**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  | ET Docket No. 98-206         |
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| Amendment of Parts 25 and 101 of | ** |                              |
| the Commission's Rules Governing |    |                              |
| Multichannel Video Distribution  | *  |                              |
| and Data Service in the          | *) |                              |
| 12.2-12.7 GHz Band               | ** |                              |
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**ORDER**

**Adopted: May 27, 2004 Released: May 28, 2004**

By the Managing Director:

1.  On May 23, 2002, the Commission released an order adopting rules in
    Parts 25 and 101 to establish technical, service and licensing rules
    governing Multichannel Video Distribution and Data Service (MVDDS)
    in the 12.2 to 12.7 GHz band.[^1] An incorrect version of the rules
    was published in the Federal Register following its adoption. In
    order to correct the errors that were made in the publication of the
    final rules, certain correcting amendments are necessary.

2.  Authority for adoption of the amendments is contained in 47 C.F.R. §
    0.231(b).

3.  We note that the *Erratum* released February 9, 2004, DA 04-336, 19
    FCC Rcd 2355 (2004), is superseded by this *Order*. Accordingly, the
    *Erratum* will not be published in the Federal Register.

4.  Any impact as defined by the Paperwork Reduction Act of 1995 (PRA),
    Public Law 104-13, the Congressional Review Act (CRA), and the
    Regulatory Flexibility Act of 1980, as amended (RFA), was addressed
    at the time of adoption and release of the *Memorandum Opinion and
    Order and Second Report and Order*. Therefore, the PRA, CRA and RFA
    requirements have already been fulfilled for these rules.

5.  ACCORDINGLY, IT IS ORDERED that Parts 25 and 101 of the Commission's
    Rules, set forth in Title 47 of the Code of Federal Regulations, ARE
    AMENDED, as set forth in the Appendix to this *Order*, TO BE
    EFFECTIVE upon publication in the Federal Register.

    FEDERAL COMMUNICATIONS COMMISSION

    Andrew S. Fishel

    Managing Director

    **APPENDIX**

    **FINAL RULES**

For the reasons discussed in the preamble, the Federal Communications
Commission amends 47 CFR parts 25 and 101 as follows:

PART 25 -- SATELLITE COMMUNICATIONS

1\. The authority citation for part 25 continues to read as follows:

**Authority:**   47 U.S.C. 701--744. Interprets or applies Sections 4,
301, 302, 303, 307, 309 and 332 of the Communications Act, as amended,
47 U.S.C. Sections 154, 301, 302, 303, 307, 309 and 332, unless
otherwise noted.

2\. Section 25.208 is amended by revising paragraphs (o)(1) and (2) to
read as follows:

[§ 25.208 Power flux density limits.]{.underline}

\* \* \* \* \*

\(o\) \* \* \*

\(1\) - 158 dB(W/m^2^) in any 4 kHz band for angles of arrival between 0
and 2 degrees above the horizontal plane; and

\(2\) - 158 + 3.33(δ - 2) dB(W/m^2^) in any 4 kHz band for angles of
arrival (δ) (in degrees) between 2 and 5 degrees above the horizontal
plane.

\* \* \* \* \*

PART 101 -- FIXED MICROWAVE SERVICES

3\. The authority citation for part 101 continues to read as follows:

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

4\. Section 101.105 is amended by revising paragraph (a)(4) and
paragraph (d) introductory text to read as follows:

[§ 101.105 Interference protection criteria]{.underline}.

\(a\) \* \* \*

\(4\) [12.2-12.7 GHz band]{.underline}.

\(i\) To accommodate co-primary NGSO FSS earth stations in the 12.2-12.7
GHz band, the PFD of an MVDDS transmitting system must not exceed --135
dBW/m^2^ in any 4 kHz band at a reference point at the surface of the
earth at a distance greater than 3 kilometers from the MVDDS
transmitting antenna.

\(ii\) To accommodate co-primary Direct Broadcast Satellite Service
earth stations, an MVDDS transmitting system must not exceed the EPFD
levels specified in paragraph (a)(4)(ii)(B) of this section at any DBS
subscriber location in accordance with the procedures listed in §
101.1440 of this part.

