Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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

**MEMORANDUM OPINION AND ORDER AND SECOND REPORT AND ORDER**

**Adopted: April 11, 2002 Released: May 23, 2002**

By the Commission: Chairman Powell and Commissioner Abernathy issuing a
joint statement; Commissioners Copps and Martin approving in part,
dissenting in part, and issuing separate statements.

**TABLE OF CONTENTS**

Paragraph

[Number]{.underline}

I. INTRODUCTION 1

II\. Executive Summary 4

III\. background 5

IV\. MEMORANDUM OPINION AND ORDER

A. Notice under the *Administrative Procedure Act* 14

B. Compliance with SHVIA and RLBSA 17

1\. MVDDS vs. NGSO FSS Interference Concerns & Legislative Intent 18

2\. Local Programming Goals of RLBSA 21

C. Allocation Status of BSS/DBS and NGSO FSS vs. MVDDS, and Related
Interference Matters 25

D. Technology Neutrality and Patent Issues 37

E. Applicability of ITU Recommended NGSO FSS Criteria to MVDDS 40

F. Petition for Consolidation and Declaration 46

V. second report and order

A. Technical Criteria for Sharing and Operations in the 12.2‑12.7 GHz
Band 53

1\. MVDDS/BSS Sharing

a\. Technical Criteria for MVDDS/BSS Sharing 54

b\. DBS Mitigation 86

2\. MVDDS/NGSO FSS Sharing 95

a\. MVDDS Operating Requirements 112

b\. NGSO FSS Operating Requirements 120

c\. MVDDS and NGSO FSS Spacing and Coordination Requirements 122

B. Multichannel Video Distribution and Data Service Rules

1\. Licensing Plan 126

a\. Service Areas 128

b\. Channel Plan 133

c\. Permissible Operations for MVDDS 136

d\. Broadcast Carriage Requirements 139

e\. Treatment of Incumbent Licensees 145

f\. Incremental Licensing 150

2\. Application, Licensing and Processing Rules 153

a\. Frequency Availability and Regulatory Status 155

b\. License Eligibility 159

c\. Foreign Ownership Restrictions 171

d\. License Term and Renewal Expectancy 174

e\. Partitioning and Disaggregation 178

f\. Reporting Requirement 185

g\. Licensing and Coordination of MVDDS Stations 187

h\. MVDDS and Adjacent CARS/BAS Band Considerations 191

i\. Canadian and Mexican Coordination 193

3\. Technical Rules

a\. Transmitter Power 196

b\. RF Safety 199

c\. Quiet Zone Protection 200

d\. Antennas 201

e\. Over‑the‑Air Reception Devices (OTARD) Rule 204

f\. Transmitting Equipment 206

4\. Pending Applications 210

5\. Competitive Bidding Procedures

a\. Statutory Requirements 237

b\. Incorporation by Reference of the Part 1 Standardized Competitive
Bidding Rules 249

c\. Provisions for Designated Entities 251

d\. EchoStar's Proposals

\(i\) Spectrum Set‑Aside and Special Bidding Credits for DBS Licensees
253

\(ii\) Use of Auction Proceeds to Mitigate Interference 256

\(iii\) Transfer of MVDDS Licenses 258

VI\. PROCEDURAL INFORMATION

A. Final Regulatory Flexibility Analysis

B. Further Information 261

VII\. ORDERING CLAUSES 263

APPENDIX A: PETITIONS FOR RECONSIDERATION, REPLIES AND OPPOSITIONS

APPENDIX B: COMMENTING PARTIES TO FNPRM

APPENDIX C: COMMENTING PARTIES TO MITRE REPORT

APPENDIX D: FINAL RULES

APPENDIX E: FINAL REGULATORY FLEXIBILITY ANALYSIS

APPENDIX f: A METHOD OF CONVERTING PERCENTAGE OF UNAVAILABLE TIME INTO A
CORREPSONDING EQUIVALENT POWER FLUX DENSITY

APPENDIX g: Description OF MODEL USED FOR DETERMINING REGIONAL EPFD
LEVELS AND SATELLITE OUTAGE ANALYSIS RESULTS

APPENDIX h: CEA MAP

APPENDIX i: POFS Public Safety LICENSEES

Appendix j: A METHOD TO CALCULATE MVDDS EPFD contours

# INTRODUCTION

1.  In this *Memorandum Opinion and Order* (*MO&O*), we address the
    petitions for reconsideration filed in response to the *First Report
    and Order and Further Notice of Proposed Rule Making* in ET Docket
    No. 98‑206, released on December 8, 2000.[^1] Our action herein
    encompasses all of the petitions for reconsideration but is limited
    to addressing the aspects that seek reconsideration of the
    Commission's threshold determination in the *First R&O* to authorize
    the new Multichannel Video Distribution and Data Service (MVDDS)
    under the existing primary status fixed service (FS) allocation in
    the 12.2‑12.7 GHz (12 GHz) band. We defer consideration of the
    remaining issues raised by the reconsideration petitioners to a
    future order. We received eight petitions seeking reconsideration of
    various decisions that the Commission made in the *R&O*.[^2] In
    addition, the parties filed six oppositions to the petitions for
    reconsideration and seven replies to the oppositions.

2.  We conclude that the petitions for reconsideration are without merit
    with regard to the Commission's threshold MVDDS authorization
    decision.[^3] The petitioners request that we, in effect, reverse
    the Commission's decision to authorize MVDDS under the existing
    allocation for FS in the 12 GHz band. We believe that the
    Commission's allocation for MVDDS in the 12 GHz band is in the
    public interest and reflects a carefully crafted balance of
    technical and policy concerns. This balance will result in an
    efficient reuse of spectrum and the provision of a new service to
    the public while affording protection to the existing Direct
    Broadcast Satellite (DBS) and new non‑geostationary satellite orbit
    (NGSO) fixed‑satellite services (FSS). We also believe that this new
    service will facilitate the delivery of new communications services,
    such as video and broadband services, to a wide range of populations
    including those that are unserved and or underserved.

3.  We also adopt a *Second Report and Order* (*Second R&O*) in which we
    establish technical and service rules for MVDDS in the 12 GHz band.
    This new fixed terrestrial radiocommunications service was
    established in the *First R&O*, wherein the Commission also
    allocated NGSO FSS operations in the 12 GHz band.[^4] Specifically,
    MVDDS providers will share the 12 GHz band with new NGSO FSS
    operators on a co‑primary basis and on a non‑harmful interference
    basis with incumbent Broadcast Satellite Service (BSS)
    providers.[^5]

# Executive Summary

4.  In this *MO&O and Second R&O*, we make the following major
    determinations regarding the licensing of MVDDS in the 12 GHz band:

**[MO&O]{.underline}**

-   We find that the Commission provided clear notice that the
    Commission was considering authorizing MVDDS in the 12 GHz band in
    the *November 24, 1998 NPRM*[^6] as required by the *Administrative
    Procedure Act.*[^7]

-   The MVDDS authorization complies with the provisions, and fosters
    the goals, of the *Satellite Home Viewer Improvement Act of 1999
    (*SHVIA) and the *Rural Local Broadcast Signal Act* (RLBSA).[^8]

-   The technical rules and regulatory safeguards we are adopting in the
    *Second Report and Order* will protect the primary allocation status
    of incumbent DBS/BSS and the co‑primary NGSO FSS operators in the
    12 GHz band.

-   The Commission's decision to authorize MVDDS in the 12 GHz band was
    carefully considered and rationally explained based upon all of the
    available information in the record.

-   The technical rules we are establishing for MVDDS operation are
    technologically neutral because they do not specify a particular
    equipment configuration or methodology, proprietary or not, that
    must be used within the fixed terrestrial MVDDS service.

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-   The Commission's decision to authorize MVDDS in the 12 GHz band does
    not violate International Telecommunications Union (ITU)
    recommendations and constitutes an appropriate exercise of domestic
    regulatory authority.

-   We deny the petitions for reconsideration with respect to the
    Commission's decision to authorize MVDDS in the 12 GHz band.

-   We find to be substantively without merit and dismiss on our own
    motion as procedurally untimely, the petition for consolidation and
    declaration of this proceeding which seeks to disallow MVDDS
    operation in the 12.2‑12.7 GHz band and instead seeks consideration
    of alternative spectrum in the 12.7‑13.25 GHz Cable Television Relay
    Service (CARS) band or the 2500‑2690 MHz Multichannel Multipoint
    Distribution Service (MMDS) in the context of two other rule making
    proceedings.

**[R&O]{.underline}**

-   We will require an MVDDS operator to operate with a maximum power
    limit of 14 dBm per 24 megahertz Effective Isotropic Radiated Power
    (EIRP).

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-   We specify an equivalent power flux density (EPFD) limit for each of
    four regions across the United States. The regions and corresponding
    EPFD limits are: East: ‑168.4 dBW/m^2^/4kHz, Midwest: ‑169.8
    dBW/m^2^/4kHz, Southwest: ‑171.0 dBW/m^2^/4kHz, and Northwest:
    ‑172.1 dBW/m^2^/4kHz.

-   Using a prescribed methodology and a predictive model to calculate
    EPFD values, we used a criterion that would limit the amount of
    increased BSS unavailability due to the presence of MVDDS to a
    negligible level over a baseline level of BSS unavailability. The
    unavailability allowance ascribed to MVDDS is in addition to the
    unavailability allowance ascribed to NGSO FSS operations in the
    12.2‑12.7 GHz band.

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-   MVDDS must site and design its transmitting antennas to avoid
    causing harmful interference to existing DBS customers.

-   We will require the MVDDS operator to ensure that the prescribed
    EPFD limits are not exceeded at any DBS customer of record
    location.[^9] If the EPFD limits are exceeded, the MVDDS operator
    will be required to discontinue service until such time that the
    limits can be met.

-   We adopt a "safety valve" in which we will consider requests to
    adjust the EPFD for specific locations, where due to an anomalous
    situation, a DBS provider can demonstrate a tangible detrimental
    impact on DBS caused by MVDDS operations.

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-   To promote MVDDS and NGSO FSS band sharing, MVDDS signals shall not
    exceed a power flux density (PFD) of --135dBW/m^2^/4kHz measured
    and/or calculated at the surface of the earth at distances greater
    than 3 km from the MVDDS transmitting site.

-   We adopt a minimum MVDDS transmitting antenna spacing of 10 km from
    pre‑existing NGSO FSS receive antennas with the option for NGSO FSS
    licensee agreement to accept shorter spacing. We also conclude that
    NGSO FSS receivers must accept any interference from pre‑existing
    MVDDS transmitting antennas.

-   We adopt basic information sharing and coordination requirements
    that MVDDS and NGSO FSS operators must follow to facilitate mutual
    sharing of the 12 GHz band as co‑primary services.

-   We adopt MVDDS emission mask values for protecting NGSO FSS
    operations in the adjacent 11.7‑12.2 GHz band and CARS and Broadcast
    Auxiliary Service (BAS) operations in the adjacent 12.7‑13.25 GHz
    band from out‑of‑band MVDDS emissions.

-   We adopt low elevation angle PFD radiation limits on NGSO FSS
    operations that will afford protection to MVDDS receivers from NGSO
    FSS interference for the portion of the non‑geostationary orbital
    path near the horizon.

-   We dismiss, without prejudice, all applications for terrestrial use
    of the 12 GHz band. All interested parties may reapply under the new
    licensing rules established in this proceeding

-   We adopt geographic license service areas for MVDDS on the basis of
    Component Economic Areas (CEAs).[^10]

-   We adopt a channel plan consisting of one spectrum block of 500
    megahertz per service area.

-   We adopt our proposal to auction MVDDS licenses in conformity with
    the general competitive bidding rules set forth in Part 1, Subpart
    Q, of the Commission's Rules.

-   We permit fixed one‑way operations, but exclude mobile and
    aeronautical operations. Permissible operations include the
    flexibility for two‑way services whereby the 12 GHz band could be
    used for the downstream path, and any upstream (or return) path
    could be located in other spectrum or over a wireline.

-   We decline to adopt must‑carry rules.

-   We require incumbent non‑public safety Private Operational Fixed
    Service (POFS) licensees in the 12 GHz band to protect MVDDS and
    NGSO FSS operations.

-   We require MVDDS and NGSO FSS operations to protect incumbent
    traditional public safety POFS licensees in the 12 GHz band.

-   We suspend the acceptance of POFS applications for new licenses,
    amendments to applications for new and modified licenses and major
    modifications to existing licenses.

-   We decline to permit dominant cable operators from acquiring an
    attributable interest in an MVDDS license for a service area where
    significant overlap is present.

-   We adopt a ten‑year license term for MVDDS, beginning on the date of
    the initial authorization grant, and adopt a renewal expectancy
    based on the substantial service requirement.

-   We restrict the placement of transmitting systems near the Canadian
    and Mexican borders.

# background

5.  On July 3, 1997, SkyBridge LLC (SkyBridge) requested modification of
    the Commission's Rules to permit NGSO FSS systems to operate with
    geostationary orbit (GSO) systems (both FSS and BSS) and terrestrial
    systems in certain bands, including the 12 GHz band.[^11] On March
    6, 1998, Northpoint Technology, Ltd. (Northpoint) filed a Petition
    for Rulemaking to allow the operation of a terrestrial service in
    the 12 GHz band.[^12] Specifically, Northpoint requested
    modifications to the Commission's Rules to authorize DBS licensees
    and their affiliates to obtain secondary, subsidiary terrestrial
    communications authorizations to use the 12 GHz band to provide
    multichannel video distribution of local television programs and
    broadband digital data (*e.g.*, high‑speed Internet access).[^13]

6.  On November 2, 1998, the Commission's International Bureau (IB)
    established January 8, 1999, as the final date for applicants to
    file applications for NGSO FSS systems in the 12 GHz band.[^14] On
    November 24, 1998, the Commission initiated a proceeding in which it
    proposed to permit NGSO FSS operations in certain segments of the
    Ku‑band.[^15] The Commission incorporated the SkyBridge and
    Northpoint Petitions for Rulemaking into the *November 24, 1998*
    *NPRM*.[^16]

7.  Subsequently, on January 8, 1999, Northpoint, through its subsidiary
    Broadwave Albany, L.L.C., *et al.*, (Broadwave USA),[^17] filed
    waiver requests and applications for licenses for terrestrial use of
    the 12 GHz band, in response to the *Ku‑Band Cut‑Off Notice*.[^18]
    Northpoint requested waivers of multiple provisions in Part 101 of
    the Commission's Rules, as well as any other rules necessary to
    process its applications, and asserted that its proposed service
    would be on a secondary, non‑interfering basis to DBS services and
    on a co‑primary basis with any new FSS, such as that proposed by
    SkyBridge.[^19] Thus, in applying for licenses as a non‑DBS
    affiliate, Northpoint shifted its stance from its earlier Petition
    for Rulemaking and also expanded the scope of the suggested video
    offerings beyond providing local service to supplement DBS.[^20]

8.  Northpoint has tested its technology in the 12 GHz band under
    experimental authorizations and has filed progress reports asserting
    that the tests demonstrate that its technology could share spectrum
    with incumbent DBS operations.[^21] On October 13, 1999, Northpoint
    (under the name of Diversified Communications Engineering, Inc.)
    filed a technical report summarizing the results of its experimental
    tests in Washington, D.C.[^22] On November 29, 1999, SHVIA was
    enacted.[^23] The SHVIA legislation generally seeks to place
    satellite carriers on equal footing with local cable operators
    concerning the availability of broadcast programming, and thus is
    intended to give consumers more and better choices in selecting a
    multichannel video programming distributor (MVPD).[^24] In addition
    to the 1999 SHVIA legislation, Congress passed a provision entitled
    the Rural Local Broadcast Signal Act (RLBSA).[^25] Among other
    things, this law required the Commission to make a determination by
    November 29, 2000, regarding licenses or other authorizations for
    facilities that will utilize, for delivering local broadcast
    television signals to satellite television subscribers in unserved
    and underserved local television markets, spectrum otherwise
    allocated to commercial use.[^26] The RLBSA legislation also
    mandates that the Commission ensure that no facility licensed or
    authorized to deliver such local broadcast television signals
    "causes harmful interference to the primary users of that spectrum
    or to public safety spectrum use."[^27]

9.  Another company, MDS America, Inc. (MDSA), a newly formed licensee
    for North America of MDS International S.A.R.L. (MDSI), has also
    tested its technology under an experimental license in an effort to
    demonstrate successful sharing with DBS in the 12 GHz band.[^28]
    Under this experimental license, MDSA tested MDSI's HyperCable
    broadband wireless technology. This technology, they assert, has
    been successfully deployed internationally in the 12 GHz band
    without causing interference to DBS operations in the same frequency
    band.[^29] In *ex parte* filings, Northpoint alleges that MDSA's
    international facilities have not caused interference to DBS
    operations because they rely, in large part, on band segmentation
    and only operate co-frequency at the DBS band edge.[^30] Whether
    MDSA could successfully deploy their technology without causing
    interference to DBS operations in the U.S. is being tested under
    their experimental authorization. Northpoint further alleges that
    MDSA misrepresented the number and type of MDSI installations
    operating overseas and thus states that the Commission should
    conduct an investigation and take appropriate action.[^31] We note
    that MDSA has submitted extensive filings in response to the
    Northpoint allegations.[^32] Based on our review of the record
    before us, we conclude that this issue of determining the scope and
    type of the MDSI foreign installations, along with the character of
    the overlapping DBS signals provided by other operators and the
    locations of the associated DBS subscribers, is a complex matter of
    *bona fide* dispute between MDSA and Northpoint. We thus do not
    consider this dispute to constitute a case that rises to the level
    of a possible misrepresentation before the Commission. Accordingly,
    on the record before us, we conclude that further action on our part
    based on Northpoint's allegations in connection with this rule
    making is not warranted.

10. On April 18, 2000, PDC Broadband Corporation (Pegasus) filed an
    application for authority to provide terrestrial service in the
    12 GHz band to deliver data transmission, Internet services, and
    MVPD services. On August 25, 2000, Satellite Receivers, Ltd. (SRL)
    filed an application for authority to provide terrestrial television
    broadcast, Internet and data services in the 12 GHz band in
    Illinois, Indiana, Iowa, Michigan, Minnesota and Wisconsin.

11. On November 29, 2000, the Commission adopted the *First R&O and
    Further Notice* in the subject proceeding.[^33] In the *First R&O*,
    the Commission concluded, among other matters, that the new fixed
    terrestrial MVDDS could operate in the 12 GHz band on a co‑primary
    non‑harmful interference basis with incumbent BSS providers and on a
    co‑primary basis with NGSO FSS entities. The Commission also
    concluded that NGSO FSS providers could operate service downlinks in
    the 12 GHz band on a primary basis. Furthermore, the Commission
    concluded that it would define MVDDS technical rules and
    requirements in a later order that would protect BSS operations and
    that it could establish criteria that would permit MVDDS/NGSO FSS
    sharing. To that end, the Commission sought detailed comment in the
    *Further Notice* regarding the technical sharing criteria between
    MVDDS and BSS and NGSO FSS, and on MVDDS service, technical and
    licensing rules.

12. In the *Further Notice,* the Commission sought comment on technical
    sharing criteria between the MVDDS, BSS and NGSO FSS, and on MVDDS
    service, technical, and licensing rules under Part 101 of the
    Commission\'s Rules. Finally, the Commission requested comment on
    the disposition of the pending 12 GHz applications filed by
    Northpoint, Pegasus, and SRL.

13. On December 21, 2000, Congress enacted Section 1012, "Prevention of
    Interference to Direct Broadcast Satellite Services," of the
    Commerce, Justice, State and Judiciary Appropriations Act,
    H.R. 5548. Section 1012 requires the Commission to arrange for
    independent testing of "any terrestrial service technology proposed
    by any entity that has filed an application to provide terrestrial
    service" in the 12 GHz band. The Commission selected The MITRE Corp.
    (MITRE) to conduct this testing. MITRE filed its report detailing
    its testing on April 18, 2001.[^34]

# MEMORANDUM OPINION AND ORDER

## Notice under the *Administrative Procedure Act*

14. SkyBridge contends in its petition for reconsideration that the
    Commission violated the *APA*[^35] on procedural grounds by failing
    to give adequate notice in the *NPRM* that it was considering
    authorizing MVDDS in the subsequent *R&O*.[^36] SkyBridge argues in
    general principle that the Commission's decision to authorize MVDDS
    could not be anticipated from the prior record in this proceeding.
    Northpoint argues in response that the subject matter the Commission
    discussed and the comments the Commission sought in the *NPRM*
    provided clear notice to interested parties that it was considering
    authorizing MVDDS in the 12 GHz band.[^37]

15. Section 553(b)(3) of the *APA* requires that a general notice of a
    proposed rule making shall include "either the terms or substance of
    the proposed rule *or a description of the subjects and issues
    involved*." (Emphasis added).[^38] In the *November 24, 1998 NPRM*,
    the Commission sought comment, among numerous other issues, on the
    Northpoint Petition for Rulemaking to permit terrestrial use of the
    12.2‑12.7 GHz band.[^39] In addition, the Commission sought detailed
    comment on whether sharing of the 12.2‑12.7 GHz band by a
    Northpoint‑type (*i.e.*, MVDDS) terrestrial service along with
    BSS/DBS and NGSO FSS was feasible.[^40] Furthermore, the Commission
    sought detailed comment on the specific technical allocation and
    interference considerations involved in such a spectrum‑sharing
    plan.[^41] Indeed, many of the responsive comments the Commission
    received were predicated upon the anticipation that it would find
    that an MVDDS‑type service could operate in the 12 GHz band. In
    light of the foregoing, we find that the likelihood that we would
    determine that MVDDS could operate under the existing FS allocation
    in the 12 GHz band is clearly a logical outgrowth of the comments
    sought and the specific issues and subject matter discussed in the
    *November 24, 1998 NPRM*. Furthermore, we observe that the FS
    allocation for the 12 GHz band, under which MVDDS would operate,
    already exists in our rules.[^42]

16. In the *First R&O* and *Further Notice,* the Commission concluded
    that the record supported a threshold determination that sharing in
    the 12 GHz band with a new MVDDS service was feasible.[^43] The
    Commission also indicated that current trends in spectrum usage
    necessitate that it consider more complicated and creative sharing
    arrangements.[^44] At the same time, the Commission's analysis
    showed that development of technical rules applied to MVDDS
    operations would require a delicate balancing of many competing
    interference and spectrum utilization issues. In recognition of the
    complexity of these issues, the Commission exercised caution and
    chose to defer the adoption of additional specific technical rules
    pending the development of a more complete record. In furtherance of
    that goal, the Commission requested additional detailed comment in
    the *Further Notice* concerning all technical aspects of sharing in
    the 12 GHz band. This exercise of caution by refraining from
    adopting technical rules in the *First R&O* in no way alters or
    detracts from the fact that the Commission provided clear notice in
    the preceding *November 24, 1998 NPRM* that it was considering
    making the threshold decision to authorize MVDDS in the 12 GHz band.
    In view of the substance of the detailed comments sought and the
    specific issues and subject matter discussed in the *November 24,
    1998 NPRM*, we conclude that the Commission provided clear notice
    that it was considering making a determination as to whether to
    allow MVDDS to operate in the 12 GHz band. Accordingly, the
    SkyBridge petition for reconsideration that asserts the Commission's
    decision to authorize MVDDS was improper because the Commission
    failed to provide adequate notice of the proposed rules as required
    by the *APA* is denied.

## Compliance with SHVIA and RLBSA

17. SkyBridge argues in its petition for reconsideration that the
    Commission's decision to authorize MVDDS in the 12.2‑12.7 GHz band
    violates the interference prevention provisions of the SHVIA and the
    *RLBSA*.[^45] SkyBridge also argues that the Commission's decision
    to authorize MVDDS fails to promote the goals of *SHVIA* and *RLBSA*
    to the extent those goals seek to provide the delivery of local
    broadcast television signals to satellite subscribers in unserved
    and underserved local markets.[^46] Northpoint asserts in response
    that MVDDS will not cause harmful interference to either DBS or NGSO
    FSS and, additionally, cites its public commitments to provide
    nationwide service in all 211 local television designated market
    areas (DMA's) within two years of licensing as evidence of the
    ability of MVDSS to provide service in rural areas.[^47]

### MVDDS vs. NGSO FSS Interference Concerns & Legislative Intent

18. SkyBridge argues that the Commision's decision to allow MVDDS to
    operate in the 12.2‑12.7 GHz band violates the *RLBSA* provision
    that, "\[t\]he Commission shall ensure that no facility licensed or
    authorized under \[this act\] causes harmful interference to the
    primary users of that spectrum ..."[^48] Citing the legislative
    hearings for *SHVIA* and *RLBS*A appearing in the *Congressional
    Record*, SkyBridge contends that requiring NGSO FSS systems to share
    the 12.2‑12.7 GHz band with a terrestrial service such as MVDDS
    inherently conflicts with the intent of the legislation. SkyBridge
    supports its contention with what we find herein to be the
    unwarranted assumption that MVDDS will cause harmful interference to
    co‑primary NGSO FSS operations.[^49] As noted above, Northpoint
    asserts throughout its response that MVDDS will not cause harmful
    interference to either DBS or NGSO FSS.

19. In light of the rules and regulatory safeguards we are adopting
    herein, we disagree with SkyBridge's assertion that MVDDS will cause
    harmful interference to NGSO FSS. In reaching this conclusion, we
    are confident that the rules we adopt herein will limit the
    interference potential from MVDDS to a level that does not rise to
    "harmful interference" as defined by Section 2.1 of our rules.[^50]
    These rules will ensure that MVDDS and NGSO FSS can share the 12 GHz
    band while preserving the integrity of the co‑primary status of both
    operations. Therefore, we find that SkyBridge's concern that the
    Commission's decision to authorize MVDDS violates the prohibition on
    harmful interference provisions of SHVIA/*RLBSA* is without merit.

20. Furthermore, a review of the legislative history of the RLBSA cited
    by SkyBridge indicates that it was fully anticipated by the
    legislators that the Commission might determine that a terrestrial
    service such as MVDDS could share spectrum with NGSO FSS operations.
    For example, the *Congressional Record* indicates, "... \[the
    RLBSA\] directs the FCC to consider issuing licenses, possibly in
    the *same bands*, for new *terrestrial* communications services ..."
    (Emphasis added).[^51] And further, that, "... this bill did not
    mean to interfere with the expert technical and regulatory judgment
    of the FCC with respect to licensing applicants ..."[^52] We
    therefore find that the Commission's decision to authorize MVDDS to
    share the 12 GHz band complies with both the specific requirements
    and legislative intent of *SHVIA* and *RLBSA*. Accordingly, the
    SkyBridge petition for reconsideration with regard to compliance
    with the non‑interference provisions of *SHVIA/RLBSA* is denied.

### Local Programming Goals of RLBSA

21. SkyBridge also argues that the Commission's decision to authorize
    MVDDS in the 12 GHz band does not include measures to ensure new
    services in rural areas or provision of local programming in areas
    unserved by cable systems.[^53] As a result, SkyBridge asserts that
    a primary goal of the *RLBSA* is not fulfilled.[^54] Northpoint, in
    response, cites its public commitments to provide nationwide service
    in all 211 local television DMA's within two years of licensing as
    evidence of the ability of MVDSS to provide service in rural
    areas.[^55]

22. The *RLBSA* directs the Commission "to make a determination
    regarding licenses or other authorizations for facilities that will
    utilize, for delivering local broadcast television station signals
    to satellite television subscribers in unserved and underserved
    local television markets, spectrum otherwise allocated to commercial
    use."[^56] From a technological perspective, a fixed terrestrial
    service such as MVDDS is clearly capable of providing local
    television station signals to satellite television subscribers in
    unserved and underserved local television markets. As contemplated
    by the *First R&O* and *Further Notice*, each fixed terrestrial
    MVDDS transmitter will be deployed to serve a specific geographic
    area. Because the individual MVDDS transmitters will be physically
    located in the immediate geographic area that they serve, each one
    will be ideally situated to rebroadcast available local television
    station signals to subscribers. Furthermore, MVDDS can utilize
    reception technology that is similar to that used by established
    satellite BSS/DBS operations.

23. We also observe that the inability to receive local signals from DBS
    operators has often been cited by consumers as negatively affecting
    their decision as to whether to subscribe to DBS.[^57] Furthermore,
    as of the beginning of the year 2001, the two major DBS providers,
    DirecTV and EchoStar, provided "local‑into‑local" service in only
    thirty‑eight and thirty‑four markets respectively.[^58] With current
    growth rates, it appears possible that smaller markets and rural
    areas may not be provided with "local‑into‑local" service from DBS
    for the foreseeable future. The combination of these factors lead us
    to believe that a terrestrial service, such as MVDDS, could include
    transmitters sited in rural areas and thus can fill this void. At
    the same time, as just one example, we note that Northpoint has
    indicated its desire to provide nationwide service in over two
    hundred markets as a prospective MVDDS operator.[^59] Therefore, we
    find that MVDDS is well suited to provide local television station
    signals to satellite television subscribers. However, we are not
    requiring MVDDS to provide local broadcast television service nor
    are we requiring MVDDS to serve satellite subscribers.

24. The fact that we have not proposed programming content rules for
    MVDDS does not detract from the fact that, among other capabilities,
    MVDDS is technologically well suited for fulfilling the local signal
    delivery goals of *RLBSA.* In the future, if we perceive it to be
    necessary and appropriate, we could give consideration to additional
    measures that might be warranted to meet the local programming goals
    of *RLBSA* in light of the particular facts and circumstances that
    prevail at the time. However, it would be both beyond the scope of
    this proceeding and premature to propose content‑oriented rules for
    MVDDS operations at this time. We therefore find SkyBridge's
    arguments to be without merit and conclude that we have complied
    with the directives of *RLBSA*. Accordingly, the SkyBridge petition
    for reconsideration as to compliance with the local programming
    goals of *RLBSA* is denied.

## Allocation Status of BSS/DBS and NGSO FSS vs. MVDDS, and Related Interference Matters

25. SkyBridge asserts in its petition for reconsideration that the
    co‑primary authorization for NGSO FSS in the 12.2‑12.7 GHz band is
    effectively rendered secondary by the alleged interference SkyBridge
    anticipates MVDDS will cause to NGSO FSS operators in the 12 GHz
    band.[^60] Similarly, DirecTV, EchoStar, the Boeing Company (Boeing)
    and other reconsideration petitioners generally assert that the
    primary allocation status of BSS/DBS is undermined by the
    interference they claim will be caused to DBS operators in the
    12 GHz band.[^61] EchoStar argues that the Commission's decision to
    authorize MVDDS is inconsistent with the "rights and reasonable
    reliance interests" of DBS operators created by our licensing
    regime.[^62] Some of the petitioners also generally contend that any
    MVDDS interference mitigation performed upon either DBS or NGSO FSS
    subscriber equipment would be in derogation of the primary or
    co‑primary status of each service.[^63] The petitioners further
    generally assert that the Commission failed to justify its decision
    to authorize MVDDS in the 12 GHz band in the face of alleged
    potential interference problems, that mitigation techniques will be
    either unsuccessful or objectionable, that other less harmful
    options such as use of other frequency bands were not considered,
    and that the Commission ignored the evidence in the record in
    reaching its decision.[^64] Northpoint argues in response that MVDDS
    will not cause harmful interference to either DBS or NGSO FSS and
    that the Commission carefully considered all the alternative options
    in reaching its decision.[^65]

26. MVDDS is authorized on a co‑primary, non‑harmful interference basis
    as to BSS/DBS and on a purely co‑primary basis to NGSO FSS. Each
    scenario requires somewhat differing approaches for addressing
    interference protection priorities. The interference protection
    rules and technical limits we are adopting herein will limit the DBS
    and NGSO FSS interference potential from MVDDS and avoid "harmful
    interference" as defined by Section 2.1 of our rules. The technical
    rules we adopt in the *Second R&O* are stringent. Under the
    DBS‑related operating limits we adopt for MVDDS, any interference
    caused to DBS would not likely approach a level that could be
    considered harmful interference. Further, the rules we adopt herein,
    require an MVDDS licensee to discontinue service from a transmitting
    antenna if it causes harmful interference to DBS customers of
    record.[^66] In the case of NGSO FSS, the MVDDS PFD will be limited
    and stations will be required to locate a sufficient distance from
    pre‑existing NGSO FSS receivers to ensure their protection. In the
    absence of harmful interference from MVDDS, the primary or
    co‑primary status of either DBS or NGSO operations will not
    derogated.

27. In light of the approach described above, we find that all of the
    objections raised by the reconsideration petitioners in regard to
    the Commission's decision to authorize MVDDS in the 12 GHz are
    without merit. They begin from the incorrect assumption that harmful
    interference will be caused to DBS and NGSO FSS services by MVDDS
    operations.

28. We also find that the reconsideration petitioners are incorrect in
    their assertion that MVDDS is purely "secondary" to DBS. Rather,
    MVDDS is authorized under the existing fixed allocation in the
    12 GHz band to operate on a co‑primary, albeit non‑harmful
    interference*,* basis with DBS. The Table of Frequency Allocations
    appearing in our rules further supports the Commission's conclusion
    that MVDDS, as part of the fixed service, is not "secondary" to
    DBS.[^67] Specifically, the fixed service allocation in the Table of
    Frequency Allocations for the 12.2‑12.7 GHz band appears in capital
    letters and is, therefore, considered to be a "primary"
    allocation.[^68] Therefore, it is appropriate for MVDDS to be
    allocated on a primary basis. To put this conclusion in perspective,
    we note that, in the early 1980's, the Commission adopted a
    non‑harmful interference requirement on incumbent fixed
    point‑to‑point operations in this band and encouraged them to
    relocate to other spectrum[^69] because these operations were
    generally incompatible with the BSS allocation that was made.
    Specifically, the point‑to‑point operations were high powered (up to
    316,228 watts EIRP), two‑way links that could transmit in any
    direction. These characteristics require that such fixed links
    coordinate with other uses on a case‑by‑case basis, which is not
    possible with ubiquitous BSS operations. In comparison, in this
    proceeding we would permit fixed service operations that are
    low‑power (up to 0.025 watts EIRP) one‑way transmissions
    specifically designed to share spectrum with BSS operations. As
    discussed below, each transmitting system would be designed to
    minimize impact on ubiquitous BSS receivers. However, because MVDDS
    and DBS would be competitors, we are mindful of the desire of the
    DBS licensees to limit an MVDDS operator's ability to access their
    customers. To that end, we adopt rules in the *Second Report and
    Order* which require MVDDS licensees to meet specified EPFD levels
    at each DBS subscriber location.[^70]

29. We further observe that NGSO FSS and MVDDS are authorized on a
    purely co‑primary basis. We conclude that standard mitigation
    techniques will not be appropriate or sufficiently effective in this
    situation due to the particular interference mechanisms involved
    when, for example, an NGSO FSS receiver points directly at an MVDDS
    transmitting antenna. Instead of mitigation requirements, we
    conclude elsewhere herein that specifying a minimum MVDDS
    transmitting antenna spacing from pre‑existing NGSO FSS
    receivers[^71] and carefully selecting maximum MVDDS PFD limits[^72]
    can provide similar protection without placing undue burdens upon
    NGSO FSS operators or requiring mitigation to be performed on any
    NGSO FSS receiver. In that light, we find that there is no basis for
    the petitioners\' objection to mitigation that they believe might be
    performed on NGSO FSS equipment by an MVDDS provider because we are
    not requiring mitigation on these services.

30. We find that the Commission's decision to authorize MVDDS in the
    12 GHz band subject to the technical restrictions adopted herein do
    not undermine the allocation status of either DBS or NGSO FSS.
    Therefore, we also conclude that the petitions for reconsideration
    are without merit concerning the alleged interference, allocation
    status and mitigation issues raised therein. Accordingly, the
    petitions for reconsideration in those respects are denied.

31. EchoStar also argues that the Commission's decision to authorize
    MVDDS is inconsistent with the "rights and reasonable reliance
    interests" of DBS operators created by our licensing regime.[^73]
    They assert that DBS licensees have designed their systems to
    maintain a certain degree of reliability for DBS customers based
    upon reasonable expectations about certain amounts of interference
    protection and the range of technological options for which the
    spectrum might be developed.[^74] EchoStar concludes that, "DBS
    licensees acquired the right to be the primary service providers in
    the 12.2‑12.7 GHz band, and consequently, reasonably expected that
    the Commission would not authorize any other service in that band
    that would create *[harmful]{.underline}* interference to DBS
    service in accordance with the Commission's rules." (Emphasis
    added).[^75]

32. To whatever extent we might, *arguendo,* accept EchoStar's
    characterization of the asserted rights and reliance interests of
    DBS operators, we note that even by EchoStar's own terms there would
    need to be a finding that harmful interference has been suffered by
    DBS for those interests to be compromised.[^76] Consequently, we
    believe that this argument, similar to the other petitioner's
    concerns addressed immediately above, is dependent upon the
    incorrect assumption that MVDDS operation will cause *harmful*
    interference to the DBS service. As a fundamental matter, we believe
    that the rules we adopt in this proceeding will prevent harmful
    interference to DBS. In the absence of harmful interference to DBS,
    no cognizable interest of DBS licensees will be undermined. Stated
    in slightly different terms, the relatively small theoretical
    changes in DBS unavailability or system link budget margins that
    might result from MVDDS operations under the rules we adopt herein
    simply do not rise to a level that can be considered harmful
    interference under our rules. This result is consistent with past
    Commission actions wherein the Commission has found that impacting
    some existing customers of a service to an extent that did not rise
    to the level of harmful interference was outweighed by the benefits
    of adding new services or capabilities to a frequency band.[^77]
    Therefore, we conclude that EchoStar's petition for reconsideration
    is without merit with regard to the allegation that the Commission's
    decision to authorize MVDDS is inconsistent with the "rights and
    reasonable reliance interests" of DBS operators. Accordingly,
    EchoStar's petition for reconsideration in that respect is denied.

33. We also find that the various assertions made by the petitioners
    that the Commission failed to explain its decision, failed to
    explore other alternatives, or ignored evidence in the record are
    without merit. Contrary to petitioners' assertions, the Commission
    carefully articulated reasons for its basic threshold decision to
    authorize MVDDS in the 12 GHz band. For example, the Commission
    explained that factors such as propagation constraints in various
    frequency bands, the degree of encumbrance by existing operations,
    relative equipment costs, and whether a particular frequency band
    would provide sufficient spectrum to permit competition with cable
    and DBS operations were central to its decision.[^78]

34. At the same time, the Commission has made it abundantly clear that
    it wished to further develop the record before proposing final rules
    and protection criteria to govern MVDDS operation. In that context,
    the Commission utilized the vehicle of the *Further Notice* to
    solicit additional relevant comments from all interested parties
    concerning 12 GHz band sharing so that it could fully explore the
    specific technical considerations before proposing final rules
    governing MVDDS. Accordingly, the petitions for reconsideration
    insofar as they assert that the Commission failed to explain its
    decision, failed to explore other alternatives, or ignored evidence
    in the record are denied.

35. Finally, we disagree with the assertions of DirecTV, the Satellite
    Broadcasting and Communications Association (SBCA), EchoStar and
    others that the Commission's decision to authorize MVDDS in the
    12 GHz band cannot be reconciled with its past findings that sharing
    between ubiquitous satellite and terrestrial services is not
    feasible. Northpoint argues in response that there is no
    inconsistency with the Commission's previous decisions and describes
    distinguishing factors that it contends supports the Commission's
    decision.[^79] The Commission, as petitioners observe, has
    previously been reluctant to authorize multiple satellite and
    terrestrial services in the same bands due to the extremely complex
    engineering and interference concerns involved. However, the
    Commission noted in the *First R&O & Further Notice* the increasing
    demand for spectrum access necessitates that it consider more
    complicated and creative sharing arrangements.[^80]

36. In this instance, we note that we have the benefit of the extensive
    analytic record derived from the MITRE Report as well as the
    experimental MVDDS test operations in the 12 GHz band. The results
    support the Commisison's conclusion that sharing is feasible in the
    12 GHz band. Moreover, we find that the 12 GHz band is well suited
    for the nature of the service to be provided by MVDDS in light of
    the present use of this band. Taking all these factors together, we
    find that sharing of the 12 GHz band presents a unique situation
    that, while technically challenging, has the potential for
    significant benefit to the public in the provision of a new service.
    Therefore, we find that the Commission's decision to authorize MVDDS
    in the 12 GHz band is consistent with its continuing effort to find
    the highest and most efficient use of spectrum that is supported by
    the record in a given proceeding. Accordingly, the petitions for
    reconsideration of SkyBridge, DirecTV, EchoStar, SBCA, and Boeing
    with respect to the Commission's decision to allocate MVDDS in the
    12 GHz band are hereby denied.

## Technology Neutrality and Patent Issues

37. Boeing argues that allowing MVDDS in the 12 GHz band violates the
    Commission's practice of not basing new services on patented
    technologies.[^81] Boeing cites references by Northpoint that its
    antenna designs and equipment incorporate patented technology.[^82]
    SkyTower, the proponent of a novel solar‑powered aircraft (or
    "stratospheric platform") delivery system, opines that the decision
    to allow the MVDDS terrestrial service in the band is not
    "technologically neutral" because it excludes new, non‑terrestrial
    technologies such as that which it proposes.[^83]

38. As discussed more fully in the attached *Second R&O*,[^84] we
    conclude that the rules we adopt effectively define and encompass a
    family of terrestrial service technology -- some particular
    implementations of which may or may not be subject to patents or,
    possibly, not yet even developed or envisioned -- that, consistent
    with the MITRE test results, are capable of operation without
    causing harmful interference. These rules do not constrain MVDDS to
    any particular equipment configurations or methodologies to deliver
    the service so long as they comply with the technological operating
    requirements we adopt herein. In other words, we distinguish the
    definition of MVDDS "technology" in this context (as it relates to
    patent, statutory and "technology neutrality" issues) from the use
    of the term by petitioners to casually refer in shorthand fashion to
    just one of potentially many methods or configurations of equipment.
    Thus, we find that the rules we adopt in the *Second R&O* define a
    set of technical operating parameters (a family of terrestrial
    service technology) to which prospective MVDDS providers must
    conform independent of the particular equipment or implementation
    method employed.

39. Consequently, while prospective MVDDS providers, such as Northpoint,
    might choose to utilize proprietary methods or equipment in their
    own systems to deliver the new service, it is clear from the rules
    we have adopted in the *Second Report and Order* that we do not
    require them to do so. However, due to the interference concerns
    described elsewhere herein, we conclude that the 12.2‑12.7 GHz band
    may not be used for aeronautical and mobile operations.[^85]
    Accordingly, the Boeing and SkyTower petitions for reconsideration
    as to the patent and technology neutrality issues raised therein are
    hereby denied.

