Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+---+------------------------------+
| In the Matter of                 | ) | WT Docket No. 99-168         |
|                                  |   |                              |
| Service Rules for the 746-764    | ) | CS Docket No. 98-120         |
| and 776-794 MHz Bands, and       |   |                              |
| Revisions to Part 27 of the      | ) | MM Docket No. 00-39          |
| Commission's Rules               |   |                              |
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| Carriage of the Transmissions of |   |                              |
| Digital Television Broadcast     | ) |                              |
| Stations                         |   |                              |
|                                  | ) |                              |
| Review of the Commission's Rules |   |                              |
| and Policies Affecting the       | ) |                              |
| Conversion to Digital Television |   |                              |
|                                  | ) |                              |
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|                                  | ) |                              |
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|                                  | ) |                              |
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+----------------------------------+---+------------------------------+

**Third REPORT AND ORDER**

**Adopted:** January 18, 2001 **Released:** January 23, 2001[^1]

By the Commission: Commissioner Tristani approving in part, dissenting
in part, and issuing a separate statement.

Table of Contents

Paragraph \#

I. Introduction 1

II\. Executive summary 2

III\. Background 3

IV\. Discussion 5

A. Cost-Sharing Rules 5

B. Voluntary Band Clearing Mechanisms 10

1\. Three-Way Voluntary Transition Agreements. 10

2\. Temporary Relocation To Channels 52-58 34

C. Secondary Auctions 37

D. Collusion Issues 45

E. Proposals to Make Band Clearing Mechanisms Effective 48

1\. Proposal to Cap Clearing Costs 48

2\. Digital Must-Carry 51

3\. Other Relocation Proposals 54

F. Other Proposals to Accelerate the DTV Transition 57

G. Band Clearing Relating to the Auction of Channels 52-59 60

V. Procedural Matters 62

VI\. ordering clauses 65

APPENDIX A: FINAL RULES

APPENDIX B: Comments and Reply Comments

# Introduction

1.  By this Third Report and Order, we adopt mechanisms and make
    determinations intended to facilitate the clearing of the 740-806
    MHz band to allow for the introduction of new wireless services, and
    to promote the early transition of analog television licensees to
    digital television service ("DTV"). The 746-806 MHz band at issue
    here has historically been used exclusively by television stations
    (Channels 60-69). The incumbent television broadcasters are
    permitted by statute to continue operations until their markets are
    converted to digital television,[^2] which is not scheduled to occur
    until December 31, 2006, and that date may be extended under certain
    circumstances.[^3] Congress has, however, mandated that the
    Commission commence competitive bidding for the commercial licenses
    well before the scheduled termination date of the DTV
    transition.[^4] In the *700 MHz MO&O and FNPRM,* we provided
    guidance on our review of applications for approval of voluntary
    agreements accelerating the transition of incumbent analog
    television licensees and opening these bands for new 700 MHz
    licensee use, and sought comment on several potential mechanisms to
    advance the spectrum clearing process.[^5] This Third Report and
    Order announces additional policies to facilitate voluntary band
    clearing agreements among incumbent broadcasters and new wireless
    licensees.

# Executive summary

2.  In this Third Report and Order, we make the following principal
    determinations:

-   We conclude that it is not necessary or appropriate at this time to
    adopt cost-sharing rules to assist in clearing the 700 MHz band, and
    we leave cost-sharing arrangements to voluntary negotiations among
    new wireless licensees.

-   We extend the general rebuttable presumption adopted in the *700 MHz
    MO&O and FNPRM* for bilateral agreements (between incumbent Channel
    59-69 broadcasters and new 700 MHz wireless licensees) to three-way
    agreements (which would provide for TV incumbents on television
    Channels 59-69 to relocate to lower band TV channels that, in turn,
    would be voluntarily cleared by the lower band TV incumbents).

-   We provide guidance on interference issues that may arise from a
    proposal to clear a station and relocate that broadcast operation to
    a channel below channel 59.

-   We confirm that DTV broadcasters may enter into negotiated
    interference agreements pursuant to Section 73.623(g), and may use
    existing DTV allotment swap procedures to effectuate band clearing.

-   We reiterate our commitment to process regulatory requests
    associated with relocation agreements expeditiously, and make
    certain procedural changes intended to streamline our consideration
    of such requests.

-   We clarify that voluntary agreements to relocate temporarily into
    Channels 52-58 will not be prohibited.

-   We make clear that we do not intend at this time to conduct a
    secondary auction, and leave the implementation of any such auction
    to private, voluntary efforts that are otherwise consistent with
    Commission policies and rules and do not interfere with the
    integrity and operations of the Commission's spectrum auctions. We
    also provide guidance on how the Commission's anti-collusion rules
    may apply in the context of band clearing agreements and secondary
    auctions.

-   We decline to adopt relocation cost caps or cost recovery guidelines
    at this time.

-   We find that issues raise by the parties regarding the DTV
    must-carry rules adopted in the *MO&O and FNPRM* are in significant
    part being addressed by other orders we are adopting.

#  Background

3.  In the *700 MHz First Report and Order,* we adopted service rules
    for the commercial use of the 747-762 MHz and 777-792 MHz bands that
    enable the broadest possible use of this spectrum, consistent with
    sound spectrum management.[^6] In developing these rules, we were
    guided by our conclusion in our *Spectrum Reallocation Policy
    Statement* that a flexible, market-based approach is the most
    appropriate method for establishing service rules for this band.[^7]
    In the *700 MHz* *MO&O and FNPRM*,[^8] we generally affirmed the
    service rules we adopted in the *700 MHz First Report and Order*,
    provided additional guidance on the factors we would consider when
    reviewing applications for approval of regulatory requests
    associated with voluntary agreements accelerating the transition of
    incumbent analog television licensees to digital television service
    and opening the 700 MHz bands to new licensees, and sought comment
    on several aspects of the spectrum clearing process.

4.  In the *700 MHz MO&O and FNPRM*, we sought comment on the following
    potential mechanisms to further the goals of transitioning the 700
    MHz band to wireless services. First, we sought comment on whether
    or not we need to adopt cost-sharing rules that would spread the
    cost of band clearing among 700 MHz licensees that benefit from the
    process, and tentatively concluded that we should not. Second, we
    sought comment on additional band clearing mechanisms that would
    provide alternatives to individually negotiated agreements between
    700 MHz licensees and incumbent broadcasters in the 700 MHz band. We
    suggested that one such alternative would be "three-way" agreements
    that would provide for TV incumbents in the 700 MHz band to relocate
    those operations to lower band TV channels that would be voluntarily
    cleared by the lower band TV incumbent. We suggested that another
    alternative would be to allow use of "secondary auctions" in which
    700 MHz bidders would bid for the right to enter into band clearing
    arrangements with TV incumbents that wished to clear their channels.
    We sought comment on the viability of these and other alternatives
    for facilitating the clearing of TV Channels 59-69 in connection
    with the upcoming auction of licenses for this portion of the
    spectrum. In addition, we sought comment on whether any or all of
    these mechanisms could or should be used to facilitate the clearing
    of Channels 52-58 in connection with our future licensing of this
    lower portion of the spectrum for wireless services.

#  Discussion

## Cost-Sharing Rules

5.  *Background.* In the *700 MHz MO&O and FNPRM* we tentatively
    concluded that it would not be necessary or appropriate to adopt
    cost-sharing rules in this proceeding and that we should rely on
    market forces to produce any desirable cost-sharing arrangements. In
    doing so, we discussed a number of factors that should give new 700
    MHz licensees incentives to reach cost-sharing agreements with each
    other and that may make it easy for them to bargain among
    themselves. We nonetheless sought comment on how any cost-sharing
    rules that we might adopt should work.[^9]

6.  *Discussion.* We conclude that it is not necessary or appropriate to
    adopt cost-sharing rules to assist in clearing the 700 MHz band. We
    note that the majority of the commenters who addressed the issue
    support this view. Entravision, NAB, Paxson, Nextel, USA
    Broadcasting, and PCIA, for instance, believe that the establishment
    of cost-sharing arrangements should be left to the private
    parties.[^10] Verizon, however, supports the adoption of
    cost-sharing rules in cases where the clearing of a particular TV
    incumbent benefits more than one license holder.[^11]

7.  Based on the record before us, we find that the new 700 MHz
    commercial wireless licensees should be able to enter into
    cost-sharing agreements without Commission rules. As we explained in
    the *700 MHz MO&O and FNRPM*, the number of new wireless entrants
    that would benefit significantly from any particular clearing
    agreement will be small because the 700 MHz band has been allocated
    based on large spectrum blocks and regional licenses.[^12] Because
    there will be relatively few new commercial wireless entrants, they
    should be able to bargain among themselves to reach cost-sharing
    agreements. We also believe that the group of new entrants will have
    very similar, strong incentives to reach clearing agreements with
    incumbent broadcasters and commence operations.[^13]

8.  These factors are also likely to minimize "free rider" problems in
    the 700 MHz band. A free rider problem can arise where a new entrant
    seeks to benefit from a clearing agreement without assuming
    financial costs or other obligations of that agreement. The
    Commission recognized that free riders could be a significant
    problem in the broadband Personal Communications Services ("PCS")
    context where the various PCS spectrum blocks were licensed
    sequentially and later-licensed PCS entities might have sought to
    free ride on the efforts of early entrants, which might have
    frustrated cost-efficient relocation.[^14] Because PCS licensing
    took place over several years, the earlier licensed PCS operators
    therefore had to initiate relocation negotiations without knowing
    the identity of later PCS licensees and whether they would be
    willing to share the cost of the microwave relocation.[^15] By
    contrast, in the instant situation, the Commission intends to
    license all commercial 700 MHz licensees within a period of several
    months, and the new licensees are likely to be ready to deploy their
    services at the same time. All 700 MHz licensees will therefore know
    with whom they need to bargain to reach cost-sharing agreements, and
    they will not find themselves in the position of needing to relocate
    incumbents earlier than others who would benefit from such
    relocation. We therefore do not believe that mandatory cost-sharing
    rules are necessary to expedite clearing of the 700 MHz band for use
    by new licensees.[^16]

9.  In sum, we conclude that we can rely on market forces to produce any
    desirable cost-sharing relationships, and cost-sharing rules are
    unnecessary to assist licensees in reaching clearing agreements with
    TV incumbents. We also find that market-driven agreements will
    provide parties with more flexibility to negotiate any cost-sharing
    arrangements based on individual situations.[^17] We therefore leave
    all cost-sharing arrangements to negotiations among successful
    auction bidders in this band.

## Voluntary Band Clearing Mechanisms

### Three-Way Voluntary Transition Agreements

10. *Background.* In the *700 MHz* *First Report and Order* and *700 MHz
    MO*&*O and FNPRM,* we adopted policies and a general presumption
    concerning bilateral agreements between incumbent Channel 59-69
    broadcasters and new 700 MHz wireless licensees in order to expedite
    the full commercial and public safety use of the 700 MHz spectrum
    specified in Section 337 of the Act without an undue adverse effect
    on the public's overall receipt of broadcasting service.[^18] In the
    *700 MHz* *MO*&*O and FNPRM,* we found that we have authority to
    review and approve regulatory requests made in connection with
    voluntary agreements as part of our authority, under the statutory
    scheme as a whole, to take steps to manage the electromagnetic
    spectrum in the manner that most effectively facilitates the
    transition of this portion of the spectrum from conventional
    broadcast to commercial and public safety use.[^19] In implementing
    our policy of facilitating the clearance of these bands to the
    extent that incumbent broadcasters and new 700 MHz licensees
    voluntarily negotiate agreements toward that end, we made two
    initial statements. First, we said that we would not review the
    wisdom of private parties' business decisions in reaching
    agreements. Second, we indicated that our role would be limited to
    weighing the effect on the public interest of regulatory requests
    made in connection with such agreements.[^20] We further stated
    that, in order to ensure that all public interest issues are readily
    identified, we would require broadcasters that enter into voluntary
    band clearance agreements to provide the public in the principal
    area served by the licensee with the notice required by Part 73 of
    the Commission's Rules for the filing of applications involving
    major license modifications.[^21]

11. In the *700 MHz MO&O and FNRPM*, we established a rebuttable
    presumption that, in certain circumstances, substantial public
    interest benefits will arise from a voluntary agreement between a
    700 MHz licensee and an incumbent broadcast licensee on channels
    59-69 that clears the 700 MHz band of incumbent television
    licensee(s). We stated that we would presume that the public
    interest is substantially furthered when an applicant demonstrates
    that the grant of its request will both result in certain specific
    benefits and avoid specific detriments.[^22] We further indicated
    that when this presumption is not established, or is rebutted, we
    would review regulatory requests by weighing the loss of broadcast
    service and the advent of new wireless service on a case-by-case
    basis.[^23]

