  This *Notice* imposes no new reporting, recordkeeping or other
    compliance requirements not previously adopted in this proceeding
    under the Paperwork Reduction Act of 1995.[^63]

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

8.  The RFA requires an agency to describe any significant alternatives
    that it has considered in reaching its proposed approach, which may
    include the following four alternatives (among others): (1) the
    establishment of differing compliance or reporting requirements or
    timetables that take into account the resources available to small
    entities; (2) the clarification, consolidation, or simplification of
    compliance or reporting requirements under the rule for small
    entities; (3) the use of performance, rather than design standards;
    and (4) an exemption from coverage of the rule, or any part thereof,
    for small entities.[^64]

9.  With respect to its decision to use CEAs as the basis for the MVDDS
    service, the Commission noted that adopting CEAs would provide
    similar benefits as DMAs but would better promote its objectives and
    address commenters' concerns.[^65] Specifically, the Commission
    premised its decision on three factors. First, the smaller CEA
    service areas would better track actual deployment of fixed
    services. Second, CEAs would encourage rapid service deployment to
    less populated and rural regions because they will permit additional
    opportunities for small businesses to provide MVDDS. Third, the use
    of CEAs would encourage the meaningful participation of small
    businesses better than a nationwide or regional geographic licensing
    approach because the smaller areas would likely require a lower
    minimum investment. Further, the Commission noted that for those
    seeking a regional or national footprint, the use of CEAs would not
    prevent them from aggregating areas to create such larger
    networks.[^66]

10. While we do not prejudge the type of services licensees will offer
    in the 12 GHz band, we nonetheless believe that it is appropriate to
    adopt a service area definition that will afford MVDSS licensees the
    opportunity to provide a wide array of services. Based on the record
    in this proceeding, we believe that utilizing DMAs may be more
    effective in this regard. DMAs, as compared to CEAs, provide a
    better method to delineate television markets based on viewing
    patterns. Consequently, for those MVDDS licensees seeking to provide
    MVPD service offerings involving the retransmission of broadcast
    programming, the use of DMAs could provide additional economic
    benefits. For example, MVDDS licensees with service offerings
    involving the delivery of television programming may find the use of
    DMAs to be administratively easier due to the close nexus between
    the television viewer market areas as determined by the DMA
    delineation and the proposed use of the service.

11. As to other uses, including fixed services, we believe that DMAs and
    CEAs are equally advantageous because they are both local in nature.
    While we recognize that CEAs are smaller than DMAs, we continue to
    believe that DMAs, which are county-based, provide a viable option
    in facilitating local access to cable, non-cable, and MVDDS service
    offerings.[^67] Consequently, we believe that both DMAs and CEAs
    would encourage rapid service deployment in unserved or underserved
    areas and encourage meaningful participation by small businesses.
    Additionally, entities desiring a national footprint, may aggregate
    either DMAs or CEAs to create such larger networks.

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

12. None.

    **APPENDIX B: PROPOSED RULES**

Part 101 of Chapter 1 of Title 47 of the Code of Federal Regulations is
amended as follows:

**PART 101 - FIXED MICROWAVE SERVICES**

1\. The authority citation for Part 101 continues to read as follows:

**AUTHORITY: 47 U.S.C. 154, 303**.

**Subpart P- Multichannel Video Distribution and Data Service Rules for
the 12.2-12.7 GHz Band**

2\. Section 101.1401 is amended to read as follows:

§ 101.1401 Service areas.

Multichannel Video Distribution and Data Service (MVDDS) is licensed on
the basis of Designated Market Areas (DMAs). The 214 DMA service areas
are based on the 210 Designated Market Areas delineated by Nielsen Media
Research and published in its pamphlet entitled U.S. Television
Household Estimates, September 2002, plus four FCC‑defined DMA-like
service areas: (1) Alaska ‑ Balance of State (all geographic areas of
Alaska not included in Nielsen\'s three DMAs for the state: Anchorage,
Fairbanks, and Juneau); (2) Guam and the Northern Mariana Islands; (3)
Puerto Rico and the United States Virgin Islands; and (4) American
Samoa.

**\* \* \* \* \***

3\. Section 101.1421 is amended by revising paragraphs (b) and (c) to
read as follows to read as follows:

§ 101.1421 Coordination of adjacent area MVDDS stations and incumbent
public safety POFS stations.