## Applicability of ITU Recommended NGSO FSS Criteria to MVDDS

40. EchoStar, SkyBridge and SBCA argue in their petitions for
    reconsideration that the Commission's decision to authorize MVDDS in
    the 12 GHz band violates ITU recommendations regarding international
    protection concerns for NGSO FSS.[^86] Petitioners cite the ITU
    recommendation that specifies a ten percent cap on the increase in
    unavailability caused by NGSO FSS systems to GSO BSS systems.[^87]
    They argue that the ITU recommendation does not contemplate the
    addition of any new sources of interference to GSO BSS beyond the
    ten percent attributable to NGSO FSS. From this interpretation,
    petitioners aver that the ITU recommendations prohibit the addition
    of another service, such as MVDDS, that would further increase the
    unavailability of GSO BSS systems. As a consequence, petitioners
    argue that the Commission's decision to authorize MVDDS is in
    contravention of the ITU recommendations.[^88]

41. We do not agree. As an initial matter, we observe that
    recommendations resulting from ITU‑R deliberations are not
    necessarily binding for purely domestic allocation decisions such as
    are involved with the terrestrial‑based MVDDS service. As the
    Commission stated in the *First Report and Order,* "... ITU‑R
    deliberations are based on the technical input of many
    Administrations that often have different domestic spectrum uses
    than those in the Unites States. Thus, while the conclusions of the
    CPM \["Conference Preparatory Meeting"\], the ITU‑R study groups,
    and WRC‑2000 may have general technical applicability, based upon
    each Administration's input and the resultant compromise, they may
    not adequately address specific, domestic sharing conditions such as
    those prevalent in the U.S."[^89]

42. Furthermore, we disagree with the petitioner's interpretation of the
    cited ITU recommendation. We find that the cited ITU recommendation
    is not applicable to the terrestrial‑based MVDDS. This conclusion is
    supported by the fact that the cited ITU recommendation explicitly
    states that the ten percent cap on the increase in baseline
    unavailability applies to NGSO FSS.[^90] There is nothing in the ITU
    recommendation that indicates the cap is applicable to any service
    other than the satellite‑based NGSO FSS. EchoStar itself
    acknowledges that the ten percent cap was determined specifically
    upon the occasion of interference from NGSO systems into DBS.[^91]

43. Petitioners hinge their argument largely upon out‑of‑context
    quotations from the cited ITU recommendation to the effect that all
    contributions to DBS unavailability should be limited. We do not
    find fault with the proposition that the ITU recommendation reflects
    the position that it is desirable that the unavailability
    contributions of all systems affecting DBS should be quantified and
    limited in some manner. Indeed, we are establishing very
    conservative limits on MVDDS elsewhere herein. However, it is
    equally clear from a plain reading of the ITU recommendation that
    the ten percent cap refers only to the contribution attributable to
    NGSO FSS systems. Beyond that, the ITU recommendation simply does
    not purport to address, or to exclude from possible future
    consideration, whatever link budgets might be appropriate for
    systems other than NGSO FSS.

44. As even SkyBridge and SBCA concede, all the relevant agreements and
    recommendations clearly limit their consideration to the
    interference contribution of NGSO FSS alone, and that no conclusions
    were reached regarding MVDDS or other such services.[^92] We agree
    with Northpoint that to suggest that the ten percent cap applies to
    every other possible source of interference ‑ despite explicit
    qualifying language limiting the cap to NGSO FSS ‑ is unwarranted
    and misreads the ITU proceedings.[^93] Consequently, we conclude
    that the cited ITU recommendation must be narrowly construed by its
    own terms, namely, that the ten percent cap applies to NGSO FSS
    alone.

45. Therefore, we conclude that the Commission's decision to authorize
    MVDDS in the 12 MHz band reflects an appropriate exercise of its
    regulatory authority to tailor interference standards to particular
    domestic requirements. We further conclude that the Commission's
    decision is not inconsistent with the ITU recommendations cited by
    petitioners. Accordingly, to the extent that EchoStar, SBCA and
    SkyBridge allege that the the Commission's decision to authorize
    MVDDS in the 12 GHz band is inconsistent with or violates ITU
    agreements and recommendations, the petitions for reconsideration
    are denied.

## DBS Petition for Consolidation and Declaration

46. Subsequent to the deadline for filing petitions for reconsideration
    of the *First* *R&O*, DirecTV and EchoStar submitted a petition[^94]
    that seeks consolidation of this proceeding with dockets CS
    99‑250[^95] and ET 00‑258.[^96] The petitioners also urge the
    Commission to declare that either the 12.7‑13.2 GHz segment of the
    CARS band or, alternatively, the 2500‑2690 MHz segment of the MMDS
    band, is available to MVDDS instead of the 12 GHz band.[^97]

47. Northpoint opposes the DBS Petition for Consolidation and
    Declaration on procedural grounds because of the lateness of filing,
    and on the merits because Northpoint argues that neither of the
    proposed alternative spectrum options are technically suitable for
    MVDDS.[^98] The National Cable Television Association (NCTA) points
    out that the petition to declare spectrum in the CARS band for MVDDS
    runs counter to Section 308 of the Communications Act of 1934 (the
    Act) which provides, in part, that the *applicant* for a license
    must specify the desired frequency of operation.[^99] NCTA also
    argues that the petition should be rejected because, by requesting a
    declaration that alternative spectrum is available in other
    frequency bands, it seeks a change to the Commission's Table of
    Frequency Allocations in a manner that conflicts with basic notice
    and comment rule making procedures.[^100] MDS America argues that
    the petition raises issues that are beyond the scope of this
    proceeding, and that MDS America would only support an effort to
    identify additional, but not replacement, spectrum for MVDDS and,
    then, only if licensing of MVDDS in the 12 GHz band were not
    delayed.[^101]

48. We find the DBS Petition for Consolidation and Declaration to be
    untimely and without merit. Although styled as a petition for
    consolidation of three rulemaking proceedings and for a declaration
    that other frequencies are suitable for MVDDS, the petition
    essentially asks the Commission to reconsider its threshold decision
    to authorize MVDDS in the 12 GHz band. The deadline for filing
    petitions for reconsideration of the Commission's *First R&O* lapsed
    in March 2001. Therefore, we find that the petition for
    consolidation and declaration is untimely and it is hereby dismissed
    on that ground.

49. Notwithstanding that we dismiss the petition as untimely, we will
    briefly discuss the merits on our own motion. We do so because we
    wish to forestall further delays to the implementation of MVDDS.

50. As an initial consideration, we observe that NCTA is correct in
    noting that Section 308 of the Act provides, in part, that the
    *applicant* for a license must specify the desired frequency of
    operation.[^102] Furthermore, by requesting a "declaration that
    alternative spectrum is suitable," the petition appears to seek a
    change in our Table of Frequency Allocations without the benefit to
    interested parties that is afforded by basic administrative notice
    and comment rule making procedures. As NCTA aptly points out, in
    taking both of these considerations into account, it is implicit
    that the applicant must be satisfied that the available frequencies
    are suitable for the intended service. No indication exists that
    this is the case here. In fact, quite the opposite appears to be
    true inasmuch as Northpoint has made it very clear in the record
    that it does not perceive alternate frequencies outside the 12 GHz
    band to be desirable. Therefore, we conclude that it would not serve
    the public interest at this late point in time to engage in a
    further search for alternative spectrum that we know, *a priori*, is
    not deemed satisfactory by prospective MVDDS licensees merely to
    appease the petitioners' objection to the Commission's original
    12 GHz decision.

51. We also note that DirecTV and EchoStar plainly do not agree with the
    Commission's threshold decision or rationale for authorizing MVDDS
    in the 12 GHz band. Earlier in this *MO&O* and in the *First R&O*,
    the Commission enumerated some of the spectrum efficiency and public
    interest considerations that were balanced in deciding to authorize
    MVDDS in the 12 GHz band.[^103] Those considerations include, *inter
    alia*, the degree of encumbrance by existing operations and other
    related factors. We also affirmed above in this *MO&O* our
    conclusion that those considerations warranted denying the petitions
    for reconsideration of that decision. The same considerations apply
    here. DirecTV and EchoStar desire that we identify yet other
    spectrum ‑ namely segments of the CARS and MMDS bands ‑ to which we
    should relegate MVDDS. Their arguments are repetitive of the same
    arguments made in their original reconsideration petitions that we
    have already addressed in this *MO&O* and have found to be
    unpersuasive.

52. We find that neither the CARS nor the MMDS bands would be more
    advantageous for MVDDS operations as compared with the spectrum
    efficiency and public interest benefits of the 12 GHz band. Both the
    CARS and MMDS bands are widely used by different services. Beyond
    asserting purported benefits to MVDDS of using these two bands,
    DirecTV and EchoStar fail to offer any specific technical
    information as to how to resolve potential interference and
    coordination issues that would inevitably arise from sharing these
    bands with MVDDS. We also find that DirecTV and EchoStar's
    simplified characterization of the present use of these two bands
    greatly underestimates the potential problems were MVDDS to be
    authorized to share that spectrum. The CARS band currently supports
    four radio services.[^104] The most active user of the band is CARS
    with over 121,000 links. The second most active user is the BAS with
    4,900 links, followed by Fixed Service point‑to‑point operations
    with 1,300 links and the Fixed‑Satellite Service with 130 earth
    station uplinks. Also, the Commission recently decided in the *First
    R&O* in this proceeding to authorize NGSO FSS earth stations in this
    band. Unlike the current DBS usage in the 12 GHz band, where sharing
    is enabled by DBS receive antennas that point generally southwards
    and upwards toward the geostationary arc, the antennas in the CARS
    band point in many different directions. Furthermore, BAS licensees
    in particular are authorized to use this band, *inter alia*, for
    itinerant, mobile operations over wide ranging and constantly
    changing geographic areas across the entire nation for such purposes
    as electronic news gathering (ENG) and broadcast event production
    purposes. Taking all of these services together, we conclude that
    coordination of MVDDS in that band is likely to be far more
    complicated in many locations than is the case in the 12 GHz band.
    In short, we find that the CARS band is currently so encumbered by a
    multitude of different services, including two‑way and itinerant
    area‑wide operations, that authorizing MVDDS in that band appears to
    present significantly complex sharing issues at this time.
    Similarly, we note that while the MMDS band already has some
    wide‑area video transmitters that provide direct service to
    consumers, the band is being changed to two‑way broadband use. In
    addition, the band also is extensively used for Instructional
    Television Fixed Service (ITFS). For example, ITFS makes pervasive
    use of the spectrum to provide formal classroom instruction,
    distance learning, and videoconferencing capability to a wide
    variety of educational users throughout the nation. Therefore, we
    also find that the MMDS band is so encumbered by existing services
    that it too appears to present significantly complex sharing issues.
    Accordingly, we find the substance of the petition for consolidation
    and declaration to be without merit.

# second report and order

## Technical Criteria for Sharing and Operations in the 12.2‑12.7 GHz Band

53. In this *Second Report and Order*, we adopt technical criteria for
    MVDDS that enable a new terrestrial service to be deployed in the
    12.2‑12.7 GHz band while protecting the operations of incumbent BSS
    and new NGSO FSS. In reaching our decision, we have carefully
    considered the extensive record in this proceeding, and we believe
    that the technical criteria we are adopting are a reasonable balance
    of the parties' competing interests. Our decision recognizes that
    successful sharing of spectrum in this case requires each service to
    make some accommodation for the other services in the band. We
    conclude that any impacts on incumbent BSS or new NGSO FSS to
    accommodate MVDDS in this band are outweighed by the potential
    benefit to the public of providing for a new potential competitor in
    the multichannel video and data markets.

### MVDDS/BSS Sharing 

#### Technical Criteria for MVDDS/BSS Sharing

54. [Background.]{.underline} In the *Further Notice*, the Commission
    sought comment on the technical criteria needed to deploy MVDDS so
    that the 12.2‑12.7 GHz band can be shared successfully with
    incumbent BSS operations.[^105] Specifically, the 12.2‑12.7 GHz band
    is allocated to the fixed service on a co‑primary basis; however,
    the service is prohibited from causing harmful interference to
    BSS.[^106] The Commission tentatively concluded in the *Further
    Notice* that this could be accomplished through careful MVDDS system
    design and the use of mitigation techniques. The Commission proposed
    a regulatory structure for MVDDS similar to that adopted to protect
    BSS from NGSO FSS operations in this band. For NGSO FSS systems, we
    adopted EPFD limits based on limiting the maximum amount of
    increased DBS service unavailability over a baseline level of
    service unavailability due to the presence of the new service. This
    approach was taken to ensure a *de minimis* impact to DBS operations
    that would not be perceptible to customers nor hinder DBS
    operations.[^107] Accordingly, we proposed that MVDDS also be held
    to limits designed for a similar result. Specifically, the
    Commission stated that it intended to adopt technical limits for
    MVDDS that would keep the increased DBS unavailability below a
    permissible level. This permissible level would not approach a level
    that could be considered harmful interference under our rules.[^108]
    Several options for technical limits were discussed in the *Further
    Notice* including, allowing MVDDS to cause an increase in DBS outage
    equal to a percentage of DBS's baseline outage, allowing MVDDS to
    cause an increase in DBS outage equal to a fixed number of minutes
    over DBS's baseline outage, and establishing a DBS carrier to MVDDS
    interference (C/I) ratio.[^109] As an alternative to setting
    specific interference criteria, the *Further Notice* sought comment
    on whether an MVDDS provider should simply respond to and provide
    remedies for DBS consumers who complain of interference.

55. In addition to the central issue of defining interference criteria,
    the *Further Notice* proposed to define an analytical model for
    calculating the baseline outage of a DBS system and the increased
    outage due to the presence of an MVDDS system.[^110] Regardless of
    the criteria selected, most parties to this proceeding recognize
    that there will likely be an area surrounding the MVDDS transmitting
    antenna where the interference criteria may not be met without some
    form of mitigation being performed.[^111] Therefore, the Commission
    also proposed a model for calculating this mitigation zone. These
    models were proposed to ensure that parties use consistent methods
    to analyze potential interference. The Commission sought comment on
    the validity of its model and asked commenters to suggest
    modifications or alternative models. The Commission also proposed
    and sought comment on procedures for identifying and mitigating
    interference to DBS customers.

56. The record in this proceeding regarding the potential for MVDDS to
    successfully share the 12.2‑12.7 GHz band with DBS has been
    supplemented by a Congressionally mandated study performed by
    MITRE.[^112] Generally, the MITRE Report concluded that terrestrial
    use of the 12.2‑12.7 GHz band could pose a significant interference
    threat to DBS, but that the interference could be mitigated to allow
    spectrum sharing within the band. In addition, MITRE made several
    recommendations regarding how such band sharing could be
    accomplished.

57. MITRE's recommendations were based on its performance of the
    following tasks: measurement of DBS and MVDDS equipment, including
    antennas and receivers; simulation of satellite receivers;
    propagation and rain attenuation modeling; and interference
    predictions. More specifically, MITRE used an anechoic chamber to
    measure antenna gain patterns of various MVDDS transmit and DBS
    receive antennas.[^113] With respect to DBS receivers, MITRE used
    signal processing software tools to model the characteristics of
    DirecTV and EchoStar's signals and the performance of DBS receivers
    both with and without an MVDDS signal being present.[^114] Through
    this effort, MITRE developed recommendations for the correct signal
    threshold values necessary for DBS operation.[^115] Using all of
    these measurements, along with a propagation and rain attenuation
    model, MITRE made predictions regarding the additional DBS outage
    time that may occur within an MVDDS service area.[^116]

58. MITRE considered ten different locations for their simulations;
    stating that they were geographically diverse and thus
    representative of the entire U.S. in terms of rain characteristics
    and DBS signal availability. In addition, MITRE ran simulations
    varying parameters such as satellite power, MVDDS antenna height and
    elevation tilt angles, and frequency offset.[^117] Based on their
    work, MITRE concluded that MVDDS sharing could occur if suitable
    mitigation techniques are applied to reduce the potential of
    interference to DBS customers.[^118] They stated that these
    mitigation techniques could include adjustment of MVDDS operational
    parameters,[^119] MVDDS system design changes,[^120] and corrective
    measures at DBS receiver locations.[^121] Finally, MITRE enumerated
    policy issues (along with recommendations) on which the Commission
    would have to decide.

59. Commenters had different approaches on the appropriate technical
    criteria for MVDDS to ensure adequate interference protection of DBS
    systems. The major disagreements among commenters are the criterion
    to use as a basis for establishing an interference limit, the method
    used to calculate that limit, and the specific requirement that
    should be placed in our rules.

60. DBS proponents argue that MVDDS is a secondary service and thus
    should be held to strict non‑interference criteria.[^122] DirecTV,
    for example, argues that the impact of MVDDS on BSS must be
    imperceptible, so that the quality of service is essentiality
    unchanged and DBS operators will not have to design around this new
    interference source.[^123] The DBS proponents generally support an
    approach that would limit the amount of increased BSS unavailability
    due to the presence of MVDDS over a baseline level of BSS
    unavailability. Although this approach is similar to that adopted
    for NGSO FSS/BSS sharing and the proposals in the *Further Notice*,
    some of the DBS proponents' proposals are significantly different in
    certain respects. For example, DirecTV and EchoStar argue that the
    Commission's rules should specify an interference criterion for
    MVDDS that would limit the increase in DBS unavailability to 2.86%
    over the baseline at every DBS subscriber site,[^124] rather than
    specify EPFD limits as was done for NGSO FSS operations.[^125]
    Further, these parties argue that BSS should be subjected to no more
    than ten percent increased unavailability from all new interference
    sources, *i.e.*, both NGSO FSS and MVDDS. Thus, the 2.86% allowance
    for MVDDS would be only a portion of the ten percent allowance that,
    the parties argue, is the recommended ITU protection level for BSS
    systems from all interfering sources.[^126] EchoStar contends that
    increased unavailability in excess of ten percent would violate the
    ITU's findings regarding DBS system performance and spectrum sharing
    expectations.[^127] Consequently, these parties argue, the
    Commission would have to adjust the number of potential NGSO FSS
    systems authorized in this band because the EPFD limits adopted for
    those systems were based on applying the ten percent allowance only
    to those systems.[^128]

61. DirecTV and EchoStar also propose that compliance with the 2.86%
    criterion would be measured by requiring that, at each MVDDS
    transmitting site, an EPFD limit be calculated for all DBS satellite
    links in view of the MVDDS transmitting antenna, including those
    orbital slots that are not now used for providing DBS service in the
    U.S.[^129] Thus, the EPFD limit at each MVDDS transmitting antenna
    site will be the "worst case" at that location. DirecTV argues that
    MVDDS should protect all potential BSS orbital locations capable of
    United States coverage, including those, which are not now used to
    provide service in the United States.[^130] The EPFD values would be
    derived by using a prescribed methodology to protect a database of
    identified DBS links and link budgets, current and future, which
    show satellite EIRP values. The EPFD value necessary to protect the
    weakest satellite link to the 2.86% criteria would have to be met at
    all DBS subscriber locations in that area. Finally, DirecTV argues
    that MVDDS initial deployment should be limited to one city pending
    further evaluation of interference to BSS and NGSO FSS.[^131]

62. In contrast to DirecTV and EchoStar, Pegasus, a reseller of DBS
    service that also is interested in providing MVDDS, generally
    supports the Commission's proposal to set an interference threshold
    for MVDDS that is separate from the allowances provided for NGSO FSS
    systems. Pegasus would limit the amount of increased unavailability
    on a DBS subscriber to 2.86% from a single MVDDS system and to no
    more than ten percent from all MVDDS providers.[^132] Pegasus states
    that, under this approach, if the interfering C/I associated with a
    2.86% increase in unavailability at any DBS receive site is less
    than the value calculated from a Commission‑prescribed model, then
    the impermissible interference must be mitigated.[^133] Pegasus also
    recommends that because DBS antennas were not designed to suppress
    interference from terrestrial sources, MVDDS systems must be
    designed such that existing or future DBS receivers experience a
    worst case C/I of 23 dB. However, Pegasus would allow for other C/I
    levels if the MVDDS provider proposes new equipment and mitigation
    techniques, so long as the measures are acceptable to the DBS
    service providers and their subscribers. Pegasus' approach also
    entails other technical requirements for MVDDS, including specifying
    a maximum power limit and clarifying the "southerly" pointing for
    the MVDDS antenna azimuth.[^134] DirecTV disagrees with Pegasus's
    views, stating that any interference beyond the ten percent
    allowance agreed to for NGSO FSS operations will degrade DBS service
    quality and competitiveness.[^135]

63. Northpoint supports a different approach than those proposed by the
    DBS entities. Northpoint argues that the appropriate and required
    standard is "harmful interference" as defined by the Commission's
    rules.[^136] Northpoint proposes that the Commission adopt regional
    EPFD limits based upon an assumed C/I ratio of 20 dB between BSS and
    MVDDS.[^137] Northpoint supports the use of EPFD as the required
    interference criteria because EPFD is measurable in the field, takes
    into account the operating environment, including the DBS receiver
    antenna gain, and is the metric adopted in this proceeding[^138] to
    protect DBS from NGSO FSS interference.[^139] The EPFD values would
    be calculated using a prescribed methodology that assumes a C/I of
    20 dB, which Northpoint claims is approximately the level of
    interference accepted by each DBS system from other DBS
    systems[^140] and is consistent with DBS operators' own estimates of
    acceptable interference protection from terrestrial systems over the
    years.[^141] Northpoint states that a regional approach for EPFD
    values can be used to account for regional variations in rain rate
    and DBS signal power.[^142] Accordingly, Northpoint proposes a
    specific EPFD limit, based on a C/I of 20 dB, for each of four
    regions of the U.S. Specifically, Northpoint proposes EPFD limits of
    --156.7 dBW/m^2^/40 kHz in the southeastern U.S.;[^143] --158.7
    dBW/m^2^/40 kHz in the southern U.S.;[^144] --160.5 dBW/m^2^/40 kHz
    in the northeastern U.S.;[^145] and --163.0 dBW/m^2^/40 kHz in the
    western U.S.[^146]

64. Northpoint criticizes the DBS proponents' approach of requiring
    compliance with a limitation on increased BSS unavailability as
    unrealistic because of the wide variability in DBS reliability
    across the country due to natural propagation characteristics and
    DBS system changes.[^147] They contend that because there is not a
    database of baseline availability at each customer location and rain
    rates (the major contributor to DBS outages) may vary by up to
    thirty percent from year to year, there is no way to calculate
    compliance with a percentage based criterion.[^148] Furthermore,
    they state that under the proposed percentage based criterion,
    outages due to terrestrial operations would be essentially
    undetectable and cannot be measured with the degree of accuracy
    needed to enforce the regulations.

65. DirecTV disagrees with Northpoint's suggested method for deriving
    and for applying EPFD limits. DirecTV states that using an assumed
    20 dB C/I as the basis for calculating EPFD limits is insufficient
    to protect DBS because it does not account for variations in
    satellite EIRP values and link parameters from subscriber to
    subscriber across the country for a given DBS operator. Further,
    DirecTV argues that Northpoint's suggested EPFD limits will not
    provide adequate protection to DBS because they are calculated over
    a limited set of DBS links and do not take into account variations
    in satellite EIRP across the Earth's surface, future DBS links, and
    different DBS customer antennas.[^149] DirecTV also argues that,
    because Northpoint suggests using regional EPFD limits, the
    suggested EPFD values do not reflect the 20 dB C/I criteria[^150]
    and DBS link unavailability would increase by more than 2.86%.[^151]
    They also suggest that regional EPFD values would actually be more
    stringent for MVDDS because they would have to protect to the "worst
    case." Rather, DirecTV contends that EPFD limits should be
    calculated for each MVDDS site, and that this approach would allow
    MVDDS to take advantage of differences in satellite EIRP at
    different points on the Earth.[^152] They argue that, contrary to
    Northpoint's assertion, the EPFD calculation for each site does not
    require a database of field availability measurements, does not
    require extreme precision, and is not unduly sensitive to changes in
    rain models. They contend that Northpoint ignores the record on the
    use of predictive modeling of DBS availability calculations in order
    to establish protection criteria.[^153]

66. In its report, MITRE states that using a relative or percentage
    increase in unavailability as a measure of degradation is
    "attractive."[^154] MITRE recognizes that although the "baseline
    unavailability varies dramatically depending on which satellite is
    used," this approach has the benefit of "reduc\[ing\] some of the
    variability that exist for other measures of interference outage
    time and thus the relative increase in unavailability is more
    attractive as a measure of degradation."[^155] Further, they note,
    such an approach recognizes that the increase in unavailability that
    is noticeable to the consumer depends on the amount of outage the
    consumer currently experiences.[^156] MITRE recommends that the
    MVDDS interference criterion be a ten percent relative increase in
    DBS unavailability rather than 2.86% because "\[a\]n increase of
    2.86% seems very small and there is precedent for a ten percent
    increase ..."[^157] MITRE recommends that the criterion be
    implemented by having the MVDDS provider calculate the C/I
    consistent with a ten percent increase in relative unavailability
    for each service area and for the DBS satellite at each longitude
    that has the largest baseline unavailability (limited to those with
    100 hours/year unavailability or less).[^158]

67. [Discussion.]{.underline} To place this matter in perspective, it is
    important to bear in mind that DBS is, on the whole, extremely
    reliable with typical service availabilities on the order of 99.8 to
    99.9 percent.[^159] Thus, when availability changes even slightly
    (*e.g.*, from 99.9 percent to 99.8 percent), the correspondingly
    small change in unavailability (from 0.1 percent to 0.2 percent),
    can be expressed as a percentage change that appears deceivingly
    large (*i.e.*, a 100 percent change in unavailability).
    Unavailability fluctuations of this degree (and higher) are
    commonplace, result in higher DBS unavailability rates in some
    locations in the country than others, and are well tolerated by DBS
    subscribers in light of the overall dependability of the
    service.[^160] The variability inherent in the DBS service is due to
    many factors, including satellite orbital location, satellite power,
    rain rate, and receiver location. Of these, the principal
    contributor to DBS service outages is rain.

68. The introduction of MVDDS will constitute another factor that will
    likely affect DBS availability to some degree. We have previously
    determined, however, that this factor can be controlled to a
    sufficient degree so that any interference with DBS service will be
    minimized to permissible levels. After careful consideration of the
    extensive record in this proceeding and our own analysis, we are
    adopting technical requirements that strike the appropriate balance
    between protecting DBS customers from interference, minimizing the
    impact on DBS operators' ability to make adjustments to their
    networks,[^161] and not unduly constraining the deployment of MVDDS.
    We believe that these technical requirements will limit the overall
    impact of MVDDS on DBS operations and will ensure that the presence
    of an MVDDS signal would not be perceptible to the DBS customer in
    most cases.[^162] Of primary importance, these technical
    requirements will ensure that any interference caused to DBS
    customers will not exceed a level that is considered permissible. We
    are taking the following steps to achieve these results:

-   We used a prescribed methodology and a predictive model to calculate
    EPFD values, based on a criterion that would limit the amount of
    increased BSS unavailability to a negligible level over a baseline
    level of BSS unavailability due to the presence of MVDDS. The
    unavailability allowance ascribed to MVDDS is in addition to the
    unavailability allowance ascribed to NGSO FSS operations in the
    12.2‑12.7 GHz band.

-   We are specifying an EPFD limit for each of four regions across the
    United States. The regions and corresponding EPFD limits are: East:
    ‑168.4 dBW/m^2^/4kHz, Midwest: ‑169.8 dBW/m^2^/4kHz, Southwest:
    ‑171.0 dBW/m^2^/4kHz, and Northwest: ‑172.1 dBW/m^2^/4kHz.

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-   The EPFD limits we adopt, in conjunction with a maximum MVDDS power
    limit of 14 dBm per 24 megahertz EIRP[^163] will ensure that the DBS
    service is protected from harmful interference.

-   We will require the MVDDS operator to ensure that the prescribed
    EPFD limits are not exceeded at any DBS customer of record location.
    If the EPFD limits are exceeded, the MVDDS operator would be
    required to discontinue service until such time that the limits can
    be met.

-   We adopt an EPFD "safety valve" so that if, due to an anomalous
    situation, a DBS provider can demonstrate a tangible detrimental
    impact on DBS caused by MVDDS operations, we will consider
    adjustments to the EPFD limit for that specific location.

69. We conclude that specifying EPFD limits that define the impact of
    MVDDS on DBS subscribers is the most reasonable approach for several
    reasons. First, EPFD is a measure of the amount of signal power from
    a terrestrial transmitter that is detected by the DBS receiver and
    thus, capable of causing interference. As such, it directly measures
    the effect of the terrestrial station on the DBS receiver. Second,
    an EPFD limit can be measured and enforced. Third, calculating and
    measuring EPFD is simpler than other approaches, such as compliance
    with a C/I ratio, as the majority of the parties recognize. To
    calculate EPFD, one only needs to know the parameters of the
    terrestrial station (*e.g.*, power, antenna height, and antenna gain
    pattern) and its relative position to the DBS receive antenna in
    question; information regarding the satellite signal strength at
    each DBS receive antenna is not relevant to the calculation. Under a
    C/I approach, one also needs information regarding the specific
    satellite to which the DBS receive antenna is pointing (*e.g.*,
    power of the DBS signal in the direction of the DBS receive
    antenna).[^164] Finally, we note that an EPFD limit is consistent
    with the approach used for limiting interference from NGSO FSS to
    DBS operations in this same frequency band.

70. We do not believe that it would be practical to require MVDDS
    operators to demonstrate compliance with a percentage criterion *per
    se*, as suggested by DirecTV and EchoStar. It would be very
    difficult to measure compliance of a percentage increase over a
    baseline with sufficient accuracy to enforce such a
    regulation.[^165] Further, the DBS entities themselves recognize
    that an EPFD value is a reasonable metric to use for measurements in
    the field. Nonetheless, we find merit in using a percentage
    criterion as we develop appropriate EPFD limits. As MITRE noted,
    "the increase in unavailability that is noticeable to the consumer
    depends on what the consumer is used to."[^166]

71. As a starting point, we applied the very conservative technical
    parameters and assumptions described below to derive EPFD values
    that would limit unavailability to a 10 percent increase for
    representative DBS receive antenna locations across the country and
    for several DBS satellites currently in service. More specifically,
    we began our analysis with 32 sample cities and for each of the DBS
    satellites at 101º, 110º, and 119º.[^167] The EPFD values for each
    location were then averaged. The data show four distinct regions
    where the EPFD values had little variance. The EPFD values for
    locations within each region were then averaged, resulting in four
    regional EPFD limits. We determined that, consistent with sound
    engineering and effective regulatory practice, the four regional
    EPFD limits we adopt here will ensure that an MVDDS signal will only
    result in a small increase in the DBS service outages that occur
    during heavy precipitation, *e.g.,* the onset of a rain outage may
    begin sooner or a rain outage may last somewhat longer. These outage
    increases are significantly less than the seasonal or yearly
    variability in DBS outages customers currently experience due to the
    variability in actual rainfall rates. We believe the increased
    unavailability will not be perceptible to DBS customers in most
    cases and, in any event, do not rise to the level of harmful
    interference.

72. In adopting these EPFD limits, we find that an increase of ten
    percent over current DBS unavailability is the appropriate starting
    point for our analysis but need not be a strict limit. The ten
    percent benchmark represents an insubstantial amount of increased
    unavailability and does not approach a level that could be
    considered harmful interference. Our EPFD limits result in increased
    unavailability of approximately ten percent \-- in some instances it
    is greater than ten percent of current unavailability, while in
    others it is less than ten percent. Taking into account the overly
    conservative assumptions used in our modeling, the reality that DBS
    outage rates vary widely around the country and from season to
    season, and the fact that outages occur at all times of the day --
    *i.e.,* not just when subscribers are watching DBS, we find that the
    additional service outage that may result here over and above the 10
    percent starting point falls within the permissible level. As noted
    above, we believe that our MVDDS technical requirements create an
    appropriate balance -- protecting DBS customers from harmful
    interference, minimizing the impact on DBS operators' ability to
    make future adjustments to their network, and not unduly
    constraining the deployment of MVDDS.

73. In response to the comments, we note as an initial matter that the
    parties suggest two different approaches for implementing the MVDDS
    interference criteria. The DBS entities suggest that the MVDDS
    operator calculate the EPFD limits for each DBS link within view of
    the area served at each terrestrial transmitting location, while
    Northpoint argues that specific EPFD limits should be applied to any
    MVDDS transmitter within defined regions. To understand the
    implications of these approaches, we conducted our own analysis of
    EPFD levels using the top 32 television markets. These particular
    cities were chosen because they represent population, geographic and
    climatic diversity across the United States. We used two analytical
    models to evaluate EPFD limits: one model calculates the baseline
    unavailability of a DBS system for a given location and the
    increased outage due to the presence of an MVDDS system; the other
    model calculates the contour within which the specified EPFD may
    potentially be exceeded.[^168] This methodology is generally the
    same as those used by DirecTV,[^169] MITRE, and the Commission in
    its *Further Notice.*[^170]

74. As a threshold matter, we note that Northpoint objects to the
    Commission's use of a Mathcad program for the analytical model to
    calculate DBS outage time, claiming that the program itself produces
    inaccurate results.[^171] In addition, DirecTV and Northpoint
    observe that MITRE, which used a MATLAB program for its analytic
    model, did not make the program available; thus, no party has been
    able to check whether the system measurements were used correctly in
    the model.[^172] Because MITRE did not make its program available,
    we continued to develop and use our own model for analysis and to
    confirm the modeling results of the parties. Contrary to
    Northpoint's assertion, we believe that the software used to
    calculate outage results is inconsequential, so long as the
    methodology is correct.[^173] The model used follows the methodology
    laid out in the relevant ITU recommendations, and our results are
    consistent with those of the parties.[^174]

75. The parties' primary differences concern the various input
    assumptions used in the analytic models. These include the
    unavailability criterion, threshold value of DBS signal quality,
    rain model, and DBS orbital locations to be protected. These issues
    are discussed in detail below.

76. At the outset, we conclude that the appropriate criterion on which
    to base EPFD levels is increased DBS unavailability expressed as a
    percentage of the baseline unavailability, and that this increase in
    unavailability would be in addition to the unavailability allowance
    relied upon for developing NGSO FSS limits. We believe that using a
    percentage increase in baseline unavailability as the criterion in
    developing EPFD limits has several advantages over a criterion based
    on a fixed C/I, as suggested by Northpoint. It allows entry of MVDDS
    while minimizing the impact to current DBS operations. DBS licensees
    currently apportion the satellite's resources to different customer
    locations based on a variety of factors such as DBS receive antenna
    elevation angles, average yearly rain rates in different regions of
    the country, and the amount of programming being made available to
    different markets. The results of these decisions can be seen when
    examining the link budgets for various cities. For example, the
    satellite transmit power or EIRP towards Washington, DC from
    DirecTV's satellite located at 101^o^ W longitude is 55.8 dBW, but
    only 51.8 dBW towards Seattle, WA.[^175] By adjusting these link
    budgets, DBS providers can adjust the amount of outage customers
    experience due to rain. A percentage based criterion generally
    preserves the current relationship between different areas with
    regard to their relative DBS service levels, *i.e.*, the outages in
    any given area will increase by different amounts, but the increase
    will be less in areas that currently experience less outage than in
    areas that currently experience more outage.[^176] If a constant C/I
    criterion were used, the relationship between the relative level of
    outage between locations would not be preserved. Thus, DBS licensees
    would have to modify their current link budgets to maintain the
    current relationship of relative outage times between areas.
    Further, as new entrants, MVDDS providers can vary their system
    design and deployment (*e.g.,* antenna type, tower height) to
    "design around" the characteristics of already deployed satellites.
    Therefore, we adopt a percentage based approach because it provides
    maximum protection to incumbent DBS licensees by allowing them to
    maintain their current business practices while still providing for
    new MVDDS service.

77. We also conclude that our decision to adopt a percentage increase in
    unavailability as a criteria for developing EPFD limits for MVDDS,
    in addition to the unavailability allowance relied upon for
    developing NGSO FSS limits, strikes an appropriate balance among the
    three services that will share this frequency band. Initially, as
    discussed in the *MO&O* portion of this document, we reject
    DirecTV's and EchoStar's argument that the ITU findings in ITU‑R
    Rec. BO.1444, which set forth sharing parameters for DBS and NGSO
    FSS, limits increases in DBS unavailability from any source to ten
    percent and thus controls our decision in this proceeding.
    Furthermore, adopting this approach here would delay and unduly
    constrain the deployment of new NGSO FSS systems. In order to
    apportion some of the NGSO FSS unavailability allowance to MVDDS, we
    would have to revise the EPFD limits for NGSO FSS or limit the
    number of NGSO FSS systems in the band to less than the 3.5 factor
    used in developing these technical limits. These limits also have
    been adopted internationally because the NGSO FSS systems that plan
    to use this frequency band are global satellite systems, and thus,
    these limits also would have to be revised internationally. The EPFD
    limits for NGSO FSS were the result of a multi‑year negotiation
    process among various countries, and we are not persuaded that the
    interests of the United States would be well served by revisiting
    these agreements at this time.

78. In the *Further Notice* the Commission sought comment on the
    different criteria that could be used to develop MVDDS technical
    limits, including a percentage increase in DBS unavailability, such
    as 2.86%, ten percent or any other percentage, or a fixed amount of
    minutes increase in DBS unavailability.[^177] This percentage of
    time criteria must be considered in conjunction with all other
    operating parameters of the DBS and MVDDS systems (*e.g.*, DBS
    performance threshold,[^178] satellite location and EIRP, MVDDS
    power, transmit and receive antennas, etc.) to calculate the EPFD
    necessary to protect DBS subscribers against impermissible
    interference. The DBS proponents wanted the increase in
    unavailability to be limited to 2.86% because the 2.86% allowance
    for MVDDS would be only a portion of the ten percent allowance that,
    the parties argue, is the recommended ITU protection level for BSS
    systems from all interfering sources. We now conclude, based on
    further analysis of these issues by Commission staff and the
    independent analysis performed by MITRE, that calculating MVDDS EPFD
    limits that allow additional increased unavailability in the range
    of ten percent ensures DBS of protection from harmful interference
    while creating an opportunity to deploy MVDDS.

79. Based on our analysis, we conclude that the EPFD limits we adopt
    here result in relatively modest increases in outage times that
    should not be readily perceptible to DBS customers. We observe that
    the increase in unavailability due to this potential interference is
    much less than the seasonal, yearly, and city‑to‑city variability
    that already exists in the unavailability within the DBS
    service.[^179] Thus, the additional unavailability that may be
    attributed to MVDDS is only a marginal increase over the variability
    that already exists within this satellite service. In making this
    determination, we also take into account the very conservative
    parameters and assumptions used in our modeling. For example, as
    discussed below, we use a conservative performance threshold value
    of DBS signal performance to calculate the EPFD. In addition, we do
    not believe that the effect of NGSO FSS and MVDDS operations on DBS
    unavailability will be directly cumulative (*i.e.,* the total DBS
    unavailability will actually be less than the sum of the individual
    increases in unavailability caused by the NGSO FSS systems and an
    MVDDS system). We base this finding on our analysis, which (for
    computational simplicity) evaluated the effects of NGSO FSS and
    MVDDS independently. However, in some cases, the interference events
    caused by MVDDS and NGSO FSS signals will coincide. Thus, our
    assumption of independence overstates the actual outage to DBS,
    *i.e.*, our analysis calculated outage time due to MVDDS and NGSO
    FSS separately, but did not compute the amount of time the outages
    would occur simultaneously. Finally, our analysis assumed worst case
    operating conditions -- a rain faded DBS signal and a full strength
    MVDDS signal. In practice rain will generally affect both the MVDDS
    and the DBS signals in an area. Because, in many cases, a faded
    MVDDS signal would be received by the DBS system, the total increase
    in DBS unavailability due to MVDDS will be less than the amount
    calculated in our analysis. We believe that in this band, under
    these circumstances, using an increase of ten percent in DBS
    unavailability is the correct starting point from which to calculate
    EPFD limits for MVDDS. On a going forward basis, the DBS operators
    should take this into account in designing future satellites.

80. Another point of contention among the parties was the correct
    threshold value of DBS signal performance to use as an input
    assumption in the predictive model. Essentially, the threshold value
    is a measure of the audio and video signal quality.[^180] DirecTV
    argues that it is proper to use the operating threshold[^181] of the
    system, while Northpoint states that the freeze‑frame[^182]
    threshold is the correct value to use.[^183] As an alternative,
    MITRE established a 9‑level video/audio criterion to measure signal
    quality.[^184] Based on their analysis, MITRE recommends basing the
    threshold value at signal level 6 (or video quality 6 (VQ6), less
    than one error per 15 seconds, but more than one error per
    minute).[^185] EchoStar disagrees with MITRE's approach, claiming
    that this factor is arbitrary and much less severe than the level of
    performance they guarantee their customers. Instead of VQ6, they
    argue that the threshold should be set to a level equivalent to
    quasi‑error free (QEF) performance (1 uncorrectable error per hour).
    They state that this is the level of performance they guarantee to
    their customers.[^186] Northpoint, in contrast, argues that the VQ6
    standard is too strict. They state that a certain amount of
    pixelation of the video image will occur due to incompatibility
    between the video compression rate and the channel bandwidth.[^187]
    Therefore, they argue, the DBS link is available even below these
    levels and a less stringent threshold can be used.[^188] After
    consideration of this matter, we conclude that the operational or
    QEF threshold is the appropriate value to use as an input assumption
    in the predictive model.[^189] The QEF value represents an
    audio/video signal that appears essentially error‑free to the DBS
    customer; errors that occur in transmission can be corrected using
    forward error correction[^190] at the DBS customer's decoder.
    Because one of our primary objectives here is to identify a level of
    interference from MVDDS that would be essentially imperceptible to a
    DBS customer, using the highest threshold value in the predictive
    model is closer to calculating the worst case impact on DBS signal
    quality. We note however, that the QEF threshold values used in our
    analysis are, in general, stricter than the threshold values that
    the DBS entities submitted to the ITU for use in developing EPFD
    limits for DBS/NGSO FSS sharing. For that analysis, EchoStar assumed
    an operating threshold of 6.1 dB for all links and DirecTV assumed
    threshold values of 5 dB or 7.6 dB.[^191] In addition, in their
    comments, DirecTV suggests using threshold values of 5.5 dB and 7.6
    dB.[^192] Although these values closely correlate with the VQ6 value
    used by MITRE,[^193] we do not believe that the VQ6 value is
    appropriate to use in our analysis. MITRE devised its own scale to
    meet specific objectives of its testing environment[^194] and stated
    that the VQ6 level may not represent an acceptable picture to a DBS
    customer.[^195] Finally, we agree with commenters who argue that the
    freeze‑frame threshold is not an appropriate measure because when
    the signal level is reduced to this level, picture and audio
    performance are already degraded to levels where DBS customers will
    notice the degradation. Consequently, neither the VQ6 nor the freeze
    frame thresholds satisfy our objective to identify a level of
    interference that would be imperceptible to a DBS customer.