12. Finally, in the *700 MHz MO&O and FNRPM,* we sought comment on
    whether, and under what conditions, we should consider requests to
    approve three-way clearing agreements that would provide for TV
    incumbents on television Channels 59-69 to relocate to lower band TV
    channels that, in turn, would be voluntarily cleared by the lower
    band TV incumbents.[^24] Pursuant to such agreements, the lower band
    broadcasters would give up one of their two channel allotments
    (either analog or digital), to which the Channel 59-69 incumbents
    would then move their operations. We noted that such three-way
    voluntary relocation agreements could facilitate clearing in the 700
    MHz band by providing a replacement channel for incumbent
    broadcasters on Channels 59‑69.[^25]

13. *Discussion.* We adopt a general presumption, standards of review,
    and policies for three-way agreements that are similar to those
    adopted in the *700 MHz MO&O and FNPRM* for bilateral agreements
    between incumbent Channel 59-69 broadcasters and new 700 MHz
    wireless licensees. We find that three-way voluntary agreements are
    consistent, as bilateral agreements are, with the legislative
    purposes of achieving an orderly DTV transition and expeditiously
    assigning the spectrum currently used by broadcasters on channels
    60-69 to other commercial and public safety licensees.[^26]

14. A number of commenters also agree that three-way agreements could
    produce significant benefits for all.[^27] APCO states that
    television station allotments are blocking public safety access to
    some or all of the 700 MHz band in many parts of the country,
    including some of the nation's largest metropolitan areas.
    Accordingly, APCO asserts that the sooner television stations vacate
    channels 60-69, the sooner public safety agencies will have the
    opportunity to utilize the spectrum allocated for public
    safety.[^28] We also find that, in addition to helping public safety
    and commercial wireless entities by clearing the 700 MHz band,
    three-way agreements could help broadcasters on channels 59 to 69 by
    facilitating their relocation to lower channels. Nextel asserts that
    parties to negotiations should have certainty as to whether a
    three-way agreement can be implemented once it is reached, arguing
    that otherwise the parties will have no incentive to invest the time
    and the resources necessary to negotiate an agreement that may never
    be implemented.[^29] Finally, as a number of commenters state, a
    voluntary band clearing process will assist the Commission in
    "encourag\[ing\] the larger and more effective use of radio in the
    public interest."[^30]

15. Based on this record, we find that adopting guidelines for three-way
    agreements similar to those we established for bilateral agreements
    should help negotiating parties and serve the public interest by
    providing a measure of certainty regarding the conditions under
    which a regulatory request to implement a three-way agreement may be
    approved. The presumption we will apply to three-way agreements will
    be the same as the presumption we adopted for bilateral
    agreements.[^31] Thus, we will presume that the public interest is
    substantially furthered when an applicant demonstrates that the
    grant of its request will both result in certain specific benefits
    and avoid specific detriments.[^32] To obtain this presumption, an
    applicant must first demonstrate that grant of its request would
    result in one of the following: (1) make new or expanded wireless
    service, such as '2.5G' or '3G' services, available to
    consumers, (2) clear commercial frequencies that enable provision of
    public safety services; or (3) result in the provision of wireless
    service to rural or other underserved communities. To obtain the
    presumption, the applicant must also show that grant of its request
    would not result in any one of the following: (1) the loss of any of
    the four stations in the designated market area ("DMA") with the
    largest audience share; (2) the loss of the sole service licensed to
    the local community; or (3) the loss of a community's sole service
    on a channel reserved for noncommercial educational broadcast
    service. As we stated in the *700 MHz MO&O and FNPRM,* the
    presumption is not conclusive or dispositive. In specific cases
    where the presumption applies, for instance, we will consider
    whether special or unique factors involving loss of broadcast
    service are sufficient to rebut the presumption.[^33] When the
    presumption is not established or is rebutted, we will review
    regulatory requests by weighing the loss of service and the advent
    of new wireless service on a case-by-case basis. In conducting this
    analysis, we will consider all relevant public interest factors
    regarding the provision of wireless services, the acceleration of
    the DTV transition, and the loss of broadcast service. We will
    consider as a relevant factor in our public interest determination,
    for instance, the extent to which a station's signal will remain
    available, after implementation of the agreement, to a significant
    number of its viewers in the licensee's service area.[^34]

16. The standards we adopt here for reviewing regulatory requests made
    in connection with three-way voluntary agreements will enable us to
    weigh both the benefits associated with recovery of the spectrum for
    new wireless uses and any loss of service to the broadcast
    community. We will apply the same loss of service analysis to both
    bilateral and three-way band clearing agreements in light of the
    fact that they will contribute to the same process of facilitating
    the transition to DTV and clearing the 700 MHz band for new
    services. MSTV accepts that there may be voluntary agreements that
    would result in a loss of television service and argues that the
    Commission should minimize that loss.[^35] As we explained in the
    *700 MHz MO&O and FNPRM,* in certain circumstances a voluntary
    agreement that clears the 700 MHz band of incumbent television
    licensees may be in the public interest despite the fact that it may
    also result in a loss of television service.[^36] As we also stated
    in the *700 MHz MO&O and FNPRM*, we believe that loss-of-service
    issues here are limited and temporary.[^37] There are a limited
    number of TV stations operating on channels 59 to 69 to begin with,
    and any loss of service affecting such stations should in most cases
    be temporary. Moreover, losses of service affecting stations
    operating on core channels that might result from a three-way
    agreement will also be limited in that only a relatively small
    number of stations on channels 59 to 69 exist and in most cases an
    in-core station's signal will be replaced by a channel 59 to 69
    station's signal. Further, losses that result from three-way
    agreements may be counterbalanced by a gain for broadcasters of
    supplemental resources that strengthen the individual broadcast
    licensee's long-term viability as a DTV provider and that benefit
    the public by expediting the delivery of advanced television
    services. We note also that Paxson supports the application of a
    rebuttable presumption that substantial public interest benefits
    will arise from voluntary band-clearing agreements that meet
    unambiguous standards.[^38] Thus, we conclude that it is in the
    public interest to allow three-way band clearing agreements to go
    forward where we find that the benefits and detriments are
    appropriately balanced.

17. Although the factors involved in a loss-of-service analysis will be
    the same for three-way and bilateral agreements, their application
    to three-way agreements may in some circumstances require two
    loss-of-service analyses to assure that effectuation of the
    agreement would be consistent with the public interest. In those
    cases, we will do such an analysis separately for: (1) people in the
    service area of the relocation channel that is temporarily
    suspending service, and (2) people in the service area of the
    channel 59-69 incumbent.[^39] Of course, if the two signals ---
    i.e., the relocation channel's signal (channel 2-58 range) and the
    relocating channel's signal (channel 59-69 range) --- have been
    provided from the same location with the same coverage
    characteristics, the loss-of-service analysis would appear to be
    identical to that for a bilateral agreement, but with the focus on
    the loss of the relocation signal rather than the channel 59-69
    signal. Because the channel 59-69 signal would continue to be
    available within approximately the same service area, the only loss
    we would need to focus on would be that of the signal of the
    relocation channel. In other words, we would need to ascertain that
    the presumption is met only for the relocation channel. In other
    circumstances, however, we would need to conduct two separate
    loss-of-service analyses and each station involved should separately
    satisfy the requirements set forth above to qualify for the
    favorable presumption. If one of the channels involved does not
    qualify for the presumption, then we will make a public interest
    determination on a case-by-case basis. We note that a three-way
    agreement may also, in some cases, expand a service area. Such
    expansion would generally tend to promote the public interest. We
    note that such expansion would have to be considered in conjunction
    with any interference issues.[^40] We will consider as relevant
    factors in our public interest determination the extent to which a
    station's signal remains available to viewers located within its
    previous service area, as well as the substitution of a relocating
    station's programming for the programming previously available to
    viewers of the relocation channel.[^41]

18. Paxson urges the Commission to adopt a presumption in favor of
    regulatory requests that propose to vacate an allotment even if the
    grant of the request would result in the loss of a community's sole
    television station, so long as the community continues to receive
    Grade B service from at least three other television stations.[^42]
    MSTV opposes Paxson's position and contends that the Commission
    cannot allow channel relocations to compromise the public's free,
    over-the air television service.[^43] We decline at this time to
    adopt the presumption suggested by Paxson in light of the fact that,
    under the standards we adopt today, we may approve a regulatory
    request made in connection with an agreement under our case-by-case
    analysis even though it does not meet the presumption.[^44]

19. *Treatment of Interference Issues.* In the *700 MHz MO&O and FNPRM*,
    we recognized that interference issues may arise under a three-way
    agreement that do not arise under a bilateral agreement.[^45]
    Specifically, while a bilateral agreement contemplates that a
    broadcaster relinquish one of its two TV allotments, a three-way
    agreement involves the relocation of a channel 59-69 operation into
    a lower band allotment, which may potentially give rise to
    interference issues with respect to neighboring TV stations.

20. We find that no interference issues should arise if the relocating
    station's signal is to be broadcast in the same mode (*i.e.*, the
    relocation involves an analog operation moving into an analog
    allotment or a digital operation relocating into a digital
    allotment) from the same location as the lower band incumbent's
    signal using the same or lower power and the same or lower antenna
    height.[^46] In all other situations the proposed change must
    satisfy our prescribed interference protection standards for digital
    or analog operations, as applicable, and the Commission will address
    each such proposed assignment on a case-by-case basis.[^47]

21. A modification could, for instance, involve either the relocation of
    an analog operation or the relocation of a digital operation. If the
    modification involves the relocation of a digital operation
    either (1) into an analog allotment; or (2) into a digital
    allotment, where the relocated station does not operate at the same
    location or with the same or lower power and the same or lower
    antenna height as the lower band incumbent, we will require such
    modification to comply with the provisions of Section 73.623(c) of
    our rules.[^48] That rule section spells out technical criteria for
    DTV modifications, including minimum desired-to-undesired ("D/U")
    signal ratios, which protect co- and adjacent channel DTV and analog
    assignments from interference. If the modification involves the
    relocation of an analog operation either (1) into a digital
    allotment; or (2) into an analog allotment, where the relocated
    station does not operate at the same location or with the same or
    lower power and the same or lower antenna height as the lower band
    incumbent, we will require such modification to comply with the
    provisions of Sections 73.610 and 73.698 of our rules in instances
    where an analog operation may affect the operation of another analog
    allotment,[^49] and the provisions of Section 73.623(c) in instances
    where an analog operation may affect the operation of a digital
    allotment.[^50]

22. Some broadcasters argue that the Commission should adopt a new "no
    interference" standard that would prohibit any new involuntary
    interference to existing licensees.[^51] The broadcasters' position
    is that stations relocating to the lower television band during or
    after the transition should not be permitted to cause any new
    interference \-- including *de minimis* interference \-- to the
    analog or digital operations of other full power television
    stations.[^52] We disagree. A more stringent "no interference"
    standard is inconsistent with the objectives of this proceeding,
    which are to facilitate band clearing in a manner that is minimally
    disruptive to the DTV transition process and protects the public
    interest in continued free over-the-air analog broadcasting through
    the end of the DTV transition.[^53] The record in this proceeding
    contains no basis for the Commission to conclude that a departure
    from established DTV interference protection criteria is warranted.
    We adopted rules in the DTV proceeding that specifically permit
    certain levels of *de minimis* interference, increased power through
    antenna beam tilting, and DTV allotment exchanges among
    broadcasters.[^54] Under our *de minimis* interference protection
    standard, non-conforming DTV applications may be allowable where
    interference will affect less than 2 percent of the population
    served by another station.[^55] Moreover, we have previously
    recognized that, consistent with the public interest, broadcasters
    should be afforded as much flexibility as possible to address
    situations that may be unique to their particular
    circumstances.[^56] We find that this principle is particularly
    applicable in the context of modifications necessary to effectuate
    three-way voluntary band clearing agreements.

23. It may be true, as some commenters observe, that analog television
    stations may not easily be relocated to the allotment of a DTV
    station or vice versa, and still conform to our non interference
    requirement with respect to both co- and adjacent channel
    stations.[^57] However, we believe that relocation proposals that
    can be achieved in a manner consistent with our existing
    interference protection standards should be encouraged so as to
    facilitate the congressional intent underlying the allocation of
    these bands for new wireless uses.[^58]

24. We will also entertain negotiated interference agreements pursuant
    to Section 73.623(g), which is limited to possible agreements
    between relocating DTV stations and any existing TV stations that
    are entitled to interference protection under our rules.[^59]
    Pursuant to that section, parties may reach negotiated agreements,
    notwithstanding the fact that the agreements would result in
    increased interference to a DTV or analog television station above
    the minimum technical criteria for DTV allotments, provided that the
    station agrees in writing to accept the interference and/or to
    implement an exchange of channel allotments in the same community,
    same market, or adjacent markets.[^60] Under Section 73.623(g), the
    grant of such applications must be consistent with the public
    interest. These cases will be reviewed on a case-by-case basis. As
    with interference agreements negotiated under Section 73.623(g) in
    other contexts, the Mass Media Bureau will evaluate these cases in
    the first instance, and it is our intent that the significance of
    any service gains and losses should be considered seriously in the
    evaluation of whether the negotiated interference agreement should
    be approved.