\(A\) Definition of equivalent power flux density: The equivalent power
flux density (EPFD) is the power flux density produced at a direct
broadcast service (DBS) receive earth station, taking into account
shielding effects and the off-axis discrimination of the receiving
antenna assumed to be pointing at the appropriate DBS satellite(s) from
the transmitting antenna of a multichannel video distribution and data
service (MVDDS) transmit station. The EPFD in dBW/m^2^ in the reference
bandwidth is calculated using the following formula:

![](media/image1.wmf){width="3.5833333333333335in"
height="0.5833333333333334in"}

Where:

![](media/image2.wmf){width="0.2638888888888889in" height="0.25in"}=
Total output power of the MVDDS transmitter (watts) into antenna

![](media/image3.wmf){width="0.8055555555555556in" height="0.25in"}=
Gain of the MVDDS antenna in the direction of the DBS earth station

![](media/image4.wmf){width="0.7083333333333334in" height="0.25in"}=
Gain of the earth station in the direction of the MVDDS antenna

I = Interference scaling factor for the earth station (1 dB for MVDDS
transmitters employing the modulation discussed in Section 3.1.5 of the
MITRE Report (i.e., a QPSK modulated signal passed through a square‑root
raised cosine filter). For other modulation and filtering schemes, the
interference scaling factor can be measured using the procedures
described in Appendix A of the MITRE Report available at
http://www.fcc.gov/oet/info/mitrereport/mitrereport_4_01.pdf ).

![](media/image5.wmf){width="0.4166666666666667in"
height="0.2638888888888889in"}= Maximum gain of the DBS earth station

d = the distance between the MVDDS transmitting antenna and the DBS
earth station (meters)

\(B\) Regional equivalent power flux density levels:

[(1)]{.underline} -168.4 dBW/m^2^/4kHz in the Eastern region consisting
of the District of Columbia and the following states: Maine, New
Hampshire, Vermont, Massachusetts, Rhode Island, Connecticut, New York,
New Jersey, Pennsylvania, Delaware, Maryland, Virginia, West Virginia,
Kentucky, Tennessee, North Carolina, South Carolina, Georgia, Alabama,
Mississippi, Louisiana, and Florida;

[(2)]{.underline} -169.8 dBW/m^2^/4kHz in the Midwestern region
consisting of the following states: Ohio, Michigan, Indiana, Wisconsin,
Illinois, Minnesota, Iowa, Missouri, Arkansas, South Dakota, Nebraska,
Kansas, Oklahoma, and Texas;

[(3)]{.underline} -171.0 dBW/m^2^/4kHz in the Southwestern region
consisting of the following states: Wyoming, Colorado, New Mexico, Utah,
Arizona, Nevada, and California (south of 37^o^ North Latitude);

[(4)]{.underline} -172.1 dBW/m^2^/4kHz in the Northwestern region
consisting of the following states: Washington, Oregon, California
(north of 37^o^ North Latitude), Idaho, Montana, North Dakota, Alaska,
and Hawaii.

\(iii\) Except for public safety entities, harmful interference
protection from MVDDS stations to incumbent point-to-point 12 GHz fixed
stations is not required. Incumbent point-to-point private operational
fixed 12 GHz stations, except for public safety entities, are required
to protect MVDDS stations under the process described in § 101.103(d) of
this part.

\* \* \* \* \*

\(d\) Effective August 1, 1985, when a fixed station that conforms to
the technical standards of this subpart (or, in the case of the
12,200-12,700 MHz band, for an incumbent non-MVDDS station or a direct
broadcast satellite station) receives or will receive interference in
excess of the levels specified in this section as a result of an
existing licensee\'s use of non-conforming equipment authorized between
July 20, 1961 and July 1, 1976, and the interference would not result if
the interfering station\'s equipment complied with the current technical
standards, the licensee of the non-conforming station must take whatever
steps are necessary to correct the situation up to the point of
installing equipment which fully conforms to the technical standards of
this subpart. In such cases, if the engineering analysis demonstrates
that:

\* \* \* \* \*

5\. Section 101.111 is amended by revising paragraph (a)(2)(i) to read
as follows:

[§ 101.111 Emission limitations]{.underline}.

\(a\) \* \* \*

\(2\) \* \* \*

\(i\) For operating frequencies below 15 GHz, in any 4 KHz band, the
center frequency of which is removed from the assigned frequency by more
than 50 percent up to and including 250 percent of the authorized
bandwidth: As specified by the following equation but in no event less
than 50 decibels:

A = 35 + 0.8(P − 50) + 10 Log10 B. (Attenuation greater than 80 decibels
or to an absolute power of less than --13 dBm/1MHz is not required.)
where:

A = Attenuation (in decibels) below the mean output power level.