81. As stated earlier, the primary cause of degradation to DBS signals
    is due to heavy rain. Thus, any analysis is dependent on the method
    used to model rain effects in different geographic locations. To
    assist administrations, the ITU has developed a series of
    recommendations to model long‑term rain statistics, ITU‑R Rec.
    P.618.[^196] Since the original recommendation, more data has been
    collected and modeling methods have improved. Taking advantage of
    this, the ITU has adopted several revisions, with the current
    version referenced as ITU‑R Rec. P.618‑7. We note that for the
    DBS/NGSO FSS sharing studies, DirecTV submitted representative links
    which specified ITU‑R Rec. P.618‑5 as the relevant rain model; there
    is no similar indication of which rain model EchoStar recommended.
    DirecTV provides examples using the same version of the rain model,
    ITU‑R Rec. P.618‑5, for their analysis of the effects of MVDDS on
    DBS service.[^197] However, they state that ITU‑R Rec. P.618‑6 could
    also be used.[^198] Northpoint argues that the more recent ITU‑R
    Rec. P.618‑6 should be used. We agree. The change from version 5 to
    6 was a major revision of the model. In version 5, the earth was
    divided into rain regions with a value for rain rate attributed to
    each region. Version 6, in contrast, relies on more data and
    incorporates a multi‑dimensional interpolation to calculate a rain
    rate for any geographical location. As a result of the additional
    data and increased sophistication of the version 6 model, we believe
    that it provides more accurate results than previous versions. Thus,
    we have used it in our analysis. Finally, we note in February 2001,
    the ITU adopted an update to the rain model, ITU‑R Rec. P.618‑7. We
    believe that the changes in the newer version are minor in nature
    and would not affect the outcome of our analysis.[^199]

82. Another parameter central to the analysis of MVDDS/DBS sharing is
    the inclusion or exclusion of the various satellites in use.
    Currently, the United States has eight orbital slots for DBS
    service. Nominally, these are 61.5^o^, 101^o^, 110^o^, 119^o^,
    148^o^, 157^o^, 166^o^, and 175^o^ west longitude.[^200] Of these,
    only three provide full continental United States (CONUS) coverage ‑
    101^o^, 110^o^, and 119^o^ west longitude.[^201] Taking advantage of
    the coverage afforded by the satellite at 101^o^ west longitude,
    DirecTV uses it to provide service (core programming and local
    channels) to the majority of its customers. EchoStar has implemented
    its system differently. It generally provides core programming via
    its satellite at 119^o^ west longitude and local channels via its
    satellite at 110^o^ west longitude.[^202] The remaining orbital
    locations are used for specialized programming or are not currently
    used at all. In considering orbital locations as part of our
    interference analysis, we developed as an initial step protection
    criterion that focused on the three CONUS slots because the vast
    majority of DBS programming originates from the three orbital slots
    and because we believed that our results would translate comparably
    to the other satellites. After deriving EPFD levels based on our
    analysis of the three satellites providing full CONUS coverage, we
    then applied these levels to satellites using other orbital slots
    and found that these EPFD levels provide a level of protection
    consistent with that specified for the CONUS slots. In particular,
    we modeled the satellites at 61.5^o^ and 148^o^ west longitude to
    ensure that the effect of our EPFD limits on outage time is
    generally consistent with the protection criterion from which we
    started. This modeling effort showed that these satellites will
    receive sufficient protection from MVDDS under our adopted EPFD
    limits.[^203] Such protection is essential because Dominion operates
    solely from the satellite located at 61.5^o^ west longitude and the
    other DBS licensees could shift programming to make heavier use of
    the satellites at the non‑CONUS orbital locations in the future.

83. Using the parameters and assumptions described above, we analyzed
    the top 32 television markets to determine the EPFD value for each
    market. As described in Appendix G, because these markets provide
    population, geographic, and climatic diversity, we believe they are
    representative of the U.S. as a whole. The results of our analysis
    revealed the presence of four distinct regions where calculated EPFD
    levels do not vary substantially and thus, the application of
    regional EPFD values to specific locations within each region result
    in acceptable variations in unavailability. These regions can be
    roughly described as the East, Midwest, Southwest, and Northwest and
    are shown in Figure 2 in Appendix G. Because of the consistent EPFD
    levels within each of these regions, we believe that it is
    appropriate to average the individual EPFDs for each market and
    adopt that average EPFD within each region. Specifically, we adopt
    the following EPFD limits for MVDDS to meet at any DBS subscriber
    location and for all U.S. satellites in view:[^204] ‑168.4
    dBW/m^2^/4kHz in the East;[^205] ‑169.8 dBW/m^2^/4kHz in the
    Midwest[^206]; ‑171.0 dBW/m^2^/4kHz in the Southwest[^207]; and
    ‑172.1 dBW/m^2^/4kHz in the Northwest.[^208] Because anomalous
    situations may arise at specific locations within such large
    regions---*e.g.*, rainfall at a location may deviate significantly
    from the rain model---we will consider requests by DBS providers to
    adjust the EPFD limit for a specific location within a region where
    they can demonstrate a tangible detrimental impact on DBS caused by
    MVDDS operations. This EPFD "safety valve" should ensure that DBS
    operations are fully protected throughout a region.

84. Although an approach based on averaging affects each market and
    satellite combination differently (*i.e.*, the effect on better
    performing satellites in a market is minimized, while the effect on
    poorer performing satellites is increased), these effects are
    relatively minor.[^209] Using the average EPFD values for each
    region, the data show that the median increase in unavailability was
    10.5% and the mean value was 11.9% for the total 32-city
    sample.[^210] We find these results to be well within the range of
    ten percent, and we conclude that they constitute permissible
    interference. We find further that many benefits are inherent in a
    regional approach that outweigh the drawbacks of separately
    calculating an EPFD for each market. By specifying an EPFD level in
    our rules, a separate calculation is not needed for each
    transmitting location, which provides a simple regulatory framework
    for our licensees. Thus, all parties know *apriori* the sharing
    environment that exists in each market. Further, by specifying EPFD
    levels in the rules, DBS licensees reap all the benefits of
    upgrading their system. For example, because the EPFD levels we are
    adopting are based on the current state of the DBS system, the
    performance of newer, more powerful satellites will decrease the
    potential outages to DBS customers. However, if a separate
    calculation were required for each transmitting antenna, the EPFD
    levels calculated in regions served by more powerful satellites
    would be higher than those we are specifying and allow MVDDS to
    operate with higher powers. Under our approach, therefore, the
    potential DBS outage minutes for each market would decrease as
    newer, higher powered satellites are implemented.[^211] Finally, we
    note that this approach is similar to the approach adopted for NGSO
    FSS/DBS sharing which set specific EPFD levels that must be met.

85. In sum, we believe that the approach to technical sharing of MVDDS
    with DBS as outlined above strikes a reasonable balance between
    protecting incumbent licensees and their subscribers and providing
    sufficient flexibility for new service providers to deploy. These
    new services will provide opportunities for licensees to enhance the
    video and data services enjoyed by the public. Finally, in making
    these new services available, our analysis shows that under the
    parameters we specify, additional outages to DBS customers will be
    limited to levels which we believe will be imperceptible to the
    consumer in most cases, and in any event, at permissible levels.
    Nonetheless, as described above, if due to an anomalous situation, a
    DBS provider can demonstrate a tangible detrimental impact on DBS
    caused by MVDDS operations, we will consider adjustments to the EPFD
    limit for that specific location.

#### DBS Mitigation

86. [Background]{.underline}. In the *Further Notice*, the Commission
    proposed to hold the MVDDS operator responsible for ensuring that
    DBS subscribers within the mitigation zone do not suffer an
    impermissible level of interference due to MVDDS operations.[^212]
    Toward that end, the Commission proposed to require MVDDS licensees
    to correct any impermissible interference within the mitigation zone
    and proposed a general plan to accomplish the correction.[^213] The
    Commission also requested comment on alternative procedures that
    could be used to expeditiously resolve interference disputes between
    the MVDDS and DBS licensees.[^214]

87. [Discussion]{.underline}. After careful consideration of the record,
    we reach the following conclusions. First, we disagree with the
    assertions of DBS entities' that MVDDS is a secondary service.[^215]
    As we affirm in the *MO&O* portion of this document, the BSS and
    Fixed services have co‑primary status in the 12.2‑12.7 GHz band, but
    the Fixed Service is required by a footnote to the Table of
    Frequency Allocations not to cause harmful interference to
    DBS.[^216] Co‑primary services have an obligation to ensure that
    interference is not caused to existing operations. This obligation
    includes steps that go beyond antenna siting and design and thus we
    do not limit this obligation solely to MVDDS licensees.[^217]
    Second, we agree with the MITRE Report findings that techniques
    exist, both for the MVDDS transmitting antenna and the DBS receive
    antenna locations that could be used when installing new DBS receive
    antennas to reduce the interference impact on DBS.[^218] While the
    parties disagree on the effectiveness of some of these techniques
    under certain conditions,[^219] we find that a wide variety of
    techniques are available. In many cases, DBS receive antennas can be
    installed such that they will be protected by "natural" shielding
    from, for example, buildings or topographical features. The MITRE
    Report discussed several techniques, such as proper siting of the
    DBS receive antenna to take advantage of natural shielding, using
    modest additional shielding on the DBS receive antenna (*e.g.*, clip
    on shields), and using larger or better performing DBS receive
    antennas as reasonable measures to consider.[^220] The acceptability
    of any given technique can be determined, by the installer, on a
    case‑by‑case basis.

88. When an MVDDS operator enters a market where there are existing DBS
    customers, the MVDDS operator must satisfy certain requirements that
    will provide protection to these customers. First, the MVDDS
    operator must site and design its transmitting system to avoid
    causing harmful interference to existing DBS subscribers. In this
    context, the MVDDS operator must site and design its transmitting
    system to ensure that an MVDDS signal does not seriously degrade,
    obstruct, or repeatedly interrupt the DBS signal under clear sky
    conditions. If harmful interference to an existing DBS subscriber
    occurs, the MVDDS operator must immediately take corrective action
    or cease operation until it corrects the problem. Second, the MVDDS
    transmitting system power must not exceed 14 dBm per 24 MHz EIRP. We
    believe that this power limit reduces the likelihood that MVDDS
    operations would significantly degrade DBS service to both existing
    and new DBS customers. We also believe that this power limit will
    not inhibit the introduction of new DBS customers in close proximity
    to the MVDDS transmitting system, *i.e.*, later‑installed DBS
    receive antennas can be properly sited and shielded from the MVDDS
    signal.

89. Finally, with respect to the performance of mitigation, we decline
    to adopt rules that require an MVDDS licensee to perform mitigation
    at existing DBS locations within a mitigation zone. Instead, we
    adopt an approach in which MVDDS licensees must ensure that the
    adopted EPFD is not exceeded at any DBS customer of record[^221]
    location. We believe that this approach offers a reasonable
    compromise between the positions of the parties and strikes a
    balance among several factors including the impact on DBS customers
    and the effect on DBS and MVDDS deployment. As detailed below, the
    procedures we adopt streamline the regulatory process and reduce the
    need for ongoing interactions between DBS and MVDDS providers.

90. We will require the MVDDS licensee to ensure that the EPFD at all
    existing DBS subscriber locations is at or below the values adopted
    herein or to turn off the transmitter(s) which are causing the
    excessive EPFD levels. MVDDS cannot resume until such time that the
    specified EPFD levels can be met. This approach addresses many of
    the concerns raised by DBS entities. First, it provides a strong
    incentive to the MVDDS licensee to site and design its system in
    such a way that existing DBS subscribers are not affected. Second,
    neither party would have a mandate under the rules to approach DBS
    customers to offer mitigation. However, we note that our rules do
    not preclude private parties (including MVDDS licensees and DBS
    subscribers) from entering into arrangements agreed to by both
    parties. Finally, because MVDDS licensees have total control of
    their system design (*e.g.*, through reduced power levels or
    re‑siting of the MVDDS transmitting antenna) under this approach,
    they can predict system costs to meet the EPFD limits and factor
    such expenses into their bidding strategies during the auction
    process.

91. As mentioned above, MVDDS licensees will be required to ensure that
    the EPFD levels are met at all DBS customer of record
    locations.[^222] Under the rules we adopt, MVDDS licensees must
    conduct a survey of the area around their proposed transmitting
    antenna site to determine the location of all DBS customers who may
    potentially be affected by the introduction of MVDDS service. The
    MVDDS licensee will assess whether the signal levels from its
    system, under its deployment plans, would exceed the adopted EPFD
    levels. To assist in making this determination, the MVDDS provider
    can use the EPFD contour model developed by the Commission.[^223]
    For example, the model can be used to develop a family of contours
    based on the planned height of the transmit antenna, a variety of
    DBS receive antenna models and heights, and each satellite in view
    at that location.[^224] Using those contours along with knowledge of
    local terrain and building characteristics and the survey results,
    an MVDDS licensee could make a determination of whether its signal
    levels will exceed the EPFD limit at a specific DBS customer
    site.[^225] For example, if a DBS receive antenna is within the zone
    predicted by the model where the EPFD level might be exceeded, but
    that antenna is mounted on the back of a structure facing away from
    the MVDDS transmitting antenna site such that the MVDDS signal would
    be blocked from the DBS antenna, the MVDDS licensee could make a
    determination that its signal level at that antenna would comply
    with the rules. If the MVDDS licensee determines that its signal
    level will exceed the EPFD limit at any existing DBS customer site,
    the licensee must take whatever steps are necessary, up to and
    including finding a new transmitting site, to ensure that the EPFD
    limit would not be exceeded at any existing DBS customer location.

92. We will require the MVDDS operator to provide to the DBS licensees
    at least 90 days prior to the planned date of commencement of
    operations of each transmitting antenna, the proposed location
    (including coordinates), maximum EIRP of each transmitting antenna
    system, antenna height above ground, antenna type along with main
    beam azimuth and altitude orientation and description of the antenna
    radiation pattern, and the survey results, including a description
    of how compliance with the appropriate EPFD level was determined at
    DBS customer of record locations. No later than forty‑five days
    after receipt of the MVDDS system information, the DBS licensee(s)
    will provide the MVDDS licensee with a list of any new DBS customer
    locations that have been installed in the 30‑day period following
    the MVDDS site notification. In addition, the DBS licensee(s) could
    indicate agreement with the MVDDS licensee's technical assessment,
    or identify DBS customer locations that the MVDDS licensee failed to
    consider or DBS customer locations where they believe the MVDDS
    licensee erred in its analysis and could exceed the prescribed EPFD
    limit. We believe that this 90‑day period will provide sufficient
    time for the DBS licensees to adjust their installation guidelines
    for future DBS customers to account for the presence of the MVDDS
    transmitting antenna. After the DBS licensees are informed of a
    potential MVDDS site, the DBS licensee will have the responsibility
    of ensuring that all DBS receive antennas installed more than 30
    days after such notification are located in such a way as to avoid
    interference from MVDDS. As noted above, the power limit we adopt
    here allows for the introduction of new DBS customers in close
    proximity to MVDDS transmitters. We believe that DBS licensees can
    take modest measures, *e.g.,* siting and shielding steps or use of a
    larger antenna, to account for the presence of an MVDDS signal.
    Because such steps are simple, effective, and consistent with
    existing DBS installation practices, we believe it is reasonable to
    expect DBS licensees to incorporate the presence of an MVDDS signal
    into their installation guidelines.[^226] We conclude, therefore,
    that MVDDS licensees will not cause harmful interference to new DBS
    receivers, consistent with the RLBSA.[^227] MVDDS licensee will have
    to take into account the information provided by the DBS licensee.
    We encourage MVDDS operators to closely review the situation
    involving any DBS customers that the DBS licensee thinks may be in
    danger of receiving MVDDS signal levels in excess of the limit.
    However, we will not require the MVDDS licensee to take any specific
    action, provided its analysis shows the absence of a problem. The
    MVDDS licensee will be responsible once it commences service for
    ensuring that its signal level is not above the adopted limit at any
    DBS customer location. If the MVDDS licensee determines that it
    cannot meet the EPFD limit for DBS customers of record from its
    proposed site and finds a new site, a new 90 day coordination period
    will begin prior to the commencement of service. Finally, we will
    require that in the event of either an increase in the EPFD contour
    in any direction or a major modification to an MVDDS station, these
    procedures would apply anew. This does not include applications for
    renewal, assignment or transfer of control which are considered to
    be major filings.[^228]

93. If a DBS provider or customer of record lodges a complaint regarding
    service within one year after MVDDS commences operation, the MVDDS
    licensees must correct interference to that customer or cease
    operation if it is demonstrated that the customer is receiving
    harmful interference from the MVDDS system or that the MVDDS signal
    exceeds the permitted EPFD level at the customer location. We
    believe that this procedure will minimize the potential for false
    claim reporting against the MVDDS licensee.

94. These procedures balance the positions of the various parties in
    this proceeding and will result in the ability of MVDDS to offer
    service in a timely fashion after licensing is completed. In
    addition, our adopted approach provides certainty to all parties
    involved and will allow them to develop their business plans
    accordingly.

### MVDDS/NGSO FSS Sharing

95. [Background]{.underline}. In the *Further Notice*, the Commission
    proposed basic technical operating standards to enable MVDDS and
    NGSO FSS sharing in the 12.2‑12.7 GHz band.[^229] At the same time,
    the Commission sought comment on whether different power limits
    would be appropriate for MVDDS transmitting systems and whether a
    database of MVDDS transmitting sites and NGSO FSS earth stations
    sites should be established so that licensees could determine
    problem areas prior to deployment of facilities.[^230] The
    Commission also requested comment on whether various forms of
    coordination or information database sharing procedures should be
    established between NGSO FSS earth stations and MVDDS transmitting
    sites rather than specifying particular EPFD limits.[^231]

96. The Commission proposed to limit the interference that MVDDS
    transmitting systems would cause to NGSO FSS receivers by
    restricting MVDDS transmitter power to 12.5 dBm in most areas.[^232]
    The Commission also proposed to protect MVDDS receivers from NGSO
    FSS interference by reducing the PFD limit for NGSO FSS satellites
    that transmit at angles of 5 degrees or less above the
    horizon.[^233] The Commission declined to propose specific PFD or
    EPFD limits on MVDDS operations or to propose coordination
    procedures between MVDDS and NGSO FSS operators because such
    requirements might be overly burdensome on both parties.[^234]
    Instead, the Commission proposed to limit the transmitter power of
    MVDDS operations to minimize any area of potential interference and
    rely upon the ability of NGSO FSS user terminals to work around
    static sources of interference in any environment in which they
    might be placed.[^235]

97. After careful review of all the comments and based upon further
    extensive technical analysis, we are persuaded that further
    refinement of MVDDS/NGSO FSS operating criteria is required. We
    believe that the criteria we adopt herein will provide a technically
    sound and equitable framework for MVDDS and NGSO FSS sharing that is
    responsive to the concerns expressed by the commenters in this
    proceeding.

98. The majority of commenters disagree with the merits of the initial
    technical criteria the Commission proposed in the *Further Notice*
    for MVDDS/NGSO sharing, while others suggest fairly comprehensive
    alternative criteria for sharing. For example, SkyBridge comments
    that the Commission's initial proposals for MVDDS and NGSO FSS
    sharing are too simplistic and place too much of the burden of
    resolving interference upon the NGSO FSS operators. SkyBridge also
    argues that the Commission's general treatment of MVDDS sharing with
    NGSO FSS is inconsistent with its approach to NGSO sharing with
    BSS/DBS. SkyBridge contends that simply setting a limit of 12.5 dBm
    on MVDDS transmitting system output power would create sizable
    exclusion zones and is subject to too many uncertainties and
    variability in the real world to afford adequate interference
    protection to NGSO FSS operations. SkyBridge argues instead that
    focusing upon the EPFD seen by an NGSO receiver will provide a more
    workable and accurate gauge of interference to NGSO FSS receivers
    than a simple output power limitation for MVDDS transmitting
    systems.

99. The SkyBridge proposal describes a complex scheme involving multiple
    in‑band PFD contours and EPFD defined zones and out‑of‑band emission
    limitations.[^236] The three in‑band limits proposed by SkyBridge
    are described as 1.) A PFD limit of --120 dBw/m^2^/MHz corresponding
    to an NGSO FSS frequency diversity zone that SkyBridge suggests
    should not be exceeded over ten percent of the MVDDS service area;
    2.) An EPFD limit of --120 dBw/m^2^/4kHz corresponding to a NGSO FSS
    receiver saturation buffer zone that should not be exceeded over
    0.2% of the MVDDS service area, and 3.) An EPFD limit of --132
    dBw/m^2^/4kHz corresponding to a NGSO FSS receiver saturation
    threshold zone that would function as a limit that could not be
    exceeded into any operational NGSO FSS receiver.

100. SkyBridge argues that these multiple contours and zones are
     designed to avoid NGSO FSS receiver saturation and to prevent NGSO
     FSS receivers from making undue use, through frequency diversity
     techniques, of the lower 11.7‑12.2 GHz band also authorized for
     NGSO FSS downlink operation.[^237] In addition, SkyBridge suggests
     that low angle radiation limitations for NGSO FSS satellite
     downlinks would be appropriate in order to afford protection into
     the boresight of MVDDS user terminals.

101. Northpoint argues from the contrary perspective that the proposed
     12.5 dBm limit on MVDDS transmitter power is an inappropriate
     standard because it is too restrictive on MVDDS; that it would lead
     to a fifty percent increase in the number of MVDDS transmitters;
     that it would preclude improvements in antenna or other technology
     with no advantage to DBS or NGSO FSS; and that the increased number
     of MVDDS transmitters would result in excessive transmitter density
     that would actually disadvantage NGSO FSS.[^238] Northpoint
     contends that a better approach would be to utilize the regional
     EPFD limits Northpoint suggests for DBS protection.[^239]
     Northpoint claims that because these EFPD limits protect DBS
     operations they will lend inherent protection to NGSO FSS
     operations as well. Northpoint further argues that these EPFD
     levels would be exceeded in far less than 0.5% of the MVDDS service
     area in urban environments and that they are functionally
     equivalent to the 12.5 dBm limit proposed by the Commission. Thus,
     Northpoint concludes that these EPFD values are a practical limit
     on the interference power into NGSO FSS operations while affording
     MVDDS additional flexibility of using greater than 12.5 dBm power
     in certain circumstances.[^240]

102. Northpoint also disagrees with SkyBridge's contention that
     multi‑tiered, in‑band PFD and EFPD limits are required to
     adequately protect NGSO FSS receivers from MVDDS interference.
     Northpoint maintains that NGSO FSS operators can avoid potential
     MVDDS interference because the NGSO's can easily use the lower
     11.7‑12.2 GHz band of frequencies allocated to the NGSO FSS for
     downlink operations. Northpoint also argues that SkyBridge is
     unable to cite any support in the record that NGSO FSS receivers
     might experience front‑end saturation or be unable to utilize the
     lower 11.7‑12.7 GHz band due to MVDDS operation. Any potential
     problem could be resolved, Northpoint argues, by NGSO FSS operators
     switching to LNB converters having a bandwidth of 500 MHz instead
     of 1000 MHz. Finally, Northpoint argues that the SkyBridge EPFD
     limit for ten percent of the MVDDS service area is arbitrary and
     unnecessary in light of the regional EPFD limits suggested by
     Northpoint.[^241]

103. On the other hand, Northpoint concurs with SkyBridge and Boeing
     that some form of out‑of‑band limits are appropriate citing
     SkyBridge's letter of July 10, 2000.[^242] However, Northpoint
     disagrees with the imposition of a 24 MHz bandwidth limit arguing
     that such a limit would have no benefit on NGSO FSS and might
     hamper future MVDDS operations.[^243]

104. Boeing indicates that the specific EPFD limits offered by SkyBridge
     would not adequately protect many of Boeing\'s NGSO FSS
     receivers.[^244] Nevertheless, Boeing agrees with SkyBridge that
     focusing on MVDDS EPFD limitations into NGSO FSS receivers would be
     far more useful than relying upon a single MVDDS transmitter power
     limit.[^245] Boeing also argues for out‑of‑band emission standards
     to ensure that NGSO FSS receivers can utilize the lower frequency
     bands below 12.2 GHz. Boeing also suggests that coordination rules
     and mitigation procedures must be put in place to facilitate NGSO
     FSS and MVDDS band sharing.

105. Virtual Geosatellite, LLC (Virtual Geo) generally agrees that
     sharing between MVDDS and NGSO FSS is feasible.[^246] Virtual Geo
     also agrees, in part, with the low angle EPFD limitations the
     Commission proposed. However, they argue that requiring compliance
     with the low angle EPFD limits might unduly constrain the operating
     power of some NGSO FSS satellites under certain circumstances at
     higher angles. Virtual Geo urges that such a result could be
     avoided by allowing NGSO FSS operators to specify, in lieu of
     complying with the EPFD limits, that their satellites will not
     transmit at or below angles of 5 degrees.[^247] In the latter
     situation, the NGSO licenses would be conditioned to prohibit
     transmission below 5 degrees, but would not have the low angle EPFD
     limits.[^248] Virtual Geo argues that this would permit licensees
     of NGSO FSS systems to retain the maximum flexibility, while still
     providing MVDDS systems with the desired protection from NGSO FSS
     downlink emissions.[^249] Pegasus generally supports sharing
     between NGSO FSS and MVDDS in the 12 GHz band and takes the
     position that the MVDDS limits to protect DBS that were proposed in
     the *Further Notice* are sufficient to offer protection to NGSO
     FSS.

106. In response to the Commission's requests for comment regarding
     coordination procedures, Boeing, among others, indicates that the
     Commission should adopt coordination rules and policies for NGSO
     FSS/MVDDS sharing.[^250] Boeing also argues that MVDDS operators
     should be required to pay the entire cost of mitigating
     interference to NGSO FSS receivers. Boeing proposes a sliding scale
     approach whereby an MVDDS operator would be responsible for paying
     either all, half or one‑quarter the mitigation expense depending
     upon various criteria within five and ten year time periods.
     Virtual Geo urges that a predicate to successful co‑existence and
     coordination between NGSO FSS and MVDDS should include a
     well‑maintained data base of MVDDS transmitter locations that is
     readily accessible to NFSO FSS operators. Virtual Geo also opines
     that MVDDS transmitting towers should be reasonably limited in
     number and power so as not to hinder the ability of NGSO FSS
     installers/operators from ascertaining the location of potentially
     interfering transmitters.[^251] Pegasus supports coordination
     procedures that would require MVDDS operators to alert NGSO FSS
     operators of the commencement of MVDDS service so that mitigation
     procedures could begin.

107. [Discussion]{.underline}. The rules the Commission adopted in the
     *First R&O* limit MVDDS operations to 500 megahertz in the
     12.2‑12.7 GHz band. In contrast, NGSO FSS service downlinks are
     authorized to use 1,000 megahertz of spectrum in both the
     12.2‑12.7 GHz band and the adjacent 11.7‑12.2 GHz bands. As a
     result, NGSO FSS is authorized access to twice the available
     spectrum for downlinks as compared to MVDDS. We find that NGSO FSS
     receivers operating in the 12.2‑12.7 GHz band could be designed
     with "frequency diversity" capability that enables dynamic
     switching to the lower 11.7‑12.2 GHz band for downlink service to
     avoid potential MVDDS interference in the 12.2‑12.7 GHz band. NGSO
     FSS operators could enhance the frequency diversity capabilities of
     subscriber receivers by using narrower bandwidth designs and
     through other refinements that would provide greater discrimination
     against undesired signals.

108. Under the MVDDS/NGSO FSS sharing rules adopted herein, we believe
     that NGSO FSS receivers will not be precluded from operation in any
     significant area. First‑in NGSO FSS receivers will be afforded full
     use of the entire 11.7‑12.7 GHz band with significantly reduced
     need to rely upon frequency diversity as a result of the
     conservative spacing requirements we adopt between MVDDS
     transmitting antennas and pre‑existing NGSO FSS receivers. NGSO FSS
     receivers that are later installed within an existing MVDDS service
     area, particularly those sited within 3 km of existing MVDDS
     transmitting antennas, may experience some degree of in‑band
     interference that could encumber NGSO FSS operation in the
     12.2‑12.7 GHz band. However, NGSO FSS receivers would still have
     access to the remaining 500 megahertz of spectrum in the lower
     11.7‑12.2 GHz band for downlink service. As a result, later‑in NGSO
     FSS receivers could utilize frequency diversity techniques so that
     they will not be precluded from operation even in areas where MVDDS
     operation has already been established.

109. We recognize that NGSO FSS receivers newly installed in close
     proximity to existing MVDDS transmitting antennas might be
     susceptible to receiver saturation from MVDDS signals in the
     12.2‑12.7 GHz band and might find it necessary to rely upon
     frequency diversity to make use of the lower 11.7‑ 12.2 GHz band.
     In these circumstances, each NGSO FSS operator can make its own
     business decision whether to employ receivers with sufficient
     signal discrimination characteristics and/or narrower bandwidth
     front‑ends to enable operation in close proximity to pre‑existing
     MVDDS transmitting antennas.

110. MVDDS transmitting antenna density limits (*i.e.*, limits on how
     closely multiple MVDDS transmitting antennas could be spaced and/or
     numerical limits within a given region) were suggested by some
     parties either in comments or in *ex parte* communications.[^252]
     However, we find that insufficient information has been developed
     in the record for us to proceed any further with a quantitative
     analysis on this particular issue. Any possible limit that might be
     set would be entirely arbitrary and would have no means of
     evaluating the benefit to NGSO FSS. Therefore, we decline to adopt
     MVDDS transmitting antenna density limits.

111. Under our approach, first‑in NGSO FSS receivers and first‑in MVDDS
     transmitting systems will be afforded more and easier use of the
     shared 12.2‑12.7 GHz portion of spectrum. We conclude that such a
     result is equitable and consistent with the co‑primary status of
     NGSO FSS and MVDDS.

#### MVDDS Operating Requirements

112. [In‑band PFD limits]{.underline}. We adopt a requirement that the
     PFD of an MVDDS transmitting system not exceed --135 dBw/m^2^/4kHz
     measured and/or calculated at the surface of the earth at distances
     greater than 3 km from the MVDDS transmitting site. The PFD of
     --135 dBw/m^2^/4kHz corresponds to the limit proposed by SkyBridge
     for an NGSO FSS receiver saturation buffer zone. We recognize that
     the operating requirement we adopt is not as restrictive as that
     proposed by SkyBridge. However, we believe that setting the
     reference distance at 3 km for the specified PFD limit strikes a
     reasonable balance between limiting the potential for NGSO FSS
     receiver saturation or reliance on frequency diversity to
     relatively small and predictable areas while affording MVDDS
     operators benefit of the maximum 14 dBm EIRP adopted elsewhere
     herein[^253] in most instances.[^254] Limiting the distance to the
     specified PFD at 3 km also serves to place a worst‑case cap on the
     extent of MVDDS interference that might be caused to NGSO FSS
     receivers. As noted above, we acknowledge that NGSO FSS receivers
     that might be installed in close proximity to MVDDS transmitting
     antennas using 14 dBm EIRP, particularly within 3 km, could be
     susceptible to interference from MVDDS when the NGSO FSS receivers
     are operating in the 12.2‑12.7 GHz band. However, in this
     situation, NGSO FSS receivers could also be designed to switch to
     the lower 11.7‑12.2 GHz band and could be designed with narrower
     bandwidths to avoid such interference.

113. We find that adopting a single PFD limit that may not be exceeded
     at a specified distance has significant advantages over other
     proposed approaches. First, we believe that this approach is
     relatively uncomplicated and will not be burdensome for compliance
     by licensees. Second, the PFD limit is technology neutral because
     it allows for the use of any antenna type, tower height and EIRP
     combination (up to the maximum 14 dBm) so long as the PFD limit is
     not exceeded at the specified distance. Third, by specifying a
     maximum PFD limit in terms of an absolute distance from the MVDDS
     transmitting site, we eliminate any dependence upon potentially
     equivocal determinations of percentages of MVDDS service area as
     suggested by SkyBridge. Finally, the approach we adopt fixes the
     worst‑case maximum extent of possible NGSO FSS interference
     regardless of MVDDS transmitter or antenna design. As a result, we
     believe that both MVDDS and NGSO FSS licensees will benefit from
     the predictability of being able to anticipate and plan around the
     potential sharing and coordination issues that might arise.

114. In arriving at our decision to adopt the PFD limit of
     --135dBW/m^2^/4kHz measured and/or calculated at the surface of the
     earth at 3 km, we believe that we have crafted an effective and
     reasonable compromise from among the available options. Boeing
     suggested the most stringent limits on MVDDS operation but
     indicated for its part that the SkyBridge proposal would be an
     acceptable compromise. We conclude, on balance, that the Boeing
     proposal is so restrictive that it could unduly undermine the
     ability to deploy MVDDS without a corresponding benefit to NGSO FSS
     operators. Therefore, our analysis focused on the merits of the
     multi‑EPFD SkyBridge scheme as a possible solution. We also
     carefully considered Northpoint's proposal for higher permissible
     EIRPs and single‑value EPFD limits.[^255] To maintain uniformity
     for comparison purposes, we utilized a PFD value of --150.7
     dBw/m^2^/4kHz that corresponds to the value specified by Northpoint
     as point of reference for defining the MVDDS service area.

115. A key benefit of the PFD limit‑at‑a‑distance standard we adopt is
     that it does not depend upon determinations of percentages of MVDDS
     service area as proposed by SkyBridge. Nonetheless, we did compare
     the worst case results obtained by the standard we adopt in terms
     of the limits proposed by SkyBridge. In making this comparison, we
     found that unless restrictions are placed on permissible MVDDS
     transmission modes, discrepancies exist between the protection
     limits proposed by SkyBridge and the MVDDS service area percentages
     associated with those protection limits.[^256] We conclude,
     however, that placing polarization limits on MVDDS would only serve
     to undermine operational flexibility of MVDDS licensees and hinder
     efficient sharing of the 12 GHz band in exchange for a marginal
     benefit to NGSO FSS.

116. SkyBridge proposed that the extent of their so‑called frequency
     diversity limit should not exceed ten percent of the MVDDS service
     area. Without considering MVDDS polarization constraints, we found
     that SkyBridge's frequency diversity zone will occupy, in the worst
     case, twenty percent of the MVDDS service area regardless of the
     EIRP or tower height. As a second example, SkyBridge proposed to
     limit the --135 dBw/m^2^/4kHz saturation buffer zone to 0.2% of the
     MVDDS service area. We found that the --135 dBw/m^2^/4kHz limit
     will, in the worst case, generally occupy between 1.8% \[with MVDDS
     EIRPs restricted to levels as low as 4‑6 dBm\] and 2.5% \[with
     MVDDS EIRPs unrestricted at 14 dBm\] of the MVDDS service area for
     any reasonable combination of EIRP and transmitting antenna height.
     As in the first example, we achieved these figures without
     considering MVDDS polarization constraints. These results were
     obtained by fixing the distance to the --135 dBw/m^2^/4kHz PFD
     limit between 1 km and 3.5 km from the MVDDS transmitting
     site.[^257]

117. As noted above, virtually any EIRP and tower height combination
     will result in the same percentage of affected MVDDS service area.
     SkyBridge's stated criterion for selecting their proposed ten
     percent limit was to avoid use of frequency diversity "... over a
     large proportion of the MVDDS service area."[^258] To the extent
     that we attempt to accommodate the stated goals of SkyBridge's
     proposal, we find that a worst case "frequency diversity" zone of
     twenty percent will afford significant protection to NGSO FSS in a
     large proportion (*i.e.*, eighty percent) of the MVDDS service
     area. As to the "saturation zone" limit of --135 dBW/m^2^/4kHz, we
     observe that drastic reductions in MVDDS EIRP from the maximum 14
     dBm to as low as 4 dBm have relatively little impact when viewed as
     a percentage of MVDDS service area as proposed by SkyBridge. The
     difference amounts to 2.5% at 14 dBm compared with 1.8% at 4 to 6
     dBm -- an improvement of only 0.7 percentage points. SkyBridge's
     stated criterion for selecting its proposed 0.2% limit was to honor
     assurances by MVDDS proponents that the area of NGSO saturation
     would be "small."[^259] To the extent that we attempt to further
     accommodate that goal of SkyBridge's proposal, we find that a
     worst‑case "saturation zone" of 2.5% of the MVDDS service area is
     sufficiently "small" to afford significant protection for NGSO FSS
     in the worst case.

118. In light of these findings, we decline to adopt the SkyBridge
     scheme that is based primarily upon multiple PFD/EPFD limits
     associated with percentages of MVDDS service. We believe that such
     a scheme is too complex on its face and would be inordinately
     burdensome in practical application. In addition, we believe that
     such a multi‑level scheme would be susceptible to litigious dispute
     and manipulation among competing licensees. We conclude that we can
     achieve as much benefit as would be realizable from the either the
     Northpoint or SkyBridge proposals, but in a much more direct,
     predictable and practical fashion by specifying a fixed distance to
     the --135 dBW/m^2^/4kHz PFD. Finally, because we conclude that
     MVDDS transmissions should not be restricted to a particular
     polarization mode, we believe that the standard we adopt will
     provide a more accurate depiction of the potential worst‑case
     interference concerns while affording both significant protection
     for NGSO FSS and maximum flexibility for MVDDS.

119. [MVDDS out‑of‑band emission limits]{.underline}. Northpoint agrees
     with the SkyBridge proposal that MVDDS should be required to adhere
     to some form of out‑of‑band limits.[^260] SkyBridge asserts that
     the function of out‑of‑band limitations can be accomplished by
     specifying a maximum bandwidth of 24 megahertz for the emissions
     mask contained in Section 101.111(a)(2). We agree. Accordingly, we
     adopt elsewhere herein a change in the value of B to 24 MHz in the
     equation for determining the emissions mask as set forth in Section
     101.111(a)(2) of our rules.[^261]

#### NGSO FSS Operating Requirements

120. We adopt the low angle PFD limits on NGSO FSS downlinks in the
     12.2‑12.7 GHz band that the Commission proposed in the *Further
     Notice.* For angles of 0‑2 degrees above the horizon, NGSO FSS
     downlinks must meet a reduced PFD of --158 dBW/m^2^/4kHz, and for
     angles of 2‑5 degrees above the horizon, a reduced PFD of --158
     +3.33 (δ‑2) dBW/m^2^/4kHz.[^262] We note that Northpoint and
     SkyBridge both agree that low angle NGSO FSS radiation should be
     limited. Some of the most restrictive limits proposed by each are
     the same and comport with the PFD values we adopt herein. However,
     Northpoint and SkyBridge disagree on the manner in which compliance
     with the limits should be demonstrated. Northpoint proposes that
     low angle NGSO FSS PFD limits that are tightened by 10 dB from the
     ITU Article S21 standards should be applied as hard limits that
     NGSO FSS must not exceed in any circumstances.[^263] SkyBridge
     proposes that we should adopt the ITU Article S21 limits without
     the 10 dB tightening proposed by Northpoint. SkyBridge also
     proposes that those limits should be complied with in the same
     manner as the operational limits imposed on NGSO FSS systems for
     the protection of GSO FSS and BSS systems.[^264]

121. For the same reasons described in the *First R&O, w*e conclude that
     the method of demonstrating compliance with the PFD limits we are
     adopting should follow the same approach as the operational EPFD
     down limits that the Commission adopted to protect GSO BSS
     operations.[^265] We further believe that consistent requirements
     for DBS and MVDDS protection will be less burdensome for compliance
     by licensees. We do not believe that making any of the PFD limits
     dependent upon complaints or demonstration by MVDDS operators of
     violation with the limits would provide adequate or uniform
     protection. Therefore, we will require an NGSO FSS applicant to
     demonstrate, prior to becoming operational, that it meets the PFD
     limits we adopt herein to protect MVDDS. Each NGSO FSS licensee
     will be issued a conditional authorization and must submit, ninety
     days prior to operation, technical information demonstrating
     compliance with the PFD limits adopted herein to protect MVDDS.

#### MVDDS and NGSO FSS Spacing and Coordination Requirements

122. The interference mechanisms we considered in evaluating MVDDS
     impact on NGSO FSS are somewhat different than those we considered
     herein for MVDDS protection of DBS. In the DBS scenario,
     interference may occur primarily during heavy rain events due to
     DBS signal fading. All the parties generally agree with the
     presumption that MVDDS/DBS interference will not result during
     clear weather. By comparison, the MVDDS potential interference to
     NGSO FSS is not primarily related to rain or other inclement
     weather. Instead, interference is likely to occur when an NGSO FSS
     receiving antenna momentarily points directly at an MVDDS
     transmitting antenna as the receiving antenna tracks the NGSO
     satellite. In addition, interference may be caused through the back
     lobes of an NGSO FSS receiving antenna when in very close proximity
     to an MVDDS transmitting antenna. These interference events may
     occur regardless of weather conditions. We also note that the
     co‑frequency interference that occurs when the NGSO FSS antenna
     points directly at an MVDDS transmitting antenna generally cannot
     be readily mitigated. Under these conditions, the NGSO FSS receiver
     essentially "sees" both the desired NGSO and undesired MVDDS
     transmitting antennas as a single source at the same point in the
     sky. As a result, we believe that standard mitigation techniques
     such as shielding and repositioning of the NGSO FSS antenna may be
     of little benefit and require NGSO FSS to make greater use of
     frequency diversity to utilize the lower 11.7‑12.2 GHz band.

123. Because mitigation efforts might not be sufficiently feasible to
     address potential MVDDS interference to NGSO FSS receivers, we
     conclude instead that spacing and notification requirements should
     be employed to achieve optimal sharing conditions. Therefore, we
     decide that an MVDDS transmitting antenna may not be installed
     within 10 km of any pre‑existing NGSO FSS receiver unless the
     affected licensees agree to a closer separation.[^266] On the other
     hand, we also conclude that later‑in NGSO FSS receivers must accept
     any interference resulting from pre‑existing MVDDS transmitting
     antennas.

124. We conclude that NGSO FSS operators must maintain and share a
     database of existing NGSO FSS receiver locations. In addition,
     MVDDS operators must maintain and share with NGSO FSS operators a
     database of existing and proposed MVDDS transmitting locations,
     EIRP, tower height and related technical information. For each new
     MVDDS transmitting antenna, the MVDDS licensee must notify all NGSO
     FSS operators within the general service area of the proposed
     transmitting location and also disclose the related technical
     operating parameters. Within ten days of this notification, each
     NGSO FSS licensee must in turn advise the MVDDS licensee of the
     location of any NGSO FSS receiver within 10 km of the proposed
     MVDDS transmitting antenna site. If a qualifying NGSO FSS receiver,
     as defined by the rules adopted herein, is located within 10 km of
     the proposed MVDDS transmitting antenna site, then the parties are
     free to negotiate an agreement by which the NGSO FSS licensee would
     accept the MVDDS transmitting antenna at the closer‑spaced site. In
     the absence of such an agreement, the MVDDS licensee may not
     construct the new transmitting antennas at the proposed site and
     must seek an alternative location that complies with the 10 km
     spacing criterion.