25. We also confirm that broadcasters may file applications for
    exchanges of DTV allotments on an intra-community, intra-market, or
    inter-market basis, provided that the exchanges do not result in
    additional interference beyond our *de minimis* standard to other
    stations or that all affected stations agree to accept any
    additional interference that would result from the exchange, and
    that all other requirements of the DTV allotment rules are satisfied
    with respect to the application(s).[^61]

26. Finally, we note that any interference-related requests in
    connection with a voluntary band clearing agreement will be
    considered together with the other regulatory requests to implement
    that agreement.

27. *Procedural Issues.* We also address here certain procedural issues
    relating to these voluntary arrangements. The Commission recognized
    in the *700 MHz MO&O and FNPRM* that regulatory requests to
    effectuate band clearing agreements may involve changes to the DTV
    Table of Allotments, modification of licenses, and adjustments to
    allocations and terms and conditions of individual licenses.[^62]
    The *700 MHz MO&O and FNPRM* made clear that interested parties
    would have an opportunity to comment on regulatory requests arising
    from voluntary relocation agreements consistent with existing
    requirements set forth in the Communications Act and the
    Commission's rules.[^63]

28. In the *DTV Sixth Report and Order*, we adopted the DTV Table of
    Allotments, rules for initial DTV allotments, procedures for
    assigning DTV channels, and plans for spectrum recovery.[^64] As
    part of that action, we recognized that the implementation of DTV
    service will be a dynamic process and that mechanisms are needed to
    provide for modifying DTV allotments and station operating
    facilities.[^65] We therefore established procedures and technical
    standards for adding future DTV allotments and for modifying the DTV
    Table and stations' operating facility specifications, *i.e.*,
    effective radiated power, antenna height above average terrain
    (antenna HAAT), antenna pattern, and transmitter site
    coordinates.[^66] We permitted broadcasters the flexibility to
    negotiate among themselves station changes and alternative allotment
    plans, provided no new interference results or affected parties
    agree.[^67]

29. *Discussion*. We agree with the concerns that underlie commenters'
    proposals to adopt some form of expedited processing of regulatory
    requests to facilitate voluntary agreements for clearing of channels
    60-69.[^68] We agree with Sinclair, for example, that the Commission
    must act expeditiously in disposing of such requests, and that the
    goals of voluntary band clearing arrangements will be frustrated in
    the event of undue processing delays.[^69]

30. We therefore are committed to processing all such requests as
    expeditiously as possible. In light of the staff progress in
    processing applications for initial DTV construction permits, the
    Commission is now prepared to process expeditiously future DTV
    applications, including those regulatory requests that arise from
    three-way voluntary band clearing agreements. We decline, however,
    to adopt a couple of specific approaches proposed by
    commenters.[^70] Spectrum Exchange, Paxson, and USA Broadcasting
    propose that the Commission establish a 60-day processing timeline
    for applications filed by incumbent broadcasters seeking to vacate
    their analog channels early.[^71] Paxson argues that the backlog
    that had resulted from the wave of applications for initial DTV
    construction permits suggests that processing of regulatory requests
    for approval of voluntary agreements may be similarly delayed.[^72]
    As mentioned above, we find that it is unnecessary to establish a
    60-day processing timeline. However, we fully expect that routine
    regulatory requests will be acted on within 90 days.

31. We also doubt that decisionmaking would be expedited by Spectrum
    Exchange's proposal under which the Commission would "pre-approve"
    incumbent broadcasters' requests for waiver for early termination of
    analog over-the-air broadcasts.[^73] Such an approach would be
    impractical because it would require the Commission and interested
    parties to make judgments in the absence of all necessary facts. For
    example, among the public interest factors that will be considered
    is whether the request would result in the loss of the sole service
    licensed to the local community.[^74] However, it may be impossible
    to determine whether such loss would occur before the effective date
    of the proposed relocation. Therefore, we believe that a more
    efficient use of Commission application processing staff and
    resources would involve processing the necessary filings only once a
    definitive, binding clearing agreement is reached.

32. Consistent with our commitment to process regulatory requests
    associated with relocation agreements expeditiously, we clarify the
    procedures that will apply to such requests and adopt certain
    procedural changes designed to streamline the review process.
    Requests that require a change to the DTV Table of Allotments will
    generally be subject to existing procedures found in Section 73.622
    of the Commission's rules.[^75] Under certain circumstances,
    however, we will not use a rulemaking proceeding to make a DTV
    allotment change. Moreover, the following principles will govern
    whether we will employ routine Part 73 application procedures or
    rulemaking proceedings, regardless of whether a DTV assignment is
    being exchanged with another DTV assignment, an analog TV assignment
    is being exchanged with another analog TV assignment, a DTV
    assignment is being moved to an analog TV allotment, or an analog TV
    assignment is being moved to a DTV allotment. Proposals submitted in
    connection with three-way band clearing agreements where both
    broadcasters are licensed to the same community and the result will
    not be the dereservation of a noncommercial educational allotment,
    will be processed under routine application procedures (*i.e.*, a
    rulemaking proceeding would not be necessary) and will be subject to
    public notice and comment procedures.[^76] In addition, proposals to
    change the community of license will be processed under routine
    application procedures so long as the relocating broadcaster
    complies with all community-of-license obligations and coverage
    requirements for both communities, and the situation for the
    community that is losing a station is consistent with our 700 MHz
    band-clearing presumptions. In both such cases, the Mass Media
    Bureau will evaluate these proposals in the first instance, and it
    is our intent that the significance of any service gains and losses
    should be considered seriously in the evaluation of whether the
    proposal should be approved. We also delegate to the Mass Media
    Bureau authority to make minor, administrative changes to the analog
    or DTV Table to reflect changes authorized by the grant of
    applications, such as changing an analog TV allotment to a DTV
    allotment. In addition, consistent with our existing rules,
    broadcasters will be permitted to negotiate swaps of DTV channel
    allotments pursuant to application procedures, provided that they
    comport with existing policies (*i.e.*, exchanges of DTV allotments
    on an intra-community, intra-market, or adjacent-market basis will
    be entertained, provided that the exchanges do not result in
    additional interference beyond our *de minimis* standard to other
    stations or that all affected stations agree to accept any
    additional interference that would result from the exchange, and
    that all other requirements of the DTV allotment rules are satisfied
    with respect to the application(s)).[^77] We do note, however, that
    a rulemaking proceeding will be required in situations in which a
    broadcaster proposes to add a new channel allotment, to change the
    community of license of an existing allotment (except in the
    circumstances mentioned above), or to dereserve an existing
    noncommercial educational allotment, and existing Commission
    allotment policies will be applied.[^78] We also clarify that in
    such rulemaking proceedings to modify the DTV Table of Allotments in
    conjunction with band clearing agreements, the proposals would not
    be subject to counterproposals from other parties, as is usually the
    case in broadcast allotment rulemaking proceedings.

33. In managing the transition to DTV, we have, as a general matter,
    prohibited broadcasters from terminating their analog service
    early,[^79] and we have determined that analog television and DTV
    facilities should be licensed under a single, paired license.[^80]
    In the *700 MHz* *MO&O and FNPRM*, we decided to allow early
    termination of analog service to accommodate voluntary
    agreements.[^81] To effectuate that policy, we clarify that a
    broadcaster will not be jeopardizing its license by agreeing to
    relinquish one of the two allotments under its license, subject to
    prior Commission authorization, to effectuate a band clearing
    agreement. This is a narrow departure from the general principle
    that the DTV/analog license is a single license and thus that
    neither channel can be transferred separately. We believe that this
    approach will, without an undue adverse effect on the public's
    overall receipt of broadcasting service, expedite the full
    commercial and public safety use of the 700 MHz spectrum specified
    in Section 337 and the transition to DTV.[^82] We also clarify that
    as a result of a three-way agreement if a broadcaster is left with
    only an analog television channel, it must convert to DTV by the
    applicable date set forth in Section 73.624(d) of the Commission's
    rules.[^83]

### Temporary Relocation To Channels 52-58

34. *Background.* In the *700 MHz MO&O and* *FNPRM*, we sought comment
    on whether we should permit proposals in connection with three-way
    agreements where the relocation channel is in the Channel 52-58
    band, which will be subject to future licensing for wireless
    services.[^84] Specifically, commenters were asked to discuss
    whether the potential benefits of allowing interim relocation to
    Channels 52-58 are sufficient to outweigh the potential costs.[^85]
    The Commission noted that if such relocations were permitted, they
    would be interim in nature, because the incumbent relocating to the
    Channel 52-58 band would ultimately have to clear that channel. We
    also recognized that requiring an incumbent to relocate twice could
    result in duplicative costs, additional disruption to viewers, and
    other inefficiencies. On the other hand, we noted that this
    alternative could provide more options for clearing incumbents from
    Channels 59-69, and it would not add to the number of incumbent
    stations that would ultimately have to be cleared from Channels 52
    to 58 (because the incumbent clearing the 52-58 channel as part of
    the three-way agreement would otherwise have to be cleared
    eventually).[^86]

35. While many commenters support voluntary three-way agreements between
    incumbent broadcasters and new wireless licensees, commenters are
    not in agreement on the issue of whether we should permit a
    temporary relocation to Channels 52-58. Some commenters generally
    support the temporary relocation, arguing that this is a beneficial
    mechanism as it provides the opportunity for a broadcaster operating
    in the 700 MHz spectrum to continue broadcasting.[^87] NAB, on the
    other hand, contends that approving three-way arrangements resulting
    in the temporary relocation of broadcasters from Channels 59-69 to
    non-core channels would likely produce significant inefficiencies
    rather than a smoother transition to digital broadcasting.[^88]

36. *Discussion.* Based on our review of the record, we decide not to
    prohibit voluntary agreements to relocate temporarily into Channels
    52-58. As we recognized in the *700 MHz MO&O and FNPRM*, there are
    potential benefits and costs associated with temporary relocation to
    Channels 52-58 resulting from voluntary agreements. As we did in the
    *700 MHz MO&O and FNPRM*, we note that this alternative could
    provide more options for clearing incumbents on Channels 59-69. The
    potential benefit includes allowing the incumbent broadcasters the
    opportunity to continue operating, while clearing the spectrum for
    the new wireless licensees. As Entravision notes, this arrangement
    serves to meet the requirements of all the parties involved, without
    placing any unacceptable burden upon them.[^89] We also note that
    any such voluntary relocation will not increase the number of
    stations that will have to be cleared from Channels 52-58, but
    merely replace one station on those channels with another. At the
    same time, we recognize, and NAB argues, that such agreements could
    result in duplicative costs, additional disruption to viewers, and
    other inefficiencies.[^90] After considering all these factors, we
    will not prohibit the negotiation of such relocation agreements. We
    find that the benefits may well be substantial, and that a
    broadcaster will have considered the costs in its individual
    situation before voluntarily agreeing to move into Channels 52-58
    with the knowledge that it will subsequently be obligated to vacate
    that allotment. We are not deciding to approve any specific request
    at this time. Rather, we will consider any public interest costs in
    our review of any requests submitted in connection with voluntary
    agreements to relocate temporarily into Channels 52-58 under the
    standards we have set out in this proceeding.

## Secondary Auctions

37. *Background*. The *700 MHz MO&O and FNPRM* requested comment on a
    range of issues relating to whether some form of "secondary auction"
    could be used to facilitate band clearing agreements.[^91]
    Regardless of the form it takes, a secondary band clearing auction
    would be a mechanism to determine the price that would be paid by
    700 MHz licensees to TV incumbents who agree to clear their channels
    in the 700 MHz band. As we observed in the *700 MHz MO&O and FNPRM*,
    participation in secondary auctions by both broadcast incumbents and
    prospective or actual 700 MHz wireless licensees would be entirely
    voluntary.[^92] In effect, secondary auctions would differ from *ad
    hoc* voluntary agreements among incumbent broadcasters and wireless
    interests only in that a secondary auction may result in greater
    benefits to participants than more limited, separately negotiated
    agreements.[^93] The *700 MHz MO&O and FNPRM* outlined some of these
    benefits, such as reduced financial risk to 700 MHz bidders, lowered
    transactional costs, and increased likelihood of success in
    developing band clearing arrangements.[^94]

38. A secondary auction could take many forms. The *700 MHz MO&O and
    FNPRM* outlined possible options for both private and
    Commission-conducted secondary auctions.[^95] For instance, the *700
    MHz MO&O and FNPRM* suggested that a Commission-conducted secondary
    auction could create a market under which participating TV
    incumbents could offer a legal option to enter into clearing
    agreements.[^96] Bidders in the 700 MHz spectrum auction could bid
    in the secondary auction for the right to exercise these options and
    enter into band clearing agreements with participating incumbents at
    some time in the future.[^97]

39. One possible private secondary auction mechanism outlined in the
    *700 MHz MO&O and FNPRM* is the so-called "TV Exchange" mechanism,
    which contemplates a private auction among incumbent TV broadcasters
    using a "descending clock" auction process to identify those
    broadcasters that would be willing to relocate and the price at
    which the incumbents would move.[^98] In situations where worthwhile
    clearing could feasibly occur via transition by any of a number of
    incumbent broadcasters, this type of private auction would reveal a
    price that should compensate the broadcasters fairly for moving
    early. This mechanism would also promote efficient band clearing by
    identifying those incumbents with the lowest costs of relocating or
    terminating upper band operations.