P = Percent removed from the center frequency of the transmitter
bandwidth.

B = Authorized bandwidth in MHz.

[Note]{.underline}: MVDDS operations in the 12.2--12.7 GHz band shall
use 24 megahertz for the value of B in the emission mask equation set
forth in this section. The emission mask limitation shall only apply at
the 12.2--12.7 GHz band edges and does not restrict MVDDS channelization
bandwidth within the band.

\* \* \* \* \*

6\. Part 101, subpart P is revised to read as follows:

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

Sec.

101.1401 Service areas.

101.1403 Broadcast carriage requirements.

101.1405 Channeling plan.

101.1407 Permissible operations for MVDDS.

101.1409 Treatment of incumbent licensees.

101.1411 Regulatory status and eligibility.

101.1412 MVDDS eligibility restrictions for cable operators.

101.1413 License term and renewal expectancy.

101.1415 Partitioning and disaggregation.

101.1417 Annual report.

101.1421 Coordination of adjacent area MVDDS stations.

101.1423 Canadian and Mexican coordination.

101.1425 RF safety.

101.1427 MVDDS licenses subject to competitive bidding.

101.1429 Designated entities.

101.1440 MVDDS protection of DBS.

[§ 101.1401 Service areas]{.underline}.

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 publication entitled U.S. Television
Household Estimates, September 2002, plus four FCC-defined DMA-like
service areas.

\(a\) Alaska \-- Balance of State (all geographic areas of Alaska not
included in Nielsen\'s three DMAs for the state: Anchorage, Fairbanks,
and Juneau);

\(b\) Guam and the Northern Mariana Islands;

\(c\) Puerto Rico and the United States Virgin Islands; and

\(d\) American Samoa.

[§ 101.1403 Broadcast carriage requirements]{.underline}.

MVDDS licensees are not required to provide all local television
channels to subscribers within its area and thus are not required to
comply with the must-carry rules, nor the local signal carriage
requirements of the [Rural Local Broadcast Signal Act]{.underline}. See
Multichannel Video and Cable Television Service Rules, Subpart D
(Carriage of Television Broadcast Signals), 47 CFR 76.51-76.70. If an
MVDDS licensee meets the statutory definition of Multiple Video
Programming Distributor (MVPD), the retransmission consent requirement
of section 325(b)(1) of the Communications Act of 1934, as amended (47
U.S.C. 325(b)(1)) shall apply to that MVDDS licensee. Any MVDDS licensee
that is an MVPD must obtain the prior express authority of a broadcast
station before retransmitting that station\'s signal, subject to the
exceptions contained in section 325(b)(2) of the Communications Act of
1934, as amended (47 U.S.C. 325(b)(2)). Network nonduplication,
syndicated exclusivity, sports blackout, and leased access rules shall
not be imposed on MVDDS licensees.

[§ 101.1405 Channeling plan]{.underline}.

Each license shall have one spectrum block of 500 megahertz per
geographic area that can be divided into any size channels.
Disaggregation is not allowed.

[§ 101.1407 Permissible operations for MVDDS]{.underline}.

MVDDS licensees must use spectrum in the 12.2-12.7 GHz band for any
digital fixed non-broadcast service (broadcast services are intended for
reception of the general public and not on a subscribership basis)
including one-way direct-to-home/office wireless service. Mobile and
aeronautical services are not authorized. Two-way services may be
provided by using other spectrum or media for the return or upstream
path.

[§ 101.1409 Treatment of incumbent licensees]{.underline}.

Terrestrial private operational fixed point-to-point licensees in the
12.2-12.7 GHz band which were licensed prior to MVDDS or NGSO FSS
satellite stations are incumbent point-to-point stations and are not
entitled to protection from harmful interference caused by later MVDDS
or NGSO FSS entrants in the 12.2-12.7 GHz band, except for public safety
stations which must be protected. MVDDS and NGSO FSS operators have the
responsibility of resolving any harmful interference problems that their
operations may cause to these public safety incumbent point-to-point
operations in the 12.2-12.7 GHz band. Incumbent public safety
terrestrial point-to-point licensees may only make minor changes to
their stations without losing this protection. This does not relieve
current point-to-point licensees of their obligation to protect BSS
operations in the subject frequency band. All point-to-point
applications, including low-power operations, for new licenses, major
amendments to pending applications, or major modifications to existing
licenses for the 12.2-12.7 GHz band are no longer accepted except for
renewals and changes in ownership. See § 1.929 of this chapter for
definitions of major and minor changes.