125. We believe that this approach preserves the relative rights and
     duties of both co‑primary licensees without unduly hampering the
     expansion plans of either. We also conclude that the alternative
     approach of employing the existing coordination procedures in Parts
     25 and 101 of our rules is not well‑suited to the sharing situation
     in this band and, in any event, would not achieve any better
     results than the requirements we adopt herein.

## Multichannel Video Distribution and Data Service Rules

### Licensing Plan

126. We seek to implement a regulatory framework that will foster
     competition, promote innovation, and encourage the delivery of
     additional or improved services to consumers. Thus, as we developed
     the licensing and service rules for MVDDS, we considered the
     primary service offerings, the technical constraints in a shared
     environment, possible barriers that could impede the entry of small
     businesses into MVDDS, and the efficient deployment of these
     services to unserved and underserved areas of the nation.

127. We believe the licensing and service rules we adopt herein provide
     the framework to encourage robust competition in the MVPD
     marketplace, provide opportunities for small businesses to provide
     niche services across the nation, encourage innovation and advances
     in MVDDS technology that will not only complement other MVPD
     offerings, but will expand those offerings.

#### Service Areas

128. [Background]{.underline}. Based on the record, we believe the
     initial services provided by MVDDS licensees will be multichannel
     video distribution of local television programs and high‑speed
     Internet access. Such services require ubiquitous coverage to
     compete in the MVPD marketplace.[^267] In the *Further Notice,* the
     Commission explained that a site‑based regime would be resource
     intensive for a service that requires ubiquitous coverage.[^268]
     Consequently, the Commission proposed to license MVDDS on the basis
     of geographic areas.[^269]

129. In addition to proposing the use of geographic areas to license
     MVDDS, the Commission invited comment on the most appropriate
     geographic area licensing scheme for this service.[^270] The
     Commission discussed several options for licensing MVDDS such as
     Nielsen's DMAs,[^271] Metropolitan Statistical Areas and Rural
     Service Areas (MSAs and RSAs),[^272] Economic Areas (EAs),[^273]
     Regional Economic Area Groupings (REAGs),[^274] and Major Economic
     Areas (MEAs).[^275] The Commission specifically requested comment
     on whether DMAs or some other geographic area would be a better
     choice for this service.[^276]

130. [Discussion]{.underline}. Commenters generally support geographic
     licensing for MVDDS. We believe the initial services that will be
     provided by MVDDS licensees --- multichannel distribution of local
     television programs and high‑speed internet access --- require
     ubiquitous coverage. Thus, deployment of this service will be more
     efficient by using a geographic licensing scheme that supports
     ubiquitous service. Accordingly, we will license MVDDS on the basis
     of geographic areas. We believe that site‑based licensing would be
     resource intensive for both applicants/licensees and the
     Commission. In addition, we find no basis in the record for
     considering an approach to licensing the 12 GHz band other than
     geographic area licensing.

131. Commenters, however, were not in agreement with respect to the
     specific licensing scheme for MVDDS. In fact, commenters provided
     support for DMAs,[^277] major trading areas (MTAs), basic trading
     areas (BTAs),[^278] RSAs and CEAs.[^279] AT&T did not name a
     geographic licensing scheme it supported. However, AT&T did provide
     distance characteristics that it found desirable for licensing
     MVDDS.[^280]

132. We note that, in the *Further Notice*, the Commission considered
     the similarities between cable, non‑cable and MVDDS services as it
     requested comment on using DMAs. After further consideration we do
     not believe DMAs are appropriate for MVDDS. We note that Nielsen is
     the copyright owner of the DMA listing. Nielsen has not given the
     Commission a blanket license to use its copyrighted DMA listing for
     MVDDS. By adopting DMAs, an MVDDS licensee who does not obtain a
     copyright license (either through a blanket license agreement or
     some other arrangement) from Nielsen for use of the copyrighted
     material may not rely on the grant of a Commission authorization as
     a defense to any claim of copyright infringement brought by Nielsen
     against such grantee.[^281] We believe economic benefits will
     accrue to MVDDS licensees by establishing a designation that is in
     the public domain. We therefore will adopt a licensing system based
     on CEAs.[^282] We believe adopting CEAs for MVDDS will provide
     similar benefits as DMAs. Specifically, we find that a CEA
     licensing scheme will better promote our objectives and address
     commenters' concerns. For example, fixed services are generally
     deployed on a localized basis, so the smaller CEA service areas
     better track actual deployment. Indeed with the exception of DBS,
     most MVPD service remains local or regional service.[^283] CEAs are
     based on Economic Areas delineated by the United States Department
     of Commerce.[^284] Each CEA consists of a single economic node and
     the surrounding counties that are economically related to the node.
     There are a total of 354 CEAs. We believe that CEAs will encourage
     rapid service deployment to less populated and rural regions of the
     nation because, as RTG points out, these service areas will permit
     additional opportunities for small businesses to provide MVDDS and
     thus, more varied groups of service providers.[^285] We can
     encourage the meaningful participation of small businesses in this
     nascent service through the use of CEAs better than through the use
     of nationwide or regional service areas because the smaller service
     areas will likely require a lower minimum investment. For those who
     seek a regional or national footprint, we note that CEAs may be
     aggregated to create such larger networks.

#### Channel Plan 

133. [Background]{.underline}. MVDDS has a total of 500 megahertz of
     available spectrum per service area. In the *Further Notice*, the
     Commission indicated that 500 megahertz of spectrum would enable
     MVDDS licensees to effectively compete with other broadband video
     and data providers such as cable TV operators and DBS service
     operators who routinely provide hundreds of channels to
     subscribers.[^286] The Commission indicated that MVDDS operators
     will require the full 500 megahertz to provide the type of variety
     that 100 channels offer.[^287] Thus, the Commission invited comment
     on the amount of spectrum needed by MVDDS providers to facilitate
     competition between MVDDS, cable, DBS, and other broadband video
     data providers.[^288] In addition, the Commission sought comment as
     to whether MVDDS, as a terrestrial operation, requires the same
     amount of spectrum as DBS operations, whether the capacity needs
     for both video and data applications require the full 500 megahertz
     in each license area and whether there are other feasible channel
     plans that satisfy the objectives of Section 309(j)(4)(C) and the
     public interest. [^289]

134. [Discussion]{.underline}. Although commenters were divided
     regarding the size of the MVDDS spectrum blocks, several commenters
     support the Commission's proposal to issue one spectrum block of
     500 megahertz per service area.[^290] We believe that licensing
     MVDDS in single blocks of 500 megahertz per service area[^291] will
     provide licensees with the capacity to compete not only in the
     video broadband market with established MVPD providers that are
     capable of providing consumers with hundreds of channels of
     programming, but also to provide other wireless services. However,
     we note that Pegasus proposed an additional channel plan for MVDDS.
     Specifically, Pegasus asserts that licensing four 125 megahertz
     blocks to unaffiliated applicants in each service area would
     enhance competition.[^292] Pegasus avers that this licensing scheme
     is sufficient to supplement DBS services and is adequate to
     initiate low‑cost, basic, multichannel service.[^293] EchoStar, on
     the other hand, asks for a set‑aside of no less than 250 MHz of
     spectrum for interested DBS licensees.[^294]

135. We do not believe the sub‑division proposals are the best
     approaches for this particular service. Due to the complex sharing
     arrangement in the 12 GHz band between MVDDS, DBS and NGSO FSS, we
     believe that operations in this band may be more susceptible to
     interference from adjacent systems. We also do not believe that 125
     megahertz spectrum blocks will place an MVDDS licensee in a
     position to compete with other MVPD providers. Rather, 125 MHz
     spectrum blocks will place MVDDS licensees in the second tier of
     MVPD providers at the outset. A single licensee operating on a 500
     megahertz block of spectrum in each service area would reduce the
     number of transmitting antennas, and thus the aggregate power per
     area. This approach would mitigate the potential number of
     interference sources to DBS and NGSO FSS users and would also
     alleviate concerns regarding responsibility for interference. Thus,
     in this instance, the use of blocks less than 500 megahertz is not
     in the public interest. As discussed below, we also reject
     EchoStar's proposal with respect to a set‑aside for DBS
     entities.[^295] We believe that the schemes proposed by both
     Pegasus and EchoStar would make it more difficult for a terrestrial
     licensee to acquire enough bandwidth to effectively compete with
     the range of offerings that existing MVPD operators can
     provide.[^296] Five‑hundred megahertz spectrum blocks ensure
     sufficient capacity for the provision of a multichannel video
     distribution service that will enable the objectives for this
     service to be met.

#### Permissible Operations for MVDDS

136. [Background]{.underline}. Based on the record, the Commission
     anticipates that the MVDDS licensees will use the 12 GHz band to
     deliver video services and one‑way high speed data (non‑video)
     services to consumers.[^297] In the *Further Notice*, the
     Commission requested comment on whether to authorize MVDDS
     licensees to use spectrum in the 12 GHz band for fixed one‑way
     direct‑to‑home/business video and data services.[^298] To the
     extent that licensees wish to offer two‑way services, the
     Commission indicated that spectrum in other bands, wirelines or
     other means could be used for a return path.[^299] Although the
     Commission has a general policy of flexible spectrum use, the
     Commission proposed to prohibit mobile and aeronautical operations
     in the service.[^300] The Commission was concerned that DBS would
     receive interference and the NGSO FSS allocation would be
     complicated by permitting mobile and aeronautical operations.[^301]
     Additionally, the Commission sought comment on whether other
     technologies exist or can be designed to allow MVDDS to provide
     video channels with other capacity for use in other services such
     as the Internet.[^302]

137. [Discussion]{.underline}. Commenters uniformly agree that MVDDS
     licensees should have flexibility to determine the specific
     services to offer in the 12 GHz band as well as the flexibility to
     modify service offerings as customer demand evolves.[^303] However,
     DirecTV believes that two‑way service in the 12 GHz band should not
     be permitted because adding a return link in addition to the
     existing NGSO FSS allocation and the proposed MVDDS allocation
     would add extraordinary complications to an already "untenable"
     sharing scenario.[^304] We agree that adding a return link in this
     scenario would unnecessarily complicate the sharing scenario. We
     believe that sufficient flexibility for two‑way service may be
     afforded to MVDDS licensees whereby the 12 GHz band could be used
     for a "downstream" path,[^305] and the "upstream" (or return)
     path[^306] could be located outside of the 12 GHz band in other
     available spectrum or over a wireline return path. Sharing between
     the four types of services in the 12 GHz band will be challenging,
     and we believe that two‑way services in the band without relocating
     the upstream path would significantly raise the potential for
     instances of interference among the operations. In this regard, any
     digital non‑broadcast service, including fixed one‑way service
     direct‑to‑home/business video and data services, will be among the
     permissible uses for MVDDS provided that such services comply with
     the technical standards and interference protection criteria set
     forth herein.

138. We note that the Commission does not license technologies. Service
     rules are developed prior to license rollout and interested parties
     may apply to operate in the service provided that they comply with
     the service rules. Based on the record in this proceeding, several
     entities claim to have access to technology they will utilize to
     deliver multichannel video and high speed data applications in
     MVDDS. Thus, we conclude that the permissible operational
     parameters as outlined will supply maximum flexibility with
     sufficient safeguards to decrease the likelihood of interference
     between the various types of operations in the 12 GHz band. We
     will, however, prohibit mobile and aeronautical operations due to
     the interference concerns noted above. We will modify Part 101 of
     our Rules accordingly.[^307]

#### Broadcast Carriage Requirements 

139. [Background]{.underline}. Television stations have certain carriage
     rights on local market cable television systems.[^308] Sections 614
     and 615 of the Communications Act of 1934, as amended, contain the
     cable television \"must carry\" requirements for commercial and
     noncommercial television stations, respectively.[^309] Section 325
     contains retransmission consent requirements pursuant to which
     cable operators may be obligated to obtain the consent of
     commercial broadcasters before retransmitting their signals. Within
     local market areas, defined by DMAs, commercial television stations
     may elect cable carriage under either the mandatory carriage or
     retransmission consent requirements. Noncommercial television
     stations have a right to mandatory carriage under the Act, but do
     not have statutory retransmission consent rights.

140. The satellite carriage requirement is different from the cable
     carriage requirement. Under Section 614 of the Act, subject to
     market modification, local commercial television stations can
     demand carriage on all cable systems within their DMA.[^310] Under
     Section 615 of the Act, a local noncommercial television station
     can demand carriage on a cable system if the cable system's
     principal "headend"[^311] is within fifty miles of the television
     station's principal community reference point, or if the principal
     headend is within the Grade B service contour of the television
     station."[^312] However, the satellite broadcast carriage
     requirements in Section 338 of the Act provides that only satellite
     carriers that use the statutory copyright license to transmit one
     or more stations to subscribers in the local markets must carry all
     stations in that market that request carriage. The carriage
     requirement does not apply in DMAs in which the satellite carrier
     does not deliver local into local or uses private copyright
     arrangements to deliver local stations.

141. In the *Further Notice*, we noted that MVDDS is in many ways
     comparable to, and could be a competitor to, MVPDs such as cable
     and DBS.[^313] We noted that there was no explicit statutory
     provision requiring mandatory carriage of all local broadcast
     signals by MVDDS providers and sought comment on whether the
     Commission should require MVDDS providers to provide all local
     television channels to every subscriber within each individual
     service area and whether any must‑carry obligations should be
     imposed on MVDDS licensees.[^314] We also asked whether
     requirements such as the Commission's network nonduplication,
     syndicated exclusivity, sports blackout, and leased access
     requirements should apply to MVDDS licensees.[^315]

142. [Discussion]{.underline}. We believe that the reasons that led
     Congress to impose mandatory carriage requirements on cable and DBS
     providers do not apply at this time to MVDDS. Congress identified
     three important governmental interests when it imposed must‑carry
     obligations on cable systems: "(1) preserving the benefits of free,
     over‑the‑air local broadcast television, (2) promoting the
     widespread dissemination of information from a multiplicity of
     sources, and (3) promoting fair competition in the market for
     television programming."[^316] With respect to DBS providers,
     Congress identified similar interests.[^317] With respect to the
     first interest, Congress was concerned that absent mandatory
     carriage requirements, a substantial number of broadcast stations
     would either deteriorate or fail as a result of the increase in
     market penetration by cable systems.[^318] Congress expressed
     concern that this shift in market share would give cable systems
     the incentive and ability to delete, reposition, or decline
     carriage of local broadcast stations on cable systems.[^319] With
     respect to the government's interest in promoting the widespread
     dissemination of information from a multiplicity of sources, the
     record in this proceeding does not demonstrate that must‑carry
     requirements are necessary to further that goal. Indeed, Northpoint
     and Pegasus are willing to assume must‑carry obligations, which
     mean that they are willing to carry all television stations in a
     market.[^320] Similarly, it has not been shown that imposing
     must‑carry requirements on a new service would enhance competition.
     In light of the fact that MVDDS licensees could use their
     facilities to provide a variety of services, we are concerned that
     mandatory carriage requirements could deprive MVDDS licensees of
     the flexibility they need to execute their business plans and
     respond to market demands.[^321] While certain must‑carry
     regulations were mandated by statute to apply to cable systems and
     different broadcast carriage requirements to apply to satellite
     carriers, no such regulations were mandated for other MVPDs or for
     MVDDS. Given that MVDDS is not required to carry video programming,
     we choose not to impose such requirements. In short, the record
     does not provide us with a sufficient basis upon which to impose
     must‑carry obligations at this time absent a directive from
     Congress. Nonetheless, MVDDS networks should not be utilized by DBS
     providers as a means of avoiding their carry‑one‑carry all
     responsibilities. Such bypass may prompt Commission action to
     enforce and/or revise the regulatory obligations of the bypassing
     provider.

143. If an MVDDS licensee meets the statutory definition of an MVPD, we
     conclude that the retransmission consent requirement of Section
     325(b)(1) of the Act[^322] shall apply to that MVDDS licensee. The
     Act defines an MVPD as any person "who makes available for
     purchase, by subscribers or customers, multiple channels of video
     programming ..."[^323] Section 325(b)(1) of the Act[^324] states
     that, with certain exceptions, no MVPD may retransmit the signal of
     a broadcast station, or any part thereof, without the express
     authority of the originating station, except pursuant to Sections
     614 and 338 of the Act.[^325] Since the general retransmission
     consent provisions apply to all MVPDs, we conclude that any MVDDS
     licensee that is an MVPD must obtain the prior express authority of
     a broadcast station before retransmitting the station's signal,
     subject to the exceptions contained in Section 325(b)(2) of the
     Act.[^326]

144. Additionally, we decline at this time to impose network
     nonduplication, syndicated exclusivity, sports blackout, and leased
     access rules on MVDDS licensees who provide MVPD service. Pegasus
     and NAB support applying these requirements to MVDDS
     licensees.[^327] In applying these requirements to satellite
     carriers, the Commission stated, "We believe that Congress\'s
     purpose in applying the network nonduplication, syndicated
     exclusivity, and sports blackout rules to these satellite
     retransmissions reflects a balance between providing access to
     national programming carried by the superstation and a recognition
     that, in the absence of retransmission consent requirements,
     broadcasters and rights holders will have no opportunity to protect
     their contractual rights."[^328] While we are sensitive to the need
     to protect contractual rights, given the fact that MVDDS is a new
     service and the uncertainties concerning the types of services
     MVDDS will provide, we believe it is premature to impose these
     regulatory requirements at this time. It is unclear whether MVDDS
     will even be used to transmit superstations or other distant
     television stations to subscribers. We also note that the existing
     obligations do not apply to cable systems with fewer than 1,000
     subscribers[^329] or to a satellite carrier if it has fewer than
     1,000 subscribers within the relevant protected zone who subscribe
     to the nationally distributed superstation or network station. In
     addition, private contractual arrangements and the necessity for
     retransmission consent, as discussed above, may be sufficient to
     protect rights holders. Under these circumstances, we believe we
     will be in a better position to ascertain the appropriateness of
     applying these requirements after MVDDS licensees construct their
     systems and begin serving customers. Accordingly, we decline to
     impose these requirements at this time. However, we may revisit
     this issue at a later date if MVDDS licensees provide MVPD service.

#### Treatment of Incumbent Licensees[^330]

145. [Background]{.underline}. In addition to incumbent DBS operations,
     the Commission has authorized over 200 incumbent non‑public safety
     and public safety POFS licensees[^331] to operate in the 12 GHz
     band. The Commission recognized the potential for interference
     between POFS and DBS systems at the onset of DBS' entrance into the
     band[^332] and instructed the incumbent POFS licensees to either
     operate on a secondary basis to DBS or to relocate their
     facilities.[^333]

146. As stated earlier, the Commission permitted the entry of MVDDS into
     the 12 GHz band on a co‑primary, but non‑harmful interference basis
     to incumbent DBS operations and on a co‑primary basis to NGSO
     FSS.[^334] In addition, the Commission explained its obligation
     under the Rural Local Broadcast Signal Act to ensure that no
     facility licensed or authorized to deliver local broadcast
     television signals as set forth in the Act, causes harmful
     interference to the primary and incumbent public safety POFS
     service providers.[^335] Thus, the Commission proposed that only
     incumbent commercial POFS licensees should be required to protect
     new MVDDS and NGSO FSS licensees in the 12 GHz band from harmful
     interference.[^336] However, MVDDS and NGSO FSS licensees would be
     required to protect incumbent public safety POFS licensees in that
     band.[^337]

147. [Discussion]{.underline}. We shall require incumbent non‑public
     safety licensees in the 12 GHz band to protect new MVDDS and NGSO
     FSS licensees from harmful interference. Pegasus states that the
     Commission should require MVDDS and NGSO FSS licensees to protect
     all incumbent POFS licensees.[^338] We are in agreement with
     Pegasus to the extent that it supports the protection of incumbent
     public safety POFS licensees. However, we believe that our
     distinction between the obligations of incumbent POFS non‑public
     safety licensees and incumbent public safety POFS licensees is
     critical to our compliance with the RLBSA. In this regard, MVDDS
     and NGSO FSS will satisfy the requirements of this statutory
     language by protecting incumbent public safety POFS licensees. We
     note that an incumbent public safety POFS licensee must continue to
     utilize the license area to provide public safety services in order
     to retain its protected status.[^339] Because MVDDS licensees will
     be awarded licenses for a 500 megahertz channel block,[^340] we
     believe that the requirement to protect these public safety
     incumbents will involve only a modest amount of spectrum and thus,
     will not significantly impact the MVDDS service. We emphasize that
     our decision as set forth herein does not relieve any NGSO FSS,
     POFS and MVDDS licensees of their obligation to protect DBS
     operations in the 12 GHz band.

Hierarchy of Protection for 12 GHz Band Licensees

  -------------------- --------------------------------------------------
  1\. DBS              MVDDS/NGSO operators are subject to technical
                       requirements to protect DBS.

  2\. Public Safety    MVDDS/NGSO are required to protect incumbent
  POFS                 public safety POFS operators.

  3\. MVDDS/NGSO       MVDDS/NGSO are designated to operate on a
                       co‑primary basis with each other.

  4\. Non‑Public       MVDDS/NGSO are not required to protect incumbent
  Safety POFS          non‑public safety POFS operators.
  -------------------- --------------------------------------------------

148. In light of our actions described above, and effective as of the
     date of the release of this *Second R&O*, we will no longer accept
     any POFS applications for new licenses (including public safety
     POFS), amendments to applications for new licenses, or major
     modifications for the 12 GHz band received on or after the release
     date of this *Second R&O*. All such POFS applications received
     after that date will be returned as unacceptable for filing. We
     believe that this action is consistent with our approach in other
     services utilizing geographic area licensing and competitive
     bidding procedures to issue licenses.[^341]

149. We will, however, continue to process POFS applications for minor
     modifications[^342] or for license assignment or transfer of
     control.[^343] This exception will also apply to amendments to
     applications for minor modifications. Thus, we will accept
     applications for minor modifications, amendments to applications
     for minor modifications, license assignments, and transfers of
     control under existing procedures. Moreover, we will continue to
     process POFS applications for new licenses, amendments to the
     applications for new licenses, and major modifications that are
     pending as of the release date of this *Second R&O* on a
     first‑come, first‑served basis.[^344]

#### Incremental Licensing

150. [Background.]{.underline} Some parties ask that we institute an
     incremental licensing approach in order to evaluate harmful
     interference.[^345] Specifically, DirecTV, EchoStar and SBCA
     believe that if the Commission licenses the MVDDS service, then it
     should start by licensing a single local market -- not one of the
     nation's fifty largest markets -- as it did with LMDS, in order to
     allow the Commission to evaluate the viability of MVDDS.[^346] The
     MITRE Report recommended a different form of incremental licensing
     such that the Commission could grant all of the licenses in a
     stepwise fashion based on satisfaction of certain milestones.[^347]

151. [Discussion]{.underline}. Incremental licensing could be useful for
     a service in which additional testing is required to determine the
     nature of interference. In such a situation, the Commission could
     introduce a service on a limited basis to assess "the real world
     impact of signal interference" prior to the full deployment of
     service nationwide.[^348] In this proceeding, however, we examined
     the test data provided by applicants, DBS providers, and the MITRE
     Report and conclude that the intermediate step of incremental
     licensing is not required. The MITRE Report has essentially already
     provided the data that would be gained from additional
     testing.[^349] The MITRE Report indicates that sharing of the
     12 GHz band is feasible and provides suggested mechanisms to
     mitigate potential interference to DBS operations.[^350] We have,
     in the MITRE Report, a "real world assessment of signal
     interference." We have also determined that our technical criteria
     will provide the necessary protection to DBS customers no matter
     what technology or system is used.

152. Thus, we decline to adopt an incremental licensing plan in the
     12 GHz band. We find that this approach does not give sufficient
     certainty concerning the future scope of the service and therefore
     could result in ineffectual deployment and adversely affect funding
     opportunities in the capital markets. In addition, this approach
     removes the economic market incentives and economies of scale
     generally associated with licensing several systems across the
     United States for this new service offering. For example, greater
     numbers of service areas may be needed to support the development
     of equipment and the purchase of programming. Limiting the scope of
     deployment may adversely affect the entry of new sources of
     effective competition to DBS and cable. Moreover, the present
     record is not sufficient to determine the initial markets that
     should be selected or the terms for subsequent roll‑out of other
     markets. We also believe that an initial incremental licensing
     approach in which only rural unserved and underserved areas are
     selected initially for licensing would make MVDDS less appealing to
     some parties due to the lack of economic market incentives and
     economies of scale that could be enjoyed in a broader‑based
     licensing approach. Further, to the extent that this approach is
     viewed as helpful in identifying terrestrial NGSO interference
     issues, it does not provide an immediately useful method for
     evaluating terrestrial interference to NGSO systems because NGSO
     FSS systems will likely be deployed after MVDDS systems.

### Application, Licensing and Processing Rules

153. [Background]{.underline}. In the *Further Notice*, the Commission
     sought comment on an appropriate licensing framework for
     implementing MVDDS in the 12 GHz band.[^351] Northpoint, the only
     entity to comment on this issue, maintains that all pertinent
     application, licensing and processing rules are already in place
     for MVDDS, and that the Commission needs only to grant its waiver
     petition to permit what is currently prohibited: point‑to‑point
     video broadcasts in the Fixed Wireless allocation.[^352]

154. [Discussion]{.underline}. As indicated in further detail herein, we
     believe that a rule making proceeding is the proper forum to
     address spectrum management decisions for the 12 GHz band.[^353]
     Hence, in this *Second R&O*, we are providing a licensing framework
     for MVDDS that we believe will promote competition in the
     multichannel video programming and broadband data markets and thus
     best serve the public interest.

#### Frequency Availability and Regulatory Status

155. [Background]{.underline}. Currently, the Frequency Availability
     Table (Table) in Section 101.101 of our Rules designates the POFS
     and the DBS as available services in the 12 GHz band.[^354] With
     the assignment of MVDDS to the 12 GHz band, the Commission sought
     comment on whether to modify the Table to designate MVDDS as an
     additional radio service in the 12 GHz band.[^355] Similarly, the
     Commission invited comment on whether to amend the frequency
     assignments in Section 101.147 of our Rules to designate MVDDS as
     an additional radio service in the 12 GHz band.[^356] In the *First
     R&O*, the Commission explained that MVDDS can operate in this band
     under the existing primary allocation, but also established that we
     would maintain that fixed operations would be on a non‑harmful
     interference basis to DBS.[^357]

156. In the *Further Notice*, the Commission also requested comment on
     whether to permit an MVDDS licensee to use the 12 GHz band for
     distribution of video programming and data services.[^358] The
     Commission did not envision MVDDS as a common carrier
     service,[^359] nor did the Commission envision that MVDDS licensees
     will provide switched voice and/or data services.[^360] However,
     the Commission noted that local cable companies and DBS operators
     provide their services on a non‑common carrier basis.[^361]
     Therefore, the Commission sought comment on whether to limit the
     scope of MVDDS operations to the provision of service on a
     non‑common carrier basis.

157. [Discussion]{.underline}. Pegasus, the only entity commenting on
     the issues of frequency availability and regulatory status,
     supports the Commission's proposal to amend its Frequency Table and
     Part 101 of its rules and agreed with the Commission's initial
     proposal to provide service on a non‑common carrier basis.[^362] We
     will amend the Table and the frequency assignments in Part 101 to
     designate MVDDS as an available service in the 12 GHz band.[^363]
     We note that existing point‑to‑point users are located in this
     portion of the allocation table. Although the Commission determined
     that MVDDS services can be provided on a non‑common carrier
     basis,[^364] after further consideration, we do not believe
     elimination or prohibition of common carrier use of this spectrum
     is in the public interest. We believe that permitting MVDDS
     licensees to provide service on a common carrier basis is
     consistent with our objective of fostering flexibility in wireless
     services where feasible.[^365] For example, if an entity provides
     two‑way service utilizing a switched network return path, the
     entity would not be classified as a common carrier service.
     However, if both the send and receive paths are connected to the
     public switched network, the service offered could be construed as
     a common carrier service. In this regard, we believe that providing
     MVDDS applicants with the option of choosing either common carrier
     and/or non‑common carrier status will provide maximum flexibility
     and restrict unnecessary regulatory burden for this service.[^366]

158. An MVDDS licensee will be considered a common carrier if the
     licensee is providing voice and data services through the public
     switched telephone network. To the extent that an applicant chooses
     to use MVDDS spectrum to provide common‑carrier service, compliance
     with the requirements of Title II of the Communications Act, in
     addition to all applicable Commission Rules is warranted.[^367] In
     addition, we will require MVDDS licensees to notify the Commission
     within thirty days of a change in the service(s) offered if such
     change would result in a change to its regulatory status.[^368]
     Therefore, we will amend Sections 101.101[^369] and
     101.147(p)[^370] of our Rules to reflect that both common carrier
     and/or non‑common carrier uses are permitted in this band.

#### License Eligibility 

159. [Background]{.underline}. In the *Further Notice*, the Commission
     outlined the source of our authority to regulate eligibility for
     MVDDS licenses. Specifically, the Commission explained that Section
     309(j) of the Act, acknowledged our authority "to \[specify\]
     eligibility and other characteristics of such licenses" and directs
     that we exercise that authority so as to "promot\[e\] ... economic
     opportunity and competition ... by avoiding excessive concentration
     of licenses and by disseminating licenses among a wide variety of
     applicants."[^371] As the *Further Notice* indicates, in assessing
     the need to restrict the opportunity of any class of service
     provider to obtain and use spectrum to provide communications
     services, we must determine whether the restriction is necessary to
     ensure that consumers receive high‑quality communications at
     reasonable prices.[^372] Toward this end, the Commission created a
     standard for determining whether an eligibility restriction is
     warranted. The Commission will impose a restriction if open
     eligibility raises a significant likelihood of substantial harm to
     competition in specific markets and if the restriction will be
     effective in eliminating such harm.[^373] The Commission stated
     that this test would be appropriate for assessing eligibility
     requirements for MVDDS, and it sought comment on whether there is a
     significant likelihood that incumbent cable operators and DBS firms
     may substantially harm competition by acquiring MVDDS
     licenses.[^374]

160. Based on a preliminary analysis, the Commission determined that
     incumbent local cable operators and existing DBS service providers
     may have both the ability and incentive to acquire MVDDS licenses
     in order to anti‑competitively foreclose entry by a new MVPD
     competitor.[^375] The Commission invited comment on its initial
     analysis. Additionally, the Commission requested comment on whether
     to restrict cable service operators from acquiring an attributable
     interest in an MVPD provider within their franchised cable service
     area, unless such area has been found by the Commission to be
     characterized by effective competition.[^376] The Commission also
     sought comment on whether to restrict DBS carriers or distributors
     from obtaining or investing in an MVDDS license.[^377]

161. [Discussion.]{.underline} Upon review of the record, we find that
     the issue of whether to impose an eligibility restriction in this
     instance is multifaceted and warrants careful consideration of the
     perspectives of all affected parties. On the one hand, most MVPD
     markets are highly concentrated and many exhibit only limited
     competition.[^378] Cable operators hold a dominant market share in
     most MVPD markets, serving approximately seventy‑seven percent of
     the MVPD households nationwide.[^379] In addition, there is little
     prospect of competitive entry other than via MVDDS in the
     foreseeable future. Thus, it is reasonable to argue that the
     dominant incumbent operators may have an incentive to
     anti‑competitively acquire MVDDS licenses in the areas of their
     current operations in order to foreclose competition from MVDDS
     licensees. Several commenters have argued that utilizing
     eligibility restrictions to prohibit certain incumbent cable
     operators from obtaining MVDDS licenses is in the public
     interest.[^380] In contrast, no commenters have argued that smaller
     incumbent MVPD providers, using other technologies, would have the
     incentive and ability to acquire MVDDS licenses anti‑competitively,
     and there appears no reason to exclude these entities from
     acquiring MVDDS licenses. Finally, it also appears that the
     imposition of an eligibility restriction here would be an effective
     remedy for the harms identified (*i.e.*, potential anti‑competitive
     behavior)[^381] by preventing those harms without introducing other
     problems. We believe workable attribution rules and geographic
     overlap rules can be specified, as they were in the case of the
     LMDS eligibility restriction. On the other hand, there are
     reasonable arguments that the acquisition of MVDDS licenses by
     in‑region[^382] cable operators or the current DBS providers[^383]
     would be efficient and pro‑competitive, and thus that open
     eligibility for MVDDS licenses should be maintained. The current
     DBS providers may find acquiring MVDDS licenses attractive for
     several reasons.[^384] First, DBS providers have limited capacity
     relative to the demand for provision of local television channels,
     and thus they could use MVDDS spectrum to develop complementary
     non‑interfering terrestrial operations.[^385] MVDDS may provide a
     data path for DBS that will enhance capacity. Second, combined
     satellite‑terrestrial operations could make the DBS providers
     stronger competitors to cable, and thus enhance competition in MVPD
     markets. Third, allowing DBS providers to acquire MVDDS licenses
     essentially would allow DBS providers to provide MVDDS service in
     the way that best responds to the interference concerns of DBS.

162. Likewise, for several reasons, in‑region cable operators may find
     acquiring MVDDS licenses appealing although dominant cable
     operators will be barred from acquiring an attributable interest in
     an MVDDS license for a service area where significant overlap is
     present. First, exclusion from acquiring in‑region MVDDS licenses
     would prevent them from using MVDDS to serve customers they are
     presently unable to serve economically in their current franchise
     areas. Exclusion would also prevent them from increasing MVPD
     competition by using MVDDS to expand into the territories of other
     cable operators. Second, a cable restriction might also deny
     operators the opportunity to efficiently provide non‑cable
     services, such as broadband video and data services, either within
     its own or neighboring service areas.[^386] Finally, an eligibility
     restriction could have the effect of excluding incumbent companies
     that are developing innovative technologies for the band.
     Precluding such innovation could ultimately harm the public
     interest.[^387]

163. In balancing these arguments, and in particular, weighing the
     probabilities of the various motives the dominant, in‑region MVPDs
     may have for acquiring MVDDS licenses, we conclude that open
     eligibility for DBS service providers and distributors will not
     result in substantial competitive harm. The fact that DBS
     acquisition of MVDDS licenses could provide important public
     benefits lends support to our determination that DBS does not
     satisfy the criteria set forth in the "substantial harm" test, and
     that its exclusion is not warranted. These benefits include in
     particular the possibility that DBS service providers may use MVDDS
     as a complementary terrestrial application capable of providing the
     extra capacity to accommodate demand for local television channels.
     As noted previously, MVDDS networks should not be utilized by DBS
     providers as a means of avoiding their carry‑one‑carry all
     responsibilities.[^388]

164. Conversely, we find that open eligibility for in‑region cable
     operators poses a significant likelihood of substantial competitive
     harm. With their large current market shares, cable operators have
     a strong incentive to prevent entry by new MVPD providers.[^389] In
     making this determination, we are influenced by the strong interest
     of applicants to primarily use MVDDS to distribute local television
     programming. Hence, we deem a restriction premised on harm in the
     MVPD market is appropriate. In addition, we have given considerable
     weight to the fact that MVPD markets are characterized by a limited
     number of current providers and a small likelihood of increased
     competition. Prospects for entry in the form of cable over‑building
     or other types of MVPD service appear unlikely. Moreover, we
     believe a fourth provider in the MVPD marketplace would provide
     significant public interest benefits through lower prices, improved
     service quality and increased innovation.[^390] In this regard, we
     view implementation of this restriction as consistent with our
     continuous policy efforts to stimulate competition in the
     telecommunications industry.[^391]

165. Because cable operators' service areas will typically be smaller
     than CEAs and because cable service areas often cross CEA
     boundaries, operators will sometimes be partly in‑region and partly
     out‑of‑region. In addition, even if entirely in‑region, operators'
     service areas may cover only a limited part of a CEA. We will
     impose the cable eligibility restriction only when there is a
     "significant overlap" of an operator's service area and an MVDDS
     license area. Thus, we adopt a definition for significant overlap
     intended to identify only those cable operators whose overlap would
     create a strong incentive for them to acquire MVDDS licenses for
     the purpose of foreclosing entry and protecting current market
     position. Specifically, cable operators whose subscribers make up
     at least thirty‑five percent of the MVPD households will be
     precluded from obtaining an attributable interest[^392] in an MVDDS
     license for that CEA.

166. The *Horizontal Merger Guidelines* identify thirty‑five percent as
     the critical market share above which "merged firms may find it
     profitable to raise price and reduce joint output" when competitors
     are distinguished primarily by their capacities.[^393] Although
     MVDDS operators are distinguished by factors other than capacity,
     the logic that underlies the thirty‑five percent threshold is
     germane here. With a sufficiently large share (*i.e*., thirty‑five
     percent or more) of the relevant market, a firm will have
     pronounced incentive to ensure that the price for its service is
     not reduced, since any price reduction will apply to a large
     customer base. One strategy a cable operator with a large market
     share might pursue to prevent price declines is to preclude entry
     by a new MVDDS operator via acquiring the license it requires to
     operate. When it has a large market share, a cable firm may find
     this strategy to be profitable even though some of the benefits of
     the strategy accrue to rival firms. Such undesirable preclusion of
     entry can be eliminated by restricting the eligibility of cable
     operators to those whose subscribers constitute fewer than
     thirty‑five percent of the MVPD households in the MVDDS license
     area.

167. Previously, when establishing rules limiting cellular incumbents'
     eligibility to acquire the soon‑to‑be auctioned broadband PCS
     licenses, the Commission concluded that an overlap of ten percent
     or more should be considered significant. We found that "an overlap
     of less than ten percent of the population is sufficiently small
     and that the potential for exercise of undue market power by the
     cellular operator is slight."[^394] Subsequently, we reaffirmed the
     choice of a ten percent threshold as appropriate for the closely
     related CMRS Spectrum Cap.[^395] For purposes of the MVDDS
     restriction, however, we believe that a ten percent overlap
     threshold is too low. While cellular and PCS licenses are very
     close substitutes that can provide similar types of telephony
     services, it seems premature to try to assess the extent to which
     MVDDS will be a good substitute for existing cable service. Thus,
     incumbent cable operators may be less likely to behave
     anti‑competitively in acquiring the new licenses because their
     service and technology are not as easily interchangeable with that
     of MVDDS. Whereas a ten percent overlap may not give rise to strong
     anticompetitive incentives to acquire MVDDS licenses, substantially
     higher overlaps are likely to do so. For the reasons identified
     above, we believe those cable operators with overlapping service
     areas by a percentage slightly greater than ten percent are likely
     to have limited anti‑competitive incentive to acquire MVDDS
     licenses. A more substantial overlap seems necessary to give rise
     to a serious threat of anti‑competitive behavior. For the reasons
     identified above, we believe that thirty‑five percent (overlap) is
     an appropriate threshold for determining the applicability of the
     cable eligibility restriction for MVDDS.[^396]

168. We conclude that a cable operator whose current subscribers make up
     fewer than thirty‑five percent of the MVPD households in an MVDDS
     license area is unlikely to attempt to acquire MVDDS licenses for
     anticompetitive purposes. Since their potential for anticompetitive
     abuse is limited, such firms should not be subject to the
     eligibility restriction.

169. Our examination of the MVPD marketplace, and our evaluation of the
     record in this proceeding, leads us to conclude that reasonable
     attribution rules, tailored to minimize any intrusive consequences
     with regard to the operations of MVDDS licensees, will serve as an
     important factor in promoting competition. In the absence of such
     attribution rules, there is a risk that our efforts to foster a
     competitive marketplace will be undermined. In order to ensure that
     the MVPD marketplace is competitive, thus fostering economic
     growth, and promoting a variety of service providers, we believe
     that attribution rules are necessary.

170. Accordingly, concurrently with the adoption of a thirty-five
     percent eligibility restriction, we are establishing a twenty
     percent attribution threshold for MVDDS licensees. We have
     previously found that this percentage is appropriate in a number of
     markets when the policy concern was, as here, introducing new
     competition via auction of new spectrum licenses. In the case of
     the *LMDS Second Report and Order* and the *CMRS Spectrum Cap
     Order*, we adopted a twenty percent attribution threshold for a
     number of reasons. Specifically, we found that given the changing
     technology, increased flexibility will enable providers to adapt
     their services to meet customer demand.[^397] Additionally, we
     believe that a twenty percent threshold will encourage capital
     investment.[^398] Consequently, controlling interests are
     attributable.[^399] Non-controlling ownership interests of twenty
     percent or more, including general and limited partnership
     interests, voting and non-voting stock interests, or any other
     equity interest, also are attributable.[^400] Officers and
     directors are attributed with their company\'s holdings, as are
     persons who manage certain operations of licensees, and licensees
     that enter into certain joint marketing arrangements with other
     licensees.[^401] Debt does not constitute an attributable interest
     for purposes of the spectrum cap, and securities conferring
     potential future equity interests (such as warrants, options, or
     convertible debentures) are not considered attributable until they
     are converted or exercised.[^402]

#### Foreign Ownership Restrictions

171. [Background]{.underline}. Sections 310(a) and 310(b) of the
     Communications Act contain certain foreign ownership and
     citizenship provisions that may restrict the issuance of licenses
     to certain applicants.[^403] These statutory provisions are
     implemented in Section 101.7 of our Rules.[^404] Specifically,
     Section 101.7(a) prohibits the grant of any license to a foreign
     government or its representative, and Section 101.7(b) prohibits
     the grant of any common carrier license to individuals or entities
     that do not meet the foreign ownership or citizenship provisions
     specified in the rule.[^405] In the *Further Notice*, the
     Commission proposed to apply Section 101.7 of our rules, the
     *Foreign Participation Order* and other relevant Commission
     precedent to MVDDS licenses.[^406] Additionally, the Commission
     proposed to require MVDDS licensees to use the Universal Licensing
     System (ULS) forms and procedures.[^407]

172. [Discussion]{.underline}. Based on our review of the record in this
     proceeding,[^408] we will apply Section 101.7 of our rules, the
     foreign ownership precedent set forth in the *Foreign Participation
     Order* and other relevant Commission foreign ownership
     precedent.[^409] As indicated earlier in this *Second R&O*,[^410]
     we will permit MVDDS licensees to operate on either a common
     carrier or non‑common carrier basis.[^411] Thus, consistent with
     our approach in other services, such as the Multipoint Distribution
     Service (MDS), LMDS and 24 GHz,[^412] we will require the MVDDS
     applicant that seeks to provide non‑common carrier service to
     submit the same information that common carrier applicants submit
     to address the alien ownership restrictions under Section 310(b) of
     the Act. This requirement will enable us to ascertain whether all
     MVDDS applicants are in compliance with the criteria set forth in
     Section 101.7 of our Rules.[^413] Moreover, this requirement will
     minimize the regulatory burdens to which MVDDS licensees will be
     subject and will encourage administrative efficiency. We expect
     that, in many instances, an MVDDS licensee will be able to change
     its regulatory status without filing supplemental information
     concerning foreign ownership.[^414] We further note that we will
     not disqualify an applicant requesting authorization to provide
     non‑common carrier service from obtaining a license solely on the
     basis that its foreign ownership information would disqualify it
     from receiving a common carrier license.