40. Subsequent to the release of the *700 MHz MO&O and FNPRM*, Spectrum
    Exchange proposed an alternative private auction approach, which it
    calls a "linked auction."[^99] Such a private secondary auction
    would not actually link the Commission's spectrum auction operations
    with those of a private auctioneer. Rather, the secondary auction
    would be tied to the Commission's auction results only; winning
    bidders in the Commission's 700 MHz license auction that choose to
    participate in such plan would make payments into a clearing fund
    based on a percentage of their winning bids, which would then be
    divided among participating broadcasters in exchange for clearing.
    Participation in any such private clearing scheme would be voluntary
    on the parts of both incumbent broadcasters and bidders in the
    Commission's spectrum auction.[^100]

41. *Discussion*. We recognized in the *700 MHz MO&O and FNPRM* that a
    secondary auction mechanism may produce significant benefits, and
    see no reason to depart from that finding here. A secondary auction
    may encourage band clearing in a more systematic and comprehensive
    fashion than would be the case with individual *ad hoc* clearing
    arrangements among incumbent broadcasters and winning bidders. A
    secondary auction may give potential wireless licensees greater
    certainty that the spectrum will be cleared. The efficiency of such
    a secondary market mechanism is likely to ensure that the spectrum
    is employed in the most highly valued economic use.[^101]

42. In these circumstances, the private sector is better suited to
    determine what mechanisms interested parties might demand and to
    implement a secondary auction in a manner that is most responsive to
    broadcasters' and potential bidders' needs. We do not therefore
    intend at this time to conduct a secondary auction, and will instead
    leave any such auction to private, voluntary efforts that are
    otherwise consistent with our stated policies.[^102] A
    market-oriented approach is consistent with our recent decisions on
    spectrum management policies intended to promote secondary markets
    for spectrum usage rights.[^103] Our policies in this regard are
    based on the principle of orienting Commission policies to create
    the conditions under which market forces can effectively
    operate.[^104] That principle has also been the basis for the
    Commission's recent decisions seeking to develop more robust
    secondary markets that will help promote spectrum efficiency and
    full utilization of Commission-licensed spectrum and thereby make
    more spectrum available for the purposes for which it is
    needed.[^105]

43. Private secondary auctions have potential to offer both broadcasters
    and new entrants additional opportunities to reduce the potential
    transactions costs of negotiating with each other directly after the
    auction.[^106] At least until the end of the DTV transition
    period,[^107] the transaction costs of bargaining among incumbent
    broadcasters and new 700 MHz entrants may be high.[^108] Proponents
    of a secondary auction assert that a voluntary linked auction
    approach will address this problem by creating a clearing fund,
    available to incumbents, and introducing greater certainty as to
    costs and values.[^109] In Spectrum Exchange's view, by allowing
    incumbent broadcasters to share in the economic value of a cleared
    700 MHz band, a linked auction is likely to increase participation
    by both broadcast incumbents and prospective new entrants, reduce
    risks associated with an unlinked secondary auction approach, and
    increase certainty and efficiency by eliminating opportunities for
    gaming the secondary auction.[^110] A voluntary secondary auction
    approach is supported by a number of different parties in this
    proceeding, including potential 700 MHz wireless licensees, some
    broadcasters, and Spectrum Exchange.[^111]

44. We will rely on private secondary auctions and any other such
    voluntary, comprehensive band clearing arrangements among new 700
    MHz licensees and incumbent broadcasters that would result in the
    voluntary early transition of this band to new services. We cannot
    know whether individually negotiated arrangements or private
    auctions will be the more effective voluntary clearing mechanism and
    support giving parties a choice, so long as the approach is
    consistent with Commission policies and rules.[^112] Based on this
    record, we find that a privately conducted secondary auction may be
    conducted in a manner that would not interfere with the integrity
    and operations of the Commission's spectrum auction process. We
    note, importantly, that neither of the specific proposals before us
    requires any changes in our spectrum auctions procedures and
    processes to accommodate a secondary auction.[^113] Finally, we
    remind parties that where a secondary auction leads to private band
    clearing agreements, the Commission must approve any regulatory
    requests necessary to the effectuation of such agreements.

## Collusion Issues

45. *Background*. Applicants to participate in Commission spectrum
    auctions and their affiliates are prohibited from engaging in
    collusive conduct. The Commission's anti-collusion requirements may
    be found in Section 1.2105(c) and are intended to deter
    anticompetitive conduct during auctions of spectrum licenses and to
    ensure the competitiveness of post-auction markets.[^114] We have
    also made clear that, where evidence exists that violations of
    federal antitrust laws or the Commission's anti-collusion rules may
    have occurred, the Commission may investigate and/or refer such
    allegations to the United States Department of Justice for
    investigation.[^115] In particular, Section 1.2105(c)(1) provides
    that:

> after the short-form application filing deadline, all applicants are
> prohibited from cooperating, collaborating, discussing or disclosing
> in any manner the substance of their bids or bidding strategies, or
> discussing or negotiating settlement agreements, with other applicants
> until after the down payment deadline, unless such applicants are
> members of a bidding consortium or other joint bidding arrangement
> identified on the bidder\'s short-form application pursuant to §
> 1.2105(a)(2)(viii).[^116]

Thus, auction applicants for licenses in the same geographic areas must
not communicate with each other during an auction about bids, bidding
strategies, or settlements, unless they have disclosed that they are
parties to a bidding arrangement pursuant to Section 1.2105(a)(2)(viii),
which requires bidders to disclose on their short-forms all agreements
or arrangements "relating to the licenses being auctioned, including any
such agreements relating to post-auction market structure."[^117]

46. *Discussion*. We here clarify that our anti-collusion rules do not
    prohibit participation in a secondary auction or band clearing
    agreements, but that parties need to keep those requirements in
    mind. For instance, to the extent that negotiating a band clearing
    agreement or the terms of participation in a secondary auction
    conveys information about bids, bidding strategies, or settlements
    to other applicants for licenses in the same geographic license
    areas in the Commission's auction, such communications would be
    prohibited while the anti-collusion rule is in effect, unless the
    parties have identified each other on their short-form applications
    as parties to a bidding arrangement under Section
    1.2105(a)(2)(viii).[^118] However, to the extent that such
    negotiations are not with other "applicants"[^119] for licenses in
    the same geographic license areas or do not convey prohibited
    information, such communications would not be prohibited under the
    anti-collusion rule and negotiations could continue after the
    short-form deadline. Similarly, participation in private secondary
    band clearing auctions does not in itself violate the anti-collusion
    rule. Many of the parties conducting and participating in private
    secondary band clearing auctions are not likely to be "applicants"
    subject to our prohibition on collusion.

47. Accordingly, we remind parties participating in linked auctions or
    entering into three-way agreements to remain mindful of their
    obligations under the Commission's anti-collusion rules. In this
    regard, we note that with respect to auctions of licenses in the 700
    MHz band, a band clearing agreement or contract to participate in a
    secondary auction constitutes an agreement that relates to licenses
    being auctioned, and is covered by the disclosure requirement of
    Section 1.2105(a)(2)(viii).[^120] As we have described, disclosure
    of the parties to any agreements on short-form auction applications
    also provides a "safe harbor" against allegations that
    communications in connection with such agreements constitute
    communications prohibited under the anti-collusion rules. Where
    agreements are not reached before the short-form filing deadline,
    participants in secondary auctions or parties entering into
    three-way agreements should educate all involved in such activities
    about these obligations, and might consider establishing procedures
    to insulate individuals from others' auction-related communications
    or taking other precautionary steps to prevent collusive conduct
    from occurring.[^121]

## Proposals to Make Band Clearing Mechanisms Effective

### Proposal to Cap Clearing Costs

48. *Background.* The *700 MHz FNPRM* solicited ideas on additional
    proposals that might accelerate the DTV transition.[^122] A number
    of commenters used this opportunity to request relief on a number of
    issues related to the DTV transition.[^123] To the extent that these
    issues are before the Commission in separate proceedings, we decline
    to address them here.[^124]

49. One issue that is not under consideration in other contexts is
    Verizon's proposal that the Commission establish guidelines for band
    clearing costs.[^125] Verizon advocates a cap on relocation costs,
    taking into account both the "hard" costs of facilities relocation
    and "soft" costs, including amounts for lost advertising revenues in
    the event the station's coverage area is decreased.[^126] Verizon
    asserts that a cap on payments would improve the ability of
    potential 700 MHz bidders to assess the value of the licenses being
    auctioned and would reduce disputes over relocation costs.[^127]
    Verizon argues that "\[w\]ithout clear guidelines on costs, auction
    revenue that should represent a recovery for U.S. taxpayers on the
    public spectrum resource will instead be diverted to
    broadcasters."[^128]

50. *Discussion*. At this time, we will not adopt cost recovery
    guidelines. Broadcasters strongly oppose capping costs.[^129]
    Paxson, for example, argues that "\[b\]roadcasters are being asked
    to assume significant business, construction, and operating risks in
    prematurely terminating reliable and familiar analog service."[^130]
    To the extent that such risks exist, the Commission believes that
    private parties are best suited to assess, quantify, and reach
    agreement on the appropriate sharing of risk. We believe that both
    voluntary clearing agreements and a private secondary auction plan
    would be more likely to succeed without the use of cost
    guidelines.[^131] Further, the record of this proceeding contains
    little detail about how to structure any such guidelines.

### Digital Must-Carry

51. Pursuant to Sections 614 and 615 of the Communications Act,[^132]
    and the implementation rules originally adopted by the
    Commission,[^133] a commercial or non-commercial television
    broadcast station is entitled to mandatory carriage ("must-carry")
    on cable systems located within the station's market. As required by
    the Act, the Commission in 1998 commenced a further proceeding to
    determine the scope and manner of mandatory cable carriage of
    digital broadcast signals.[^134] In that proceeding and in the 700
    MHz context, broadcast entities assert that imposing a digital
    must-carry requirement on cable operators is essential to encourage
    the DTV transition and spectrum clearance, while cable entities
    contend that any extension of the must-carry obligation before the
    transition to DTV is complete would exceed our statutory authority
    and raise constitutional issues.[^135] In our recent *DTV Must-Carry
    Order and FNPRM*, [^136] we determined that the purposes of the
    statutory must-carry requirement will best be realized in the
    digital environment by expanding the substantive scope of that
    obligation to keep pace with the expanded technical capabilities of
    the DTV environment.

52. Previously, in the *700 MHz MO&O and FNPRM,* we clarified two
    limited issues related to cable carriage of digital signals as part
    of voluntary band clearing agreements. [^137] First, we clarified
    that cable systems are ultimately obligated to accord "must-carry"
    rights to local broadcasters' digital signals. We stated that
    existing analog television stations that return their analog
    spectrum allocation and convert to digital are entitled to mandatory
    carriage for their digital signals consistent with applicable
    statutory and regulatory provisions. Second, we concluded that to
    facilitate the continuing availability during the transition of the
    analog signal of a broadcaster who is party to a voluntary
    band-clearing agreement with new 700 MHz licensees, such a
    broadcaster could, at its own expense, provide its broadcast digital
    signal in an analog format for carriage on cable systems. In these
    circumstances, we noted that nothing prohibits the cable system from
    providing such signals in analog format to subscribers, in addition
    to or in place of the broadcast digital signal, pursuant to an
    agreement with the broadcaster.