[§ 101.1411 Regulatory status and eligibility]{.underline}.

\(a\) MVDDS licensees are permitted to provide one-way video programming
and data services on a non-common carrier and/or on a common carrier
basis. MVDDS is not required to be treated as a common carrier service
unless it is providing non-Internet voice and data services through the
public switched network.

\(b\) MVDDS licensees in the 12.2-12.7 GHz band are subject to the
requirements set forth in § 101.7.

\(c\) Any entity, other than one precluded by §§ 101.7 and 101.1412, is
eligible for authorization to provide MVDDS under this part.
Authorization will be granted upon proper application filing in
accordance with the Commission\'s rules.

[§ 101.1412 MVDDS eligibility restrictions for cable
operators]{.underline}.

\(a\) Eligibility for MVDDS license. No cable operator, nor any entity
owning an attributable interest in a cable operator, shall have an
attributable interest in an MVDDS license if such cable operator\'s
service area significantly overlaps the MVDDS license area, as
\"significantly overlaps\" is defined in paragraph (e) of this section.

\(b\) Definition of cable operator. For the purposes of paragraph (a) of
this section, the term \"cable operator\" means a company that is
franchised to provide cable service, as defined in 47 CFR 76.5(ff) of
this chapter, in all or part of the MVDDS license area.

\(c\) For the purpose of this section, the term \"MVPD household\"
refers to a household that subscribes to one or more Multichannel Video
Program Distributors (MVPDs), as defined in 47 CFR 76.1000(e) of this
chapter.

\(d\) Waiver of restriction. Upon completion of the initial award of an
MVDDS license, a cable operator may petition for a waiver of the
restriction on eligibility based upon a showing that changed
circumstances or new evidence indicate that no significant likelihood of
substantial competitive harm will result from the operator retaining an
attributable interest in the MVDDS license.

\(e\) Significant overlap with service area. For purposes of paragraph
(a) of this section, significant overlap occurs when a cable operator\'s
subscribers in the MVDDS license area make up thirty-five percent or
more of the MVPD households in that MVDDS license area.

\(f\) Definition of attributable interest. For purposes of paragraph (a)
of this section, an entity shall be considered to have an attributable
interest in a cable operator or MVDDS licensee pursuant to the following
criteria:

\(1\) A controlling interest shall constitute an attributable interest.
Controlling interest means majority voting equity ownership, any general
partnership interest, or any means of actual working control (including
negative control) over the operation of the entity, in whatever manner
exercised.

\(2\) Any general partnership interest in a partnership;

\(3\) Partnership and similar ownership interests (including limited
partnership interests) amounting to 20 percent or more of the total
partnership interests, calculated according to both the percentage of
equity paid in and the percentage of distribution of profits and losses;

\(4\) Any stock interest amounting to 20 percent or more of the
outstanding voting stock of an entity;

\(5\) Any voting or non-voting stock interest, amounting to 20 percent
or more of the total outstanding stock of an entity;

\(6\) Stock interests held in trust that exceed the limit set forth in
paragraph (f) of this section shall constitute an attributable interest
of any person who holds or shares the power to vote such stock, of any
person who has the sole power to sell such stock, and, in the case of
stock held in trust, of any person who has the right to revoke the trust
at will or to replace the trustee at will. If the trustee has a
familial, personal, or extra-trust business relationship to the grantor
or the beneficiary, the stock interests held in trust shall constitute
an attributable interest of such grantor or beneficiary, as appropriate.

[Note to paragraph (f)(6)]{.underline}: Waivers may be granted upon an
affirmative showing: (1) That the interest holder has less than a fifty
percent voting interest in the licensee and there is an unaffiliated
single holder of a fifty percent or greater voting interest; (2) That
the interest holder is not likely to affect the local market in an
anticompetitive manner; (3) That the interest holder is not involved in
the operations of the licensee and does not have the ability to
influence the licensee on a regular basis; and (4) That grant of a
waiver is in the public interest because the benefits to the public of
common ownership outweigh any potential anticompetitive harm to the
market.

\(7\) Debt and interests such as warrants and convertible debentures,
options, or other interests (except non-voting stock) with rights of
conversion to voting interests shall not constitute attributable
interests unless and until conversion is effected.