173. Based on the discussion as set forth herein, we will require both
     common carrier and non‑common carrier MVDDS licensees to provide
     the foreign ownership information requested by FCC Forms 601
     and 602. Furthermore, we expect the licensees to inform the
     Commission of any changes in their foreign ownership information.
     Hence, common carrier and non‑common carrier MVDDS licensees will
     be responsible for amending the FCC Form 602 to reflect any changes
     with respect to their foreign ownership status.

#### License Term and Renewal Expectancy

174. [Background]{.underline}. In the *Further Notice*, the Commission
     solicited comment on the license term and renewal expectancy
     requirements for MVDDS.[^415] The Commission indicated that a
     ten‑year authorization is consistent with license terms in other
     wireless services and would offer sufficient time and flexibility
     for licensees to establish systems and deploy services.[^416]
     Additionally, the Commission sought comment on whether to offer
     licensees a renewal expectancy based on a showing that the licensee
     is providing substantial service.[^417] Moreover, the Commission
     proposed to require the application of an MVDDS licensee to include
     certain showings, at a minimum, in order to request a renewal
     expectancy and sought comment as to whether alternate showings may
     serve as a more effective guide to the Commission with respect to
     license renewal.[^418]

175. [Discussion]{.underline}. We believe that ten‑year licenses,
     beginning on the date of the initial authorization grant, would
     allow the flexibility needed to deploy systems in the MVDDS
     service.[^419] In this connection, we will adopt our proposal to
     permit a licensee to receive a renewal expectancy if certain
     buildout criteria are met by the conclusion of the license term.
     Accordingly, upon license renewal, the application of an MVDDS
     licensee must include the following showings, at a minimum, in
     order to claim a renewal expectancy: (1) a coverage map depicting
     the served and unserved areas; (2) a corresponding description of
     current service in terms of geographic coverage and general and/or
     household population served or transmitting antenna sites installed
     in the served areas, including a description of how the licensee
     has complied with the substantial service requirement; and (3)
     copies of any Commission Orders finding the licensee to have
     violated the Communications Act or any Commission rule or policy
     and a list of any pending proceedings that relate to any matter
     described by the requirements for the renewal expectancy.[^420] We
     believe this approach to be in the public interest as it will
     ensure that MVDDS licensees use this spectrum efficiently and
     operate in compliance with our Rules.

176. We are cognizant of Congressional interest in quickly deploying
     local broadcast programming service to unserved and underserved
     areas.[^421] In our effort to devise buildout requirements for
     MVDDS, we must consider Congress's objectives while recognizing the
     challenges that deploying various types of services in the 12 GHz
     band may pose. The spectrum is designated for use by four types of
     users. Although Pegasus supports aggressive buildout requirements,
     it also believes that the service rules should be crafted with an
     eye toward the difficulty of actual deployment of this service --
     with small cell sizes as the norm and difficult zoning
     restrictions.[^422] We agree. Because MVDDS providers will be
     subject to various operating restrictions and will be required to
     engage in extensive coordination efforts with the other 12 GHz band
     users, we believe that a ten‑year buildout requirement is a sound
     approach. Pegasus notes that an initial five‑year buildout
     requirement with a demonstration of service to a significant
     portion of the population or land area of the licensed area is
     reasonable.[^423] However, given the complexity and contention
     surrounding the issues involving band sharing, we conclude that a
     ten‑year buildout is more appropriate for MVDDS. A ten‑year
     buildout period will provide ample time and flexibility for the
     MVDDS licensees to work with other service providers in the 12 GHz
     band as they determine the best method to deploy valuable services
     to the public.

177. Accordingly, we will apply a ten‑year buildout with a demonstration
     of substantial service to MVDDS as the basis for a license renewal
     expectancy. We define substantial service as "a service that is
     sound, favorable, and substantially above a level of mediocre
     service which might minimally warrant renewal."[^424] Due to the
     significant flexibility that this standard affords, we will provide
     a safe harbor example to serve as a guide to licensees in
     satisfying the substantial service requirement. Thus, for an MVDDS
     licensee that chooses to offer point‑to‑multipoint service, a
     demonstration of substantial service would consist of actual
     delivery of service to customers via four separate transmitting
     locations per million population.[^425] We recognize that rural
     areas may experience some difficulty in meeting this safe harbor,
     therefore we provide the following additional factors that we will
     take into consideration in determining whether the substantial
     service standard is satisfied: a) whether the MVDDS licensee is
     offering a specialized or technologically sophisticated service
     that does not require a high level of coverage to be of benefit to
     customers; b) whether the licensee's operations serve niche markets
     or focus on serving populations outside of areas served by other
     licensees and MVPDs, including rural areas or those areas that are
     traditionally deemed unserved and/or underserved; c) whether the
     licensee's operations serve populations with limited access to
     communications services; and d) a demonstration of service to a
     significant portion of the population or land area of the license
     area.[^426] We emphasize that the safe harbor example provided
     herein is not exhaustive and that the substantial service standard
     can be met in other ways. In this connection, we will review the
     showings on a case‑by‑case basis.

#### Partitioning and Disaggregation

178. [Background]{.underline}. In the *Further Notice,* the Commission
     proposed to allow MVDDS operators to partition their geographic
     service areas.[^427] Partitioning is the assignment of geographic
     portions of a license along geopolitical or other boundaries. The
     Commission indicated that partitioning encourages spectrum
     efficiency and will enable additional licensees to respond to
     market demands for services and/or spectrum in unserved and
     underserved areas.[^428] Additionally, the Commission sought
     comment on what additional information it should require parties to
     file in conjunction with the partitioning process.[^429]

179. Although the Commission proposed to permit partitioning, the
     Commission realized that disaggregation[^430] could potentially
     cause complications involving interference.[^431] Thus, the
     Commission proposed to hold all terrestrial parties that could be a
     possible source for interference responsible for rectifying the
     problem should complications arise.[^432] In addition, the
     Commission sought comment on possible market incentives for
     disaggregating spectrum in the 12 GHz band. The Commission also
     sought comment on whether the implementation of alternative
     policies would be more appropriate for this service.[^433]

180. [Discussion]{.underline}. To further ensure protection of DBS from
     MVDDS deployment, we have allotted one 500 megahertz spectrum block
     per service area.[^434] When balancing our concerns regarding
     interference to DBS with our concerns regarding promoting spectrum
     efficiency and deploying service rapidly, we find that this
     regulatory framework will ease protection and coordination between
     MVDDS DBS and NGSO FSS entities. We believe that partitioning
     fosters rapid delivery of service to rural areas and encourages the
     participation of smaller entities at auction, consistent with our
     mandate to ensure that licenses are disseminated among a wide array
     of applicants.[^435] Moreover, smaller entities may form a bidding
     consortium in order to level the playing field at auction, and
     thereafter, partition the license among the consortium members in
     order to form smaller service areas.[^436] Thus, we believe that
     flexible partitioning rules will provide an effective mechanism by
     which smaller or newly formed entities can gain access to the
     broadband wireless market.[^437] Because we believe that the
     flexibility provided by this approach will accommodate license
     transferability and provide a mechanism by which new entrants and
     small businesses are afforded additional opportunities to become
     service providers in the 12 GHz band,[^438] we will adopt our
     proposal. Thus, we will permit MVDDS licensees to partition their
     service areas, but only along county lines, in order to be
     consistent with cable franchise areas which are usually defined by
     county lines.[^439]

181. Most services that are licensed on a geographic area basis are
     governed by service rules that permit flexible partitioning.
     However, in this instance, as discussed previously, three
     ubiquitous services will share the spectrum, in addition to
     existing point‑to‑point facilities that require protection. We are
     concerned that allowing the MVDDS licensees to define partitioned
     services areas in any manner could lead to serious concerns of
     responsibility with respect to adjacent area interference problems,
     and eligibility. Thus, we believe that a more disciplined and
     structured approach towards partitioning is warranted in this case.
     County lines are also very useful in helping to determine the
     eligibility requirements for cable systems because they are usually
     franchised by county, and thus it is more reliable to determine
     which areas they can serve. We believe the public interest is
     served by implementing a simple regulatory structure that uses
     well‑established boundaries.

182. In the event that an MVDDS license is partitioned, any partitionee
     is authorized to hold its license for the remainder of the original
     licensee's license term and a demonstration must be made that the
     applicable construction requirements have been met for the
     partitioned area at the time of renewal. However, we will permit
     participants to a partitioning agreement to negotiate whether one
     party or both will be responsible for compliance with these
     requirements. In addition to being consistent with provisions in
     other services, we conclude that this approach is appropriate
     because it will "ensure that licensees have the flexibility to
     structure their business plans while ensuring that partitioning
     will not be used as a vehicle to circumvent the applicable
     construction requirements."[^440] Thus, parties will have two
     options to satisfy the substantial service construction
     requirement. Under the first option the parties to the partitioning
     agreement would certify that they would each separately satisfy the
     substantial service requirement for their portion of the service
     area.[^441] If either party fails to meet the substantial service
     requirement by the end of the license term, then the non‑performing
     licensee's authorization would be subject to cancellation at the
     end of the initial license term.[^442] Under the second option, the
     original licensee or partitionor certifies that it has met or will
     meet the substantial service requirement for the entire service
     area during the license term. If the original licensee fails to
     make the required showing, then this licensee's authorization will
     be subject to cancellation, but the partitionee's license will not
     be affected by this cancellation.[^443]

183. We consider partitioning to be a form of license assignment that
     will require prior Commission approval, unless the assignment is
     pro‑forma in nature.[^444] Therefore, an MVDDS licensee will be
     required to file a standard application for approval of assignment
     on an FCC Form 603.[^445] We note that if a licensee has negotiated
     a frequency coordination agreement with another licensee, such
     agreement shall remain in effect on all parties regardless of an
     assignment or partitioning arrangement unless a new agreement is
     reached. In effect, the frequency coordination agreement will
     convey with the license. Finally, MVDDS licensees who receive
     bidding credits at auction and subsequently seek to partition their
     geographic area(s) will be subject to the unjust enrichment
     provisions contained in Section 1.2111(e) of our rules.[^446]

184. Although commenters provided alternatives to allow
     disaggregation,[^447] we find the increase in possible interference
     to be too great and decline to permit disaggregation at this time.
     We are also concerned that permitting disaggregation would make it
     difficult to determine which licensee is causing the interference
     problem and therefore which would be responsible for correcting it.
     We are severely limiting the output power of MVDDS transmissions
     solely to enhance the protection of consumer earth station antennas
     which receive faint signals from the DBS satellites. In order to
     minimize the number of transmitting locations in any given area and
     thereby reduce the total number of transmitters, as well as retain
     complete control and understanding of who is responsible for any
     interference that might occur, we sought to keep the entire 500
     megahertz band under the purview of only one licensee per area. For
     example, if we were to allow disaggregation of the spectrum into
     two separate pieces of 250 MHz in an area, we could expect the
     resultant number of transmitters required to serve that same area
     to double, thereby doubling the total potential interfering power.
     Each further disaggregation could give rise to an equal number of
     additional transmitters. We believe that the complexity and
     problems associated with effectively engineering and solving the
     potential interference problems in each zone warrant keeping the
     number of licensees responsible and the number of total
     transmitters low. We find that this approach best comports with our
     overall goal of promoting shared use of the band and protecting DBS
     operations.

#### Reporting Requirement

185. [Background]{.underline}. The Commission can require applicants and
     licensees to submit information in order to assess such factors as
     market trends, competition and interference.[^448] Believing such a
     report would be useful for MVDDS, the Commission proposed to
     require MVDDS licensees to submit such information each year.[^449]

186. [Discussion]{.underline}. Consistent with other MVPDs, we will
     require each MVDDS licensee who is providing MVPD‑type services to
     file with the Commission two copies of a report no later than March
     1 of each year for the preceding calendar year, which must include
     the following: (a) name and address of licensee; (b) station(s)
     call letters and primary geographic service area(s); and (c) the
     following statistical information for the licensee's station (and
     each channel thereof): (i) the total number of separate subscribers
     served during the calendar year; (ii) the total hours of
     transmission service rendered during the calendar year to all
     subscribers; (iii) the total hours of transmission service rendered
     during the calendar year involving the transmission of local
     broadcast signals; and (iv) a list of each period of time during
     the calendar year in which the station rendered no service as
     authorized, if the time period was a consecutive period longer than
     forty‑eight hours.[^450] We believe that the information compiled
     in this report will assist us in analyzing trends and competition
     in the marketplace.

#### Licensing and Coordination of MVDDS Stations 

187. [Background]{.underline}. In the *Further Notice,* the Commission
     explained that universal sharing criteria cannot be developed
     between adjacent licensees because of the decision to allow
     licensees to have flexibility in selecting and deploying equipment.
     Due to the varying MVDDS systems and climate and terrain, the
     Commission proposed to require adjacent licensees to develop their
     own sharing and protection agreements.[^451]

188. [Discussion]{.underline}. We will require adjacent licensees to
     develop their own sharing and protection agreements based on the
     design and architecture of their systems, in order to avoid
     interference occurrences between adjacent service areas.
     Specifically, we will require MVDDS licensees to (1) engineer
     systems to be reasonably compatible with adjacent and co‑channel
     operations in the adjacent areas on all frequencies; and (2)
     cooperate fully and in good faith to resolve whatever potential
     interference and transmission security problems may be present in
     adjacent areas and co‑channel operations. This approach is similar
     to the approach we adopted in the 24 GHz proceeding.[^452]

189. Because harmful interference to co‑channel and adjacent channel
     users in adjacent geographical areas is prohibited, we expect all
     MVDDS licensees to make a good faith effort at resolving
     interference problems prior to notifying the Commission.
     Additionally, we conclude that incumbent public safety POFS
     licensees will retain exclusive rights to their channel(s) within
     the relevant geographical areas. In this connection, we will
     require MVDDS and NGSO FSS licensees to protect public safety POFS
     licensees.[^453] We clarify that if a public safety POFS licensee
     transfers its license(s) to a non‑public safety POFS entity, MVDDS
     licensees will not be required to protect the non‑public safety
     POFS license area. Moreover, we reiterate that effective as of the
     date of the release of this *Second R&O*, we will no longer accept
     any POFS applications for new licenses (including public safety
     POFS), amendments to applications for new licenses, or major
     modifications for the 12 GHz band received on or after the release
     date of this *Second R&O*. All such POFS applications received
     after that date will be returned as unacceptable for filing.

190. We have also determined that MVDDS licensees must protect incumbent
     POFS systems licensed for traditional public safety uses.[^454]
     Accordingly, we will publish a list of existing public safety
     licensees that need to be protected. MVDDS licensees must
     coordinate with these incumbent POFS licensees to avoid harmful
     interference, in accordance with the procedures in Section 101.103
     of our rules.[^455] MVDDS licensees may also protect these
     incumbents by not using the same channel(s), thus giving up a
     relatively small portion of the available 500 megahertz block of
     spectrum.

#### MVDDS and Adjacent CARS/BAS Band Considerations

191. [Background]{.underline}. CARS and BAS facilities operate on a
     primary basis in the upper adjacent 12.7‑13.25 GHz band and
     satellite earth stations operate on a primary basis in the lower
     adjacent band 11.7‑12.2 GHz. In order to ensure that the addition
     of MVDDS does not interfere with these adjacent channel operations,
     the Commission sought comment on necessary coordination and
     interference resolution procedures for MVDDS stations to and from
     CARS and BAS facilities.[^456]

192. [Discussion]{.underline}. Generally, our standard emission
     limitations in Sections 101.111(a)(2)(i) and (a)(2)(iii) were
     developed to suppress out‑of‑band emission levels to protect
     adjacent channel licensees from harmful interference.[^457] We
     recognize, however, that some CARS and BAS operations in the upper
     adjacent band and some satellite earth stations in the lower
     adjacent band may be using equipment that could be affected by the
     operation of new MVDDS terrestrial services in this band --
     especially in the 12.7‑13.25 GHz portion of the band. The satellite
     earth stations would be less affected because they point skyward.
     The CARS and BAS facilities point more horizontal as would MVDDS
     systems would and thus are more of a concern. However, SkyBridge
     has expressed a concern about out of band emissions in the lower
     adjacent band to MVDDS below 12.2 GHz.[^458] Although we understand
     this problem could normally arise when microwave point‑to‑point
     systems use high powers, we believe that one step we have already
     taken will ensure that adjacent band facilities are not adversely
     affected. That step was to limit the isotropic effective radiated
     output power of MVDDS systems to 14 dBm per 24 megahertz. This low
     output power has the secondary effect of automatically limiting the
     out of band emissions to incumbent adjacent band users.
     Consequently, we believe it is unlikely that the MVDDS out‑of band
     signals will be strong enough to cause harmful interference to
     adjacent band operations. We are more concerned that MVDDS
     operations may be the subject of out‑of‑band harmful interference
     from adjacent band operations, particularly in the upper adjacent
     band. An MVDDS licensee will need to consider the adjacent band
     licensees in its system design. We will not require incumbent
     adjacent band licensees to modify their equipment to protect MVDDS
     operations, only that they meet the out‑of‑band emission limits of
     their relevant rule parts.

#### Canadian and Mexican Coordination 

193. [Background]{.underline}. Section 2.301 of our rules requires
     stations using radio frequencies to identify their transmissions
     with a view to eliminating harmful interference and generally
     enforcing applicable radio treaties, conventions, regulations,
     arrangements, and agreements.[^459] At this time, international
     coordination between and among the United States, Mexico and Canada
     concerning the 12 GHz band is not complete. The Commission sought
     comment on interim requirements for terrestrial licenses along
     these borders, and indicated that MVDDS licensees would be subject
     to the provisions of future agreements between and among the
     subject countries.[^460] The Commission also proposed to grant
     conditional licenses to United States MVDDS systems within
     fifty‑six km (thirty‑five miles) of the Canadian and Mexican
     borders, until final international agreements are signed.

194. [Discussion]{.underline}. Northpoint believes that we should issue
     conditional MVDDS licenses within fifty‑six km of the U.S. Border
     with Canada.[^461] However, Telesat Canada (Telesat)[^462] believes
     that we should withhold licensing of MVDDS systems -- conditional
     or otherwise -- within fifty‑six km of the U.S. border with Canada
     and Mexico until there is conclusive evidence that MVDDS
     transmitting antennas will not cause interference with any radio
     frequency systems licensed and operating within these neighboring
     countries. Telesat requests maintaining this "status quo" until the
     United States, Canada, and Mexico have concluded final
     international coordination agreements for services in this
     band.[^463] Although we recognize Telesat's concerns, we agree with
     Pegasus and Northpoint that conditioning these licenses on future
     agreements addressing interference concerns between the affected
     countries[^464] will adequately protect Canadian licensees.

195. Although we received no comments on specific methods or parameters
     for licensing MVDDS systems near the borders, we will rely on our
     existing procedures outlined under Sections 101.147(p) and Sections
     1.928(f)(1) and (2) of our rules until final international
     agreements concerning MVDDS are signed.[^465] Section 101.147(p) of
     our rules states that terrestrial stations in the 12 GHz frequency
     band cannot cause any interference to broadcasting satellite
     stations of other countries operating in accordance with the Region
     2 plan established at the 1983 WARC.[^466] Section 1.928(f) of our
     rules states that transmit antennas can be located as near as five
     miles (eight kilometers) of the border if they point within a
     sector of 160 degrees away from the border, and as near as
     thirty‑five miles (fifty‑six kilometers) of the border if they
     point within a sector of 200 degrees toward the border without
     coordination with Canada.[^467] Our analysis of MVDDS transmitting
     systems indicates that most systems will only provide service up to
     twelve miles (about 19 kilometers). Thus we believe that the
     distances provided in Section 1.928 of our rules will provide the
     necessary interim protection for Canadian receivers. Section 1.928
     of our rules has heretofore only applied to Canada, however we will
     apply this same standard at the United States border with Mexico
     for reasons of parity. Therefore, we will issue conditional
     licenses for MVDDS systems located within thirty‑five miles
     (fifty‑six kilometers) of the Canadian and Mexican borders. These
     systems may not cause interference to receive stations in Canada or
     Mexico, and as such, will be required to operate at the given
     distances from these borders with the appropriate direction of the
     antenna. Consequently, some areas of the country will not be served
     until after we reach agreements with Canada and Mexico.[^468] We
     note that further modification of MVDDS licenses may be necessary
     in order to comply with these future agreements.

### Technical Rules

#### Transmitting Power

196. [Background]{.underline}. In 1999, Northpoint demonstrated that it
     could provide service in the 12 GHz band using an EIRP of 12.5 dBm
     at its test sites in Rosslyn, Virginia and Washington, D.C. With a
     view toward simplifying coordination and reducing potential
     interference, in the *Further Notice*, the Commission proposed to
     limit urban area EIRP to 12.5 dBm, with two exceptions: (1) those
     MVDDS systems with service areas containing mountain ridges that
     are over one kilometer from populated subscriber areas may use
     higher output power, provided that the increase will not cause the
     system to exceed the "unavailability criteria" to be established in
     this proceeding; and (2) those MVDDS systems located on tall
     manmade structures and natural formations that are adjacent to
     bodies of water or other significant and clearly unpopulated areas,
     may use higher output power, provided that the increase will not
     cause the system to exceed the same "unavailability
     criteria."[^469]

197. In the process of establishing an acceptable national standard for
     transmitting power in the band, the Commission determined that the
     appropriate values for the desired carrier signal to the undesired
     interfering signal (C/I) (such as, for example, 25 dB at each DBS
     subscriber unit) and power flux density (an amount not to be
     exceeded at any DBS subscriber unit) fluctuate too much from area
     to area to be used as acceptable standards mainly due to
     differences in rainfall.[^470] Therefore, the Commission sought
     comment on other protection criteria options for determining the
     acceptable amount of yearly increased outage for each DBS
     system.[^471] SRL generally supports the Commission's proposals for
     transmitting power.[^472] In contrast, Northpoint asserts that the
     Commission should not adopt any EIRP limit, claiming that the
     Commission should instead adopt EPFD limits. They claim that their
     recommended EPFD limits to protect DBS also provide sufficient
     protection to NGSO FSS systems.[^473] MDS America espoused a
     different view in which MVDDS EPFD would be determined by C/I
     ratios. Specifically, MDS America proposes that MVDDS be permitted
     to transmit so long as a C/I ratio of 23 dB is maintained in urban
     areas and a C/I of 9 dB or lower is maintained in rural
     areas.[^474] Further, MDS America proposes that, because there
     could be instances where the EPFD limit cannot be met, that a
     compensation mechanism be adopted to compensate providers for
     outages in excess of what the Commission's rules would allow.[^475]
     Finally, we note that the MITRE Report recommended a maximum EIRP
     value of 14 dBm for all MVDDS transmitting systems without
     requiring a study of the impact of rain scatter.[^476]

198. [Discussion]{.underline}. Based on the comments we received, we
     believe that we will be able to ensure adequate protection to DBS
     subscribers by establishing a four‑region EPFD value which should
     limit the outage at DBS subscriber locations due to MVDDS to
     negligible amounts. In addition, we will adopt the power limit of
     14 dBm per 24 megahertz as recommended by MITRE and indirectly
     supported by other commenters who merely requested the Commission
     to keep the EIRP low.[^477] This power limit is a compromise
     between our proposed limit of 12.5 dBm generally and higher power
     allowed under certain circumstances. The 14 dBm limit provides
     MVDDS with higher operating power to address their coverage
     concerns, but eliminates the proposed higher power exceptions to
     ameliorate the concerns of DBS and NGSO FSS entities that higher
     power would increase the size of the interference zone.[^478]
     Furthermore, placing a limit on MVDDS EIRP will ensure that DBS
     entities are not unduly hindered in their ability to acquire
     customers in areas in close proximity to MVDDS transmit facilities.
     Thus, we are not permitting higher powers over areas containing
     mountain ridges or over presently unpopulated regions because the
     higher power may cause too great of an exclusion zone for future
     DBS and NGSO FSS subscribers. We recognize that a higher power
     benefit for MVDDS providers would not offset the potential
     constraints placed on other service subscribers in the 12 GHz band.

#### RF Safety

199. In the *Further Notice*, the Commission proposed to limit power in
     the terrestrial use of the 12 GHz band in urban areas, but did not
     propose to set limits for the excepted areas on tall manmade
     structures and natural formations adjacent to bodies of water or
     unpopulated areas.[^479] The Commission proposed that those
     stations with output powers that equal or exceed 1640 watts EIRP
     would be subject to the environmental evaluation rules for
     radiation hazards, as set forth in Section 1.1307 of our
     rules.[^480] However, in this proceeding we have limited the EIRP
     for MVDDS transmitting systems to 14 dBm per 24 megahertz, which is
     far below 1640 watts, and thus MVDDS transmitting stations will not
     be subject to routine environmental evaluation under Section 1.1307
     of our rules.[^481]

#### Quiet Zone Protection

200. The Commission tentatively concluded in the *Further Notice* to
     require MVDDS operators to comply with the radio quiet zone
     criteria set forth in Section 1.924 of our rules.[^482] As such,
     the Commission proposed that stations authorized by competitive
     bidding must receive approvals from the relevant quiet zone before
     commencing operations.[^483] The requirement to comply with radio
     quiet zone clearances is a long‑standing practice at the Commission
     and the incumbent POFS operators were also required to meet this
     standard. The record supports the Commission's proposal for quiet
     zone protection.[^484] Thus, we will adopt the quiet zone criteria
     set forth in Section 1.924 of our rules for MVDDS.[^485]

#### Antennas

201. [Background]{.underline}. In the *Further Notice*, the Commission
     proposed to require antennas deployed to receive MVDDS services to
     be technically similar to home DBS receive antennas and to have a
     minimum unidirectional gain of 34 dBi.[^486] Additionally, the
     Commission proposed to require MVDDS transmitting antennas to (1)
     meet the marking and lighting requirements under Part 17 of our
     rules[^487] and (2) generally point southward.[^488] The Commission
     also proposed that the terrestrial licensee of each service area
     must take into consideration that the DBS satellite receive
     antennas in the United States generally point southward. In that
     discussion, the Commission explained that in order to minimize
     interference to DBS receive antennas, MVDDS licensees must
     determine for each area of the country the "look angles" of all DBS
     receive antennas to determine appropriate angles for its transmit
     antennas that do not place high concentrations of interfering power
     into DBS receive antennas.[^489] The Commission also proposed to
     require MVDDS licensees to mitigate any interference caused by its
     transmitters into the DBS receive antennas, beyond that which the
     Commission deems to be permissible.[^490]

202. [Discussion]{.underline}. We find that it is better to allow the
     MVDDS provider to design its own system, than to promulgate rules
     limiting design options. The MITRE Report concludes that MVDDS
     antennas do not need to point south.[^491] MITRE confirms the
     observations about backlobe characteristics of DBS receive antennas
     and cautions against transmitting past the edges of the antenna
     into the feed horn.[^492] MITRE suggests that larger receive
     antennas could alleviate this problem.[^493] MITRE also reports
     that look angles for MVDDS other than south, including north,
     create no more interference, but that care must be taken not to
     place the antenna too close to the line of sight between a
     satellite and a DBS receiver.[^494] In fact, based upon the
     findings of the MITRE Report, we believe that the direction of
     MVDDS antennas is not important. Interference protection is what is
     important, and we do not see any reason to limit the general
     pointing direction of MVDDS antennas. Thus, we agree with MDSA that
     we should shift our focus from proposals that transmit antennas
     "generally point southward" and that receive antennas have a
     "minimum unidirectional gain of 34 dBi," to the objective of
     protecting DBS so as not to limit technical innovation and
     competition in technical rules generally, and antenna
     configurations specifically.[^495]

203. We also believe that the requirement to keep the EIRP low obviates
     the need to specify a minimum receive antenna gain.[^496] As such,
     we are placing the emphasis on allowing MVDDS operators to meet
     certain EPFD limits to protect existing DBS subscribers, instead of
     trying to define and limit their systems. Thus, we are not
     requiring pointing angles for MVDDS, nor are we requiring receive
     antenna standards as originally proposed.

#### Over‑the‑Air Reception Devices (OTARD) Rule

204. [Background]{.underline}. The Over‑the‑Air Reception Devices rule
     preempts governmental and nongovernmental rules that impair
     installation, maintenance or use of certain antennas that receive,
     for example, broadcast television, DBS, and other video programming
     services.[^497] The Commission previously opined that the OTARD
     rule would probably apply to MVDDS antennas at subscribers' homes
     or offices because MVDDS proposed to provide wireless
     services.[^498] The Commission received no comments on this issue.

205. [Discussion]{.underline}. The OTARD rule applies to LMDS, MDS and
     MMDS.[^499] The OTARD rule was recently expanded to apply to
     antennas that transmit or receive non‑video fixed wireless services
     when the antenna is otherwise within the scope of OTARD.[^500] We
     clarify that our OTARD rule under Section 1.4000[^501] includes
     MVDDS customer‑end antennas measuring one meter or less in diameter
     or diagonally that will receive radio signals. It is not necessary
     to amend the OTARD rule to include MVDDS antennas as they already
     fit within the definition in the rule.[^502]

#### Transmitting Equipment

206. [Background]{.underline}. In the *Further Notice*, the Commission
     made a number of proposals with regards to MVDDS transmitting
     equipment. Specifically, the Commission proposed to amend either
     Section 101.139[^503] or Section 21.120[^504] of our rules to
     require verification of all MVDDS transmitters in the 12 GHz
     band.[^505] The Commission also proposed to require MVDDS
     transmitters to use digital modulation, operate with a bandwidth of
     500 megahertz, and provide as many video and data channels as
     possible.[^506] In addition, the Commission proposed to require all
     MVDDS stations to meet the digital emissions mask set forth in
     Section 101.111(a)(2) of our rules.[^507] Further, the Commission
     proposed to retain the frequency tolerance standard of 0.005% in
     Section 101.107 of our rules,[^508] and to change the maximum
     bandwidth in Section 101.109 of our Rules to reflect a value of 500
     megahertz for MVDDS systems.[^509] The Commission also indicated
     that MVDDS transmitters should not be required to meet the
     efficiency standards in Section 101.141 of our rules.[^510]

207. [Discussion]{.underline}. SkyBridge supports requiring all MVDDS
     transmitters to meet the emissions mask set forth in Section
     101.111(a)(2), but opposes expanding the maximum authorized
     bandwidth of fixed microwave service carriers from 20 megahertz to
     500 megahertz.[^511] SkyBridge believes that employing this value
     in the equation will significantly relax the emissions mask,
     resulting in no limitation on interference levels as far as 250
     megahertz below 12.2 GHz (*i.e.* 11.95 GHz). SkyBridge believes
     that this situation can be remedied by expanding the maximum
     authorized bandwidth to no more than 24 megahertz, the bandwidth
     cited by Northpoint for its system.[^512] SkyBridge proposes an
     out‑of‑band requirement for MVDDS systems in accordance with the
     emissions mask applicable to CARS systems in the Ku‑Band,[^513] but
     believes that the Commission's proposal to apply the tighter
     emissions mask contained in Section 101.111 of our rules[^514] will
     serve the same purpose, so long as the maximum authorized bandwidth
     is expanded to no more than 24 megahertz.[^515] SkyBridge contends
     that if the Commission adopts its proposal, an EPFD limit on MVDDS
     out‑of‑band emissions would not be necessary.[^516]

208. We believe terrestrial licensees will, by necessity, utilize the
     most efficient technology available in conjunction with their
     business plans. We also agree with SkyBridge that the emissions
     mask for MVDDS will be more suitable with 24 megahertz for the
     value for B in the equation in Section 101.111 of our Rules.[^517]
     Accordingly, we will change the value of B to 24 megahertz in the
     equation for determining the emissions mask as set forth in Section
     101.111(a)(2) of our rules.[^518] We believe that optimum
     efficiency will be achieved in the use of spectrum by MVDDS
     licensees. Thus, we do not believe we should require MVDDS
     transmitters to meet the efficiency standards in Section 101.141 of
     our rules.[^519] This action is consistent with the Commission's
     approach in other Part 101 services.[^520]

209. We received no other comments on technical parameters including the
     limit on digital emissions. Therefore, where we have not adopted
     specific rules herein, we will require MVDDS licensees to conform
     to existing standards in Part 101. MVDDS licensees will also be
     required to adhere to any additional requirements specified in this
     *Second Report and Order*, including the requirement to operate
     with digital emissions and to meet the digital emission mask.

### Pending Applications 

210. [Background]{.underline}. As previously discussed, on January 8,
     1999, April 18, 2000 and August 25, 2000, Northpoint, Pegasus and
     SRL, respectively, filed applications and waiver requests for
     terrestrial use of the 12 GHz band with the Commission.[^521] In
     the *Further Notice,* the Commission sought comment on the
     disposition of Northpoint's waiver request and application.[^522]
     Specifically, the Commission asked (a) whether the *Ku‑Band Cut‑Off
     Notice*[^523] and the November 24, 1998 *NPRM*[^524] gave adequate
     notice to all parties interested in filing applications for
     terrestrial use of the 12 GHz band, (b) whether Northpoint's
     applications should be accepted for filing, and (c) whether
     Northpoint's applications are mutually exclusive with the
     applications submitted by Pegasus and SRL.[^525] Subsequent to the
     release of the *First R&O and Further Notice,* Congress passed a
     law on December 21, 2000, requiring the Commission to provide for
     independent testing of "any terrestrial service technology proposed
     by any entity that has filed an application to provide terrestrial
     service" in the 12 GHz band.[^526]

211. [Application Analysis]{.underline}. The standard for determining
     adequate notice is whether the *Ku‑Band Cut‑Off Notice* was
     "reasonably comprehensible to people of good faith."[^527] That is,
     would a fair reading of the subject *Notice* have put the reader on
     notice that the Commission had in fact established dates certain
     for filing terrestrial applications for use of the 12 GHz band?
     Northpoint and others argue that the *Notice* provided adequate
     notice.[^528] First, according to these commenters, the *Ku‑Band
     Cut‑Off Notice* provided notice to all interested 12 GHz
     applicants, by establishing a licensing window for the
     10.7‑12.7 GHz band.[^529] Second, these commenters argue that the
     *November 24, 1998 NPRM* established that the rulemaking would
     address Northpoint's Petition for Rulemaking for terrestrial
     service sharing.[^530] Thus, these commenters, along with NITI and
     Paxson contend that the Commission should dismiss all other pending
     applications as late‑filed and complete the processing of
     Northpoint's application in accordance with the Commission's
     satellite licensing procedures.[^531]

212. EchoStar, SkyTower, AT&T, DirectTV, SBCA, MDS America and Boeing
     argue that the *Ku‑Band Cut‑Off Notice* did not provide adequate
     notice to terrestrial applicants interested in the proceeding.
     These commenters explain that the subject *Notice* merely
     established the cut‑off date for additional NGSO FSS systems and
     was silent with regard to terrestrial use of the Ku‑band.[^532]
     Accordingly, these commenters argue that notice to terrestrial
     services was not "reasonably comprehensible to people of good
     faith" and may not be made by implication, as court cases have
     pointed out.[^533]

213. We agree and find that the *Ku‑Band Cut‑Off Notice* did not provide
     adequate notice for all interested terrestrial entities to file
     applications for licenses in the subject band. The *Notice* was
     completely silent with regard to terrestrial use of the Ku‑band.
     The *Notice* specifically "establishes the cut‑off date for
     additional NGSO FSS systems seeking to operate" in those
     frequencies. Moreover, the *Notice* twice specifically invites
     entities wishing to implement NGSO FSS systems and those wishing to
     file competing NGSO FSS applications to do so before rules for NGSO
     FSS systems were set in place in these bands.[^534] To receive
     consideration concurrently with SkyBridge's applications, requests
     were to take one of three forms (with accompanying fees): (a)
     application for a space station license; (b) application for an
     earth station license that will communicate with a non‑licensed
     satellite; or (c) letter of intent to use a non‑United States
     licensed satellite to provide service in the United States.[^535]
     Clearly, the International Bureau did not request applications from
     entities seeking to provide terrestrial service irrespective of the
     notice on allocation in the band. Simply because Northpoint
     participated in a rulemaking that was generally considering the
     allocation of spectrum involving the 12 GHz band, does not provide
     a reasonable basis to believe the Commission was inviting
     applications for terrestrial service in the 12 GHz band through a
     satellite cut‑off public notice.

214. We find that notice to file applications for terrestrial services
     was not "reasonably comprehensible" to interested parties and may
     not be made by implication.[^536] Moreover, if the Commission
     imposes cut‑off dates by implication, then every service interested
     in spectrum subject to a cut‑off notice would be required to file
     by the deadline (notwithstanding the service that is the subject of
     the cut‑off notice) or risk exclusion from an application
     processing round. Such a result would unnecessarily result in
     expanding the scope of cut‑off notices, delays, and additional
     burdens on applicants and the Commission. Thus, Northpoint's
     application for terrestrial service in the band was not properly
     filed and is dismissed without prejudice to refile in a subsequent
     window for terrestrial applications. In that we find that the
     *Ku‑Band Cut‑Off Notice* did not provide adequate notice to all
     interested terrestrial entities interested in filing applications
     for licenses in the 12 GHz band, we also dismiss without prejudice
     the applications filed by Pegasus and SRL for terrestrial use of
     the 12 GHz band as prematurely filed. We establish this new service
     and will provide adequate notice to allow MVDDS applicants to apply
     to provide this service. In light of our finding that adequate
     notice did not exist, these entities may reapply under the new
     licensing rules established in this proceeding. We believe this
     action will maximize the public interest by promoting fair and
     efficient licensing practices.

215. [Waivers]{.underline}. For the reasons provided below, granting of
     the waivers filed to date for terrestrial service in the
     12.2‑12.7 GHz band is not warranted here. Northpoint seeks a waiver
     of Sections 101.105, 101.107, 101.109, 101.111, 101.115, 101.139,
     101.603 and any other Commission rules that otherwise would
     preclude processing of its applications.[^537] Northpoint may
     obtain a waiver of our rules by demonstrating that (i) the
     underlying purpose of the rule(s) would not be served or would be
     frustrated by application to the instant case, and that a grant of
     the requested waiver would be in the public interest; or (ii) in
     view of unique or unusual factual circumstances of the instant
     case, application of the rule(s) would be inequitable, unduly
     burdensome, or contrary to the public interest, or the applicant
     has no reasonable alternative.[^538]

216. Northpoint asserts that the technical rules[^539] of which it seeks
     a waiver are designed to govern typical two‑way, private or common
     carrier point‑to‑point microwave systems.[^540] Further, Northpoint
     asserts that the underlying purpose of these rules is to "prevent
     harmful interference from occurring among the services operating
     under Part 101."[^541] Northpoint argues that its proposed service
     can reuse the 12 GHz band to deliver local television programming,
     without causing harmful interference to the other services in the
     band.[^542] We find that the information submitted in Northpoint's
     initial waiver request is insufficient to support such relief. We
     agree that, under certain parameters, terrestrial entities can
     reuse the 12 GHz band to deliver local television programming,
     without causing harmful interference to other services in the band.
     However, those parameters are not readily apparent without detailed
     analysis. Northpoint's sweeping request for waiver of our technical
     rules assumes that insertion of its system into the 12.2‑12.7 GHz
     band will be without technical concerns. We disagree because we do
     not believe that a waiver of our rules would resolve all of the
     sharing issues involved in introducing such a new service into the
     band.

217. Based upon engineering data[^543] assembled through independent
     testing, comments in the record, and our independent analysis, we
     believe that without licensing and service rules establishing
     explicit parameters for the operation of this new service, harmful
     interference could result to the primary users and public safety
     spectrum operations. We have no Part 101 technical rules for the
     12 GHz band that are designed to ensure that systems deploying such
     a service operate efficiently and without interference to other
     12.2‑12.7 GHz band systems. Additionally, we believe Northpoint's
     request to use the 12 GHz band for point‑to‑multipoint
     unidirectional operations is a request for re‑licensing of the
     spectrum. In similar situations,[^544] when our rules did not
     permit the type of use of the frequencies that the requester
     sought, the Commission resolved the policy concerns in a
     rulemaking. We believe that authorizing point‑to‑multipoint
     omnidirectional operations is a complex undertaking best
     accomplished as a result of a rulemaking whereby there is ample
     opportunity to develop the record, and not an ad hoc waiver
     proceeding.[^545]

218. Moreover, we believe that a rulemaking proceeding is generally, a
     better, fairer and more effective method of implementing a new
     industry‑wide policy than is the ad hoc and potentially uneven
     application of conditions in isolated, proceedings affecting or
     favoring a single party.[^546] We find that establishing service
     rules by waiver may lead to varying and arbitrary differences among
     like licenses and may place an excessive administrative burden on
     the agency. We further believe that supplementing a rulemaking or
     other open proceeding would be a "better, fairer, and more
     effective method" of implementing a new policy than would the
     granting of individual waivers.[^547] We believe issues such as
     these have far‑reaching implications and should be addressed in a
     rulemaking proceeding in the first instance instead of in an
     adjudication or waiver proceeding. The Commission has broad
     discretion in deciding to proceed by rulemaking or
     adjudication.[^548] The rulemaking approach is accorded judicial
     preference when an agency develops new policies.[^549] This
     preference is based on the principle that a rulemaking under the
     Administrative Procedure Act's provisions for notice and broad
     public participation assures fairness, the opportunity to develop
     the record and mature consideration.[^550]

219. We note that Northpoint originally believed that a rulemaking
     proceeding was the best procedure to authorize the 12 GHz band for
     the provision of multichannel distribution of local television
     programs and broadband digital data.[^551] In addition to seeking
     comment on the Petition for Rulemaking via a public notice, the
     Commission incorporated the petition into the *November 24, 1998
     NPRM* for resolution. Accordingly, the Commission exercised its
     broad discretion and instituted a rulemaking proceeding to resolve
     these complex issues. Moreover, by resolving the waiver in this
     proceeding we ensured the development of a full record upon which
     to address the interference issues and address the sharing concerns
     of the relevant services.

220. Northpoint asserts that its proposal is unique because it serves
     "compelling public interests."[^552] Additionally, Northpoint
     maintains that its proposal creates competition to cable and
     promotes spectrum efficiency.[^553] We do not believe that
     Northpoint's proposal to reuse spectrum shared with satellite
     services to transmit signals using terrestrial systems is a unique
     or unusual circumstance such that application of the broadly
     defined rules through a rulemaking proceeding would be inequitable,
     unduly burdensome or contrary to the public interest or leave
     Northpoint with no reasonable alternative. We note that private
     cable operators may reuse spectrum shared with satellite services
     in the 18 GHz band to transmit signals using their terrestrial
     systems.[^554] Additionally, several parties have indicated that
     they have the ability to reuse spectrum in the 12.2‑2.7 GHz band
     and seek the opportunity to do so as well.[^555]

221. By adopting a family of technical, licensing and service rules, we
     are establishing rules for all parties who seek to provide MVDDS.
     Consequently, we believe we are providing an opportunity for
     further competition in the MVPD market, and promoting spectrum
     efficiency by establishing rules to permit this new service that
     will apply to all parties without the risk of harmful interference
     to the existing users of the 12.2‑12.7 GHz band.