\* \* \* \* \*

\(b\) Harmful interference to public safety stations, co-channel MVDDS
stations operating in adjacent geographic areas, and stations operating
on adjacent channels to MVDDS stations is prohibited. In areas where the
DMAs are in close proximity, careful consideration should be given to
power requirements and to the location, height, and radiation pattern of
the transmitting and receiving antennas. Licensees are expected to
cooperate fully in attempting to resolve problems of potential
interference before bringing the matter to the attention of the
Commission.

\(c\) Licensees shall coordinate their facilities whenever the
facilities have optical line-of-sight into other licensees' areas or are
within the same geographic area. Licensees are encouraged to develop
operational agreements with relevant licensees in the adjacent
geographic areas. Incumbent public safety POFS licensee(s) shall retain
exclusive rights to its channel(s) within the relevant geographical
areas and must be protected in accordance with the procedures in §
101.103 of this part. A list of public safety incumbents is attached as
Appendix I to the Memorandum Opinion and Order and Second Report and
Order, Docket 98-206 released May 23, 2002. Please check with the
Commission for any updates to that list.

# Appendix C: Nielsen Letter {#appendix-c-nielsen-letter .unnumbered}

[^1]: Amendment of Parts 2 and 25 of the Commission's Rules to Permit
    Operation of NGSO FSS Systems Co-Frequency with GSO and Terrestrial
    Systems in the Ku-Band with Frequency Range; Amendment of the
    Commission's Rules to Authorize Subsidiary Terrestrial Use of the
    12.2-12.7 GHz Band by Direct Broadcast Satellite Licensees and Their
    Affiliates; and Applications of Broadwave USA, PDC Broadband
    Corporation, and Satellite Receivers, Ltd. To Provide A Fixed
    Service in the 12.2-12.7 GHz Band, *First Report and Order and
    Further Notice of Proposed Rule* Making, FCC 00-418, ET Docket No.
    98-206, 16 FCC Rcd 4096, 4099-4100 ¶ 2 (2000) (*First R&O* and
    *Further Notice*).

[^2]: *Further Notice,* 16 FCC Rcd at 4202 ¶ 285.

[^3]: *Memorandum Opinion and Order and Second Report and Order*, FCC
    02-116, ET Docket No. 98-206, 17 FCC Rcd 9614, 9665 ¶ 130 (2002)
    (*Second R&O*).

[^4]: *Id.*at 9665-9666 ¶ 132. CEAs are based on Economic Areas
    delineated by the U.S. Dept. of Commerce. Each CEA consists of a
    single economic node and the surrounding counties that are
    economically related to the node. The 354 CEA service areas are
    based on the 348 CEAs delineated by the Regional Economic Analysis
    Division, Bureau of Economic Analysis, U.S. Department of Commerce
    February 1995, with the following six FCC‑defined service area
    additions: American Samoa, Guam, Northern Mariana Islands, San Juan
    (Puerto Rico), Mayagüez/Aguadilla‑Ponce (Puerto Rico), and the
    United States Virgin Islands.

[^5]: Nielsen Media Research (Nielsen) uses audience survey information
    from cable and non-cable households to determine the assignment of
    counties to local television markets, or DMAs. Nielsen then
    determines what constitutes a separate market based on a complex
    statistical formula based upon viewership and other factors. *See*
    <http://www.nielsenmedia.com/DMAs.html>. The station\'s assignment
    to a DMA is then made available in Nielsen\'s *Directory of
    Stations* publication. There are 210 DMAs (from 211 DMAs in 2000)
    delineated by Nielsen in its publication entitled "U.S. Television
    Household Estimates" dated September 2002. *See* Nielsen Media
    Research, *Nielsen Station Index: Methodology Techniques and Data
    Interpretation.* Nielsen\'s website contains the above publications.
    *See* [http://www.nielsenmedia.com](http://www.nielsenmedia.com/).\"

[^6]: Northpoint and SRL supported licensing on the basis of DMAs which
    they aver are well-suited to the low-power character of their
    technologies. *See* Northpoint Technology Ltd. and Broadwave USA
    Comments at 32 (filed Mar. 12, 2001); Satellite Receivers Limited
    (SRL) Comments at 3 (filed Mar. 12, 2001). In addition, Northpoint,
    Pegasus Broadband Corporation (Pegasus) and SRL applied for licenses
    utilizing DMAs. *See* Broadwave Network, L.L.C. Application for
    License to Provide a New Terrestrial Transport Service in the
    12.2-12.7 GHz Band (filed Jan 8, 1999); Application of PDC Broadband
    Corp. for Licenses to Provide Terrestrial Services in the 12.2-12.7
    GHz Band (filed Apr. 18, 2000); and SRL. Application for Licenses to
    provide Terrestrial Television Broadcast and Data Services in the
    12.2-12.7 GHz Band in Illinois, Indiana, Iowa, Michigan, Minnesota
    and Wisconsin (filed Aug. 25, 2000).