\(8\) An interest in a Limited Liability Company (LLC) or Registered
Limited Liability Partnership (RLLP) amounting to 20 percent or more,
shall constitute an attributable interest of each such limited partner.

\(9\) Officers and directors of a cable operator, an MVDDS licensee, or
an entity that controls such cable operator or MVDDS licensee, shall be
considered to have an attributable interest in such cable operator or
MVDDS licensee.

\(10\) Ownership interests that are held indirectly by any party through
one or more intervening corporations or other entities shall be
determined by successive multiplication of the ownership percentages for
each link in the vertical ownership chain and application of the
relevant attribution benchmark to the resulting product, except that, if
the ownership for any interest in any link in the chain exceeds 50
percent or represents actual control, it shall be treated as if it were
a 100 percent interest.

\(11\) Any person who manages the operations of a cable operator or an
MVDDS licensee pursuant to a management agreement shall be considered to
have an attributable interest in such cable operator or MVDDS licensee,
if such person or its affiliate has authority to make decisions or
otherwise engage in practices or activities that determine, or
significantly influence:

\(i\) The nature or types of services offered by such entity;

\(ii\) The terms upon which such services are offered; or

\(iii\) The prices charged for such services.

\(12\) Any person or its affiliate who enters into a joint marketing
arrangement with a cable operator, an MVDDS licensee, or an affiliate of
such entity, shall be considered to have an attributable interest in
such cable operator, MVDDS licensee, or affiliate, if such person or its
affiliate has authority to make decisions or otherwise engage in
practices or activities that determine:

\(i\) The nature or types of services offered by such entity;

\(ii\) The terms upon which such services are offered; or

\(iii\) The prices charged for such services.

\(g\) [Divestiture]{.underline}. Any cable operator, or any entity
owning an attributable interest in a cable operator, that would
otherwise be barred from acquiring an attributable interest in an MVDDS
license by the eligibility restriction in paragraph (a) of this section,
may be a party to an MVDDS application (i.e., have an attributable
interest in the applicant), and such applicant will be eligible for an
MVDDS license, pursuant to the divestiture procedures set forth in
paragraphs (g)(1) through (g)(6) of this section.

\(1\) Divestiture shall be limited to the following prescribed means:

\(i\) An MVDDS applicant holding an attributable interest in a cable
operator may divest such interest in the cable company.

\(ii\) Other MVDDS applicants disqualified under paragraph (a) of this
section, will be permitted to:

\(A\) Partition and divest that portion of the existing service area
that causes it to exceed the overlap restriction in paragraph (a) of
this section, subject to applicable regulations of state and local
governments; or

\(B\) Partition and divest that portion of the MVDDS geographic service
area that exceeds the overlap restriction in paragraph (a) of this
section.

\(iii\) Divestiture may be to an interim trustee if a buyer has not been
secured in the required period of time, as long as the MVDDS applicant
has no interest in or control of the trustee and the trustee may dispose
of the license as it sees fit.

\(2\) The MVDDS applicant shall certify as an exhibit to its short form
application that it and all parties to the application will come into
compliance with paragraph (a) of this section.

\(3\) If such MVDDS applicant is a successful bidder in an auction, it
must submit with its long-form application a signed statement describing
its efforts to date and future plans to come into compliance with the
eligibility restrictions in paragraph (a) of this section.

\(4\) If such an MVDDS applicant is otherwise qualified, its application
will be granted subject to a condition that the applicant shall come
into compliance with the eligibility restrictions in paragraph (a)
within ninety (90) days of final grant of such MVDDS license.

\(5\) An MVDDS applicant will be considered to have come into compliance
with paragraph (a) of this section if:

\(i\) In the case of the divestiture of a portion of an MVDDS license
service area, it has successfully completed the assignment or transfer
of control of the requisite portion of the MVDDS geographic service
area.

\(ii\) In all other cases, it has submitted to the Commission a signed
certification that it has come into compliance with paragraph (a) of
this section by the following means, identified in such certification:

\(A\) By divestiture of a disqualifying interest in a cable operator,
identified in terms of the interest owned, the owner of such interest
(and, if such owner is not the applicant itself, the relationship of the
owner to the applicant), the name of the party to whom such interest has
been divested, and the date such divestiture was executed; or

\(B\) By divestiture of the requisite portion of the cable operator\'s
existing service area, identified in terms of the name of the party to
whom such interest has been divested, the date such divestiture was
executed, the name of any regulatory agency that must approve such
divestiture, and the date on which an application was filed for this
purpose with the regulatory agency.