53. Although we did not seek comment in the *700 MHz MO&O and FNPRM* on
    the digital must-carry issue, a number of commenters urge the
    Commission to adopt DTV must-carry rules in order to encourage band
    clearing.[^138] We find that the requests of commenters in this
    proceeding for adoption of various DTV must-carry rules have in most
    respects been resolved by the *DTV Must-Carry Order and
    FNPRM,*[^139] as well as by the *WHDT Order*.[^140] Some issues
    raised by commenters in the DTV Must-Carry proceeding have, however,
    been deferred pending development of an improved record in response
    to the *DTV Must-Carry Order and FNPRM*. These include the mandatory
    dual carriage of a station's digital and analog signals during the
    digital television transition.[^141] We also seek comment in the
    *DTV Must-Carry Order and FNPRM* on our obligation under Section
    339(b) of the Communications Act, also part of the Satellite Home
    Viewer Improvement Act of 1999, to develop and apply satellite
    requirements that are "as similar as possible" to those implementing
    cable television network non-duplication, syndicated program
    exclusivity, and sports blackout requirements.[^142] We will defer
    consideration of those issues for the 700 MHz transition as well. We
    believe that the submissions in this proceeding, seeking must-carry
    actions to encourage the 700 MHz band clearance process, do not
    raise distinctive or additional factual or policy considerations
    that justify departure from the broad determinations made in the
    *DTV Must-Carry Order and FNPRM*.

### Other Relocation Proposals

54. *Background*. In the *700 MHz MO&O and FNPRM*, we indicated that we
    would entertain comment on whether reliance on voluntary agreements
    would be adequate to clear incumbent broadcast operations from 700
    MHz bands or, as suggested by commenters, whether we should consider
    steps other than the review of requests in connection with such
    agreements to facilitate the clearing more effectively.[^143]
    Responding to this inquiry, a majority of commenters addressed the
    issue of whether the Commission should exercise its authority to
    require the mandatory relocation of incumbent broadcasters.[^144] In
    particular, Verizon advocates the mandatory relocation of a "lone
    holdout" in a market.[^145] Verizon argues that the Commission
    should adopt a "lone holdout rule" to reduce the opportunity for a
    single broadcaster to gain a windfall by refusing to participate in
    a coordinated band-clearing process where substantial clearing has
    already occurred.[^146] Furthermore, Verizon maintains that the
    Commission should also require limited mandatory relocation at a
    later stage of the DTV transition to provide new 700 MHz wireless
    licensees with the right to impose involuntary clearing of a
    broadcast incumbent when relocation channels are available.[^147]
    Broadcasters generally oppose the proposal to invoke mandatory
    relocation arguing that the Commission lacks the authority to
    provide such relief.[^148]

55. *Discussion.* Certain commenters argue that, should there be a "lone
    holdout" of an incumbent broadcaster in a market where substantial
    clearing has occurred, it might well threaten the success of the
    transition to DTV and the ability of new 700 MHz licensees to deploy
    rapidly new wireless technologies in this spectrum.[^149] Holdouts
    may be a sign of a market imperfection or failure that might impede
    the proper functioning of the market,[^150] and may prevent
    efficient outcomes of secondary auctions and band clearing
    negotiations among new 700 MHz wireless licensees and incumbent
    channel 59-69 broadcasters.

56. We have previously observed that "\[i\]n the majority of cases,
    efficient spectrum markets will lead to use of spectrum for the
    highest value end use."[^151] Thus, we believe that voluntary
    agreements between broadcasters and licensees should result in the
    effective clearing of the 700 MHz band.[^152] We note this view is
    broadly shared by most commenters, which advocate a voluntary,
    market-based approach to clearing incumbent broadcast operations
    from channels 59-69.[^153] However, we will revisit this issue in
    the future if we find it necessary.

## Other Proposals to Accelerate the DTV Transition

57. *Background**. ***In the *700 MHz MO&O and FNPRM,* we sought comment
    on two additional proposals to accelerate the digital television
    transition: sharing of the 700 MHz spectrum between broadcasters and
    new wireless licensees, and sharing between broadcasters during the
    transition. We received no comments on the possible sharing of 700
    MHz spectrum between incumbent broadcasters and new commercial
    service providers, and, accordingly, do not consider that issue
    further in this rulemaking context.

58. We received limited comment on the second proposal, whether we
    should allow broadcasters to share DTV facilities and spectrum
    during the transition. For example, Paxson suggests that we consider
    allowing incumbent broadcasters who agree to clear the spectrum
    early, but are unable to commence digital operations by May 1, 2002
    (or 18 months after the DTV construction permit is issued, if
    later), to temporarily share use of another licensee's digital
    spectrum.[^154]

59. *Discussion**. ***In light of the limited scope of comments on these
    proposals, we conclude that there is insufficient interest to
    warrant adoption of a general regulatory process at this time.
    Paxson's general proposal regarding spectrum sharing does not
    incorporate a qualifying standard for licensees seeking to share use
    of another licensee's spectrum, nor a basis for compensation or a
    time limit for such arrangements. In the absence of other interest
    in such arrangements, we decline to adopt a rule of general
    applicability. While we do not adopt rules at this time, we will, of
    course, consider any such proposals on a case-by-case basis. Paxson
    also asserts that public broadcasters should be permitted to
    multicast "secondary, third party, advertiser-supported commercial
    DTV" programming.[^155] Paxson recognizes, however, that proposal is
    under consideration in a separate proceeding, and we will not
    address it here.[^156]

## Band Clearing Relating to the Auction of Channels 52-59

60. *Background.* In the *700 MHz MO&O and FNPRM*, we sought comment as
    to whether the regulations and mechanisms we have adopted in this
    proceeding to facilitate band clearing should also be employed in
    conjunction with the auction of spectrum currently used by Channels
    52-59.

61. *Discussion*. We agree with ALTV and MSTV that it is appropriate to
    gain additional experience with the innovative, voluntary band
    clearing mechanisms before making judgments about whether to extend
    them for use in other bands.[^157] Thus, we intend to defer this
    issue to our upcoming proceeding on service rules for this spectrum,
    which will address issues arising out of the reallocation of
    channels 52-59.

# Procedural Matters 

## Regulatory Flexibility Act and Paperwork Reduction Act

62. Section 213 of the Consolidated Appropriations Act, 2000 states that
    the Regulatory Flexibility Act (as well as certain provisions of the
    Contract With America Advancement Act of 1996 and the Paperwork
    Reduction Act) shall not apply to the rules and competitive bidding
    procedures governing the frequencies in the 746 -- 806 MHz band
    (currently used for television broadcasts on channels 60-69).[^158]
    Because the policies and rules adopted in this Third Report and
    Order relate only to assignments of those frequencies, no Final
    Regulatory Flexibility Analysis or Paperwork Reduction Analysis is
    necessary.

## Alternative Formats 

63. Alternative formats (computer diskette, large print, audio cassette
    and Braille) are available to persons with disabilities by
    contacting Martha Contee at (202) 418-0260, TTY (202) 418-2555, or
    at mcontee@fcc.gov. This Third Report and Order can also be
    downloaded at
    <http://www.fcc.gov/Bureaus/Wireless/Orders/2001/index.html>.

## Further Information

64. For further information concerning this Third Report and Order,
    contact Nese Guendelsberger or Bill Huber of the Auctions and
    Industry Analysis Division at (202) 418-0660 (voice), (202) 418-7233
    (TTY), or Martin Liebman or Stanley Wiggins of the Policy Division
    at (202) 418-1310 (voice), (202) 418-7233 (TTY), Wireless
    Telecommunications Bureau, Washington, DC 20554.

#  ordering clauses

65. Pursuant to Sections 1, 2, 4(i), 5(c), 7(a), 301, 302, 303, 307,
    308, 309(j), 309(k), 311, 316, 319, 324, 331, 332, 333, 336, 337,
    614, and 615 of the Communications Act of 1934, as amended, 47
    U.S.C. §§ 151, 152, 154(i), 155(c), 157(a), 301, 302, 303, 307, 308,
    309(j), 309(k), 311, 316, 319, 324, 331, 332, 333, 336, 337, 614,
    and 615, the Consolidated Appropriations Act, 2000, Pub. L. No.
    106-113, 113 Stat. 2502, and Section 1.425 of the Commission's
    Rules, 47 C.F.R. § 1.425, IT IS ORDERED that the THIRD REPORT AND
    ORDER is hereby adopted.

66. IT IS FURTHER ORDERED that Part 73 of the Commission's rules IS
    AMENDED as set forth in Appendix A. Pursuant to Section 213 of the
    Consolidated Appropriations Act, 2000, these rules shall be
    effective immediately upon publication in the *Federal
    Register*.[^159]

67. IT IS FURTHER ORDERED that, pursuant to sections 1, 2, 4(i), and 303
    of the Communications Act of 1934, as amended, 47 U.S.C. §§ 151,
    152, 154(i) and 303, and Section 1.425 of the Commission's Rules, 47
    C.F.R. § 1.425, the Petition for Rulemaking filed by Spectrum
    Exchange Group, LLC on April 24, 2000 IS GRANTED TO THE EXTENT
    DISCUSSED HEREIN.

FEDERAL COMMUNICATIONS COMMISSION

Magalie Roman Salas

Secretary

# APPENDIX A: FINAL RULES {#appendix-a-final-rules .unnumbered}

Section 73.607 is amended by redesignating the current text as paragraph
(a) and adding new paragraph (b) to read as follows:

**§73.607 -- Availability of channels.**

\* \* \* \* \*

\(b\) Notwithstanding paragraph (a) of this section, an application may
be filed for a channel or community not listed in the TV Table of
Allotments if it is consistent with the rules and policies established
in the Third Report and Order in WT Docket 99-168 (FCC 01-25), adopted
January 18, 2001. Where such a request is approved, the Mass Media
Bureau will change the Table of Allotments to reflect that approval.

[Section 73.622 is amended by redesignating paragraph (c) as paragraph
(c)(1) and adding new paragraph (c)(2) to read as follows:]{.underline}

**§73.622 -- Digital television table of allotments.**

\* \* \* \* \*

(c)(1) \* \* \*

\(2\) Notwithstanding paragraph (c)(1) of this section, an application
may be filed for a channel or community not listed in the DTV Table of
Allotments if it is consistent with the rules and policies established
in the Third Report and Order in WT Docket 99-168 (FCC 01-25), adopted
January 18, 2001. Where such a request is approved, the Mass Media
Bureau will change the DTV Table of Allotments to reflect that approval.

\* \* \* \* \*

# APPENDIX B: Comments and Reply Comments {#appendix-b-comments-and-reply-comments .unnumbered}

**Commenters**

Association of Public-Safety Communications Officials-International,
Inc. (APCO)

Entravision Holdings, LLC (Entravision)

Industrial Telecommunications Association, Inc. and Access Spectrum LLC
(ITA/Access)

Marantha Broadcasting Company, Inc. (MBC)

Maximum Service Television, Inc. (MSTV)

Midwest Television Inc. (Midwest)

National Association of Broadcasters (NAB)

Nextel Communications, Inc. (Nextel)

Paxson Communications Corporation (Paxson)

Personal Communications Industry Association (PCIA)

Shop at Home, Inc. (Shop at Home)

Sinclair Broadcast Group, Inc. (Sinclair)

Sonshine Family Television, Inc. (SFTI)

Spectrum Exchange Group, LLC (Spectrum Exchange)

USA Broadcasting, Inc. (USA Broadcasting)

Verizon Wireless (Verizon)

**Reply Commenters**

Dielectric Communications (Dielectric)

Ericsson Inc.

Maximum Service Television, Inc. (MSTV)

National Association of Broadcasters (NAB)

National Cable Television Association (NCTA)

Paxson Communications Corporation (Paxson)

Shop at Home, Inc. (Shop at Home)

Spectrum Exchange Group, LLC (Spectrum Exchange)

USA Broadcasting, Inc. (USA Broadcasting)

Verizon Wireless (Verizon)

***Ex Parte* Submissions**

Association of Local Television Stations, Inc. (ALTV)

Cellular Telecommunications Industry Association, Inc. (CTIA)

Ericsson Inc.

National Cable Television Association (NCTA)

Paxson Communications Corporation (Paxson)

Spectrum Exchange Group, LLC (Spectrum Exchange)

SEPARATE STATEMENT OF COMMISSIONER GLORIA TRISTANI

**Dissenting in Part**

*Re: Service Rules for the 746-764 and 776-794 MHz Bands, and Revision
to Part 27 of the Commission's Rules, Third Report and Order, WT Docket
No. 99-168*

I previously supported -- and continue to favor -- a case-by-case review
of band clearing proposals for channels 59-69.[^160] The public interest
in both new wireless offerings and existing television services demands
it. Earlier in this proceeding, however, I could not join my colleagues
in adopting a presumption that the public is better served by loss of
its television service than by delay in receiving new services in the
700 MHz band. [^161] Nor can I support today's decision extending that
presumption to 3-way channel swaps. Although the Commission's action
purports to facilitate the DTV transition with only a temporary loss of
service for today's viewers of over-the-air television, I fear it will
do neither. Moreover, 3-way swaps may result in loss of service not only
for viewers of channels 59-69 but in the core spectrum as well. Again, I
would have preferred a case-by-case approach.