222. Northpoint, however, seeks to operate a separate service that has
     no existing technical, operational or service rules through an
     extensive waiver of a variety of rules. In the MVDDS proceeding, we
     have addressed not only the operation of the Northpoint technology,
     but the interference impact and potential with regards to the other
     users of the 12 GHz band---specifically, DBS, NGSO FSS and
     incumbent public safety licensees. Northpoint seeks to be a
     licensee of 500 MHz of spectrum, which would make it a competitor
     to DBS and cable.

223. Finally, we do not believe that Northpoint satisfies the final
     prong of our waiver standard. Specifically, we do not believe that
     the underlying purpose of the technical and licensing rules of
     which Northpoint seeks a waiver could be served, if one were
     granted. Specifically, these technical and licensing rules are
     designed to protect Part 101 licensees, including public safety
     incumbents, from harmful interference. Moreover, DBS licensees must
     be protected from harmful interference caused by any facility
     licensed or authorized to deliver local broadcast television
     signals. As discussed above, there are significant interference
     concerns associated with the decision to permit terrestrial
     entities to reuse the 12 GHz band as proposed by Northpoint. We
     believe that a rulemaking proceeding is a better tool than a waiver
     grant to resolve such concerns and to set technical parameters
     allowing MVDDS to share the spectrum on a co‑primary basis.

224. This approach is also consistent with the *Boeing Two-Way Order*
     and *Boeing Receive-Only Order,* which found that Boeing's requests
     for authority to operate mobile earth stations aboard aircraft
     could be granted by rule waiver, and that a rulemaking proceeding
     was unnecessary because the proposed secondary use of the spectrum
     did not involve any significant technical concerns.[^556] In these
     two orders, the International Bureau and Office of Engineering and
     Technology (OET), acting on delegated authority, waived Section
     2.106 of the Commission's rules, which contains the U.S. Table of
     Frequency Allocations, to allow Boeing to use the 11.7-12.2 GHz and
     14.0-14.5 GHz bands for aeronautical mobile satellite service
     (AMSS) downlinks and uplinks.

225. In these bands, the Table includes a primary allocation for FSS, as
     well as other primary and secondary allocations, but no allocation
     for AMSS.[^557] It is notable that Boeing's request for waiver of
     Section 2.106 was granted as a non-conforming use and subject to
     certain significant restrictions. Thus, Boeing is required to
     accept interference from all authorized primary and secondary
     services in the affected bands and is not permitted to cause
     harmful interference to any such services.[^558] In addition, the
     *Boeing Two-Way Order,* which addressed Boeing's request for the
     authorization of uplinks in the 14.0-14.5 GHz band, granted a joint
     request filed by Lockheed Martin Corporation, Intelsat, and
     PanAmSat to condition Boeing's license on the latter's compliance
     with the ITU Radiocommunication Sector Working Party 4A's draft new
     recommendation regarding AMSS operations in that band.[^559] The
     *Boeing Two-Way Order* also took into account Boeing's various
     measures to protect other services (*e.g.,* a coordination
     agreement with the National Science Foundation to ensure the
     protection of radio astronomy stations).[^560]

226. Given these measures, the fact that all parties to the proceeding
     had reached consensus on the appropriate measures to protect
     primary FSS operations, and the fact that other operators had been
     authorized to provide secondary or non-conforming services in the
     frequencies at issue without any adverse effects or complaints, the
     International Bureau and OET appropriately concluded in the *Boeing
     Two-Way Order* that there were no outstanding technical issues and
     that a rulemaking proceeding was unnecessary.[^561] As the
     International Bureau and OET noted, the Commission has granted
     waivers in the past "when there is little potential for
     interference into any service authorized under the Table of
     Frequency Allocations and when the non-conforming operator accepts
     any interference from authorized users."[^562] We note also that in
     the *Boeing Receive-Only Order* the Bureau and OET found that a
     waiver of 47 C.F.R. § 25.134 was unnecessary to authorize Boeing's
     downlink operations because these operations would be consistent
     with the policies underlying the rule.[^563]

227. The circumstances presented in the Boeing case and the situation
     presented here are very different. Boeing was licensed to use
     leased transponder capacity on existing satellites operating within
     applicable coordination agreements,[^564] whereas Northpoint seeks
     to establish a new service for which there are no applicable rules.
     In the Boeing case there was agreement among all interested parties
     as to the conditions under which Boeing must operate and thus there
     were no unresolved interference issues at the time the waiver was
     granted; here, however, neither DBS operators nor NGSO FSS
     providers have reached an agreement with Northpoint as to the
     technical parameters of its proposed operation. Finally, Boeing
     must accept interference from all authorized users in the bands in
     which it will operate, a condition which will not pertain to MVDDS.
     In light of these important considerations, we reject Northpoint's
     assertion that the *Boeing Two-Way Order* demonstrates that the
     Commission's licensing procedures have been biased against
     Northpoint and in favor of satellite operators.[^565]

228. As noted above, the Commission must ensure that public safety
     incumbents and DBS operators do not receive harmful interference
     from this new service. Thus, the Commission must ensure that its
     decision is supported by information and data in the record. Such
     record support was best attained through the rulemaking process.
     Accordingly, we believe that exercising our discretion to implement
     this new service through a rulemaking proceeding was appropriate
     and in the public interest. The filing of waiver requests by
     Northpoint, Pegasus and SRL did not obviate the consideration of
     the issues in our rulemaking proceeding. In light of our
     determination that a waiver is not justified in this situation, we
     will deny the waiver requests as moot. In conjunction with this
     denial, we will dismiss the pending applications of Northpoint,
     Pegasus and SRL.

229. [Independent Testing]{.underline}. As set forth previously,[^566]
     Congress passed a law on December 21, 2000, requiring the
     Commission to provide for independent testing of "any terrestrial
     service technology proposed by any entity that has filed an
     application to provide terrestrial service" in the 12 GHz
     band.[^567] Northpoint contends that it is the only entity that
     satisfied the provisions of the subject legislation by providing
     equipment and technology to MITRE for testing.[^568]

230. Given its focus on interference, the purpose of Section 1012 is to
     require a determination of whether any proposed terrestrial service
     would cause harmful interference to any DBS service. We find that
     Section 1012(a)'s requirement that the Commission provide for
     independent testing of any technology proposed by "any entity that
     has filed an application" covers points in time (present or future)
     when the Commission has before it entities that seek to provide
     terrestrial service in the DBS band. In contrast, Section 1012(b),
     which lays out certain parameters for the testing of technology
     proposed by "any pending application," is limited to applications
     pending as of the enactment of the LOCAL TV Act.

231. Our interpretation is grounded in the internal structure of
     Section 1012. Section 1012(a) covers "any entity that has filed an
     application," while Section 1012(b) provides instruction for
     satisfying "the requirement of subsection (a) for any pending
     application" and sets a timeframe tied to the date of enactment
     within which the testing was to occur. Had Congress intended
     Section 1012(a) to apply only to applications on file with the
     Commission at the time of enactment, it would have used terms such
     as "pending" and "date of enactment," which it did in Section
     1012(b).[^569] Moreover, if the entities covered by Section 1012(a)
     were limited to applications pending at the time of enactment, then
     the inclusion in Section 1012(b) of the phrase "pending
     application" would be superfluous.[^570] As a result, we conclude
     that future applications are subject to Section 1012(a).[^571] We
     also conclude that the specific requirements imposed in Section
     1012(b) do not necessarily apply to the requirement of Section
     1012(a).

232. We note that pursuant to Section 1012(b), the MITRE Corporation
     issued a report embodying the results of a technical demonstration
     and analysis of technology proposed to be used in the DBS band. The
     report concluded, *inter alia*, that while MVDDS "poses a
     significant interference threat to DBS operations in many realistic
     operational situations," it also concludes that "MVDDS/DBS band
     sharing appears feasible if and only if suitable mitigation
     measures are applied."[^572] The Commission subsequently sought
     comment on the MITRE Report and incorporated the report and the
     comments into this rulemaking proceeding.

233. The Commission today creates technical rules based on the valuable
     input provided by the MITRE Report to effectuate the underlying
     purpose of the statute -- to provide assurance that terrestrial
     operations in the DBS band will not disrupt DBS service. MVDDS
     providers thus will be subject to technical rules aimed at
     preventing harmful interference to DBS services.[^573]

234. Prospective application of Section 1012(a) requires an "independent
     technical demonstration" of any "terrestrial service technology"
     proposed by any MVDDS applicant.[^574] Such statutory language
     requires the Commission to determine, as an initial step, when new
     "terrestrial service technology" is proposed. The statute, however,
     does not define the term "technology." The word "technology" could
     refer to an individual company's operations or more generally to a
     set of technical specifications.[^575] In this case, after weighing
     the statutory objectives at issue and the ability of the
     Commission's rules to vindicate Congress' goals here, we conclude
     that the operating parameters for MVDDS licensees, developed
     through the MITRE testing and codified by this Order, define the
     "terrestrial service technology" already tested and deemed capable
     of sharing with direct broadcast satellite service without causing
     harmful interference.[^576]

235. The congressional policy set out in Section 1012 was to ensure that
     terrestrial services operated in the DBS band would not cause
     harmful interference. Our technical rules, adopted in accordance
     with the findings of the MITRE Report, are intended to ensure that
     harmful interference would not occur as a result of MVDDS
     operation. We have adopted EPFD limits and other requirements to
     prevent harmful interference to DBS. These rules ensure that
     terrestrial services would operate below the level at which harmful
     interference as defined by our Part 2 rules would result. As a
     result, we find that the MITRE Report satisfies the independent
     technical demonstration requirement for applicants that seek to
     provide terrestrial service in this band subject to the technical
     rules adopted here. Alternatively, if the Commission were to
     construe Section 1012(a) to require separate testing for each
     individual application whose proposed operations will operate
     within the technical rules adopted here, such a requirement would
     be superfluous given these technical rules. We do not believe
     Congress intended such a result.

236. We clarify that MVDSS applicants are not limited to using
     technology that complies with the operating parameters adopted
     here. However, any entity seeking to employ a terrestrial service
     technology that does not comply with our technical rules must file
     a waiver petition, on which public comment will be sought. As part
     of the waiver process, the entity must submit an independent
     technical demonstration of its equipment and technology. We find
     that this process is in furtherance of the Communications Act and
     consistent with the requirements of the LOCAL TV Act's Section
     1012(a), as discussed above. While we are mindful of the need to
     protect current and future entities from harmful interference
     within the band, we seek to allow flexible use of the spectrum and,
     as such, do not wish to limit current and future technological
     innovations. We find that the independent testing requirement will
     balance these competing interests for terrestrial wireless
     technologies that do not comply with the technical rules.

### Competitive Bidding Procedures

#### Statutory Requirements

237. [Background]{.underline}*.* The Balanced Budget Act of 1997 amended
     Section 309(j) of the Act to require the Commission to award
     mutually exclusive applications for initial licenses or permits
     using competitive bidding procedures, with very limited
     exceptions.[^577] In the *Further Notice,* we stated that if we
     find that it would serve the public interest to implement a
     geographic area licensing scheme, under which mutual exclusivity is
     possible, mutually exclusive applications for initial MVDDS
     licenses must be resolved through competitive bidding.[^578] In so
     doing, the Commission also found that the Open‑Market
     Reorganization for the Betterment of International
     Telecommunications Act (ORBIT Act) does not bar the use of
     competitive bidding to award licenses to provide terrestrial
     services merely because those terrestrial services operate on the
     same frequencies as satellite services.[^579]

238. [Discussion]{.underline}. In light of our decision to adopt a
     geographic area licensing scheme that permits the filing of
     mutually exclusive applications[^580] and consistent with our
     statutory mandate to resolve such applications through the use of
     auctions, any mutually exclusive initial applications for the MVDDS
     service will be resolved by competitive bidding.

239. Northpoint argues that licensing MVDDS through competitive bidding
     would be inappropriate because the Commission may conduct an
     auction only if it accepts "mutually exclusive applications" for
     any "initial license or construction permit."[^581] Northpoint
     argues that the Commission's threshold decision to accept
     applications must be exercised in a manner consistent with 47
     U.S.C. § 309(j)(6)(E), which imposes an obligation to use various
     means in order to avoid mutual exclusivity.[^582] Northpoint states
     that the Commission recently has interpreted its obligation in
     Section 309(j)(6)(E) as an obligation to further the public
     interest goals of Section 309(j)(3).[^583] Northpoint questions
     whether such interpretation is consistent with the plain meaning of
     the statute but maintains that even if the Commission's
     interpretation is correct, under Section 309(j)(3)(A)‑(E) of the
     statute the Commission must avoid accepting applications that would
     be mutually exclusive with Northpoint's because the use of
     Northpoint's technology in this band promotes the public interest
     objectives of Section 309(j)(3).[^584] Certain commenters oppose
     Northpoint's contention, arguing that neither the Communications
     Act nor the public interest requires the Commission to avoid
     accepting mutually exclusive applications as suggested by
     Northpoint. Moreover, these commenters argue that awarding
     Northpoint a single, nationwide license without the use of
     competitive bidding would be tantamount to reestablishing the
     Pioneer's Preference program that Congress expressly
     abolished.[^585]

240. The Commission has previously established a framework for the
     exercise of its auction authority, as amended by the Balanced
     Budget Act of 1997.[^586] In the *BBA Report and Order,* the
     Commission affirmed that it was required to pursue the public
     interest objectives set forth in Section 309(j)(3) of the Act in
     identifying which classes of licenses would be subject to
     competitive bidding.[^587] The *BBA Report and Order* also affirmed
     that, as part of this public interest analysis, the Commission must
     continue to consider alternative procedures that avoid or reduce
     the likelihood of mutual exclusivity.[^588] The Commission
     concluded, however, that its obligation to avoid mutual exclusivity
     does not preclude it from adopting licensing processes that result
     in the filing of mutually exclusive applications where it
     determines that such an approach would serve the public
     interest.[^589]

241. Northpoint nonetheless contends that it is not in the public
     interest to permit the filing of applications for MVDDS that would
     be mutually exclusive with an application filed by Northpoint. We
     disagree. As we discuss above, we believe that a geographic area
     licensing scheme, which permits the filing of mutually exclusive
     applications, promotes the public interest objectives of Section
     309(j)(3) by creating economic opportunities for a number of
     potential service providers and by disseminating licenses among a
     wide variety of applicants. While a geographic area licensing
     scheme promotes efficient licensing and administrative ease, it
     also facilitates the ubiquitous use of services and provides
     licensees with flexibility to quickly adjust and coordinate
     spectrum usage, within their license areas, based on changing
     market conditions.[^590] Assigning MVDDS licenses through
     competitive bidding also promotes efficient and intensive use of
     the spectrum and recovery for the public of a portion of the value
     of this scarce resource. As a general matter, we conclude that
     awarding licenses to the entities that value them most highly
     fosters Congress's policy objectives because those bidders are more
     likely to rapidly introduce new and valuable services and deploy
     those services quickly.[^591] Moreover, because we are providing
     MVDDS licensees with flexibility to use any technology that
     complies with our rules, accepting mutually exclusive applications
     to provide MVDDS service and assigning licenses through competitive
     bidding will result in the most competitive provider being licensed
     and facilitate entry of a viable competitor into the MVPD
     marketplace. Further, we agree with those commenters who argue that
     we do not have statutory authority to award an entity a license for
     a non‑auction‑exempt service without the use of competitive bidding
     solely based on its innovative technology, and such action would be
     inconsistent with Congress's intent in abolishing the Pioneer's
     Preference program.[^592] Rather, consistent with our statutory
     mandate, we will resolve any mutually exclusive initial
     applications for licenses for MVDDS through competitive bidding.

242. We also reject Northpoint's argument that the ORBIT Act bars the
     assignment of licenses for MVDDS in the 12.2‑12.7 GHz band by
     competitive bidding because the terrestrial licenses will be
     operating on the same frequencies as a satellite service.[^593] The
     ORBIT Act restricts the Commission from using competitive bidding
     procedures to award licenses for "spectrum used for the provision
     of international or global satellite communications
     services."[^594] Northpoint contends that the ORBIT Act's ban on
     competitive bidding should attach here because MVDDS will
     ubiquitously share the exact frequencies in the 12.2‑12.7 GHz band
     with NGSO FSS, an international or global satellite service.[^595]
     Northpoint further contends that the recent decision of the U.S.
     Court of Appeals for the D.C. Circuit in *National Public Radio,
     Inc. v. FCC*[^596] supports its reading of the ORBIT Act.[^597]

243. As to Northpoint's first argument, namely, that the ORBIT Act bars
     the assignment of licenses for MVDDS in the 12.2‑12.7 GHz band by
     competitive bidding because the terrestrial licenses will be
     operating on the same frequencies as a satellite service, we note
     that the Commission has previously rejected this argument.[^598]
     All other commenters who addressed this issue agree with the
     Commission's conclusion.[^599]

244. We are not persuaded by Northpoint's argument regarding Section 647
     of the ORBIT Act, especially when the legislative history is taken
     into account. The language of the statutory prohibition, while not
     entirely clear, does appear to focus on whether the particular
     spectrum being "assigned" is "used for" international or global
     satellite communications services. The legislative history makes
     clear that licensing this spectrum for domestic terrestrial
     purposes is not prohibited by Section 647. In particular, the
     legislative history demonstrates that Congress's concern was with
     "... the viability and availability of global and international
     satellite services ..." which could be threatened by concurrent or
     successive spectrum auctions in numerous countries.[^600] Thus, the
     legislative history states that the provision "prevents the
     Commission from using competitive bidding ... to award licenses for
     spectrum or orbital locations used for providing international
     satellite services."[^601] There is no indication that Congress was
     concerned with auctioning spectrum licenses to terrestrial
     licensees or that auctioning licenses for this spectrum to
     licensees who use it solely for terrestrial use would have any
     financial or other impact on any international satellite licensees
     that may share this spectrum. Because of this, we believe that
     Section 647 does not prohibit the auction of spectrum licenses for
     terrestrial uses where the same spectrum may also be used for
     global or international satellite communications purposes by other
     licensees. The spectrum licenses at issue here would be "assigned"
     to licensees and auctioned only for domestic terrestrial use.

245. We further reject the argument that the recent *NPR* case supports
     Northpoint's argument that we may not auction the spectrum at
     issue. Northpoint asserts that the ORBIT Act represents the
     converse of *NPR*, claiming that the ORBIT Act's denial of auction
     authority is based on the part of the spectrum in which the
     applicant seeks to operate, and not on the nature of the applicant
     that ultimately receives the license. In *NPR*, the court
     determined that the statutory prohibition is grounded in "the
     nature of the station" rather than "the part of the spectrum in
     which the station operates."[^602] In this instance, we are dealing
     with a shared spectrum band used both for "international or global
     satellite communications services" and, as envisioned, domestic
     terrestrial services. Because the international or global satellite
     communications service uses, and the domestic terrestrial uses, can
     be assigned separately and share the spectrum, there is no reason
     to read the ORBIT Act to constrain the terrestrial spectrum license
     assignments.

246. Northpoint further argues that it is the sole entity eligible to
     apply for the MVDDS licenses because only Northpoint completed
     equipment testing within the 60‑day timeframe established by
     Section 1012(b) of the LOCAL TV Act.[^603] As discussed in Section
     V.B.4., *supra*, Northpoint misconstrues the LOCAL TV Act. Section
     1012(b) requires that for "any pending application," equipment
     testing be completed "within 60 days after the date of enactment of
     this \[LOCAL TV\] Act."[^604] By its plain language, Section
     1012(b) applies retrospectively. That is, the testing requirement
     applies only to applications "pending" at the time the LOCAL TV Act
     was adopted. Northpoint, moreover, construes Section 1012(b) as a
     cut‑off precluding mutually exclusive applications for MVDDS
     licenses. There is no evidence, however, of such a Congressional
     intent in this case. Indeed, if Congress had intended to establish
     a 60‑day cut‑off for terrestrial wireless applications in the
     12 GHz band, it could have done so explicitly.[^605]

247. Additionally, Northpoint argues that the Commission cannot justify
     an auction for MVDSS -- a terrestrial wireless service -- because
     the agency does not assign all licenses to provide terrestrial
     wireless services through competitive bidding.[^606] Specifically
     Northpoint argues that in the year 2001 alone, 93 percent of
     wireless licenses for both mobile and fixed microwave services were
     assigned without competitive bidding.[^607] We note that the number
     of licenses assigned without competitive bidding is irrelevant to
     the question of whether the Commission should adopt a licensing
     regime (such as geographic area licensing) for a particular service
     that is likely to result in the filing of mutually exclusive
     license applications, which would have to be resolved by auction.
     The Commission has broad discretion to establish licensing rules in
     the public interest.[^608] We have before us a record that suggests
     an interest in utilizing the 12.2‑12.7 GHz band for ubiquitous
     terrestrial service. Northpoint is only one of several parties
     interested in this spectrum. Based on our experience and the
     requested use of this band, a geographic area licensing regime is
     both the most effective and efficient means of deploying licenses
     here.

248. Finally, Northpoint claims that the Commission unjustly
     discriminates in favor of satellite services because the agency has
     adopted mechanisms for assigning satellite licenses that avoid
     mutual exclusivity and, hence, auctions.[^609] We note that the
     Commission has conducted auctions to assign domestic satellite
     licenses in both the Direct Broadcast Satellite Service and the
     Digital Audio Radio Service.[^610] Section 309(j), however,
     requires the Commission to consider procedures that avoid or reduce
     the likelihood of mutually exclusive license applications where
     such procedures serve the public interest,[^611] and pursuant to
     this provision the Commission has concluded that licensing
     mechanisms for international satellite services that avoid mutual
     exclusivity serve the public interest. The Commission has reached
     this conclusion because, *inter alia*, licensing such services
     requires international coordination; the inability of U.S. auctions
     to confer global licenses might prevent market entry by satellite
     providers interested in global service; and coordinated,
     multilateral‑transnational auctions are not feasible.[^612] We also
     note that Congress shared these concerns and stated its
     reservations about assigning licenses for orbit locations and
     international satellite services by competitive bidding when it
     expanded the Commission's auction authority in 1997.[^613] As
     explained above, the ORBIT Act now prevents the Commission from
     assigning licenses for international or global satellite services
     by competitive bidding.[^614] Thus, the differences in the
     Commission's licensing approaches to international satellite and
     terrestrial services have arisen from public interest
     considerations associated with the particular characteristics of
     the services and now are based as well on the different treatment
     of these services by Congress.

#### Incorporation by Reference of the Part 1 Standardized Competitive Bidding Rules

249. [Background]{.underline}*.* In the *Further Notice* we proposed to
     conduct any auction of MVDDS licenses in the 12.2‑12.7 GHz band in
     conformity with the general competitive bidding rules set forth in
     Part 1, Subpart Q, of the Commission\'s Rules, and substantially
     consistent with the bidding procedures that have been employed in
     previous auctions.[^615] Specifically, we proposed to employ the
     Part 1 rules governing competitive bidding design, designated
     entities, application and payment procedures, reporting
     requirements, collusion issues, and unjust enrichment.[^616]

250. [Discussion]{.underline}. We adopt our proposal to auction MVDDS
     licenses in the 12.2‑12.7 GHz band in conformity with the general
     competitive bidding rules set forth in Part 1, Subpart Q, of the
     Commission's Rules. This decision is consistent with our ongoing
     effort to streamline our general competitive bidding rules for all
     auctionable services, increase the efficiency of the competitive
     bidding process, and provide more guidance to auction
     participants.[^617] Moreover, all commenters that addressed the
     issue support the use of the general competitive bidding rules set
     forth in Part 1, Subpart Q, of the Commission's Rules.[^618] Our
     application of the Part 1 rules to MVDDS will include any
     amendments that may be adopted in the ongoing Part 1
     proceeding.[^619]

#### Provisions for Designated Entities 

251. [Background]{.underline}. In the *Further Notice* we proposed small
     business size standards and bidding credits that would afford
     licensees substantial flexibility and that would also be
     appropriate for the provision of services with varying capital
     costs.[^620] Specifically, we proposed to define a very small
     business as an entity with average annual gross revenues not
     exceeding \$3 million for the preceding three years; a small
     business as an entity with average annual gross revenues not
     exceeding \$15 million for the preceding three years; and an
     entrepreneur as an entity with average annual gross revenues not
     exceeding \$40 million for the preceding three years. We further
     proposed to provide very small businesses with a bidding credit of
     35 percent, small businesses with a bidding credit of 25 percent,
     and entrepreneurs with a bidding credit of 15 percent.[^621]

252. [Discussion]{.underline}. We will adopt our proposed three small
     business definitions and three levels of bidding credits. We
     believe that this approach provides a variety of businesses,
     including local businesses, with opportunities to participate in
     the auction of licenses for this spectrum, and will also promote
     opportunities for the provision of services with varying capital
     costs. Moreover, we have not received any opposition to our
     proposed small business definitions or three levels of bidding
     credits. Accordingly, we define a very small business as an entity
     with average annual gross revenues not exceeding \$3 million for
     the preceding three years; a small business as an entity with
     average annual gross revenues not exceeding \$15 million for the
     preceding three years; and an entrepreneur as an entity with
     average annual gross revenues not exceeding \$40 million for the
     preceding three years. We will also adopt our proposed bidding
     credits, which are the same as those set forth in the standardized
     schedule in Part 1 of our rules.[^622] Thus, very small businesses
     will receive a bidding credit of 35 percent, small businesses will
     receive a bidding credit of 25 percent, and entrepreneurs will
     receive a bidding credit of 15 percent.[^623]

#### EchoStar's Proposals 

##### (i) Spectrum Set‑Aside and Special Bidding Credits for DBS Licensees {#i-spectrum-setaside-and-special-bidding-credits-for-dbs-licensees .unnumbered}

253. [Background]{.underline}. EchoStar argues that DBS licensees should
     be exempt from competitive bidding for MVDDS licenses. Pointing out
     that it has already paid for its DBS licenses, by participating in
     an FCC auction and by purchasing a license acquired through an FCC
     auction, EchoStar further contends that allowing terrestrial use of
     the 12.2‑12.7 GHz band by DBS licensees would be consistent with
     the Commission's spectrum flexibility policy.[^624] Thus, EchoStar
     argues that DBS licensees are entitled to use at least a
     significant portion of the 12.2‑12.7 GHz band for terrestrial
     services without having to participate in a terrestrial license
     auction, and that the Commission should set aside no less than
     250 MHz of this spectrum for interested DBS licensees. EchoStar
     further contends that if the Commission accepts mutually exclusive
     applications from other interested parties for terrestrial use of
     the remaining portion of the 12.2‑12.7 GHz band, DBS licensees
     should receive a special bidding credit in the auction of MVDDS
     licenses.[^625] EchoStar claims that such a set‑aside and bidding
     credits are justified because any payment for spectrum to which a
     licensee has already "purchased the rights" would be an
     "overpayment."[^626] Pegasus opposes EchoStar's request.[^627]

254. [Discussion]{.underline}. We decline to adopt a set‑aside of MVDDS
     spectrum or special bidding credits for DBS licensees. DBS licenses
     do not include an authorization to use the 12.2‑12.7 GHz band for
     terrestrial services.[^628] EchoStar in effect argues that it
     should be assigned additional flexibility in its authorization
     because it acquired its DBS licenses through auction. In adopting
     Section 309(j) of the Act, Congress expressly provided that the
     Commission's use of competitive bidding should not be construed to
     limit or otherwise affect its authority to regulate spectrum
     licenses.[^629] Accordingly, the previous assignment of DBS
     licenses through competitive bidding does not limit our authority
     to assign MVDDS licenses through competitive bidding once we
     determine that it will serve the public interest to do so. In
     choosing a license assignment mechanism we are required to consider
     the public interest objectives of Section 309(j). We find that the
     public interest would not be served by providing terrestrial rights
     to existing DBS authorizations solely because DBS licensees
     acquired their existing licenses by auction. Such a licensing
     mechanism would not ensure that the new terrestrial licenses are
     assigned to those that value them the most, which may or may not be
     the current DBS licensees. Further, as discussed above, we have
     determined that assigning licenses for MVDDS spectrum as one single
     block per geographic service area promotes the public interest
     objectives of Section 309(j)(3), an approach that precludes a
     set‑aside of a portion of the spectrum for DBS licensees.[^630]
     Moreover, EchoStar has not shown that either a set‑aside or bidding
     credits for DBS licensees would promote the public interest
     objectives of Section 309(j). With respect to the promotion of
     competition in particular, we note that third parties can share the
     12 GHz band without causing significant harm to existing services
     and that assigning MVDDS licenses only to incumbent DBS licensees
     or granting them special bidding credits would limit the
     opportunity for entry of new competitive service to both cable and
     DBS.[^631]

255. EchoStar also states that the Commission should grant its request
     because it is consistent with the Commission's Spectrum Policy
     Statement supporting flexible use of spectrum.[^632] We note that
     our Spectrum Policy Statement outlines in general terms a series of
     initiatives that the Commission intends to undertake.[^633] This
     Policy Statement does not, by itself, provide a basis upon which to
     increase the spectrum usage rights of a particular licensee. The
     Commission weighs competing policy goals in each rulemaking
     proceeding and, as discussed above, it has not been shown that
     flexibility of the kind EchoStar envisions is in the public
     interest under these circumstances.[^634]

##### (ii) Use of Auction Proceeds to Mitigate Interference {#ii-use-of-auction-proceeds-to-mitigate-interference .unnumbered}

256. [Background]{.underline}. EchoStar suggests that part of the
     auction proceeds for MVDDS should be used to compensate incumbents
     for disruption of their operations. [^635] EchoStar also contends
     that such compensation would be analogous to other Commission
     provisions (*e.g.*, provisions to encourage early clearing of the
     700 MHz band) for payment to incumbents to cover the cost of
     relocating or disrupting their operations.[^636]

257. [Discussion]{.underline}. We decline to adopt EchoStar's
     suggestion. Section 309(j)(8) of the Communications Act requires
     the Commission to deposit all proceeds from a competitive bidding
     system in the United States Treasury, except for expenditures made
     for the purposes of conducting competitive bidding.[^637] In light
     of this statutory requirement, the Commission has no authority to
     use auction proceeds for the purpose of offsetting costs incurred
     by DBS from MVDDS licensees.

##### (iii) Transfer of MVDDS Licenses  {#iii-transfer-of-mvdds-licenses .unnumbered}

258. [Background]{.underline}. EchoStar argues that in order to prevent
     speculative auction participation and unjust enrichment the
     Commission should prohibit any transfer of a license or transfer of
     control of a license until all of the licensee's facilities in all
     of its license areas are fully constructed and operational.[^638]

259. [Discussion]{.underline}. We decline to adopt a prohibition of
     transfer of MVDDS licenses. We believe that our Part 1 rules are
     sufficient to deter speculative auction participation because these
     rules, including rules on procedures and payment issues, bidder and
     licensee qualifications, and penalties in the event of default or
     disqualification, ensure that the competitive bidding process is
     limited to serious, qualified applicants.[^639] Our Part 1 rules
     also provide safeguards, including anti‑collusion and unjust
     enrichment provisions, that will deter possible abuses of the
     bidding and licensing processes.[^640] Moreover, the public
     interest favors giving licensees flexibility to assign, transfer,
     or partition their MVDDS licenses; such flexibility will advance
     the more efficient and innovative use of spectrum.[^641] We also
     believe that partitioning fosters rapid delivery of service to
     rural areas and encourages the participation of smaller entities at
     auction, consistent with our mandate to ensure that licenses are
     disseminated among a wide array of applicants.[^642] Thus, we find
     that it is not necessary to prohibit any transfer of license until
     all of the licensee's facilities are fully operational, and that
     the benefits of allowing transfers outweigh any risk of unjust
     enrichment. We also believe that adopting such a prohibition would
     needlessly penalize licensees that may wish to implement changes to
     their business plans based on subsequent market conditions.

# PROCEDURAL INFORMATION

## Final Regulatory Flexibility Analysis

*Final Regulatory Flexibility Analysis.* The analysis regarding the
*Second Report and Order*, pursuant to the Regulatory Flexibility Act of
1980, 5 U.S.C. § 603, is contained in Appendix E.

## B. Paperwork Reduction Analysis {#b.-paperwork-reduction-analysis .unnumbered}

This *Memorandum Opinion and Order and Second Report and Order* contains
either a new or modified information collection. As part of the
Commission's continuing effort to reduce paperwork burdens, we invite
the general public and the Office of Management and Budget (OMB) to take
this opportunity to comment on revision to the information collections
contained in the *Report and Order* as required by the Paperwork
Reduction Act of 1995.[^643] Public and agency comments are due ***\[60
days after date of publication in the Federal Register\].*** Comments
should address:

-   Whether the proposed collection of information is necessary for the
    proper performance of the functions of the Commission, including
    whether the information shall have practi­cal utility.

-   The accuracy of the Commission's burden estimates.

-   Ways to enhance the quality, utility, and clarity of the information
    collected.

-   Ways to minimize the burden of the collection of information on the
    respondents, in­cluding the use of automated collection techniques or
    other forms of information technology.

260. Written comments by the public on the proposed and/or modified
     information collec­tions are due 60 days after the date of
     publication in the Federal Register. Written comments must be
     submitted by the OMB on the proposed and/or modified information
     collections on or before 120 days after the date of publication in
     the Federal Register. In addition to filing comments with the
     Secretary, a copy of any comments on the information collections
     contained herein should be submitted to Judith B. Herman, Federal
     Communications Commission, Room 1-C804, 445 12th Street, SW,
     Washington, DC 20554, or via the Internet to <jboley@fcc.gov>, and
     to Jeanette Thornton, OMB Desk Officer, Room 10236 New Executive
     Office Building, 725 Seventeenth Street, N. W., Washington, D.C.
     20503, or via the Internet to <JThorto@omb.eop.gov>. For additional
     information concerning the information collection(s) contained in
     this document, contact Judith B. Herman at 202-418-0214, or via the
     Internet at jboley@fcc.gov.

## C. Further Information {#c.-further-information .unnumbered}

261. For further information contact the following: for MVDDS/DBS and
     MVDDS/NGSO FSS sharing issues, Office of Engineering and Technology
     -- Thomas Derenge at (202) 418‑2451, Gary Thayer at (202) 418‑2290
     or Ira Keltz at (202) 418‑0616. For MVDDS service rules, Wireless
     Telecommunications Bureau -- Michael Pollak, Jennifer Burton, or
     Brian Wondrack at (202) 418‑0680, TTY (202) 418‑7233.

262. Alternative formats (computer diskette, large print, audio
     cassette, and Braille) are available to persons with disabilities
     by contacting Brian Millin at (202) 418‑7426, TTY (202) 418‑7365,
     or via e‑mail to bmillin@fcc.gov. This *Memorandum Opinion and
     Order and Second Report and Order* can be downloaded at
     [http://www.fcc.gov](http://www.fcc.gov/Wirless/Orders/2002/fcc0215.txt).

# ORDERING CLAUSES

263. [Authority]{.underline}. Accordingly, IT IS ORDERED that pursuant
     to the authority contained in Sections 4(i), 7(a), 301, 303(c),
     303(f), 303(g), 303(r), 308, and 309(j) of the Communications Act
     of 1934, as amended, 47 U.S.C. §§ 154(i), 157(a), 301, 303(c),
     303(f), 303(g), 303(r), 308, 309(j), this *Memorandum* *Opinion and
     Order and Second Report and Order* IS ADOPTED.

264. IT IS FURTHER ORDERED that, effective as of the date of the release
     of this *Memorandum Opinion and Order and Second Report and Order*,
     revised rules 101.147(p) and (q), 47 C.F.R. § 101.47(p), (q) are in
     effect. This action is taken pursuant to Sections 4(i), 303(c),
     303(f), 303(g), 303(r), and 309(j) of the Communications Act of
     1934, as amended, 47 U.S.C. §§ 154(i), 303(c), 303(f), 303(g),
     303(r) and 309(j).

265. IT IS FURTHER ORDERED that, Parts 25 and 101 of the Commission's
     Rules ARE AMENDED as specified in Appendix D, effective 60 days
     after publication in the Federal Register, except as specified.
     This action is taken pursuant to Sections 4(i), 303(c), 303(f),
     303(g), 303(r), and 309(j) of the Communications Act of 1934, as
     amended, 47 U.S.C. §§ 154(i), 303(c), 303(f), 303(g), 303(r) and
     309(j).

266. IT IS FURTHER ORDERED that pursuant to Sections 4(i), 302, 303(e),
     303(f), 303(g), 303(r) and 405 of the Communications Act of 1934,
     as amended, 47 U.S.C. §§ 154(i), 302, 303(e), 303(f), (303(g),
     303(r) and 405, the petitions for reconsideration filed by
     SkyBridge, DirecTV, Inc., EchoStar Satellite Corporation, Satellite
     Broadcasting and Communications Association, the Boeing Company,
     and SkyTower, Inc. as they relate to our decision to allocate MVDDS
     in the 12 GHz band ARE DENIED.

267. IT IS FURTHER ORDERED that pursuant to Sections 4(i), 302, 303(e),
     303(f), 303(g), 303(r) and 405 of the Communications Act of 1934,
     as amended, 47 U.S.C. §§ 154(i), 302, 303(e), 303(f), (303(g),
     303(r) and 405, the DBS Petition for Consolidation and Declaration
     filed by DirecTV and EchoStar IS DISMISSED.

268. IT IS FURTHER ORDERED that pursuant to Sections 4(i), 302, 303(e),
     303(f), 303(g) and 303(r) of the Communications Act of 1934, as
     amended, 47 U.S.C. §§ 154(i), 302, 303 (e), 303(f), 303(g) and
     303(r), the May 9, 2001 letter filed by Michael K. Kellogg, counsel
     to Northpoint Technology, Ltd. to Jane Mago, General Counsel,
     Federal Communications Commission IS DISMISSED.

269. IT IS FURTHER ORDERED that pursuant to Sections 4(i), 303(r) and
     309(j) of the Communications Act of 1934, as amended, 47 U.S.C. §§
     154(i), 303(r), 309(j), and Section 1.934(d) of the Commission\'s
     Rules, 47 C.F.R. § 1.934(d), the Broadwave Network, LLC
     Applications for Licenses to Provide a New Terrestrial Transport
     Service in the 12 GHz band, Various DMAs, filed on January 8, 1999,
     ARE DISMISSED.

270. IT IS FURTHER ORDERED that pursuant to Sections 4(i), 303(r) and
     309(j) of the Communications Act of 1934, as amended, 47 U.S.C. §§
     154(i), 303(r), 309(j), and Section 1.934(d) of the Commission\'s
     Rules, 47 C.F.R. § 1.934(d), the PDC Broadband Corporation
     Applications for Licenses to Provide Terrestrial Service in the
     12 GHz Band in All DMAs, filed on April 18, 2000, ARE DISMISSED.

271. IT IS FURTHER ORDERED that pursuant to Sections 4(i), 303(r) and
     309(j) of the Communications Act of 1934, as amended, 47 U.S.C. §§
     154(i), 303(r), 309(j), and Section 1.934(d) of the Commission\'s
     Rules, 47 C.F.R. § 1.934(d), the Satellite Receivers, Ltd.
     Applications for Licenses to Provide Terrestrial Television
     Broadcast and Data Services in the 12.2‑12.7 GHz Band in Illinois,
     Indiana, Iowa, Michigan, Minnesota and Wisconsin, filed on August
     25, 2000, ARE DISMISSED.

272. IT IS FURTHER ORDERED that, effective as of the date of the release
     of this *Memorandum Opinion and Order and Second Report and Order*,
     NO NEW APPLICATIONS WILL BE ACCEPTED FOR FILING in the
     12.2‑12.7 GHz band for private operational fixed service, except
     for applications for minor modifications or for license assignment
     or transfer of control.

273. IT IS FURTHER ORDERED that pending applications, as of the release
     date of this *Memorandum Opinion and Order and Second Report and
     Order*, for Private Operational Fixed Service licenses in the
     12.2‑12.7 GHz band WILL BE PROCESSED on a first‑come, first‑served
     basis.

274. IT IS FURTHER ORDERED that the Consumer and Governmental Affairs
     Bureau, Reference Information Center, SHALL SEND a copy of this
     *Memorandum Opinion and Order and* *Second Report and Order*,
     including the Final Regulatory Flexibility Analysis, to the Chief
     Counsel for Advocacy of the Small Business Administration.

FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

# APPENDIX A: PETITIONS FOR RECONSIDERATION, REPLIES AND OPPOSITIONS {#appendix-a-petitions-for-reconsideration-replies-and-oppositions .unnumbered}

**Petitions for Reconsideration Filed March 12, 2001**

SkyTower, Inc. (SkyTower)

**Petitions for Reconsideration Filed March 19, 2001**

The Boeing Company (Boeing)

DirecTV, Inc. (DirecTV)

EchoStar Satellite Corporation (EchoStar)

Hughes Communications, Inc., *et. al.* (Joint Petition.) (Hughes)

PanAmSat Corporation (PanAmSat)

Satellite Broadcasting and Communications Association (SBCA)

SkyBridge, L.L.C. (SkyBridge)

**Oppositions to Petitions for Reconsideration Filed March 29, 2001**

Satellite Receivers Ltd., (SRL)

**Oppositions to Petitions for Reconsideration Filed April 24, 2001**

The Boeing Company (Boeing)

MDS America, Incorporated (MDSA)

Northpoint Technology, Ltd. (Northpoint)

PanAmSat Corporation (PanAmSat)

SkyBridge, L.L.C. (SkyBridge)

**Replies to Oppositions to Petitions for Reconsideration Filed May 4,
2001**

SkyBridge L.L.C. (SkyBridge)

SkyTower, Inc. (SkyTower)

**Replies to Oppositions to Petitions for Reconsideration Filed May 9,
2001**

PanAmSat Corporation (PanAmSat)

Satellite Broadcasting and Communications Association (SBCA)

DirecTV, Inc. (DirecTV)

EchoStar Satellite Corporation (EchoStar)

The Boeing Company (Boeing)

# APPENDIX B: COMMENTING PARTIES TO FNPRM {#appendix-b-commenting-parties-to-fnprm .unnumbered}

**[[Comments]{.underline}]{.smallcaps}** (Due on March 12, 2001)

Association of America's Public Television Stations (APTS)

AT&T Corp. (AT&T)

The Boeing Company (Boeing)

DirecTV, Inc. (DirecTV)

EchoStar Satellite Corporation (EchoStar)

Gray Communications (Gray)

Joint Broadcasters

> (Benedek Broadcasting Corporation, Corridor Television, L.L.P., Eagle
> III Broadcasting, L.L.C., Granite Broadcasting Corporation, LIN
> Television Corporation )

MDS America, Incorporated (MDSA)

Minority Media and Telecommunications Council (MMTC)

Minority Media and Telecommunications Council -- Supplement (MMTC
Supplement)

National Rural Telecommunications Cooperative (NRTC)

National Indian Telecommunications Institute (NITI)

Northpoint Technology, Ltd. and Broadwave USA, Inc. (Northpoint)

Paxson Communications (Paxson)

Pegasus Broadband Corporation (Pegasus)

Pegasus Broadband Corporation ‑ Technical Supplement (Pegasus Technical
Supplement)

Satellite Broadcasting and Communications Association (SBCA)

Satellite Receivers, Ltd. (SRL)

Second Generation of Iowa (SGI)

SkyBridge, L.L.C. (SkyBridge)

SkyTower, Inc. (SkyTower)

Society of Broadcast Engineers (SBE)

Telesat Canada (Telesat)

Virtual Geosatellite

**[[Reply Comments]{.underline}]{.smallcaps}** (Originally due on March
26; date extended to April 5, 2001)

Association of America's Public Television Stations (APTS)

AT&T Corp. (AT&T)

The Boeing Company (Boeing)

Consumers Union, Consumer Federation of America, Leadership Conference
on Civil Rights, Center for Media Education, League of United Latin
American Citizens, the Media Access Project (CU *et al*.)