\(6\) If no such certification or application is tendered to the
Commission within ninety (90) days of final grant of the initial
license, the Commission may cancel or rescind the license automatically,
shall retain all monies paid to the Commission, and, based on the facts
presented, shall take any other action it may deem appropriate.

[§ 101.1413 License term and renewal expectancy]{.underline}.

\(a\) The MVDDS license term is ten years, beginning on the date of the
initial authorization grant.

\(b\) Application of a renewal expectancy is based on a showing of
substantial service at the end of five years into the license period and
ten years into the license period. The substantial service requirement
is defined as a service that is sound, favorable, and substantially
above a level of mediocre service which might minimally warrant renewal.
At the end of five years into the license term and ten years into the
license period, the Commission will consider factors such as:

\(1\) Whether the licensee\'s operations service niche markets or focus
on serving populations outside of areas serviced by other MVDDS
licensees;

\(2\) Whether the licensee\'s operations serve populations with limited
access to telecommunications services; and

\(3\) A demonstration of service to a significant portion of the
population or land area of the licensed area.

\(c\) The renewal application of an MVDDS licensee must include the
following showings in order to claim a renewal expectancy:

\(1\) A coverage map depicting the served and unserved areas;

\(2\) A corresponding description of current service in terms of
geographic coverage and population served or transmitter locations in
the served areas; and

\(3\) Copies of any Commission Orders finding the licensee to have
violated the Communications Act or any Commission rule or policy and a
list of any pending proceedings that relate to any matter described by
the requirements for the renewal expectancy.

[§ 101.1415 Partitioning and Disaggregation]{.underline}.

\(a\) MVDDS licensees are permitted to partition licensed geographic
areas along county borders (Parishes in Louisiana or Territories in
Alaska). Disaggregation will not be permitted by MVDDS licensees in the
12.2-12.7 GHz band. \"Partitioning\" is the assignment of geographic
portions of a license along geopolitical or other boundaries.
\"Disaggregation\" is the assignment of discrete portions or \"blocks\"
of spectrum licensed to a geographic licensee or qualifying entity.

\(b\) [Eligibility]{.underline}. (1) Parties seeking approval for
partitioning shall request from the Commission an authorization for
partial assignment of a license pursuant to § 1.948 of this chapter.

\(2\) MVDDS licensees may apply to the Commission to partition their
licensed geographic service areas to eligible entities and are free to
partition their licensed spectrum at any time following the grant of a
license.

\(3\) Any existing frequency coordination agreements shall convey with
the assignment of the geographic area or spectrum, and shall remain in
effect for the term of the agreement unless new agreements are reached.

\(c\) [Technical standards]{.underline}. (1) Partitioning. In the case
of partitioning, applicants and licensees must file FCC Form 603
pursuant to § 1.948 of this chapter and list the partitioned service
area on a schedule to the application.

\(2\) The geographic coordinates must be specified in degrees, minutes,
and seconds to the nearest second of latitude and longitude and must be
based upon the 1983 North American Datum (NAD83).

\(d\) [Unjust enrichment]{.underline}. 12 GHz licensees that received a
bidding credit and partition their licenses to entities not meeting the
eligibility standards for such a bidding credit, will be subject to the
provisions concerning unjust enrichment as set forth in § 1.2111 of this
chapter.

\(e\) [License term]{.underline}. The MVDDS license term is ten years,
beginning on the date of the initial authorization grant. The license
term for a partitioned license area shall be the remainder of the
original licensee\'s license term as provided for in § 101.1413.

\(f\) [Construction requirements]{.underline}. Applications requesting
approval for partitioning must include a certification by each party
stating that one or both parties will satisfy the construction
requirement set forth in § 101.1413. Failure by a party to meet its
respective construction requirement will result in the automatic
cancellation of its license without further Commission action.

[§ 101.1417 Annual report]{.underline}.

Each MVDDS licensee shall file with the Broadband Division of the
Wireless Telecommunications Bureau of the Commission two copies of a
report by March 1 of each year for the preceding calendar year. This
report must include the following:

\(a\) Name and address of licensee;

\(b\) Station(s) call letters and primary geographic service area(s);
and

\(c\) The following statistical information for the licensee\'s station
(and each channel thereof):

\(1\) The total number of separate subscribers served during the
calendar year;

\(2\) The total hours of transmission service rendered during the
calendar year to all subscribers;

\(3\) The total hours of transmission service rendered during the
calendar year involving the transmission of local broadcast signals; and

\(4\) A list of each period of time during the calendar year in which
the station rendered no service as authorized, if the time period was a
consecutive period longer than 48 hours.