[^7]: *See Second R&O,* 17 FCC Rcd at 9665-66 ¶ 132.

[^8]: *Id.* (citing Revision of Part 22 and 90 of the Commission's Rules
    to Facilitate Future Development of Paging Systems, *Second Report
    and Order and Further Notice of Proposed Rulemaking*, WT Docket No.
    96-18, 12 FCC 2732, 2735 n.3 (1997)).

[^9]: *Id.*

[^10]: *Id.*

[^11]: *See* Letter from Thomas J. Sugrue, Chief, Wireless
    Telecommunications Bureau, Federal Communications Commission and
    Jane Mago, General Counsel, Federal Communications Commission, to
    David Schwartz-Leeper, Vice President/GC, Nielsen Media Research
    (Jan. 24, 2003).

[^12]: *See* Letter from David A. Schwartz-Leeper, Senior Vice
    President/ GC, Nielsen Media Research, to Thomas J. Sugrue,
    \[former\] Chief, Wireless Telecommunications Bureau, Federal
    Communications Commission and Jane Mago, \[former\] General Counsel,
    Federal Communications Commission at 2 (Mar. 26, 2003) (Nielsen
    letter). *See also* Appendix C for the text of the Nielsen Letter.

[^13]: *See* para. 10, *supra.*

[^14]: *See Public Notice*, Auction of Multichannel Video Distribution
    and Data Service Licenses Rescheduled for June 25, 2003, Report No.
    AUC-03-53-A, DA 03-286, 2003 WL 202902 (rel. Jan. 30, 2003)
    (*Auction PN*).

[^15]: *Id*.

[^16]: *See, e.g.,* Letter from Nancy Killien Spooner, Counsel for MDS
    America, Inc., to Ms. Marlene H. Dortch, Secretary, Federal
    Communications Commission (Mar. 25, 2003 Notice of *Ex Parte*
    Meeting).

[^17]: *Second R&O*, 17 FCC Rcd at 9683 ¶ 175.

[^18]: Northpoint supports the use of DMAs in the 12 GHz band. Comments
    of Northpoint and Broadwave USA, Inc., Regarding Auction Procedures
    at 5-6 (filed Feb. 13, 2003).

[^19]: MDS America supports the use of CEAs in the 12 GHz band. Reply
    Comments of MDS America at 2-4 (filed Feb. 20, 2003)

[^20]: *Second R&O*, 17 FCC Rcd at 9664 ¶ 128.

[^21]: *Id.* at 9664 ¶ 132.

[^22]: *Id.*

[^23]: *Id*.

[^24]: *See* Nielsen letter.

[^25]: *Id.* at 3.

[^26]: *Id.*

[^27]: *Id.*

[^28]: *Id.*

[^29]: *See* Definition of Markets for Purposes of the Cable Television,
    Broadcast Signal Carriage Rules, *Order on Reconsideration and
    Second Report and Order*, CS Docket No. 95-178, 14 FCC Rcd 8366,
    8372 ¶ 13 (1999).

[^30]: Consolidated Response of Northpoint Technology, Ltd., and
    Broadwave USA, Inc., to Petitions for Reconsideration of Second
    Report and Order at 3 (filed Sep. 3, 2002).

[^31]: *See* 17 U.S.C. § 111(f).

[^32]: *First R&O*, 16 FCC Rcd at 4202 ¶ 285.

[^33]: 17 U.S.C. § 111; 37 C.F.R. § 201.17 (establishing a royalty-free
    copyright linked to cable must-carry area); *cf. also* 47 C.F.R. §
    76.55(e) (the default must-carry market is DMA-based). We note that
    MVDDS does not have must-carry obligations.

[^34]: *See* Letter from Helen E. Disenhaus, Counsel for MDS America,
    Inc., to Ms. Marlene H. Dortch, Secretary, Federal Communications
    Commission (Oct. 3, 2002 Notice of *Ex Parte* Meeting); Letters from
    Nancy Killien Spooner, Counsel for MDS America, Inc., to Ms. Marlene
    H. Dortch, Secretary, Federal Communications Commission (Oct. 11,
    2002, Mar. 7, 2003 and Mar. 25, 2003 Notice of *Ex Parte* Meeting).