DirecTV, Inc. (DirecTV)

EchoStar Satellite Corporation (EchoStar)

MDS America, Incorporated (MDSA)

National Association of Black Owned Broadcasters (NABOB)

National Association of Broadcasters (NAB)

National Rural Telecommunications Cooperative (NRTC)

Northpoint Technology, Ltd. and Broadwave USA, Inc. (Northpoint)

Pegasus Broadband Corporation (Pegasus)

Rural Telecommunications Group (RTG)

Satellite Broadcasting and Communications Association (SBCA)

Satellite Receivers, Ltd. (Satellite Receivers)

SkyBridge, L.L.C. (SkyBridge)

# APPENDIX c: COMMENTING PARTIES TO MITRE REPORT {#appendix-c-commenting-parties-to-mitre-report .unnumbered}

**[COMMENTS:]{.underline}** (Due on May 15, 2001)

Boeing Company

Conus Communications

DirecTV, Inc.

EchoStar Satellite Corporation

Northpoint Technology and Broadwave USA, Inc.

Pegasus Broadband Corporation

Satellite Broadcasting and Communications Association

**[REPLY COMMENTS:]{.underline}** (Due on May 23, 2001)

AT&T Corporation

DirecTV, Inc.

EchoStar Satellite Corporation

MDS America

Northpoint Technology and Broadwave USA, Inc.

Pegasus Broadband Corporation

Satellite Broadcasting and Communications Association

Satellite Receivers, Ltd.

# APPENDIX D: FINAL RULES {#appendix-d-final-rules .unnumbered}

For the reasons discussed in the preamble, the FCC amends 47 C.F.R.
Parts 25 and 101 as follows:

**PART 25 -- SATELLITE COMMUNICATIONS**

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

**AUTHORITY: 47 U.S.C. 701-744. Interprets or applies sec. 303. 47
U.S.C. sections 154, 301, 302, 303, 307, 309, and 332, unless otherwise
noted.**

2.  Section 25.208 is amended by adding new paragraph (k) to read as
    follows:

**§ 25.208 Power flux density limits.**

\* \* \* \* \*

\(k\) In the band 12.2-12.7 GHz, for NGSO FSS space stations, the
low-angle power flux-density at the Earth\'s surface produced by
emissions from a space station for all conditions and for all methods of
modulation shall not exceed the lower of the following values:

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

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

Note to paragraph (k): These limits relate to the power flux density,
which would be obtained under assumed free-space propagation conditions.

\* \* \* \* \*

3.  Section 25.139 is added to read as follows:

**§ 25.139 NGSO FSS coordination and information sharing between MVDDS
licensees in the 12.2 GHz to 12.7 GHz band.**

(a) NGSO FSS licensees shall maintain a subscriber database in a format
    that can be readily shared with MVDDS licensees for the purpose of
    determining compliance with the MVDDS transmitting antenna spacing
    requirement relating to qualifying existing NGSO FSS subscriber
    receivers set forth in §101.129 of this chapter.

(b) Within ten business days of receiving notification of the location
    of a proposed MVDDS transmitting antenna, the NGSO FSS licensee
    shall provide sufficient information from the database to enable the
    MVDDS licensee to determine whether the proposed MVDDS transmitting
    site meets the minimum spacing requirement.

(c) If the location of the proposed MVDDS transmitting antenna site does
    not meet the separation requirements of §101.129 of this chapter,
    then the NGSO FSS licensee shall also indicate to the MVDDS licensee
    within the same ten day period specified above whether the proposed
    MVDDS transmitting site is acceptable at the proposed location.

(d) Nothing in this section shall preclude NGSO FSS and MVDDS licensees
    from entering into an agreement to accept MVDDS transmitting antenna
    locations that are shorter-spaced from existing NGSO FSS subscriber
    receivers than the distance set forth in §101.129 of this chapter.

**PART 101 - FIXED MICROWAVE SERVICES**

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

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

5.  Section 101.3 is amended by adding a definition for MVDDS in
    alphabetical order to read as follows:

**§ 101.3 Definitions.**

\* \* \* \* \*

[Multichannel Video Distribution and Data Service (MVDDS).]{.underline}
A fixed microwave service licensed in the 12.2-12.7 GHz band that
provides various wireless services. Mobile and aeronautical operations
are prohibited.

\* \* \* \* \*

6.  Section 101.101 is amended by revising the entry for 12,200-12,700
    MHz in the table to read as follows:

**§ 101.101 Frequency availability.**

+------------+----------+-----------+------------+------------+------+
| Frequency  | Radio    |           |            |            |      |
| band (MHz) | Service  |           |            |            |      |
+------------+----------+-----------+------------+------------+------+
|            | Common   | Private   | Broadcast  | Other      | N    |
|            | carrier  | radio     | auxiliary  | (Parts 15, | otes |
|            | (Part    | (Part     | (Part 74)  | 21, 24,    |      |
|            | 101)     | 101)      |            | 25, 74, 78 |      |
|            |          |           |            | & 100)     |      |
+------------+----------+-----------+------------+------------+------+
| \* \* \*   |          |           |            |            |      |
| \* \* \*   |          |           |            |            |      |
| \*         |          |           |            |            |      |
+------------+----------+-----------+------------+------------+------+
| 12,        | MVDDS    | MVDDS,    |            | DBS,       |      |
| 200-12,700 |          | POFS      |            |            |      |
|            |          |           |            | NGSO FSS   |      |
+------------+----------+-----------+------------+------------+------+
| \* \* \*   |          |           |            |            |      |
| \* \* \*   |          |           |            |            |      |
| \*         |          |           |            |            |      |
+------------+----------+-----------+------------+------------+------+

\* \* \* \* \*

7.  Section 101.103 is amended by revising paragraph (f) to read as
    follows:

**§101.103 Frequency coordination procedures.**

\* \* \* \* \*

\(f\) *Coordination and information sharing between MVDDS and NGSO FSS
licensees in the 12.2 GHz to 12.7 GHz band*. Prior to the construction
or addition of an MVDDS transmitting antenna in this frequency band, the
MVDDS licensee shall provide notice of intent to construct the proposed
antenna site to NGSO FSS licensees operating in the 12.2-12.7 GHz
frequency band and maintain an Internet web site of all existing
transmitting sites and transmitting antennas that are scheduled for
operation within one year including the "in service" dates. In addition
to the location of a proposed new transmitting antenna, MVDDS licensees
shall provide to the NGSO FSS licensees a technical description of the
operating characteristics of the proposed transmission facility. At a
minimum, the following information must be included in each
notification:

> \- Name of MVDDS licensee
>
> \- Geographic location (including NAD83 coordinates) of proposed MVDDS
> transmitting antenna
>
> \- Maximum EIRP per 24 MHz
>
> \- Height above average terrain of the transmitting antenna
>
> \- Type of antenna to be utilized
>
> \- Main beam azimuth and altitude orientation for the proposed
> transmitting antenna
>
> \- Theoretically modeled antenna radiation pattern
>
> \- Type(s) of emissions

\- Description of the proposed service area.

If the proposed MVDDS antenna site does not meet the minimum spacing
requirements on the date of original notification or on subsequent
annual anniversary dates of non-operation as set forth in §101.129 of
this part, then the MVDDS licensee shall not construct the proposed
transmission facility unless all NGSO FSS licensees having active
subscribers within the minimum separation distance agree to a shorter
spacing. Nothing in this section shall preclude MVDDS and NGSO FSS
licensees from agreeing to accept the siting of new MVDDS transmitting
antennas that do no meet the minimum distance set forth in §101.129 of
this part. Incumbent point-to-point licensees (those not licensed as
MVDDS) facilities are to be operated in the band 12,200-12,700 MHz
following the procedures, technical standards, and requirements of §
101.105 of this part in order to protect stations providing Direct
Broadcast Satellite Service.

8.  Section 101.105 is amended by adding paragraphs (a)(4) and (a)(5)
    and revising paragraph (d) by adding the phrase "for incumbent
    non-MVDDS stations" after the words "12,200-12,700 MHz band" to read
    as follows:

**§101.105 Interference protection criteria.**

\(a\) \* \* \*

\(4\) 12.2-12.7 GHz band.

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

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

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

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

Where:

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

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

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

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

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

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

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

> ([1]{.underline}) -168.4 dBW/m^2^/4kHz in the Eastern region
> consisting of the District of Columbia and the following states:
> Maine, New Hampshire, Vermont, Massachusetts, Rhode Island,
> Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland,
> Virginia, West Virginia, Kentucky, Tennessee, North Carolina, South
> Carolina, Georgia, Alabama, Mississippi, Louisiana, and Florida.
>
> ([2]{.underline}) -169.8 dBW/m^2^/4kHz in the Midwestern region
> consisting of the following states: Ohio, Michigan, Indiana,
> Wisconsin, Illinois, Minnesota, Iowa, Missouri, Arkansas, South
> Dakota, Nebraska, Kansas, Oklahoma, and Texas
>
> ([3]{.underline}) -171.0 dBW/m^2^/4kHz in the Southwestern region
> consisting of the following states: Wyoming, Colorado, New Mexico,
> Utah, Arizona, Nevada, and California (south of 37^o^ North Latitude).
>
> ([4]{.underline}) -172.1 dBW/m^2^/4kHz in the Northwestern region
> consisting of the following states: Washington, Oregon, California
> (north of 37^o^ North Latitude), Idaho, Montana, North Dakota, Alaska,
> and Hawaii.

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

\(5\) All stations operating under this part must protect the radio
quiet zones as required by § 1.924 of this chapter. Stations authorized
by competitive bidding are cautioned that they must receive the
appropriate approvals directly from the relevant quiet zone entity prior
to operating.

\* \* \* \* \*

9.  Section 101.107 is amended by revising footnote 6 to the Table in
    paragraph (a) to read as follows:

**§ 101.107 Frequency tolerance.**

\(a\) \* \* \*

\(6\) Applicable to private operations fixed point-to-point microwave
stations and stations providing MVDDS service.

\* \* \* \* \*

10. Section 101.109 is amended by revising the entry for 12,200-12,700
    MHz and by adding footnote 8 in the Table at the end of the section
    to read as follows:

**§101.109 Bandwidth.**

\* \* \* \* \*

\(c\) \* \* \*

  ------------------------------------ ----------------------------------
  Frequency band (MHz)                 Maximum authorized bandwidth

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

  12,200 to 12,700 ^8^                 500 megahertz

  \* \* \* \* \* \* \*                 
  ------------------------------------ ----------------------------------

\* \* \*

^8^ For incumbent private operational fixed point-to-point stations in
this band (those not licensed as MVDDS), the maximum bandwidth shall be
20 MHz.

> \* \* \* \* \*

11. Section 101.111 is amended by adding a footnote immediately after
    the definition of "B" in paragraph (a)(2)(i) to read as follows:

**§101.111 Emission limitations.**

\* \* \* \* \*

\(a\) \* \* \*

\(2\) \* \* \*

\(i\) \* \* \*

MVDDS operations in the 12.2-12.7 GHz band shall use 24 megahertz for
the value of B in the emission mask equation set forth in this section.

12. Section 101.113 is amended by revising the entry for 12,200-12,700
    MHz in the table and adding a new footnote 10 to the table in
    paragraph (a) to read as follows:

**§ 101.113 Transmitter power limitations.**

\(a\) \* \* \*

  -----------------------------------------------------------------------
  Frequency Band (MHz)           Maximum allowable   
                                 EIRP ^1,\ 2^        
  ------------------------------ ------------------- --------------------
                                 Fixed (dBW)         Mobile (dBW)

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

  12,200 to 12,700               +50                 ...............
  ^10^....................                           

  \* \* \* \* \* \* \*                               
  -----------------------------------------------------------------------

\* \* \*

^10^ The EIRP for MVDDS stations is limited to 14.0 dBm per 24 MHz
(-16.0 dBW per 24 MHz). Incumbent point-to-point stations may use up to
+50 dBW except for low power systems which were licensed under Section
101.147(q) of this part.

\* \* \* \* \*

13. Section 101.115 is amended by revising footnote 9 to the table in
    paragraph (c) to read as follows:

**§101.115 Directional antennas.**

\* \* \* \* \*

\(c\) \* \* \*

(9) Except for Temporary-fixed operations in the band 13200-13250 MHz
    with output powers less than 250 mW and as provided in Section
    101.147(q) of this part, and except for antennas in the MVDDS
    service in the band 12.2-12.7 GHz.

\* \* \* \* \*

14. Section 101.129 is revised by amending paragraph (b) to read as
    follows:

**§101.129 Transmitter location.**

> \* \* \* \* \*

\(b\) In the 12.2-12.7 GHz band, licensees must not locate MVDDS
transmitting antennas within 10 km of any qualifying NGSO FSS receiver
unless mutual agreement is obtained between the MVDDS and NGSO FSS
licensees. Such agreements must be retained by the licensees and made
available for inspection by interested parties upon request.

\(1\) A qualifying NGSO FSS receiver, for the purposes of this section,
is deemed to be one that is in regular use by an NGSO FSS subscriber for
normal reception purposes in the 12.2-12.7 GHz band and not one for
monitoring or testing purposes. In addition, qualifying receivers must
either be in operation on the date or already be under construction and
then operating within thirty days of the date that the MVDDS licensee
notifies the NGSO FSS licensee of its intent to construct a new MVDDS
transmitting antenna at a specified location.

\(2\) Except as provided in section (b)(3) below, the 10 kilometer
spacing requirement for each MVDDS transmitting antenna site shall not
apply with respect to NGSO FSS receivers that might be installed or
become operational (except for those under construction and operating
within thirty days as specified in paragraph (b)(1) of this section)
subsequent to the original date that the MVDDS licensee provided notice
of its intention to construct a given transmission facility.

\(3\) In the event that a proposed MVDDS transmitting antenna for which
notice has been duly given to the NGSO FSS licensees has not been placed
in normal operation within one calendar year of the date of notice, then
the MVDDS licensee loses the benefit of the original notice. Upon such
anniversary, the MVDDS licensees must re-determine compliance with the
minimum 10 kilometer spacing requirement based upon locations of
qualifying NGSO FSS receivers on that anniversary date. A new
determination of compliance with the spacing requirement shall be made
for each succeeding anniversary of non-operation for each proposed MVDDS
transmission site or additional antenna. This provision contemplates
that failure to commence normal operation at a given MVDDS transmitting
antenna site within one year of the date of NGSO FSS notification may
require successive relocations of the proposed transmitter site in order
to meet the minimum spacing distance as determined on each anniversary
of non-operation.

15. Section 101.139 is amended by revising the last sentence of
    paragraph (a) to read as follows:

**§ 101.139 Authorization of transmitters.**

\(a\) \* \* \* Transmitters designed for use in the 31.0-31.3 GHz band
and transmitters designed for MVDDS use in the 12,200-12,700 MHz band
will be authorized under the verification procedure.

\* \* \* \* \*

16. Section 101.141 is amended by revising the first sentence of
    paragraph (a) to read as follows:

**§ 101.141 Microwave modulation.**

\(a\) Microwave transmitters employing digital modulation techniques and
operating below 19.7 GHz (except for MVDDS stations in the 12,200-12,700
MHz band) must, with appropriate multiplex equipment, comply with the
following additional requirements:

\* \* \* \* \*

17. Section 101.147 is amended by removing the entries for 12,200-12,500
    megahertz and 12,500-12,700 MHz, adding a new entry for
    12,200-12,700 MHz, and adding a new footnote 31 in the frequency
    assignment table in paragraph (a), and revising paragraphs (p)
    and (q) to read as follows:

**§ 101.147 Frequency assignments.**

\(a\) \* \* \*

12,200-12,700 MHz (31)

\* \* \*

\(31\) This frequency band can be used for Multichannel Video
Distribution and Data Service (MVDDS) shared with Direct Broadcast
Satellite (DBS) Services on a co-primary non-harmful interference basis
and on a co-primary basis with NGSO FSS satellite earth stations.
Incumbent private operational fixed point-to-point licensees can also
use these frequencies on a site by site basis.

\* \* \* \* \*

\(p\) 12,000-12700 MHz. The Commission has allocated the 12.2-12.7 GHz
band for use by the Direct Broadcast Satellite Service (DBS), the
Multichannel Video Distribution and Data Service (MVDDS), and the
Non-Geostationary Satellite Orbit Fixed Satellite Service (NGSO FSS).
MVDDS shall be licensed on a non-harmful interference co-primary basis
to existing DBS operations and on a co-primary basis with NGSO FSS
stations in this band. MVDDS use can be on a common carrier and/or
non-common carrier basis and can use channels of any desired bandwidth
up to the maximum of 500 MHz provided the EIRP does not exceed 14 dBm
per 24 megahertz. Private operational fixed point-to-point microwave
stations authorized after September 9, 1983, are licensed on a
non-harmful interference basis to DBS and are required to make any and
all adjustments necessary to prevent harmful interference to operating
domestic DBS receivers. Incumbent public safety licensees shall be
afforded protection from MVDDS and NGSO FSS licensees, however all other
private operational fixed licensees shall be secondary to DBS, MVDDS and
NGSO FSS licensees. As of May 23, 2002, the Commission no longer accepts
applications for new licenses for point-to-point private operational
fixed stations in this band, however, incumbent licensees and previously
filed applicants may file applications for minor modifications and
amendments (as defined in § 1.929 of this chapter) thereto, renewals,
transfer of control, or assignment of license. Notwithstanding any other
provisions, no private operational fixed point-to-point microwave
stations are permitted to cause harmful interference to
broadcasting-satellite stations of other countries operating in
accordance with the Region 2 plan for the Broadcasting-Satellite Service
established at the 1983 WARC.

\(q\) Special provisions for incumbent low power, limited coverage
systems in the band segments 12.2-12.7 GHz.

\(1\) As of May 23, 2002, the Commission no longer accepts applications
for new stations in this service and incumbent stations may remain in
service provided they do not cause harmful interference to any other
primary services licensed in this band as described in paragraph (p) of
this section. However, incumbent licensees and previously filed
applicants may file applications for minor modifications and amendments
(as defined in § 1.929 of this chapter) thereto, renewals, transfer of
control, or assignment of license.

\(2\) Prior to December 8, 2000, notwithstanding any contrary provisions
in this part, the frequency pairs 12.220/12.460 GHz, 12.260/12.500 GHz,
12.300/12.540 GHz and 12.340/12.580 GHz, were authorized for low power,
limited coverage systems subject to the following provisions:

\(1\) Maximum equivalent isotropically radiated power (EIRP) shall be 55
dBm;

\(2\) The rated transmitter output power shall not exceed 0.5 watts;

\(3\) Frequency tolerance shall be maintained to within 0.01 percent of
the assigned frequency;

\(4\) Maximum beamwidth shall not exceed 4 degrees. However, the
sidelobe suppression criteria contained in § 101.115 of this part shall
not apply, except that a minimum front-to-back ratio of 38 dB shall
apply;

\(5\) Upon showing of need, a maximum bandwidth of 12 MHz may be
authorized per frequency assigned;

\(6\) Radio systems authorized under the provisions of this section
shall have no more than three hops in tandem, except upon showing of
need, but in any event the maximum tandem length shall not exceed 40 km
(25 miles);

\(7\) Interfering signals at the receiver antenna terminals of stations
authorized under this section shall not exceed -90 dBm and -70 dBm
respectively, for co-channel and adjacent channel interfering signals,
and

\(8\) Stations authorized under the provisions of this section shall
provide the protection from interference specified in § 101.105 of the
part to stations operating in accordance with the provisions of this
part.

18. Section 101.601 is amended by adding a sentence at the end of the
    introductory paragraph to read as follows:

**§ 101.601 Eligibility.**

\* \* \* This subpart shall not apply to stations offering MVDDS in the
12.2-12.7 GHz band.

\* \* \* \* \*

19. A new subpart P is added to read as follows:

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

**101.1401 Service areas.**

**101.1403 Broadcast Carriage Requirements.**

**101.1405 Channeling plan.**

**101.1407 Permissible operations for MVDDS.**

**101.1409 Treatment of incumbent licensees.**

**101.1411 Regulatory status and eligibility.**

**101.1412 MVDDS eligibility restrictions for DBS operators and cable
systems.**

**101.1413 License term and renewal expectancy.**

**101.1415 Partitioning and disaggregation.**

**101.1417 Annual report.**

**101.1421 Coordination of adjacent area MVDDS stations.**

**101.1423 Canadian and Mexican coordination.**

**101.1425 RF safety.**

**101.1427 MVDDS licenses subject to competitive bidding.**

**101.1429 Designated entities.**

**101.1440 MVDDS protection of DBS.**

**§ 101.1401 Service areas.**

Multichannel Video Distribution and Data Service (MVDDS) is licensed on
the basis of Component Economic Areas (CEAs). The 354 CEA service areas
are based on the 348 Component Economic Areas delineated by the U.S.
Department of Commerce, with the following six FCC‑defined service area
additions: American Samoa, Guam, Northern Mariana Islands, San Juan
(Puerto Rico), Mayagüez/Aguadilla‑Ponce (Puerto Rico), and the United
States Virgin Islands. Each CEA shall be licensed by auction to one
licensee.

**§ 101.1403 Broadcast Carriage Requirements.**

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

**§ 101.1405 Channeling plan.**

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

**§ 101.1407 Permissible operations for MVDDS.**

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

**§ 101.1409 Treatment of incumbent licensees.**

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

**§ 101.1411 Regulatory status and eligibility.**

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

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

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

**§ 101.1412 MVDDS eligibility restrictions for cable operators.**

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

\(b\) Definition of cable operator. For the purposes of paragraph (a) of
this section, the term "cable operator" means a company that is
franchised to provide cable service, as defined in 47 C.F.R. § 76.5(ff)
of the Commission's rules, in all or part of the MVDDS license area.

\(c\) For the purpose of this section, the term "MVPD household" refers
to a household that subscribes to one or more Multichannel Video Program
Distributors (MVPDs), as defined in 47 C.F.R. § 76.1000(e) of the
Commission\'s rules.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Note 1 to paragraph (f)(6): Waivers of § 101.1014(f)(6) may be granted
upon an affirmative showing:

\(1\) That the interest holder has less than a fifty percent voting
interest in the licensee and there is an unaffiliated single holder of a
fifty percent or greater voting interest;

\(2\) That the interest holder is not likely to affect the local market
in an anticompetitive manner;

\(3\) That the interest holder is not involved in the operations of the
licensee and does not have the ability to influence the licensee on a
regular basis; and

\(4\) That grant of a waiver is in the public interest because the
benefits to the public of common ownership outweigh any potential
anticompetitive harm to the market.

**§ 101.1413 License term and renewal expectancy.**

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

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

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

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

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

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

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

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

(3) copies of any Commission Orders finding the licensee to have
    violated the Communications Act or any

Commission rule or policy and a list of any pending proceedings that
relate to any matter described by the requirements for the renewal
expectancy.

**§ 101.1415 Partitioning and Disaggregation.**

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

\(b\) *Eligibility*.

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

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

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

\(c\) *Technical standards*.

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

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

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

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

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

**§ 101.1417 Annual report.**

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

\(1\) name and address of licensee;

\(2\) station(s) call letters and primary geographic service area(s);
and

\(3\) the following statistical information for the licensee's station
(and each channel thereof):

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

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

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

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

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

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

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

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

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

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

**§ 101.1423 Canadian and Mexican coordination.**

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

**§ 101.1425 RF safety.**

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

**§ 101.1427 MVDDS licenses subject to competitive bidding.**

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

**§ 101.1429 Designated entities.**

(a*) Eligibility for small business provisions.*

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

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

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

\(4\) A consortium of very small businesses is a conglomerate
organization formed as a joint venture between or among mutually
independent business firms, each of which individually satisfies the
definition in paragraph (a)(1) of this section. A consortium of small
businesses is a conglomerate organization formed as a joint venture
between or among mutually independent business firms, each of which
individually satisfies the definition in paragraph (a)(2) of this
section. A consortium of entrepreneurs is a conglomerate organization
formed as a joint venture between or among mutually independent business
firms, each of which individually satisfies the definition in paragraph
(a)(3) of this section.

\(5\) For purposes of determining whether an entity meets any of the
definitions set forth in paragraphs (a)(1), (a)(2), (a)(3), or (a)(4) of
this section, the gross revenues of the entity, its controlling
interests and affiliates shall be considered in the manner set forth in
§§ 1.2110(b) and (c) of this chapter.

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

**§ 101.1440 MVDDS protection of DBS.**

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

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

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

\(d\) Coordination between MVDDS and DBS licensees.

\(1\) At least 90 days prior to the planned date of MVDDS commencement
of operations, the MVDDS licensee shall provide the following
information to the DBS licensee(s):

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

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

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

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

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

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

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

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

\(e\) Beginning thirty days after the DBS licensees are notified of a
potential MVDDS site under (d)(1), the DBS licensees have the
responsibility of ensuring that all future installed DBS receive
antennas on its system are located in such a way as to avoid the MVDDS
signal. These later installed receive antennas shall have no further
rights of complaint against the notified MVDDS transmitting antenna(s).

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

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

# APPENDIX E: FINAL REGULATORY FLEXIBILITY ANALYSIS {#appendix-e-final-regulatory-flexibility-analysis .unnumbered}

1.  As required by the Regulatory Flexibility Act of 1980, as amended
    (RFA),[^644] an Initial Regulatory Flexibility Analysis (IRFA) was
    incorporated in the Amendment of Parts 2 and 25 of the Commission\'s
    Rules to Permit Operation of NGSO FSS Systems Co‑Frequency with GSO
    and Terrestrial Systems in the Ku‑Band Frequency Range; Amendment of
    the Commission\'s Rules to Authorize Subsidiary Terrestrial Use of
    the 12.2‑12.7 GHz Band by Direct Broadcast Satellite Licensees and
    Their Affiliates; and Applications of Broadwave USA, PDC Broadband
    Corporation, and Satellite Receivers, Ltd. to Provide A Fixed
    Service in the 12.2‑12.7 GHz Band, *First Report and Order and
    Further Notice of Proposed Rule Making.*[^645] The Commission sought
    written public comment on the proposals in the *Further Notice*
    including comment on the IRFA. This Final Regulatory Flexibility
    Analysis (FRFA) examines the possible significant economic impact of
    our actions on small entities and conforms to the RFA.[^646]

**A. Need for, and Objectives of, the *Second Report and Order***

2.  By this action, Multichannel Video Distribution and Data Service
    (MVDDS) providers will share the 12.2‑12.7 GHz band with new NGSO
    FSS operators on a co‑primary basis and on a non‑harmful
    interference basis with incumbent direct broadcast satellite (DBS)
    providers. The objective of this *Second Report and Order* is to
    adopt licensing, service and technical rules for the MVDDS.
    Specifically, we seek: (1) to accommodate the introduction of
    innovative services; and (2) to facilitate the sharing and efficient
    use of spectrum. Furthermore, the rules adopted in this *Second
    Report and Order* are designed to implement Congress's goal of
    giving small businesses the opportunity to participate in the
    provision of spectrum‑based services in accordance with Section
    309(j) of the Communications Act of 1934, as amended.[^647] Thus, we
    believe that this service will facilitate the delivery of
    communications services, such as video and broadband services, to
    various populations including those that are deemed to be unserved
    and/or underserved.

    **B. Summary of Significant Issues Raised by Public Comments In
    Response to the IRFA**

3.  Although we did not receive any comments in direct response to the
    IRFA, commenters suggested approaches that would foster
    participation in the MVDDS service by smaller entities. For
    instance, several commenters favored allowing MVDDS licensees to
    partition their geographic service areas into smaller areas.[^648]
    In addition, the Rural Telecommunications Group (RTG) suggested the
    use of smaller service areas -- Metropolitan Statistical Areas
    (MSAs), Rural Service Areas (RSAs) or Component Economic Areas
    (CEAs) -- to facilitate opportunities for small and rural carriers
    to obtain MVDDS licenses and to ensure that rural regions benefit
    from the 12.2‑12.7 GHz band.[^649] Likewise, Pegasus supported
    licensing MVDDS on the basis of basic trading areas (BTAs) and major
    trading areas (MTAs) because the population served would be smaller
    and the cost of licenses likely lower, thus providing greater
    economic opportunity for a wider variety of applicants.[^650] Thus,
    the need to establish opportunities for smaller entities to have
    access to MVDDS spectrum was a sentiment expressed by various
    commenters in the MVDDS rule making proceeding.

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

4.  The RFA directs agencies to provide a description of, and, where
    feasible an estimate of, the number of small entities that may be
    affected by the rules adopted herein.[^651] The RFA generally
    defines the term "small entity" as having the same meaning as the
    terms "small business," "small organization," and "small
    governmental jurisdiction."[^652] In addition, the term "small
    business" has the same meaning as the term "small business concern"
    under the Small Business Act.[^653] A small business concern is one
    which: (1) is independently owned and operated; (2) is not dominant
    in its field of operation; and (3) satisfies any additional criteria
    established by the Small Business Administration (SBA).[^654]

5.  *Small Multichannel Video Programming Distributors (MVPDs).* SBA has
    developed a definition of small entities for cable, which includes
    all such companies generating \$11 million or less in annual
    receipts.[^655] This definition includes cable system operators and
    DBS services. According to the Census Bureau data from 1992, there
    were 1,758 total cable and other pay television services and 1,423
    had less than \$11 million in revenue.[^656] We address below each
    service individually to provide a more precise estimate of small
    entities.

    [Cable Services]{.underline}*.* The Commission has developed, with
    SBA\'s approval, our own definition of a small cable system operator
    for the purposes of rate regulation. Under the Commission\'s rules,
    a \"small cable company\" is one serving 400,000 or fewer
    subscribers nationwide.[^657] We last estimated that there were 1439
    cable operators that qualified as small cable companies.[^658] Since
    then, some of those companies may have grown to serve over 400,000
    subscribers, and others may have been involved in transactions that
    caused them to be combined with other cable operators. Consequently,
    using this definition, we estimate that there are fewer than 1439
    small entity cable system operators that may be affected by the
    decisions and rules adopted in this *Second Report and Order*.

    The Communications Act defines a small cable system operator as \"a
    cable operator that, directly or through an affiliate, serves in the
    aggregate fewer than one percent of all subscribers in the United
    States and is not affiliated with any entity or entities whose gross
    annual revenues in the aggregate exceed \$250,000,000.\"[^659] The
    Commission has determined that there are 61,700,000 subscribers in
    the United States. Therefore, an operator serving fewer than 617,000
    subscribers shall be deemed a small operator under the
    Communications Act definition, if its annual revenues, when combined
    with the total annual revenues of all of its affiliates, do not
    exceed \$250 million in the aggregate. Based on available data, we
    find that the number of cable operators serving 617,000 subscribers
    or less totals approximately 1450.[^660] Although it seems certain
    that some of these cable system operators are affiliated with
    entities whose gross annual revenues exceed \$250,000,000, we are
    unable at this time to estimate with greater precision the number of
    cable system operators that would qualify as small cable operators
    under the definition in the Communications Act.

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

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

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

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

9.  Additionally, in the *Second Report and Order*, we adopt definitions
    for three tiers of small businesses for the purpose of providing
    bidding credits to small entities. Specifically, we define the three
    tiers of small businesses as follows: an "entrepreneur" is an entity
    with average annual gross revenues not exceeding \$40 million for
    the preceding three years; a "small business" is an entity with
    average annual gross revenues not exceeding \$15 million for the
    preceding three years; and a "very small business" is an entity with
    average annual gross revenues not exceeding \$3 million for the
    preceding three years.[^661] We will not know how many auction
    participants or licensees will qualify under these definitions as
    entrepreneurs, small businesses, or very small businesses until an
    auction is held. However upon reviewing the record in the MVDDS
    proceeding, we assume that, for purposes of our evaluations and
    conclusions in the FRFA, a number of the prospective licensees will
    be entrepreneurs, small businesses, or very small businesses under
    our adopted definitions.

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

10. Applicants for MVDDS licenses are required to submit an FCC Form 175
    short‑form application prior to the auction, and auction winners
    will be required to file an FCC Form 601 license application.
    Additionally, we will apply the Part 101 rules governing reporting
    requirements to MVDDS systems. Specifically, each MVDDS licensee is
    required to file with the Commission two copies of a report no later
    than March 1 of each year for the preceding calendar year, which
    must include the following: (a) name and address of licensee; (b)
    station(s) call letters and primary geographic service area(s);
    and (c) the following statistical information for the licensee's
    station (and each channel thereof): (i) the total number of separate
    subscribers served during the calendar year; (ii) the total hours of
    transmission service rendered during the calendar year to all
    subscribers; (iii) the total hours of transmission service rendered
    during the calendar year involving the transmission of local
    broadcast signals; and (iv) a list of each period of time during the
    calendar year in which the station rendered no service as
    authorized, if the time period was a consecutive period longer than
    forty‑eight hours. In addition, we require each MVDDS licensee to
    file actual data on cases of harmful interference to DBS operations
    and measures taken to alleviate such interference. We believe that
    the information compiled in this report will assist us in analyzing
    trends and competition in the marketplace.

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

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

12. We have taken significant steps to reduce burdens on small entities
    wherever possible. To provide opportunities for small entities to
    participate in any auction that is held, we provide bidding credits
    for entrepreneurs, small businesses, and very small businesses as
    defined in Section C of this FRFA. The bidding credits adopted are
    15 percent for entrepreneurs, 25 percent for small businesses, and
    35 percent for very small businesses. Our decision to adopt CEAs as
    service areas for MVDDS and to permit the partitioning of these
    service areas is also intended to provide small entities an
    opportunity to acquire licenses. There are currently 354 CEAs and we
    believe that the use of these service areas will encourage smaller
    business entities to participate in the MVDDS auction. Participation
    in the MVDDS auction by smaller business entities would foster the
    buildout of services to local and/or rural areas which are
    traditionally deemed underserved or unserved. The regulatory burdens
    we have retained are necessary in order to ensure that the public
    receives the benefits of innovative new services in a prompt and
    efficient manner. We will continue to examine alternatives in the
    future with the objectives of eliminating unnecessary regulations
    and minimizing any significant economic impact on small entities.

    **F. Federal Rules that May Duplicate, Overlap, or Conflict With the
    Final Rules**

13. None.

    **[Report to Congress]{.underline}**. The Commission will send a
    copy of the *Second Report and Order*, including this FRFA, in a
    report to be sent to Congress pursuant to the Congressional Review
    Act.[^662] In addition, the Commission will send a copy of the
    *Second Report and Order*, including this FRFA, to the Chief Counsel
    for Advocacy of the Small Business Administration. A copy of the
    *Second Report and Order* and FRFA (or summaries thereof) will also
    be published in the Federal Register.[^663]

# APPENDIX F: A METHOD OF CONVERTING PERCENTAGE OF UNAVAILABLE TIME INTO A CORREPSONDING EQUIVALENT POWER FLUX DENSITY {#appendix-f-a-method-of-converting-percentage-of-unavailable-time-into-a-correpsonding-equivalent-power-flux-density .unnumbered}

This appendix presents a method for calculating the equivalent power
flux density (EPFD) that an MVDDS terrestrial station must meet at a DBS
subscriber location to limit DBS outage time to a specified amount.

The availability of a satellite space‑to‑Earth link is defined as the
total amount of time that the satellite service is available to the user
without disruption. Conversely, the unavailability of that same link is
the total time during which the user is without service (outage).
Generally, availability and unavailability are expressed in terms of
percentage of time of an average year (8766 hours) or the worst month in
an average year.[^664] These two variables are complementary and always
sum to 100%. For example if a satellite system has an availability of
99.7%, its unavailability is 0.3% which equates to total outage time of
26.3 hours averaged over a year.

In a shared environment (satellite and terrestrial service), the total
unavailability can be attributed to two sources: natural propagation
phenomenon such as precipitation (*e.g.*, rain) in the space‑to‑earth
path and external radio interference. In the frequency bands used by DBS
for downlink (12.2‑12.7 GHz), the predominant propagation impairment is
rain attenuation in the space‑to‑earth slant path.[^665] The amount of
service outage caused by rain can be estimated using the prediction
procedures of ITU‑R Recommendation P.618‑6.[^666] This rain attenuation
model predicts, for a given geographic area, the average service outage
time over an average year for a specific level of precipitation
attenuation along the space‑to‑earth slant path.

To determine the EPFD that an MVDDS system must meet, we first establish
the amount of outage time of the DBS space‑to‑earth link that is caused
by precipitation only. The outage time is directly dependent on the link
margin of the space‑to‑earth link, which is calculated from the system's
link power budget. Link margin is the amount of power received at the
earth station receiver above its operating threshold that is designed
into the satellite link to overcome the effects of rain and other
impediments. During rain, the satellite link is affected in two ways:
the carrier signal strength is attenuated due to rain and the rain
causes an increase in the system's noise temperature. If the rain
attenuation and earth station G/T (gain / system noise temperature)
degradation cause a reduction to the carrier‑to‑noise (C/N) power that
exceeds the available link margin, the satellite link will experience an
outage. The amount of attenuation due to rain that causes an outage is
referred to as the rain margin.

Once the link margin is known, one can proceed to determine the rain
margin. This is accomplished by adding a rain attenuation term to the
equation used to find the clear‑sky carrier‑to‑noise ratio to instead
find a rainy‑sky carrier‑to‑noise ratio. Additionally, the G/T must be
recalculated to account for the increase in atmospheric noise due to the
rain. Thus, the G/T will be reduced during a rain event and the rain
margin will be less than the link margin.

Once the rain margin is determined, the expected outage time of a
satellite link in an average year or in the worst month can be computed
using the prediction method contained in ITU‑R Recommendation P.618‑6.

Now that the percentage of outage time due solely to rain is known, we
can reverse the procedure to determine the minimum C/I that a
terrestrial system must maintain to effect a specific amount of
additional outage time on the satellite system. First, the additional
outage time must be determined, either as a percentage of additional
outage time or a number of minutes per time period. This additional
outage time can then be added to the outage time due to rain only to
find the 'equivalent unavailability.' For example, if a satellite
space‑to‑earth link has an unavailability of 0.3% and the minimum C/I
for the terrestrial system to cause no more than an additional ten
percent outage is to be determined, the equivalent unavailability would
be 0.33% (0.3 \* 1.1). Using the equivalent unavailability, the ITU rain
model can be used to find the corresponding 'equivalent rain margin.'
That is, the ITU model can be used to find the amount of attenuation
associated with the increased outage time. This change in attenuation is
attributed to interference from the terrestrial system.

The C/I for the terrestrial system can now be found by modifying the
methodology used to determine the satellite link budget. The terrestrial
system is factored into the link budget by adding a term representing
its C/I. By using the equivalent rain margin in the link budget, we find
an 'equivalent link margin.' We can then find the C/I of the terrestrial
system that causes the reduction of the equivalent link margin to be
zero. This is the minimum C/I that the terrestrial system must maintain
to cause no more than the amount of additional outage time chosen.

The minimum C/I for the terrestrial system is then used to determine the
EPFD level that must be met. This is accomplished by first determining
the power flux density (PFD) received at the DBS earth station from the
satellite. From the PFD, the C/I is subtracted and the gain of the DBS
earth station antenna in the direction of the terrestrial station is
added. This results in the EPFD. Because the EPFD is dependent on the
DBS earth station gain in the direction of the terrestrial transmitting
antenna, the EPFD varies with both relative distance and orientation of
the terrestrial transmitting antenna and the DBS earth station. A method
for plotting EPFDs is presented in Appendix J.

It is important to note that the above methodology results in the
rainy‑sky C/I for the terrestrial service interference, which would
produce the additional outage time at the DBS earth station. This
represents the worst case scenario in which the space‑to‑earth signal
from the satellite is attenuated due to rain, but the terrestrial system
is not. In many cases, however, the DBS signal and the terrestrial
system will both be attenuated due to rain. Thus, less DBS outage will
occur than predicted by this model.

An example of our model implementing the process described is shown
below. This example, using MathCAD, calculates the EPFD that would be
associated with an MVDDS transmitting antenna when a DBS receive dish is
pointing towards the satellite 119^o^ west longitude.

![](media/image6.wmf){width="5.99375in" height="8.231944444444444in"}

![](media/image7.wmf){width="5.864583333333333in" height="7.65625in"}

![](media/image8.wmf){width="5.8694444444444445in"
height="6.348611111111111in"}

![](media/image9.wmf){width="5.773611111111111in"
height="8.995138888888889in"}

![](media/image10.wmf){width="5.623611111111111in"
height="8.991666666666667in"}

![](media/image11.wmf){width="5.833333333333333in"
height="6.354166666666667in"}

![](media/image12.wmf){width="5.529861111111111in" height="9.0in"}

![](media/image13.wmf){width="5.7in" height="8.999305555555555in"}

![](media/image14.wmf){width="5.981944444444444in" height="8.99375in"}

![](media/image15.wmf){width="5.65625in" height="6.260416666666667in"}

![](media/image16.wmf){width="5.997222222222222in"
height="8.698611111111111in"}

![](media/image17.wmf){width="5.836111111111111in"
height="8.995833333333334in"}

![](media/image18.wmf){width="5.739583333333333in"
height="8.520833333333334in"}

![](media/image19.wmf){width="5.777083333333334in"
height="8.998611111111112in"}

![](media/image20.wmf){width="5.996527777777778in"
height="8.383333333333333in"}

I = Interference scaling factor for the earth station.[^667] A detailed
explanation of this term can be found in Section 3.3.2 of the MITRE
Report (<http://www.fcc.gov/oet/info/mitrereport/mitrereport_4_01.pdf> )

APPENDIX G:

DESCRIPTION OF MODEL USED FOR DETERMINING

REGIONAL EPFD LEVELS

AND

SATELLITE OUTAGE ANALYSIS RESULTS

DESCRIPTION OF MODEL USED FOR DETERMINING

REGIONAL EPFD LEVELS

## *Introduction* {#introduction-1 .unnumbered}

The 12.2 to 12.7 GHz band is allocated to the Fixed,
Broadcasting-Satellite services and Non-Geostationary Satellite Orbit
Fixed Satellite Service. In the United States, this band is used
predominately at this time for the provision of DBS service. This
Appendix describes the technical approach adopted by the Commission for
the sharing of this spectrum by DBS and a new MVDDS service.