[§ 101.1421 Coordination of adjacent area MVDDS stations]{.underline}.

\(a\) MVDDS licensees in the 12.2-12.7 GHz band are required to develop
sharing and protection agreements based on the design and architecture
of their systems, in order to ensure that no harmful interference occurs
between adjacent geographical area licensees. MVDDS licensees shall:

\(1\) Engineer systems to be reasonably compatible with adjacent and
co-channel operations in the adjacent areas on all its frequencies; and

\(2\) Cooperate fully and in good faith to resolve interference and
transmission problems that are present on adjacent and co-channel
operations in adjacent areas.

\(b\) 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. 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.

[§ 101.1423 Canadian and Mexican coordination]{.underline}.

Pursuant to § 2.301 of this chapter, MVDDS systems in the United States
within 56 km (35 miles) of the Canadian and Mexican border will be
granted conditional licenses, until final international agreements are
approved. These systems may not cause harmful interference to stations
in Canada or Mexico. MVDDS stations must comply with the procedures
outlined under § 101.147(p) and § 1.928(f)(1) and (f)(2) of this chapter
until final international agreements concerning MVDDS are signed.
Section 1.928(f) of this chapter states that transmitting antennas can
be located as close as five miles (eight kilometers) of the border if
they point within a sector of 160 degrees away from the border, and as
close as thirty-five miles (fifty-six km) of the border if they point
within a sector of 200 degrees toward the border without coordination
with Canada. MVDDS licensees shall apply this method near the Canadian
and Mexican borders. No stations are allowed within 5 miles of the
borders.

[§ 101.1425 RF safety]{.underline}.

MVDDS stations in the 12.2-12.7 GHz frequency band do not operate with
output powers that equal or exceed 1640 watts EIRP and therefore will
not be subject to the routine environmental evaluation rules for
radiation hazards, as set forth in § 1.1307 of this chapter.

[§ 101.1427 MVDDS licenses subject to competitive bidding]{.underline}.

Mutually exclusive initial applications for MVDDS licenses in the
12.2-12.7 GHz band are subject to competitive bidding. The general
competitive bidding procedures set forth in part 1, subpart Q of this
chapter will apply unless otherwise provided in this subpart.

[§ 101.1429 Designated entities]{.underline}.

\(a\) [Eligibility for small business provisions]{.underline}. (1) A
very small business is an entity that, together with its controlling
interests and affiliates, has average annual gross revenues not
exceeding \$ 3 million for the preceding three years.

\(2\) A small business is an entity that, together with its controlling
interests and affiliates, has average annual gross revenues not
exceeding \$ 15 million for the preceding three years.

\(3\) An entrepreneur is an entity that, together with its controlling
interests and affiliates, has average annual gross revenues not
exceeding \$ 40 million for the preceding three years.

\(b\) [Bidding credits]{.underline}. A winning bidder that qualifies as
a very small business, as defined in this section, or a consortium of
very small businesses may use the bidding credit specified in
§ 1.2110(f)(2)(i) of this chapter. A winning bidder that qualifies as a
small business, as defined in this section, or a consortium of small
businesses may use the bidding credit specified in § 1.2110(f)(2)(ii) of
this chapter. A winning bidder that qualifies as an entrepreneur, as
defined in this section, or a consortium of entrepreneurs may use the
bidding credit specified in § 1.2110(f)(2)(iii) of this chapter.

[§ 101.1440 MVDDS protection of DBS]{.underline}.

\(a\) An MVDDS licensee shall not begin operation unless it can ensure
that the EPFD from its transmitting antenna at all DBS customers of
record locations is below the values listed for the appropriate region
in § 101.105(a)(4)(ii). Alternatively, MVDDS licensees may obtain a
signed written agreement from DBS customers of record stating that they
are aware of and agree to their DBS system receiving MVDDS signal levels
in excess of the appropriate EPFD limits specified in §
101.105(a)(4)(ii). DBS customers of record are those who had their DBS
receive antennas installed prior to or within the 30 day period after
notification to the DBS operator by the MVDDS licensee of the proposed
MVDDS transmitting antenna site.