[^35]: *Id.; see also* Pegasus Comments at 19 (filed Mar. 12, 2001).

[^36]: *See Auction PN*.

[^37]: *Second R&O*, 17 FCC Rcd at 9664 ¶ 127.

[^38]: 5 U.S.C. § 603 (1996).

[^39]: *Id*.

[^40]: 47 C.F.R. §§ 1.415, 1.419.

[^41]: *See* Electronic Filing of Documents in Rulemaking Proceedings,
    *Report and Order*, 13 FCC Rcd 11322 (1998).

[^42]: *See* [5 U.S.C. §
    603](http://www4.law.cornell.edu/uscode/5/603.html). The RFA, *see*
    [5 U.S.C. § 601](http://www4.law.cornell.edu/uscode/5/603.html)-612,
    has been amended by the Small Business Regulatory Enforcement
    Fairness Act of 1996, (SBREFA) Pub. L. No. 104-121, Title II, 110
    Stat. 857 (1996).

[^43]: *See* 5 [U.S.C. §
    603(a).](http://www4.law.cornell.edu/uscode/5/603.html)

[^44]: *See* 5 [U.S.C. §
    603(a).](http://www4.law.cornell.edu/uscode/5/603.html)

[^45]: *See* Letter from David A. Schwartz-Leeper, Senior Vice
    President/ GC, Nielsen Media Research, to Thomas J. Sugrue, (Letter
    from former) Chief, Wireless Telecommunications Bureau, Federal
    Communications Commission and Jane Mago, (former) General Counsel,
    Federal Communications Commission at 2 (March 26, 2003) (Nielsen
    letter).

[^46]: *See* Nielsen letter.

[^47]: *Id.* at 3.

[^48]: *Id.*

[^49]: *Id.*

[^50]: *See* MDS America Ex Parte Notifications (filed Oct. 3, 2002,
    Oct. 11, 2002, Mar. 7, 2003 and Mar. 25, 2003).

[^51]: *Id.; see also* Pegasus Comments at 19 (filed Mar. 12, 2001).

[^52]: 5 U.S.C. § 603(b)(3).

[^53]: 5 U.S.C. § 601(6).

[^54]: 5 U.S.C. § 601(3) (incorporating by reference the definition of
    "small business concern" in 15 U.S.C. § 632). Pursuant to the RFA,
    the statutory definition of a small business applies "unless an
    agU.S.C. § 603(a).ultation with the Office of Advocacy of the Small
    Business Administration and after opportunity for public comment,
    establishes one or more definitions of such term which are
    appropriate to the activities of the agency and publishes such
    definition(s) in the Federal Register." 5 U.S.C. § 601(3).

[^55]: Small Business Act, 15 U.S.C. § 632 (1996).

[^56]: 13 C.F.R. § 121.201 (Cable Networks (NAICS 513210) Cable and
    Other Program Distribution (NAICS 513220)).

[^57]: *Id.* (U.S. Department of Commerce, Bureau of the Census,
    Industry and Enterprise Receipts Size Report, Table) (Bureau of the
    Census data under contract to the Office of Advocacy of the SBA).

[^58]: 47 C.F.R. § 76.901(e). The Commission developed this definition
    based on its determinations that a small cable system operator is
    one with annual revenues of \$100 million or less. *Sixth Report and
    Order and Eleventh Order on Reconsideration*, MM Docket Nos. 92‑266
    and 93‑215, 10 FCC Rcd 7393 (1995).

[^59]: Paul Kagan Associates, Inc., Cable TV Investor, Feb. 29, 1996
    (based on figures for Dec. 30, 1995).

[^60]: 47 U.S.C. § 543(m)(2).

[^61]: Paul Kagan Associates, Inc., Cable TV Investor, Feb. 29, 1996
    (based on figures for Dec. 30, 1995).

[^62]: These definitions have been approved by the U.S. Small Business
    Administration. *See* Letter to Margaret W. Weiner, Deputy Chief,
    Auctions and Industry Analysis Division, Wireless Telecommunications
    Bureau, from Aida Alvarez, Administrator, U.S. Small Business
    Administration (Sept. 14, 2000).

[^63]: *See* Pub. L. No. 104-13.

[^64]: *See* 5 U.S.C. § 603(c).

[^65]: *Id.*

[^66]: *Id.*

[^67]: *First R&O*, 16 FCC Rcd at 4202 ¶ 285.