As I have noted in the past, I am committed to preserving consumer
access to free, over-the-air television. A substantial percentage of
American households still rely on free, over-the-air broadcasting for
their local news and information. This service ensures that *all*
members of the community have access to a range of viewpoints and
programming on issues of public concern. At the same time, the 700 MHz
spectrum offers unlimited possibilities for advanced wireless services
and is a vital source of new spectrum to address public safety needs.
Given these competing public interest benefits, I supported applying the
Commission's long-standing precedent to determine whether new services
warrant loss of existing broadcast service.[^162] This case-by-case
review, however, prompted uncertainty among potential bidders in the
upcoming 700 MHz auction and led to adoption of the presumption in favor
of new wireless offerings. At that time, I believed Congress was
cognizant that such uncertainty could result when it mandated an early
auction while protecting existing broadcast services through 2006 and
beyond.[^163] I remain unpersuaded that Congress intended the Commission
to foster removal of all obstacles to new wireless services in this band
-- including existing television services.

The majority's contention that today's decision will facilitate the
transition to DTV while causing only a temporary loss of service cannot
withstand scrutiny. As an initial matter, nothing in today's decision
requires a broadcaster engaged in a swap to give up its analog
operations in favor of digital-only service. To the contrary, the
decision expressly permits a broadcaster to operate in analog format on
a digital channel allotment as part of a 3-way agreement. Given the
negligible penetration of DTV sets and the lack of advertising to
support digital operations, it seems likely that a broadcaster would
choose to maintain analog operations -- where the audience is -- on its
only channel and "free ride" on the efforts of other broadcasters to
complete the digital transition. To the extent that broadcasters adopt
such an approach, the transition to digital television will be hampered,
not helped. In the event a broadcaster chooses to engage in digital-only
operation, however, it will almost certainly request the local cable
operator to carry its signal in an analog format, following the approach
outlined in the *WHDT Order*.[^164] In this case, consumers who
subscribe to cable services will have one less reason to buy a digital
set.

Thus, in the end: (1) the majority will get what they want -- the
clearing of the 700 MHz band; (2) a few broadcasters will benefit
financially (with no requirement that they expedite their conversion to
DTV); and (3) the transition to digital television, already proceeding
slowly, will not be furthered. In certain circumstances, the trade-off
for new wireless services may be in the public interest. As I have said,
I would be willing to consider band clearing proposals on a case-by-case
basis. But I again object to the majority's complacency about loss of
existing service and its vision that these deals will clearly advance
the DTV transition.

More broadly, I remain concerned that band clearing will impede a
*smooth* DTV transition. When Congress provided broadcasters with a
second 6 MHz channel, the intent was to allow licensees to begin
offering digital services while ensuring that existing analog viewers
could continue to access today's programming. In contrast, band clearing
results in a broadcaster holding one 6 MHz channel rather than two. This
inevitably leads to a flash-cut change from analog to digital service,
occurring today or, the majority asserts, in May 2002 for most
commercial stations. While it's clear that an instant substitution
introduces DTV, it does so at the expense of today's viewers of free,
over-the-air analog broadcasting services, who will not benefit from the
orderly transition envisioned by Congress.

With regard to 3-way swaps in particular, such agreements will
inevitably involve complex machinations as broadcasters seek to
"shoehorn" existing stations into others' channel allotments. They raise
a variety of loss-of-service concerns that involve not only voluntary
parties to the agreement but neighboring co-channel and adjacent channel
broadcasters as well. An analog provider on channel 61, for example, may
seek to move to another broadcaster's digital channel allotment on
channel 32 and operate in analog format, raising interference concerns
for stations nearby channel 32. Scenarios like this will require close
scrutiny. Despite my concerns, I am in part assuaged that the Mass Media
Bureau and the Commission will review the loss of service for
neighboring television stations on a case-by-case basis as part of the
overall regulatory review -- not subsequent to grant of the channel
swapping agreement. In doing so, we need to look seriously at
loss-of-service issues, consistent with our longstanding precedent.

Finally, I take issue with the majority's treatment of possible "lone
holdouts" in the 700 MHz band. Under this scenario, a new wireless
licensee could successfully clear its spectrum block of incumbent
licensees except for one broadcaster. While the majority expresses no
view on mandatory relocation except to assert that the Commission will
revisit the matter if necessary, I remain convinced that such action
would contravene the statute. Congress set out that incumbent
broadcasters in the 700 MHz band could retain their channels until 2006
or beyond when they relocated as part of the orderly repacking process
that accompanies the end of the transition.[^165] There simply is no
statutory authority to support consideration of a mandatory relocation
policy, and the majority should have made that clear here. Further, I am
disturbed that the majority considers this scenario as a possible
"market imperfection" and fails to acknowledge that under the
"voluntary" band clearing framework set out herein, a proposal to clear
a channel could raise issues that would prevent Commission approval
despite the strong presumption or a broadcaster may simply choose to
remain on-air in the 700 MHz band.

As I have stated previously, my ultimate concern is that the presumption
in favor of band clearing reflects a diminishing regard for the public
value of free, over-the-air television services. As we look to the
future, I hope that in balancing the ever-growing demand for spectrum
this agency will sustain our longstanding commitment to the value that
broadcasting services for all Americans.

[^1]: ^^ The final version of this Third Report and Order was approved
    by the Commission on January 19, 2001.

[^2]: *See* 47 U.S.C. § 337(e). *See also* Advanced Television Systems
    and Their Impact Upon Existing Television Broadcast Service,
    *Memorandum Opinion and Order on* *Reconsideration of Fifth Report
    and Order*, 13 FCC Rcd 6860, 6887 (1998)("*DTV Fifth Report and
    Order Reconsideration*").

[^3]: *See* 47 U.S.C. § 309(j)(14).

[^4]: *See* Cellular Telecommunications Industry Association *et al*.'s
    Request for Delay of the Auction of Licenses in the 747-762 and
    777-792 MHz Bands Scheduled for September 6, 2000 (Auction No. 31),
    *Memorandum Opinion*, FCC 00-304 (rel. Sept. 12, 2000).

[^5]: *See* Service Rules for 746-764 and 776-794 MHz Bands, and
    Revisions to Part 27 of the Commission's Rules, WT Docket No.
    99-168, *Memorandum Opinion and Order* and *Further Notice of
    Proposed Rulemaking,* FCC 00-224 (rel. June 30, 2000) ("*700 MHz*
    *MO&O and FNPRM*")*.*

[^6]: *See* Service Rules for 746-764 and 776-794 MHz Bands, and
    Revisions to Part 27 of the Commission's Rules, *First Report and
    Order*, 15 FCC Rcd 476 (2000) ("*700 MHz First Report and Order*").

[^7]: Principles for Reallocation of Spectrum to Encourage the
    Development of Telecommunications Technologies for the New
    Millennium, *Policy Statement*, 14 FCC Rcd 19868 (1999) ("*Spectrum
    Reallocation Policy Statement*").

[^8]: *See* *700 MHz* *MO&O and FNPRM* ¶¶ 5-79.

[^9]: *See id.* ¶¶ 82-85.

[^10]: Entravision Comments at 6; NAB Comments at 8; NAB Reply at 5-6;
    Paxson Comments at 44; Nextel Comments at 4-6; USA Broadcasting
    Comments at 13; PCIA Comments at 2 and 4. *See also* ITA/Access
    Comments at 5.

[^11]: Verizon Comments at 8. Verizon contends that costs should be
    shared among the winners of both Auction No. 31 (the 30 MHz auction)
    and Auction No. 33 (the Guard Band auction). Spectrum Exchange
    suggests that if the winner of the 20 MHz license in a given region
    is able to enter into a comprehensive clearing arrangement with the
    incumbent broadcasters in that region, the winner of the 20 MHz
    license should be able to require the winner of the 10 MHz license
    in that region to contribute one-third of the clearing cost.
    Spectrum Exchange Comments at 9-10.

[^12]: *See 700 MHz MO&O and FNPRM* ¶ 83.

[^13]: *See 700 MHz MO&O and FNRPM* ¶ 83. While new entrants will in
    most cases need to negotiate with several incumbent broadcasters to
    clear their license areas fully, we agree with Nextel's observation
    that comprehensive cost-sharing agreements for the clearing of
    multiple TV incumbents may be possible in some instances because
    some broadcast ownership groups control multiple licenses for TV
    stations on channels 59 to 69. *See* Nextel Comments at 4-5.

[^14]: *See* Amendment to the Commission's Rules Regarding A Plan for
    Sharing the Costs of Microwave Relocation, *First Report and Order
    and Further Notice of Proposed Rule Making*, 11 FCC Rcd 8825, 8831
    ¶¶ 7-8 (1996).

[^15]: The Commission's initial auction of broadband PCS licenses, which
    involved the A and B blocks, concluded on March 13, 1995. Auction
    No. 5, the first auction of C block spectrum, ended on May 6, 1996
    and was followed by Auction No. 10, another C block auction, which
    concluded on July 16, 1996. Auction No. 11, the first F block
    auction, ended on January 14, 1997. Auction No. 22 made available
    additional C and F block, as well as E block, spectrum and concluded
    on April 15, 1999.

[^16]: Nextel supports the Commission's view that the licensing of
    non-Guard Band 700 MHz licensees all at the same time will
    facilitate the establishment of cost-sharing arrangements through
    voluntary negotiations without the need for rules. Nextel Comments
    at 4.

[^17]: Nextel and NAB contend that agreements will be unique to each
    broadcaster's situation, and that the resulting complexity makes it
    difficult to develop fair, "one-size-fits-all" cost-sharing rules.
    They argue that such rules might disadvantage certain 700 MHz
    licensees by forcing them to pay for other licensees' mistakes or
    poor bargaining. Nextel Communications Comments at 4-6; NAB Reply at
    5-6.

[^18]: *700 MHz* *First Report and Order*, 15 FCC Rcd 476; *700 MHz MO&O
    and FNPRM* ¶¶ 44-66.

[^19]: *700 MHz MO&O and FNPRM* ¶ 51. *See also* 47 U.S.C. §§ 301; 303;
    309(j)(3)(A); 309(j)(14)(C).

[^20]: *Id.* ¶ 58.

[^21]: *Id.* ¶ 59. *See also* 47 C.F.R. §§ 73.3580(d), 73.3572(a).

[^22]: *Id.* ¶¶ 60-61.

[^23]: *Id.* ¶¶ 61-65

[^24]: *Id.* ¶¶ 87-92.

[^25]: *Id.* ¶ 87.

[^26]: *See* 47 U.S.C. § 336(b), (c), (f). We continue to disagree with
    MSTV's contention that the Commission's role in clearing the 700 MHz
    spectrum should be limited to post-transition approvals. MSTV
    Comments at 8. Instead, as noted above, we have concluded that we
    have authority to review and approve regulatory requests made in
    connection with voluntary agreements as part of our authority, under
    the statutory scheme as a whole. *700 MHz* *MO&O and FNPRM* ¶ 51.
    *See also* 47 U.S.C. § 309(j)(14)(C); 47 U.S.C. § 309(j)(3)(A); 47
    U.S.C. §§ 301, 303.

[^27]: Verizon Comments at 3-4; Nextel Comments at 7-8; USA Comments at
    8; Spectrum Exchange Comments at 8-9; Entravision Comments at 3;
    STFI Comments at 2; Paxson Comments at 16; Sinclair Comments at 3-6.

[^28]: APCO Comments at 2-3.

[^29]: Nextel Comments at 7-8.

[^30]: Verizon Comments at 5 (*citing* 47 U.S.C. § 303(g)).

[^31]: *See 700 MHz MO&O and FNPRM* ¶¶ 61-62.

[^32]: *See* *id.* ¶¶ 60-61.

[^33]: *See id.* ¶ 62.

[^34]: *See id*. ¶ 64.

[^35]: MSTV Comments at 3, 14.

[^36]: *See 700 MHz MO&O and FNPRM* ¶¶ 44-57.

[^37]: *See id.* ¶ 56.

[^38]: Paxson Comments at 29.

[^39]: *See 700 MHz MO&O and FNPRM* ¶¶ 90-91.

[^40]: *See infra* ¶¶ 19-26*.*

[^41]: No comments were received on the issue of whether the
    loss-of-service analysis would need to be supplemented to account
    for the substitution of the incumbent's programming for that
    previously available on the relocation channel. *See 700 MHz MO&O
    and FNPRM* ¶ 91.

[^42]: *See* Paxson Comments at 30-31.

[^43]: MSTV Reply at 8.

[^44]: *See 700 MHz MO&O and FNPRM* ¶¶ 63-64 for review of regulatory
    requests not subject to presumption; *see* *also supra* ¶15.

[^45]: *See 700 MHz MO&O and FNPRM* ¶ 87 n. 168.