\(b\) MVDDS licensees are required to conduct a survey of the area
around its proposed transmitting antenna site to determine the location
of all DBS customers of record that may potentially be affected by the
introduction of its MVDDS service. The MVDDS licensee must assess
whether the signal levels from its system, under its deployment plans,
would exceed the appropriate EPFD levels in § 101.105(a)(4)(ii) at any
DBS customer of record location. Using EPFD calculations, terrain and
building structure characteristics, and the survey results, an MVDDS
licensee must make a determination of whether its signal level(s) will
exceed the EPFD limit at any DBS customer of record sites. To assist in
making this determination, the MVDDS provider can use the EPFD contour
model developed by the Commission and described in Appendix J of the
Memorandum Opinion and Order and Second Report and Order, ET Docket
98-206 or on the OET website at http://www.fcc.gov/oet/dockets/et98-206.

\(c\) If the MVDDS licensee determines that its signal level will exceed
the EPFD limit at any DBS customer site, it shall take whatever steps
are necessary, up to and including finding a new transmit site, to
ensure that the EPFD limit will not be exceeded at any DBS customer
location.

\(d\) [Coordination between MVDDS and DBS licensees]{.underline}. (1) At
least 90 days prior to the planned date of MVDDS commencement of
operations, the MVDDS licensee shall provide the following information
to the DBS licensee(s):

\(i\) Geographic location (including NAD 83 coordinates) of its proposed
station location;

\(ii\) Maximum EIRP of each transmitting antenna system;

\(iii\) Height above ground level for each transmitting antenna;

\(iv\) Antenna type along with main beam azimuth and altitude
orientation information, and description of the antenna radiation
pattern;

\(v\) Description of the proposed service area; and

\(vi\) Survey results along with a technical description of how it
determined compliance with the appropriate EPFD level at all DBS
subscriber locations.

\(2\) No later than forty-five days after receipt of the MVDDS system
information in paragraph (d)(1) of this section, the DBS licensee(s)
shall provide the MVDDS licensee with a list of only those new DBS
customer locations that have been installed in the 30-day period
following the MVDDS notification and that the DBS licensee believes may
receive harmful interference or where the prescribed EPFD limits may be
exceeded. In addition, the DBS licensee(s) could indicate agreement with
the MVDDS licensee\'s technical assessment, or identify DBS customer
locations that the MVDDS licensee failed to consider or DBS customer
locations where they believe the MVDDS licensee erred in its analysis
and could exceed the prescribed EPFD limit.

\(3\) Prior to commencement of operation, the MVDDS licensee must take
into account any new DBS customers or other relevant information
provided by DBS licensees in response to the notification in paragraph
(d)(1) of this section.

\(e\) Beginning thirty days after the DBS licensees are notified of a
potential MVDDS site in paragraph (d)(1) of this section, the DBS
licensees are responsible for providing information they deem necessary
for those entities who install all future DBS receive antennas on its
system to take into account the presence of MVDDS operations so that
these DBS receive antennas can be located in such a way as to avoid the
MVDDS signal. These later installed DBS receive antennas shall have no
further rights of complaint against the notified MVDDS transmitting
antenna(s).

\(f\) In the event of either an increase in the EPFD contour in any
direction or a major modification as defined in § 1.929 of this chapter,
such as the addition of an antenna, to an MVDDS station, the procedures
of paragraphs (d) and (e) of this section and rights of complaint begin
anew. Exceptions to this are renewal, transfer of control, and
assignment of license applications.

\(g\) [Interference complaints]{.underline}. The MVDDS licensee must
satisfy all complaints of interference to DBS customers of record which
are received during a one year period after commencement of operation of
the transmitting facility. Specifically, the MVDDS licensee must correct
interference caused to a DBS customer of record or cease operation if it
is demonstrated that the DBS customer is receiving harmful interference
from the MVDDS system or that the MVDDS signal exceeds the permitted
EPFD level at the DBS customer location.

[^1]: *See* Order To Permit Operation of NGSO FSS Systems Co-Frequency
    With GSO and Terrestrial Systems in the Ku-Band Frequency Range,
    *Memorandum Opinion and Order and Second Report and Order,* ET
    Docket No. 98-206, 17 FCC Rcd 9614 (2002). The FCC Record version
    incorporated corrections made by three *errata* and the item was
    summarized in the Federal Register. *See* 67 Fed. Reg. 43,031 (June
    26, 2002).