[^46]: *See* 47 C.F.R. § 73.623(c) (specifying co- and adjacent-channel
    interference protection standards and minimum spacing requirements);
    *see also* "Additional Application Processing Guidelines for Digital
    Television (DTV)," *Public Notice* (Aug. 10, 1998)(describing DTV
    application procedures and detailing technical requirements for
    applications that do not conform to the "checklist" variations from
    the DTV Table of Allotments). *See* 47 C.F.R. § 73.622(d).

[^47]: *See* *700 MHz MO&O and FNPRM* ¶ 87 n.168. Midwest contends that
    interference calculations for this analysis should be based on the
    affected station's allotment parameters or on its authorized or
    applied-for facilities, whichever is greatest. *See* Midwest
    Comments at 2, 6-9. Current policy requires that such interference
    analyses consider the impact on both the allotment and authorized
    parameters. *See* Advanced Television Systems and Their Impact upon
    the Existing Television Broadcast Services, *Sixth Report and
    Order*, 12 FCC Rcd. 14588 (1997)("*DTV Sixth Report and Order*").
    The Commission is currently considering the issue of whether
    parameters specified in pending applications should be considered,
    and we defer our decision on this issue to the outcome of that
    proceeding. *See* Review of the Commission's Rules and Policies
    Affecting to Conversion to Digital Television, *Notice of Proposed
    Rule Making*, 15 FCC Rcd 5257 (2000).

[^48]: 47 C.F.R. § 73.623(c).

[^49]: 47 C.F.R. §§ 73.610 and 73.698 (specifying minimum separation
    distances between co- and adjacent channel analog stations).

[^50]: *See* Advanced Television Systems and Their Impact Upon the
    Existing Television Service, *Second Memorandum Opinion and Order on
    Reconsideration of the Fifth and Sixth Report and Orders,* 14 FCC
    Rcd 1348, 1363 ¶¶ 32, 33 (1998). As appropriate, other interference
    protection rules may apply in specific situations. *See, e.g,* 47
    C.F.R. §§ 73.623(e) (DTV protection of land mobile stations in the
    470-512 MHz band); 73.623(f) (Channel 6 DTV protection to FM radio
    broadcast stations); 73.613 (analog TV protection of Class A TV
    stations); and 73.610(f) (Channel 6 analog protection to FM radio
    broadcast stations).

[^51]: *See* MSTV Comments at 11; Paxson Reply at 21-23; Midwest
    Comments at 2, 6-9.

[^52]: *See* MSTV Comments at 11; Midwest Comments at 2, 6-9.

[^53]: *See* *700 MHz MO&O and FNPRM* ¶56.

[^54]: *See* Advanced Television Systems and Their Impact Upon the
    Existing Television Service, *Memorandum Opinion and Order on
    Reconsideration of the DTV Sixth Report and Order*, 13 FCC Rcd 7418
    (1998)("*DTV Sixth Report and Order Reconsideration*"); *see also*
    "Additional Application Processing Guidelines for Digital Television
    (DTV)," *Public Notice* (Aug. 10, 1998).

[^55]: *See* 47 C.F.R. § 73.623(c)(2).

[^56]: *See DTV Sixth Report and Order Reconsideration*, 13 FCC Rcd at
    7478 ¶ 147.

[^57]: *See* NAB Comments at 6-7; USA Broadcasting Comments at 10; MSTV
    Reply at 6-7; Midwest Comments at 6.

[^58]: *See* 1997 Balanced Budget Act, § 3002, as codified at § 309(j)
    of the Communications Act of 1934, as amended, 47 U.S.C. 309(j).

[^59]: *See* 47 C.F.R. § 73.623(g); *see also DTV Sixth Report and Order
    Reconsideration*, 13 FCC Rcd 7477-78 ¶¶ 146-147.

[^60]: *See* 47 CFR § 73.623(g).

[^61]: *See DTV Sixth Report and Order Reconsideration*, 13 FCC Rcd at
    7477 ¶ 146.

[^62]: *See 700 MHz MO&O and FNPRM* ¶ 46.

[^63]: *See id.* ¶ 59.

[^64]: *DTV* *Sixth Report and Order,* 12 FCC Rcd 14588.

[^65]: *See* *DTV* *Sixth Report and Order*, 12 FCC Rcd at 14667-78,
    14671 ¶¶ 172-173, 182.

[^66]: ^?^ *See* 47 CFR §§ 73.622, 73.623; *see also id*., 12 FCC Rcd at
    14684, 14688 ¶¶ 213, 221-222.

[^67]: ^?^ We further indicated that any negotiated changes would be
    subject to international coordination, as appropriate.

[^68]: *See* Sinclair Comments at 6; Paxson Comments at 28-29; USA
    Broadcasting Comments at 12-13; Spectrum Exchange Comments at 9.

[^69]: *See* Sinclair Comments at 6.

[^70]: *See* Sinclair Comments at 6; Paxson Comments at 28-29; USA
    Broadcasting Comments at 12-13; Spectrum Exchange Comments at 9.

[^71]: *See* Spectrum Exchange Comments at 9; USA Broadcasting Comments
    at 12-13; Paxson Comments at 28.

[^72]: *See* Paxson Comments at 28.

[^73]: In Spectrum Exchange's view, a preapproval process would allow
    broadcasters to design possible three-way clearing schemes and
    obtain Commission approval prior to the Commission's spectrum
    auction. Under this proposal, for example, analog stations that
    anticipate an early transition to digital could apply for
    pre-approval for clearing by January 1, 2001, and requests for
    pre-approval would be acted on by March 1, 2001. *See* Spectrum
    Exchange Comments at 9.

[^74]: *See 700 MHz MO&O* *and FNPRM* ¶ 61; *see also supra* ¶ 15.

[^75]: *See* 47 C.F.R. § 73.622(a).

[^76]: *See* 47 C.F.R. §§ 73.3500 *et seq.* (broadcast application
    procedures).

[^77]: *See* 47 C.F.R. § 73.623(g).

[^78]: *See* 47 C.F.R. §§ 1.420, 73.607, 73.611, 73.622, 73.623.

[^79]: *See* Advanced Television Systems and Their Impact upon the
    Existing Television Broadcast Service, *Fifth Report and Order*, 12
    FCC Rcd 12809, 12832-12833 ¶¶ 55-56 (1997) ("*DTV Fifth Report and
    Order*"); *DTV Fifth Report and Order Reconsideration*, 13 FCC Rcd
    at 6886-6887 ¶¶ 77-78.

[^80]: *DTV Fifth Report and Order*, 12 FCC Rcd 12833-35 ¶¶ 57-60.

[^81]: *700 MHz* *MO&O and FNPRM* ¶¶ 44-66.

[^82]: 47 U.S.C. § 337.

[^83]: *See* 47 C.F.R. §73.624(d) (DTV construction deadlines).

[^84]: *700 MHz MO&O and FNPRM* ¶ 89.

[^85]: *Id*.

[^86]: *Id*.

[^87]: *See, e.g*., Entravision Comments at 3; Spectrum Exchange Comment
    at 8-9; Spectrum Exchange Reply at 11.

[^88]: NAB Comments at 7.

[^89]: *See* Entravision Comments at 3.

[^90]: *See 700 MHz MO&O and FNPRM ¶* 89.

[^91]: *See* *700 MHz MO&O and FNPRM* ¶¶ 93-103.

[^92]: *Id.* ¶ 99.

[^93]: *See id.* ¶ 97.

[^94]: *Id.* ¶¶ 97-98.

[^95]: *Id.* ¶¶ 94-96.

[^96]: *Id.* ¶ 96.

[^97]: *Id.*

[^98]: *Id.* ¶¶ 93-95. *See also* Spectrum Exchange Group, L.L.C.,
    Petition for Rule Making at 8-9 (filed Apr. 24, 2000) ("Spectrum
    Exchange Petition"); Spectrum Exchange Comments at 7.

[^99]: *See* Spectrum Exchange Comments at 3-7; Spectrum Exchange Reply
    at 4-6.

[^100]: *See* Spectrum Exchange Petition at 8-11; Spectrum Exchange
    Comments at 5; Spectrum Exchange Reply at 10 (describing Spectrum
    Exchange's proposed secondary auctions mechanisms).

[^101]: *See Spectrum Reallocation Policy Statement*, 14 FCC Rcd at
    19870 ¶ 9 ("In the majority of cases, efficient spectrum markets
    will lead to use of spectrum for the highest value end use.").

[^102]: As a result of the policy choice that we make here, we see no
    need at this time to reach the question of whether the Commission
    has legal authority to conduct a secondary auction of clearing
    options. *See 700 MHz MO&O and FNRPM* ¶ 100.

[^103]: *See* Principles for Promoting the Efficient Use of Spectrum By
    Encouraging the Development of Secondary Markets, *Policy
    Statement,* FCC 00-401 (rel. Dec. 1, 2000) ("*Secondary Markets
    Policy Statement*"). *See also* Promoting Efficient Use of Spectrum
    Through Elimination of Barriers to the Development of Secondary
    Markets, WT Docket No. 00-230, *Notice of Proposed Rule Making*, FCC
    00-402 (rel. Nov. 27, 2000); Implementation of Sections 309(j) and
    337 of the Communications Act of 1934 as Amended; Promotion of
    Spectrum Efficient Technologies on Certain Part 90 Frequencies;
    Establishment of Public Service Radio Pool in the Private Mobile
    Frequencies Below 800 MHz; Petition for Rule Making of the American
    Mobile Telecommunications Association, WT Docket No. 99-87, RM-9332,
    RM-9405, RM-9705, *Report and Order and Further Notice of Proposed
    Rule Making*, FCC 00-403 (rel. Nov. 20, 2000).

[^104]: *See Spectrum Reallocation Policy Statement*, 14 FCC Rcd
    19871-72 ¶ 12. *See also* Gregory L. Rosston & Jeffrey S. Steinberg,
    *Using Market-Based Spectrum Policy to Promote the Public Interest*,
    50 Fed. Comm. L.J. 87, 94-95 (1997)("*Market-Based Spectrum
    Policy*").

[^105]: *See Secondary Markets Policy Statement*, 14 FCC Rcd 19875 ¶ 18.

[^106]: *See 700 MHz MO&O and FNPRM* ¶¶ 97-98.

[^107]: *See* *DTV Fifth Report and Order Reconsideration*, 13 FCC Rcd
    6860.

[^108]: *See* Shop at Home Comments at 5.

[^109]: *See* Spectrum Exchange Comments at 4. *See also* Verizon Reply
    at 4.

[^110]: *See* Spectrum Exchange Comments at 4. Verizon provides
    qualified support for a linked auction noting that "certain
    elements" are appealing; "because the two auctions would be tied, a
    bidder would know the total cost of unencumbered spectrum at the
    instant it places its bid, which eliminates much of the uncertainty
    surrounding" the Commission's 700 MHz spectrum auction. Verizon
    Reply at 4. *See also* Spectrum Exchange Reply at 4-5 (discussing
    complementarities of spectrum use rights and band clearing rights).

[^111]: *See, e.g.,* PCIA Comments at 4 ("Past experience indicates that
    private parties can be trusted to undertake the burden of developing
    a voluntary, consensus plan for cost-sharing related to 700 MHz band
    relocation expenses."); Shop at Home Comments at 5 ("Shop at Home
    strongly encourages the Commission to establish a private,
    voluntary, secondary auction to clear the 60's spectrum."); Ericsson
    Reply at 2 (supporting three-way agreements and private secondary
    auctions); USA Broadcasting Comments at 8-9; Paxson Comments at
    23-24; Sonshine Comments at 4.

[^112]: Thus, we do not conceive of secondary auctions as depriving
    broadcasters of the ability to conduct individual negotiations, as
    is feared by some broadcasters. *See, e.g.,* Sonshine Comments at
    3-6.

[^113]: Under Spectrum Exchange's plan, assuming a high bidder in the
    Commission's spectrum auction is participating in the secondary
    auction, that high bid would be translated into a bid in the
    secondary auction by multiplying the license bid by a certain
    linkage ratio. *See* Spectrum Exchange Comments at 3-7. *See also*
    Spectrum Exchange Petition at 8-9; Spectrum Exchange Comments at 7
    (describing descending clock secondary auction mechanism).

[^114]: 47 C.F.R. § 1.2105(c). *See also* Implementation of Section
    309(j) of the Communications Act -- Competitive Bidding, *Second
    Report and Order*, 9 FCC Rcd 2348, 2387 ¶ 223 (1994)("*Competitive
    Bidding Second Report and Order*") ("\[T\]he Commission is concerned
    that collusive conduct by bidders prior to or during the auction
    process could undermine the competitiveness of the bidding process
    and prevent the formation of a competitive post-auction market
    structure.").

    > Section 1.2105(c)(6)(ii) provides that "\[t\]he term bids or
    > bidding strategies shall include capital calls or requests for
    > additional funds in support of bids or bidding strategies." 47
    > C.F.R. § 1.2105(c)(6)(ii).
    >
    > Section 1.2105(a)(2)(ix) provides that in order to be eligible to
    > participate in a spectrum auction, an applicant must file a
    > short-form application (FCC Form 175) in which it certifies that
    > it has not entered and will not enter into any explicit or
    > implicit agreements, arrangements or understandings of any kind
    > with any parties not identified in the application regarding the
    > amount of their bids, bidding strategies or the particular
    > licenses on which they will or will not bid. 47 C.F.R. §
    > 1.2105(a)(2)(ix).

[^115]: Bidders who are found to have violated the antitrust laws or the
    Commission\'s anti-collusion rules in connection with participation
    in the auction process may, among other remedies, be subject to the
    loss of their down payment or their full bid amount, cancellation of
    their licenses, and may be prohibited from participating in future
    auctions. *Competitive Bidding Second Report and Order*, 9 FCC Rcd
    2348, 2388 ¶ 226.

[^116]: 47 C.F.R. § 1.2105(c)(1).

[^117]: 47 C.F.R. § 1.2105(a)(2)(viii). *See Competitive Bidding Second
    Report and Order*, 9 FCC Rcd at 2388 ¶ 225.

[^118]: We do not here decide that such negotiation necessarily
    communicates information in violation of the anti-collusion rule.

[^119]: An applicant "include\[s\] all controlling interests in the
    entity submitting a short-form application to participate in an
    auction (FCC Form 175), as well as all holders of partnership and
    other ownership interests and any stock interest amounting to 10
    percent or more of the entity, or outstanding stock, or outstanding
    voting stock of the entity submitting a short-form application, and
    all officers and directors of that entity." 47 C.F.R. §
    1.2105(c)(6)(i).

[^120]: *See* 47 C.F.R. § Section 1.2105(a)(2)(viii). *See also*
    "Wireless Telecommunications Bureau Clarifies Spectrum Auction
    Anti-Collusion Rules," *Public Notice*, DA 95-2244, 11 FCC Rcd 9645
    (1995) (An agreement in principle on all material terms must be
    disclosed whether in writing or not; if there is no agreement in
    principle by the short-form filing deadline, prohibited
    communications must cease). In addition, we note that applicants in
    Commission spectrum auctions are also under an affirmative
    obligation to maintain their short-form applications substantially
    accurate and complete in all significant respects. *See* 47 C.F.R. §
    1.65(a). Thus, applicants entering into contracts after the short
    form filing deadline would be obligated to amend their applications
    appropriately. *See* 47 C.F.R. § 1.2105(b)(2)(applications may be
    amended to make minor changes).

[^121]: The Commission has permitted applicants to establish internal
    procedures as a precaution to prevent prohibited communications
    among authorized bidding agents. *See* "Wireless Telecommunications
    Bureau Responds to Questions About the Local Multipoint Distribution
    Service Auction," *Public Notice*, 13 FCC Rcd 341 (1998). Additional
    information about the application of the Commission's anti-collusion
    rule may be found on the Commission's Web site at:
    <http://www.fcc.gov/wtb/auctions/>.

[^122]: *700 MHz MO&O and FNPRM* ¶ 104.

[^123]: *See, e.g.,* Sinclair Comments at 4 (proposal to adopt different
    technical standard for DTV transmissions); Dielectric Reply at 3
    (asserting that digital must-carry, receiver standards, and
    transmission issues exist which must be resolved); Paxson Comments
    at 41-44 (calling for adoption of connection and copyright
    protection standards, transmission standards, and elimination of ban
    on advertising by noncommercial broadcasters).

[^124]: *See, e.g.,* Carriage of the Transmissions of Digital Television
    Broadcast Stations, *Notice of Proposed Rule Making,* 13 FCC Rcd
    15092 (1998)("*DTV Must-Carry Notice*") (addressing DTV carriage
    issues); Ancillary and Supplementary Use of Digital Television
    Capacity by Noncommercial Licensees, *Notice of Proposed Rule
    Making,* 14 FCC Rcd 537 (1998) (considering permissible DTV
    operations by noncommercial broadcasters).

[^125]: *See* Verizon Comments at 7-8; Verizon Reply at 6. *See also*
    ITA/Access Comments at 4.

[^126]: *See* Verizon Comments at 7-8.

[^127]: *See id.*

[^128]: *Id.* at 7.

[^129]: *See, e.g.,* NAB Comments at 8; Paxson Reply at 19; USA
    Broadcasting Reply at 13. *See also* Nextel Comments at 6.

[^130]: Paxson Reply at 19.

[^131]: Although commenters have raised the question of whether the
    Commission has legal authority to impose limitations on cost
    reimbursements and offer competing conclusions on that issue, we
    find it unnecessary to reach that question here. *Compare* USA
    Broadcasting Reply at 12 (arguing that the Communications Act
    provides no legal authority to impose limitations on cost recovery
    in the absence of a mandatory relocation requirement) *with* Verizon
    Reply at 6 (contending that Communications Act does not limit the
    Commission's authority to apply relocation cost caps).

[^132]: 47 U.S.C. §§ 534, 535.

[^133]: Implementation of the Cable Television Consumer Protection and
    Competition Act of 1992, Broadcast Signal Carriage Issues*, Report
    and Order*, 8 FCC Rcd 2965 (1993) ("*Must-Carry Order*"); *See also*
    Broadcast Signal Carriage Issues, *Memorandum Report and Order*, 9
    FCC Rcd 6723 (1994) ("*Must-Carry Reconsideration*").

[^134]: Carriage of the Transmissions of Digital Television Broadcast
    Stations, CS Docket 98-120, *Notice of Proposed Rulemaking*, 13 FCC
    Rcd 15092 (1998) ("*DTV Must-Carry Notice*").

[^135]: Broadcast and cable entities' comments in the must-carry
    proceeding are summarized in Carriage of Digital Television
    Broadcast Signals, CS Docket No. 98-120, *First Report and Order and
    Further Notice of Proposed Rulemaking*, FCC 01-22, ¶¶ 52-56 (rel.
    Jan. 23, 2001) ("*DTV Must-Carry Order and FNPRM*").

[^136]: *Id*.

[^137]: *700 MHz MO&O and FNPRM* ¶ 65.

[^138]: *See, e.g.,* Entravision Comments at 6; Sinclair Comments at 5;
    MBC Comments at 2-5; Shop at Home Comments at 7-9; MSTV Comments at
    18, 22-24; Paxson Comments at 9; USA Broadcasting Comments at 7-8;
    SFTI Comments at 5-6; Dielectric Communications Reply at 2.

[^139]: *DTV Must-Carry Order and FNPRM* ¶¶ 7, 12.

[^140]: WHDT-DT Channel 59, Stuart, Florida, Petition for Declaratory
    Ruling that Digital Broadcast Stations Have Mandatory Carriage
    Rights, CSR-5562-Z, *Memorandum Opinion and Order*, FCC 01-23, ¶¶
    12-15 (rel. Jan. 23, 2001)("*WHDT Order*").

[^141]: *See DTV Must-Carry Order and FNPRM* ¶¶ 2-3, 108-112.

[^142]: *DTV Must-Carry Order and FNPRM* ¶ 130. *See* Joint Explanatory
    Statement of the Committee of Conference on H.R. 1554, 106^th^
    Cong., 145 Cong. Rec. H11793, H11796 (daily ed. Nov. 9, 1999). *See
    also* 47 U.S.C. 338(b)(1)(B).

[^143]: *See* *700 MHz MO&O and FNPRM* ¶ 92 and n. 170.

[^144]: *See, e.g.,* Verizon Comments at 3-4; NAB Comments p. 2-4; MSTV
    Reply at 6; SFTI Comments at 2-4; Entravision Comment at 2-3.

[^145]: Verizon Comments at 4. Spectrum Exchange initially proposed this
    idea. *See* Spectrum Exchange Petition at 12.

[^146]: Verizon Comments at 3-4.

[^147]: *Id.* at 6.

[^148]: *See* Paxson Comments at 23; USA Broadcasting Comments at 9;
    ALTV Comments at 3-4; MSTV Reply at 6; NAB Comments p. 3-5.

[^149]: *See* Verizon Comments at 4-7; Spectrum Exchange Petition at 12.

[^150]: *See* Ian Ayres & Eric Talley, *Solomonic Bargaining: Dividing A
    Legal Entitlement to Facilitate Coasean Trade*, 104 Yale L. J. 1027,
    1029-30, 1035 and n. 30 (1995).

[^151]: *See Spectrum Reallocation Policy Statement*, 14 FCC Rcd at
    19870 ¶ 9 (1999). *See also Market-Based Spectrum Policy*, 50 Fed.
    Comm. L.J. at 94 ("Where possible, the Commission should also
    exhaustively license spectrum in bands that are now licensed on a
    site-by-site basis by issuing flexible, geographic-area overlay
    licenses and creating mechanisms for voluntary changes in spectrum
    use, including, where appropriate, procedures for new
    geographic-area licensees and incumbents to negotiate compensated
    relocation of incumbents.").

[^152]: In light of the policy choice we are adopting, we find it
    unnecessary to address the view of certain commenters that the
    Commission lacks legal authority to impose mandatory relocation or
    other similar solutions to facilitate clearing of TV incumbents in
    the 700 MHz band. *See, e.g.,* NAB Comments at 4; USA Broadcasting
    Comments at 9; MSTV Reply at 5-6; Paxson Comments at 23; Entravision
    Comments at 4. *See also* Verizon Comments at 3-5 (contending that
    several provisions of the Communications Act authorize the limited
    mandatory relocation of holdout broadcasters).

[^153]: *See, e.g.,* Sonshine Comments at 2; Entravision Comments at 3;
    USA Broadcasting Comments at 8; Paxson Comments at 23; Nextel
    Comments at 7-8; Spectrum Exchange Comments at 8-9.

[^154]: Paxson Reply at 21.

[^155]: Paxson Comments at 43-44.

[^156]: *See* Ancillary and Supplementary Use of Digital Television
    Capacity by Noncommercial Licensees, MM Docket No. 98-203, *Notice
    of Proposed Rule Making*, 14 FCC Rcd 3259, 3271 ¶¶ 36-37 (1998).

[^157]: *See* MSTV Comments at 24-25; ALTV Reply at 8.

[^158]: In particular, this exemption extends to the requirements
    imposed by Chapter 6 of Title 5, United States Code, Section 3 of
    the Small Business Act (15 U.S.C. § 632), and Sections 3507 and 3512
    of Title 44, United States Code. Consolidated Appropriations Act,
    2000, Pub. L. No. 106-113, 113 Stat. 2502, Appendix E, Sec.
    213(a)(4)(A)-(B); *see* 145 Cong. Rec. H12493-94 (Nov. 17, 1999); 47
    U.S.C.A. § 337 note at Sec. 213(a)(4)(A)-(B).

[^159]: *Id.,* Sec. 213(a)(4)(A).

[^160]: *See* Service Rules for 746-764 MHz Bands, and Revisions to Part
    27 of the Commission's Rules, WT Docket No. 99-168, *First Report
    and Order*, 15 FCC Rcd 476 (2000).

[^161]: *See* Separate Statement of Commissioner Gloria Tristani,
    Service Rules for 746-764 MHz Bands, and Revisions to Part 27 of the
    Commission's Rules, WT Docket No. 99-168, *Memorandum Opinion and
    Order and Further Notice of Proposed Rulemaking*, (rel. June 30,
    2000).

[^162]: *See* Triangle Publications, Inc., 37 FCC 307, 313 (1964),
    *citing* Hall v. FCC, 237 F.2d 567 (D.C. Cir. 1954).

[^163]: *See* Consolidated Appropriations Act 2000, Pub. L. No. 106-113,
    113 Stat. 2502, Appendix E, Sec. 213 (requiring the proceeds from
    the 700 MHz auction be deposited in the U.S. Treasury no later than
    Sept. 30, 2000) & 47 U.S.C. §§ 309(j)(14)(B) (allowing existing
    analog broadcasters to continue operating in the 700 MHz band beyond
    2006 upon certain showings), 337(d)(2) (requiring technical
    restrictions on new licensees to protect existing television service
    in the 700 MHz band during the transition to digital television).

[^164]: *See* *News Release*, "FCC Grants 'Must Carry' Status to
    Digital-only TV Station," rel. Jan. 19. 2001 (*citing* WHDT-DT,
    Channel 59, Stuart, Florida*,* *Memorandum Opinion and Order*, FCC
    01-23 (adopted Jan. 19, 2001)).

[^165]: *See* 47 U.S.C. § 309(j)(14)(B).