## *General Description of the Model* {#general-description-of-the-model .unnumbered}

Modeling the potential for interference between two radio services, such
as DBS and MVDDS, is a relatively straightforward process, although the
details can be quite technically complex. First, the performance of the
DBS system must be described and quantified. This entails determining
the characteristics of the DBS satellite such as orbital position,
power, and the antenna gain pattern. Second, the performance
characteristics of the DBS customer receiver system must be
determined.[^668] This includes, for example, receiver elevation angle,
antenna size, gain and pattern. Third, an appropriate propagation and
rain model must be chosen. The primary propagation characteristic of
interest is the effect of rain on the DBS satellite signal. This is
because DBS signals become more susceptible to MVDDS interference when
it is raining and the DBS signals are attenuated. All of this
information is then used in interference analyses to determine
appropriate technical requirements for MVDDS to ensure protection of DBS
operations.

***Establishment of EPFD Limits***

This section describes the methodology used for establishing EPFD limits
for MVDDS. These EPFD limits were determined taking into account the
technical parameters of DBS service, including satellite power, receiver
performance, and internationally recognized rain and propagation models.
Specifically, four regional EPFD limits were developed to ensure that
any degradation would result in only a small increase in the outage or
"unavailability" of DBS service that now occurs due to rain and other
factors.

EPFD is a direct measure of the MVDDS power that can cause interference.
It is administratively simple to apply and enforce. It is similar to the
approach adopted internationally for sharing between DBS and NGSO
service.

The technical parameters used in the computations are based on extensive
and exhaustive technical studies and analysis performed by the DBS
satellite and MVDDS proponents, MITRE Corporation (an independent
technical consultant), and FCC technical staff from the Office of
Engineering and Technology, the International Bureau and the Wireless
Telecommunications Bureau.

In practice, as described below, most DBS customers, including those
close to a MVDDS transmitter, are expected to experience *much less*
interference than calculated since the calculations do not take into
account a number of factors that would reduce the impact of MVDDS
signals. For example, the analysis does not take into account natural
and man-made shielding or other propagation losses that would minimize
the impact of MVDDS to the DBS customer.

*[Increase in Unavailability Criterion]{.underline}*. Some metric of
acceptable DBS system performance must be quantified in order to
determine appropriate technical requirements for MVDDS to ensure
protection of DBS operations. Using a 10% increase in DBS service
unavailability criterion as an initial benchmark to establish EPFD
limits for MVDDS strikes a reasonable balance between protecting DBS
from interference and deploying new MVDDS services. It should be noted
that this 10% criterion is not used as a strict limit but rather a
guideline in developing the actual regional EPFD requirements, described
below. In specific cases, calculated outages may be above or below this
10% value. In light of the conservative nature of this overall approach,
sound engineering judgment suggests that using the 10% average
unavailability criterion as a strict limit is unnecessary and
inappropriate especially given the wide variability in the provision of
DBS services noted below.[^669]

DBS service availability, and conversely unavailability, varies
depending on the DBS satellite providing the service, the location of
the receiver and other factors. This is because DBS licensees apportion
their satellite resources to different customer locations based on
variety of factors, such as population density and differences in
average rainfall. In any regard, DBS satellites are designed to provide
very reliable service with typical service availabilities on the order
of 99.8-99.9%.[^670]

As indicated above, the regional EPFD requirements are based on
permitting a small percentage increase in the unavailability or outage
of DBS service. In general, DBS service unavailability or outage
currently occurs only during periods of heavy rain or precipitation. The
EPFD requirements would ensure that the effect of an MVDDS signal would
be only a small increase in the DBS service outages that occur during
this heavy precipitation, *e.g*., the onset of the rain outage may begin
sooner or the rain outage may last somewhat longer.

Using an increase in unavailability as an index or measure of
permissible impact by MVDDS does result in a variation of impact from
place to place. This is due to the fact that a small percentage change
in unavailability can result in relatively large differences in the
actual minutes of outage permitted (even where there are relatively
small percentage changes in actual availability). For example, a service
availability of 99.9% is equivalent to an outage of about 500
minutes/year and a service availability of 99.8% is equivalent to an
outage of about 1000 minutes/year. There is, therefore, a 0.1% change in
availability but a 100% change in unavailability in this case. In
addition, using this approach, the magnitude of the permitted change is
directly related to the "baseline" outage. This means where DBS service
is very reliable the permitted change would be very small and where DBS
service is poorer the permitted change would be larger. For example, if
the current unavailability is 100 minutes and the permitted percent
increase is 10%, the resulting unavailability would be a total of 110
minutes. On the other hand, if the current unavailability were 1000
minutes, the permitted increase would be 100 minutes or an
unavailability of 1100 minutes.

While this approach does result in different impacts on DBS service
across the country, the impacts in any regard are small. Based on the
wide deviation already present in the provision of DBS service, an
increase in unavailability of about 10% is a relatively minor change and
should not be perceptible to DBS customers.[^671] In this regard, the
outage increases due to MVDDS are significantly less than the seasonal
and yearly variability in actual rain fall rates, and therefore, the
variability in outage already experienced by many DBS customers. The
item provides some examples showing the variability of rainfall from
year-to-year and month-to-month for Reno, NV and Allentown, PA.[^672]

In addition, the outage differences between DBS providers in many cases
vary by a significant order of magnitude due to propagation effects,
rain, and differences in the way DBS providers have deployed their
systems (*e.g*., satellite power). For example, the outages from
different DBS satellites providing service to New York currently vary
dramatically: 200.1 minutes from the satellite at 101º, 1323.6 minutes
from the satellite at 110º and 822.1 minutes from the satellite at
119º.[^673] The variability in outage across the country from any one
DBS satellite is also significant. For example, DBS customers receiving
service from the 101º satellite position will experience outages
totaling 82.2 minutes in Los Angeles and 653.9 minutes in San Francisco
and 1720.3 minutes in Miami. This represents increases of over 800% for
San Francisco and 2000% for Miami as compared to DBS service for Los
Angeles.

*[Consideration of DBS Satellites]{.underline}*. The current orbital
positions that may be used to provide DBS service to the United States
are nominally located at 61.5º, 101º, 110º, 119º, 148º, 157º, 166º and
175º west longitude. The orbital positions at 101º, 110º and 119º are
available for DBS service for the entire continental United States
(CONUS). These positions generally provide the best combination of
elevation angle of the DBS receiver and eclipse protection of the DBS
satellite.[^674] The small 45 cm parabolic receive antennas commonly
employed for DBS are generally intended for use at elevation angles of
greater than 20 degrees. With the exception of a small portion of the
northern most portion of the eastern United States from the 119º
position, the orbital positions at 101º, 110º and 119º provide for
elevation angles greater than 20 degrees.

The remaining orbital positions are generally limited to providing
regional or specialized DBS services due to elevation angle limitations.
For example, the 61.5 º position is best suited to serving the eastern
United States. The 148º, 157º, 166º and 175º positions are best for
serving the western portions of the United States and Alaska and Hawaii.
In this regard, for example, DBS operations from the 61.5 º position
would provide 20 degree elevations for the eastern half of the United
States but the elevation angles to the northwestern United States would
be very low and may require much larger receive antennas for acceptable
service availability.

The regional EPFD values are calculated based on the technical
parameters of the current CONUS DBS satellites operating at 101º, 110º
and 119º, which provide the overwhelming majority of service to DBS
subscribers today. There are two other orbital slots that provide DBS
service to portions of the U.S. (*i.e.*, 61.5º and 148º west
longitudes). The footprint of the full CONUS satellites encompass the
footprint of the partial CONUS satellites, and the operating
characteristics (*i.e*., power) are similar. Therefore, the EPFDs
calculated based on the CONUS slots result in comparable increases in
unavailability to DBS subscribers who receive programming from the other
slots. To validate this approach, limited sample calculations were
performed on the satellites at 61.5º and 148º west longitudes. These
calculations confirm that impact of the adopted EPFD limits is
acceptable in locations where reliable DBS service could be
expected.[^675]

Calculations were not performed for the remaining satellite positions at
157º, 166º and 175º, which do not provide full CONUS service, because no
service is currently offered from these positions. As a threshold
matter, it would be inappropriate to perform an analysis of potential
interference to these orbital positions for the eastern parts of the
United States where reliable service would not be expected due to low
antenna elevation angles and other factors. In addition, any analysis of
these positions would be purely speculative because the characteristics
of the satellites are unknown.

*[Use of Representative Links]{.underline}*. Thirty-two cities in the
top 32 television markets cities were chosen as representative DBS links
and used to determine an appropriate EPFD for MVDDS. Choosing a limited
number of representative satellite links for analysis purposes to
determine an appropriate EPFD or similar value is an acceptable
engineering and scientific approach.

These markets constitute a reasonable sample that accounts for the
differences in satellite signal strength and climate patterns that occur
across the country. In addition, they include a large number of
television viewers in diverse geographic locations throughout the United
States. For example, Seattle, Washington and Portland, Oregon in the
northwest; Los Angeles and San Francisco California and Phoenix, Arizona
in the southwest; Miami and Orlando, Florida and Atlanta, Georgia in the
southeast; Boston, Massachusetts, New York, New York, and Philadelphia,
Pennsylvania in the northeast; and, Chicago, Illinois; Minneapolis,
Minnesota; St. Louis, Missouri and Denver, Colorado in the mid-west. The
additional precision that would be provided by analyzing additional or
other locations is unnecessary and unlikely to be significant given
other factors, such as, the large variability that already exist in
rainfall patterns from season to season and year to year.

While the analysis is based on DBS links in each of the top 32 markets,
the results in fact apply to much larger areas beyond these cities or
markets extending into rural areas as well. [^676] This is because
satellite signal strength and rainfall patterns tend to change only
gradually over great distances.[^677] In addition, to ensure accuracy in
the outage calculations for each area, the actual elevation above mean
sea level (AMSL) for that area was used in the model. However, as
described below, to model the increased outage that would be
attributable to MVDDS, free space path loss over a flat earth was
assumed (*i.e.*, effects of blocking by terrain or buildings was not
considered).[^678] Therefore, the modeling approach ensures that the
test results from urban centers apply equally to rural settings with
similar rainfall patterns. For example, the results for New York and
Philadelphia reasonably apply for the areas between those cities. The
same would be true for Chicago and Cincinnati, Los Angeles and San
Diego, Seattle and Portland, etc. A sufficient number of data points
have been analyzed to ensure that the results are properly
representative of the entire country.

Other parties have taken a similar approach for evaluating the potential
for interference to DBS associated with particular models. For example,
the ITU analyzed the potential for NGSO interference to DBS in 14 U.S.
cities.[^679]

*[Other Factors]{.underline}*. Several simplifying assumptions were made
in conducting this analysis. These factors, as explained below, lead to
a conservative assessment and will generally result in outage
predictions that are greater than DBS subscribers will experience in
reality.

First, free space path loss over a flat earth was assumed for all
calculations of additional DBS outage attributable to MVDDS.[^680]
Natural shielding by terrain, foliage, and buildings were not
considered. Such an assumption is necessitated by the lack of prior
knowledge of where an MVDDS licensee will actually site its transmitting
antennas. As MITRE points out, such an assumption "...undoubtedly
exaggerates the sizes of the interference contours shown on the plots.
If natural shielding were considered, those contours would certainly
enclose smaller areas."[^681]

Second, the analysis assumed a rain faded DBS signal and a full strength
MVDDS signal. Most DBS outages occur during periods of heavy rain.
However, periods of heavy rain tend to be localized events and would
also attenuate local MVDDS signals. Therefore, the model overstates the
number of DBS subscribers that may potentially be affected. This is
corroborated by MITRE, which states, "\[h\]ad it been feasible to
consider this factor \[rain attenuation of the MVDDS signal\], the
interference contours would probably have shrunk further ..."[^682]

Third, the computations are based on a quasi-error free (QEF) DBS
receiver threshold value. This is a conservative approach and represents
an audio/video signal that appears essentially error‑free to the DBS
customer. In many cases, a DBS customer may not perceive a degradation
in picture quality when the DBS signal level crosses the QEF threshold.
Thus, the amount of outage actually experienced by a DBS customer may be
less than the outages predicted by the model.

Finally, the improved performance of new satellites was not considered
in our analysis. It should be noted that DirecTV recently began
transmitting from a new satellite. This satellite transmits with more
power than the one used for the analysis. In addition, this satellite is
also capable of transmitting spot beams which are used to concentrate
the power in small areas as needed. Similarly, EchoStar is planning to
launch a new satellite in June, 2002 to the 110^o^ W.L. orbital
position. This satellite is also more powerful than the one used in our
analysis. The practical effect of more powerful satellites will be to
reduce the amount of DBS outage predicted under this analysis.

*[Computation of EPFD Limits and Choice of Regions]{.underline}*. Using
the appropriate technical parameters and assumptions described above,
the EPFD that would yield a 10% increase in unavailability was
calculated for each of the 32 sample cities and for each of the DBS
satellites at 101º, 110º, and 119º; and the results plotted. The EPFD
values for each location were then averaged, sorted by average EPFD
value and plotted from highest to lowest. The data is shown in Figure 1
below:

![](media/image21.wmf){width="6.249305555555556in"
height="3.4409722222222223in"}

Figure 1

Using the average EPFD values, it can be seen that the above data can be
organized into distinct groupings where the average and calculated EPFD
levels do not vary substantially. That is, where the calculated EPFD
levels in general vary by no more than 3 dB from the average value. One
can also observe that the groupings occur along geographic lines. That
is, the average EPFD levels from the above data can be used to form four
geographic regions, taking into account DBS satellite characteristics
and climatic conditions. These regions can be roughly described as the
Eastern, Midwestern, Southwestern, and Northwestern regions. Because the
EPFD levels are relatively consistent within each of these regions, the
individual EPFDs for the markets within each region are averaged.
Averaging ensures that the EPFD for neither the "worst case" nor the
"best case" satellite predominates.

Using the average EPFD values for each region, the increase in
unavailability or "difference in outage" was calculated for each city
and satellite. This data is present in the Satellite Outage Analysis
Results section of this Appendix. The data show a median increase in
outage value of 10.5% and a mean value of 11.9% for the total 32-city
sample.

As a consequence of using an average EPFD value, many of the "difference
in outage" values for the 32-city sample are above the starting basis of
a 10% increase in unavailability.[^683] In many instances, this is only
by a small nominal amount of a few percentages. In others, however, the
differences are larger. For example, in a few instances, the increase in
unavailability was on the order of 20-30%. However, the corresponding
decrease in DBS service *availability* for these instances was only on
the order of 0.05-0.08%. Other factors such as actual seasonal and
yearly precipitation conditions will cause much greater variations in
the DBS service availability. Therefore, engineering judgement would
suggest that these differences are not significant and represent an
acceptable range.

Further, the majority of instances where unavailability was on the order
of 20-30% occurred in the case of the satellite at 110º. This DBS
satellite is scheduled to be replaced with a newer higher-powered
satellite in advance of the anticipated market introduction of MVDDS.
While these values are taken into account in the averaging to determine
the regional EPFDs, as noted above, it was not felt that they should
predominate the determination of the EPFDs.

The average EPFD for each of the regions are: -168.4 dBW/m^2^/4kHz for
the Eastern region;[^684] ‑169.8 dBW/m^2^/4kHz for the Midwestern
region;[^685] ‑171.0 dBW/m^2^/4kHz for the Southwestern;[^686] and,
‑172.1 dBW/m^2^/4kHz in the Northwestern region.[^687] The regions and
average EPFD levels are shown in Figure 2 below.

![](media/image22.wmf){width="6.250694444444444in"
height="3.8319444444444444in"}

Figure 2

*[Additional Computations for Validation of the Model]{.underline}*.
Additional sample computations were conducted to validate the model and
ensure that the EPFD values and the choice of regions were appropriate.
That is, the EPFD for the region would generally ensure that for
locations within the region any increase in DBS outage would be
consistent with our 10% approximate increase in unavailability
guideline. Sample calculations were conducted for Baton Rouge, New
Orleans, and Shreveport, Louisiana; Billings, Montana; Fargo, North
Dakota; Salt Lake City, Utah; Omaha, Nebraska; Oklahoma City, Oklahoma;
Boise, Idaho; and Jackson, Mississippi. The results of these sample
computations show outage increases generally consistent with our
guideline and the results from our 32 city sample. In addition, as the
data for three locations within Louisiana demonstrate, the outage
increases across smaller geographic areas (*e.g*., state boundary) show
very little variation. Further, the data for all locations show outage
increases for locations throughout the U.S. are consistent with our 10%
approximate increase in unavailability guideline. The sample data is
shown below.

The additional sample data show "outage increases" from 9.4% to 19.4%,
with a median value of 11.1% and a mean value of 11.8%. These sample
calculations demonstrate that the regional EPFD values are appropriate
and will ensure that any degradation caused by the MVDDS signal would
result in only a small increase in the outage or "unavailability" of DBS
service that now occurs due to rain or other precipitation.

In addition to the computations for the six cities listed above, sample
computations were conducted for Anchorage, Alaska and Honolulu, Hawaii
to demonstrate the appropriateness of the regional EPFD. This data is
also presented below. The data for Alaska and Hawaii show "outage
increases" from 2.2% to 23.3%, with a median value of 6.3% and a mean
value of 8.5%. Because these calculations were based on the use of a
larger receive antenna required in those locations these calculations
were not included in the mean and median calculations for the six city
sample described above.

While statistically precise samples were not developed either in our 32
city case or for our validation of the model, such efforts are not
needed given the relatively small variations in the permitted EPFD
values across the four regions and the wide variability in DBS service
caused by differences in satellites used, the seasonal and yearly
differences in climatic conditions, and other factors.

EPFD Analysis for Additional Cities

+------+-------+-------+------+------+-------+----+-------+--------+
| B    |       |       |      |      |       |    |       |        |
| aton |       |       |      |      |       |    |       |        |
| Ro   |       |       |      |      |       |    |       |        |
| uge, |       |       |      |      |       |    |       |        |
| LA   |       |       |      |      |       |    |       |        |
+------+-------+-------+------+------+-------+----+-------+--------+
| S    | Bas   | Bas   | EPFD | FCC  | O     | Ou |       | Diff   |
| atel | eline | eline |      |      | utage | ta |       | erence |
| lite |       |       | For  | Ado  |       | ge |       |        |
|      | O     | O     |      | pted | With  | In |       | B      |
|      | utage | utage | 10%  |      |       | cr |       | etween |
|      |       |       |      | EPFD | FCC   | ea |       |        |
|      |       | plus  | Incr |      |       | se |       | Calc   |
|      |       | 10%   | ease |      | EPFD  |    |       | ulated |
|      |       |       |      |      |       |    |       |        |
|      |       | Inc   |      |      |       |    |       | And    |
|      |       | rease |      |      |       |    |       | FCC    |
|      |       |       |      |      |       |    |       |        |
|      |       |       |      |      |       |    |       | EPFDs  |
+------+-------+-------+------+------+-------+----+-------+--------+
|      | (min  | (min  | (dB  |      | (min  | \% | (min  | DB     |
|      | utes) | utes) | W/m^ |      | utes) |    | utes) |        |
|      |       |       | 2^/4 |      |       |    |       |        |
|      |       |       | kHz) |      |       |    |       |        |
+------+-------+-------+------+------+-------+----+-------+--------+
| 101  | 1214  | 1     | -1   | -1   | 1329  | 9  | 115   | -0.3   |
|      |       | 335.4 | 68.1 | 68.4 |       | .5 |       |        |
+------+-------+-------+------+------+-------+----+-------+--------+
| 110  | 1306  | 1     | -1   | -1   | 1440  | 10 | 134   | -0.1   |
|      |       | 436.6 | 68.3 | 68.4 |       | .3 |       |        |
+------+-------+-------+------+------+-------+----+-------+--------+
| 119  | 1665  | 1     | -1   | -1   | 1861  | 11 | 196   | 0.6    |
|      |       | 831.5 | 69.0 | 68.4 |       | .8 |       |        |
+------+-------+-------+------+------+-------+----+-------+--------+

+------+-------+-------+------+------+-------+----+-------+--------+
| New  |       |       |      |      |       |    |       |        |
| Orle |       |       |      |      |       |    |       |        |
| ans, |       |       |      |      |       |    |       |        |
| LA   |       |       |      |      |       |    |       |        |
+------+-------+-------+------+------+-------+----+-------+--------+
| S    | Bas   | Bas   | EPFD | FCC  | O     | Ou |       | Diff   |
| atel | eline | eline |      |      | utage | ta |       | erence |
| lite |       |       | For  | Ado  |       | ge |       |        |
|      | O     | O     |      | pted | With  | In |       | B      |
|      | utage | utage | 10%  |      |       | cr |       | etween |
|      |       |       |      | EPFD | FCC   | ea |       |        |
|      |       | plus  | Incr |      |       | se |       | Calc   |
|      |       | 10%   | ease |      | EPFD  |    |       | ulated |
|      |       |       |      |      |       |    |       |        |
|      |       | Inc   |      |      |       |    |       | And    |
|      |       | rease |      |      |       |    |       | FCC    |
|      |       |       |      |      |       |    |       |        |
|      |       |       |      |      |       |    |       | EPFDs  |
+------+-------+-------+------+------+-------+----+-------+--------+
|      | (min  | (min  | (dB  |      | (min  | \% | (min  | DB     |
|      | utes) | utes) | W/m^ |      | utes) |    | utes) |        |
|      |       |       | 2^/4 |      |       |    |       |        |
|      |       |       | kHz) |      |       |    |       |        |
+------+-------+-------+------+------+-------+----+-------+--------+
| 101  | 1268  | 1     | -1   | -1   | 1387  | 9  | 119   | -0.3   |
|      |       | 394.8 | 68.1 | 68.4 |       | .4 |       |        |
+------+-------+-------+------+------+-------+----+-------+--------+
| 110  | 1366  | 1     | -1   | -1   | 1505  | 10 | 139   | -0.1   |
|      |       | 502.6 | 68.3 | 68.4 |       | .2 |       |        |
+------+-------+-------+------+------+-------+----+-------+--------+
| 119  | 1756  | 1     | -1   | -1   | 1962  | 11 | 206   | 0.4    |
|      |       | 931.6 | 68.8 | 68.4 |       | .7 |       |        |
+------+-------+-------+------+------+-------+----+-------+--------+

+------+-------+-------+------+------+-------+----+-------+--------+
| Shr  |       |       |      |      |       |    |       |        |
| evep |       |       |      |      |       |    |       |        |
| ort, |       |       |      |      |       |    |       |        |
| LA   |       |       |      |      |       |    |       |        |
+------+-------+-------+------+------+-------+----+-------+--------+
| S    | Bas   | Bas   | EPFD | FCC  | O     | Ou |       | Diff   |
| atel | eline | eline |      |      | utage | ta |       | erence |
| lite |       |       | For  | Ado  |       | ge |       |        |
|      | O     | O     |      | pted | With  | In |       | B      |
|      | utage | utage | 10%  |      |       | cr |       | etween |
|      |       |       |      | EPFD | FCC   | ea |       |        |
|      |       | plus  | Incr |      |       | se |       | Calc   |
|      |       | 10%   | ease |      | EPFD  |    |       | ulated |
|      |       |       |      |      |       |    |       |        |
|      |       | Inc   |      |      |       |    |       | And    |
|      |       | rease |      |      |       |    |       | FCC    |
|      |       |       |      |      |       |    |       |        |
|      |       |       |      |      |       |    |       | EPFDs  |
+------+-------+-------+------+------+-------+----+-------+--------+
|      | (min  | (min  | (dB  |      | (min  | \% | (min  | DB     |
|      | utes) | utes) | W/m^ |      | utes) |    | utes) |        |
|      |       |       | 2^/4 |      |       |    |       |        |
|      |       |       | kHz) |      |       |    |       |        |
+------+-------+-------+------+------+-------+----+-------+--------+
| 101  | 950.7 | 10    | -1   | -1   | 1049  | 10 | 98.3  | 0      |
|      |       | 45.77 | 68.4 | 68.4 |       | .3 |       |        |
+------+-------+-------+------+------+-------+----+-------+--------+
| 110  | 1023  | 1     | -1   | -1   | 1124  | 9  | 101   | -0.1   |
|      |       | 125.3 | 68.3 | 68.4 |       | .9 |       |        |
+------+-------+-------+------+------+-------+----+-------+--------+
| 119  | 1300  | 1430  | -1   | -1   | 1459  | 12 | 159   | 0.7    |
|      |       |       | 69.1 | 68.4 |       | .2 |       |        |
+------+-------+-------+------+------+-------+----+-------+--------+

+------+-------+-------+------+------+-------+----+-------+--------+
| B    |       |       |      |      |       |    |       |        |
| illi |       |       |      |      |       |    |       |        |
| ngs, |       |       |      |      |       |    |       |        |
| MT   |       |       |      |      |       |    |       |        |
+------+-------+-------+------+------+-------+----+-------+--------+
| S    | Bas   | Bas   | EPFD | FCC  | O     | Ou |       | Diff   |
| atel | eline | eline |      |      | utage | ta |       | erence |
| lite |       |       | For  | Ado  |       | ge |       |        |
|      | O     | O     |      | pted | With  | In |       | B      |
|      | utage | utage | 10%  |      |       | cr |       | etween |
|      |       |       |      | EPFD | FCC   | ea |       |        |
|      |       | plus  | Incr |      |       | se |       | Calc   |
|      |       | 10%   | ease |      | EPFD  |    |       | ulated |
|      |       |       |      |      |       |    |       |        |
|      |       | Inc   |      |      |       |    |       | And    |
|      |       | rease |      |      |       |    |       | FCC    |
|      |       |       |      |      |       |    |       |        |
|      |       |       |      |      |       |    |       | EPFDs  |
+------+-------+-------+------+------+-------+----+-------+--------+
|      | (min  | (min  | (dB  |      | (min  | \% | (min  | DB     |
|      | utes) | utes) | W/m^ |      | utes) |    | utes) |        |
|      |       |       | 2^/4 |      |       |    |       |        |
|      |       |       | kHz) |      |       |    |       |        |
+------+-------+-------+------+------+-------+----+-------+--------+
| 101  | 117.1 | 1     | -1   | -1   | 131.5 | 12 | 14.4  | 0.4    |
|      |       | 28.81 | 72.5 | 72.1 |       | .3 |       |        |
+------+-------+-------+------+------+-------+----+-------+--------+
| 110  | 118.9 | 1     | -1   | -1   | 133.8 | 12 | 14.9  | 0.5    |
|      |       | 30.79 | 72.6 | 72.1 |       | .5 |       |        |
+------+-------+-------+------+------+-------+----+-------+--------+
| 119  | 161.2 | 1     | -1   | -1   | 183.8 | 14 | 22.6  | 1      |
|      |       | 77.32 | 73.1 | 72.1 |       | .0 |       |        |
+------+-------+-------+------+------+-------+----+-------+--------+

+------+-------+-------+------+------+-------+----+-------+--------+
| Fa   |       |       |      |      |       |    |       |        |
| rgo, |       |       |      |      |       |    |       |        |
| ND   |       |       |      |      |       |    |       |        |
+------+-------+-------+------+------+-------+----+-------+--------+
| S    | Bas   | Bas   | EPFD | FCC  | O     | Ou |       | Diff   |
| atel | eline | eline |      |      | utage | ta |       | erence |
| lite |       |       | For  | Ado  |       | ge |       |        |
|      | O     | O     |      | pted | With  | In |       | B      |
|      | utage | utage | 10%  |      |       | cr |       | etween |
|      |       |       |      | EPFD | FCC   | ea |       |        |
|      |       | plus  | Incr |      |       | se |       | Calc   |
|      |       | 10%   | ease |      | EPFD  |    |       | ulated |
|      |       |       |      |      |       |    |       |        |
|      |       | Inc   |      |      |       |    |       | And    |
|      |       | rease |      |      |       |    |       | FCC    |
|      |       |       |      |      |       |    |       |        |
|      |       |       |      |      |       |    |       | EPFDs  |
+------+-------+-------+------+------+-------+----+-------+--------+
|      | (min  | (min  | (dB  |      | (min  | \% | (min  | DB     |
|      | utes) | utes) | W/m^ |      | utes) |    | utes) |        |
|      |       |       | 2^/4 |      |       |    |       |        |
|      |       |       | kHz) |      |       |    |       |        |
+------+-------+-------+------+------+-------+----+-------+--------+
| 101  | 495.4 | 5     | -1   | -1   | 544.4 | 9  | 49    | -0.2   |
|      |       | 44.94 | 71.9 | 72.1 |       | .9 |       |        |
+------+-------+-------+------+------+-------+----+-------+--------+
| 110  | 562.3 | 6     | -1   | -1   | 619.5 | 10 | 57.2  | -0.1   |
|      |       | 18.53 | 72.0 | 72.1 |       | .2 |       |        |
+------+-------+-------+------+------+-------+----+-------+--------+
| 119  | 810.3 | 8     | -1   | -1   | 926.7 | 14 | 116.4 | 1.1    |
|      |       | 91.33 | 73.2 | 72.1 |       | .4 |       |        |
+------+-------+-------+------+------+-------+----+-------+--------+

+------+-------+-------+------+------+-------+----+-------+--------+
| Salt |       |       |      |      |       |    |       |        |
| Lake |       |       |      |      |       |    |       |        |
| C    |       |       |      |      |       |    |       |        |
| ity, |       |       |      |      |       |    |       |        |
| UT   |       |       |      |      |       |    |       |        |
+------+-------+-------+------+------+-------+----+-------+--------+
| S    | Bas   | Bas   | EPFD | FCC  | O     | Ou |       | Diff   |
| atel | eline | eline |      |      | utage | ta |       | erence |
| lite |       |       | For  | Ado  |       | ge |       |        |
|      | O     | O     |      | pted | With  | In |       | B      |
|      | utage | utage | 10%  |      |       | cr |       | etween |
|      |       |       |      | EPFD | FCC   | ea |       |        |
|      |       | plus  | Incr |      |       | se |       | Calc   |
|      |       | 10%   | ease |      | EPFD  |    |       | ulated |
|      |       |       |      |      |       |    |       |        |
|      |       | Inc   |      |      |       |    |       | And    |
|      |       | rease |      |      |       |    |       | FCC    |
|      |       |       |      |      |       |    |       |        |
|      |       |       |      |      |       |    |       | EPFDs  |
+------+-------+-------+------+------+-------+----+-------+--------+
|      | (min  | (min  | (dB  |      | (min  | \% | (min  | DB     |
|      | utes) | utes) | W/m^ |      | utes) |    | utes) |        |
|      |       |       | 2^/4 |      |       |    |       |        |
|      |       |       | kHz) |      |       |    |       |        |
+------+-------+-------+------+------+-------+----+-------+--------+
| 101  | 65.5  | 72.05 | -1   | -1   | 75.6  | 15 | 10.1  | 1.3    |
|      |       |       | 72.3 | 71.0 |       | .4 |       |        |
+------+-------+-------+------+------+-------+----+-------+--------+
| 110  | 64.4  | 70.84 | -1   | -1   | 74.5  | 15 | 10.1  | 1.5    |
|      |       |       | 72.5 | 71.0 |       | .7 |       |        |
+------+-------+-------+------+------+-------+----+-------+--------+
| 119  | 84.9  | 93.39 | -1   | -1   | 101.2 | 19 | 16.3  | 2.4    |
|      |       |       | 73.4 | 71.0 |       | .2 |       |        |
+------+-------+-------+------+------+-------+----+-------+--------+

+------+-------+-------+------+------+-------+----+-------+--------+
| Om   |       |       |      |      |       |    |       |        |
| aha, |       |       |      |      |       |    |       |        |
| Nebr |       |       |      |      |       |    |       |        |
| aska |       |       |      |      |       |    |       |        |
+------+-------+-------+------+------+-------+----+-------+--------+
| S    | Bas   | Bas   | EPFD | FCC  | O     | Ou |       | Diff   |
| atel | eline | eline |      |      | utage | ta |       | erence |
| lite |       |       | For  | Ado  |       | ge |       |        |
|      | O     | O     |      | pted | With  | In |       | B      |
|      | utage | utage | 10%  |      |       | cr |       | etween |
|      |       |       |      | EPFD | FCC   | ea |       |        |
|      |       | plus  | Incr |      |       | se |       | Calc   |
|      |       | 10%   | ease |      | EPFD  |    |       | ulated |
|      |       |       |      |      |       |    |       |        |
|      |       | Inc   |      |      |       |    |       | And    |
|      |       | rease |      |      |       |    |       | FCC    |
|      |       |       |      |      |       |    |       |        |
|      |       |       |      |      |       |    |       | EPFDs  |
+------+-------+-------+------+------+-------+----+-------+--------+
|      | (min  | (min  | (dB  |      | (min  | \% | (min  | DB     |
|      | utes) | utes) | W/m^ |      | utes) |    | utes) |        |
|      |       |       | 2^/4 |      |       |    |       |        |
|      |       |       | kHz) |      |       |    |       |        |
+------+-------+-------+------+------+-------+----+-------+--------+
| 101  | 360.3 | 3     | -1   | -1   | 389   | 8  | 28.7  | -1     |
|      |       | 96.33 | 68.8 | 69.8 |       | .0 |       |        |
+------+-------+-------+------+------+-------+----+-------+--------+
| 110  | 968.5 | 10    | -1   | -1   | 1150  | 18 | 181.5 | 2.2    |
|      |       | 65.35 | 72.0 | 69.8 |       | .7 |       |        |
+------+-------+-------+------+------+-------+----+-------+--------+
| 119  | 511.2 | 5     | -1   | -1   | 560.1 | 9  | 48.9  | -0.4   |
|      |       | 62.32 | 69.4 | 69.8 |       | .6 |       |        |
+------+-------+-------+------+------+-------+----+-------+--------+

+------+-------+-------+------+------+-------+----+-------+--------+
| Okla |       |       |      |      |       |    |       |        |
| homa |       |       |      |      |       |    |       |        |
| C    |       |       |      |      |       |    |       |        |
| ity, |       |       |      |      |       |    |       |        |
| Okla |       |       |      |      |       |    |       |        |
| homa |       |       |      |      |       |    |       |        |
+------+-------+-------+------+------+-------+----+-------+--------+
| S    | Bas   | Bas   | EPFD | FCC  | O     | Ou |       | Diff   |
| atel | eline | eline |      |      | utage | ta |       | erence |
| lite |       |       | For  | Ado  |       | ge |       |        |
|      | O     | O     |      | pted | With  | In |       | B      |
|      | utage | utage | 10%  |      |       | cr |       | etween |
|      |       |       |      | EPFD | FCC   | ea |       |        |
|      |       | plus  | Incr |      |       | se |       | Calc   |
|      |       | 10%   | ease |      | EPFD  |    |       | ulated |
|      |       |       |      |      |       |    |       |        |
|      |       | Inc   |      |      |       |    |       | And    |
|      |       | rease |      |      |       |    |       | FCC    |
|      |       |       |      |      |       |    |       |        |
|      |       |       |      |      |       |    |       | EPFDs  |
+------+-------+-------+------+------+-------+----+-------+--------+
|      | (min  | (min  | (dB  |      | (min  | \% | (min  | DB     |
|      | utes) | utes) | W/m^ |      | utes) |    | utes) |        |
|      |       |       | 2^/4 |      |       |    |       |        |
|      |       |       | kHz) |      |       |    |       |        |
+------+-------+-------+------+------+-------+----+-------+--------+
| 101  | 454.2 | 4     | -1   | -1   | 489   | 7  | 34.8  | -1.2   |
|      |       | 99.62 | 68.6 | 69.8 |       | .7 |       |        |
+------+-------+-------+------+------+-------+----+-------+--------+
| 110  | 1182  | 1     | -1   | -1   | 1379  | 16 | 197   | 1.6    |
|      |       | 300.2 | 71.4 | 69.8 |       | .7 |       |        |
+------+-------+-------+------+------+-------+----+-------+--------+
| 119  | 620.6 | 6     | -1   | -1   | 677.6 | 9  | 57    | -0.6   |
|      |       | 82.66 | 69.2 | 69.8 |       | .2 |       |        |
+------+-------+-------+------+------+-------+----+-------+--------+

+------+-------+-------+------+------+-------+----+-------+--------+
| Bo   |       |       |      |      |       |    |       |        |
| ise, |       |       |      |      |       |    |       |        |
| I    |       |       |      |      |       |    |       |        |
| daho |       |       |      |      |       |    |       |        |
+------+-------+-------+------+------+-------+----+-------+--------+
| S    | Bas   | Bas   | EPFD | FCC  | O     | Ou |       | Diff   |
| atel | eline | eline |      |      | utage | ta |       | erence |
| lite |       |       | For  | Ado  |       | ge |       |        |
|      | O     | O     |      | pted | With  | In |       | B      |
|      | utage | utage | 10%  |      |       | cr |       | etween |
|      |       |       |      | EPFD | FCC   | ea |       |        |
|      |       | plus  | Incr |      |       | se |       | Calc   |
|      |       | 10%   | ease |      | EPFD  |    |       | ulated |
|      |       |       |      |      |       |    |       |        |
|      |       | Inc   |      |      |       |    |       | And    |
|      |       | rease |      |      |       |    |       | FCC    |
|      |       |       |      |      |       |    |       |        |
|      |       |       |      |      |       |    |       | EPFDs  |
+------+-------+-------+------+------+-------+----+-------+--------+
|      | (min  | (min  | (dB  |      | (min  | \% | (min  | DB     |
|      | utes) | utes) | W/m^ |      | utes) |    | utes) |        |
|      |       |       | 2^/4 |      |       |    |       |        |
|      |       |       | kHz) |      |       |    |       |        |
+------+-------+-------+------+------+-------+----+-------+--------+
| 101  | 65.1  | 71.61 | -1   | -1   | 72.7  | 11 | 7.6   | 0.3    |
|      |       |       | 72.4 | 72.1 |       | .7 |       |        |
+------+-------+-------+------+------+-------+----+-------+--------+
| 110  | 61.6  | 67.76 | -1   | -1   | 69.7  | 13 | 8.1   | 0.7    |
|      |       |       | 72.8 | 72.1 |       | .1 |       |        |
+------+-------+-------+------+------+-------+----+-------+--------+
| 119  | 23.3  | 25.63 | -1   | -1   | 25.1  | 7  | 1.8   | -1.4   |
|      |       |       | 70.7 | 72.1 |       | .7 |       |        |
+------+-------+-------+------+------+-------+----+-------+--------+

+------+-------+-------+------+------+-------+----+-------+--------+
| Jack |       |       |      |      |       |    |       |        |
| son, |       |       |      |      |       |    |       |        |
| Mis  |       |       |      |      |       |    |       |        |
| siss |       |       |      |      |       |    |       |        |
| ippi |       |       |      |      |       |    |       |        |
+------+-------+-------+------+------+-------+----+-------+--------+
| S    | Bas   | Bas   | EPFD | FCC  | O     | Ou |       | Diff   |
| atel | eline | eline |      |      | utage | ta |       | erence |
| lite |       |       | For  | Ado  |       | ge |       |        |
|      | O     | O     |      | pted | With  | In |       | B      |
|      | utage | utage | 10%  |      |       | cr |       | etween |
|      |       |       |      | EPFD | FCC   | ea |       |        |
|      |       | plus  | Incr |      |       | se |       | Calc   |
|      |       | 10%   | ease |      | EPFD  |    |       | ulated |
|      |       |       |      |      |       |    |       |        |
|      |       | Inc   |      |      |       |    |       | And    |
|      |       | rease |      |      |       |    |       | FCC    |
|      |       |       |      |      |       |    |       |        |
|      |       |       |      |      |       |    |       | EPFDs  |
+------+-------+-------+------+------+-------+----+-------+--------+
|      | (min  | (min  | (dB  |      | (min  | \% | (min  | DB     |
|      | utes) | utes) | W/m^ |      | utes) |    | utes) |        |
|      |       |       | 2^/4 |      |       |    |       |        |
|      |       |       | kHz) |      |       |    |       |        |
+------+-------+-------+------+------+-------+----+-------+--------+
| 101  | 1041  | 1     | -1   | -1   | 1148  | 10 | 107   | -0.1   |
|      |       | 145.1 | 68.3 | 68.4 |       | .3 |       |        |
+------+-------+-------+------+------+-------+----+-------+--------+
| 110  | 1131  | 1     | -1   | -1   | 1250  | 10 | 119   | 0.1    |
|      |       | 244.1 | 68.5 | 68.4 |       | .5 |       |        |
+------+-------+-------+------+------+-------+----+-------+--------+
| 119  | 1476  | 1     | -1   | -1   | 1656  | 12 | 180   | 0.5    |
|      |       | 623.6 | 68.9 | 68.4 |       | .2 |       |        |
+------+-------+-------+------+------+-------+----+-------+--------+

EPFD Analysis for Alaska and Hawaii

+------+-------+-------+------+------+-------+----+-------+--------+
| An   |       |       |      |      |       |    |       |        |
| chor |       |       |      |      |       |    |       |        |
| age, |       |       |      |      |       |    |       |        |
| AK   |       |       |      |      |       |    |       |        |
+------+-------+-------+------+------+-------+----+-------+--------+
| S    | Bas   | Bas   | EPFD | FCC  | O     | Ou |       | Diff   |
| atel | eline | eline |      |      | utage | ta |       | erence |
| lite |       |       | For  | Ado  |       | ge |       |        |
|      | O     | O     |      | pted | With  | In |       | B      |
|      | utage | utage | 10%  |      |       | cr |       | etween |
|      |       |       |      | EPFD | FCC   | ea |       |        |
|      |       | plus  | Incr |      |       | se |       | Calc   |
|      |       | 10%   | ease |      | EPFD  |    |       | ulated |
|      |       |       |      |      |       |    |       |        |
|      |       | Inc   |      |      |       |    |       | And    |
|      |       | rease |      |      |       |    |       | FCC    |
|      |       |       |      |      |       |    |       |        |
|      |       |       |      |      |       |    |       | EPFDs  |
+------+-------+-------+------+------+-------+----+-------+--------+
|      | (min  | (min  | (dB  |      | (min  | \% | (min  | DB     |
|      | utes) | utes) | W/m^ |      | utes) |    | utes) |        |
|      |       |       | 2^/4 |      |       |    |       |        |
|      |       |       | kHz) |      |       |    |       |        |
+------+-------+-------+------+------+-------+----+-------+--------+
| 1    | 145.9 | 1     | -1   | -1   | 151.1 | 3  | 5.2   | -4.3   |
| 01\* |       | 60.49 | 67.8 | 72.1 |       | .6 |       |        |
+------+-------+-------+------+------+-------+----+-------+--------+
| 110  | 302.4 | 3     | -1   | -1   | 329.4 | 8  | 27    | -0.7   |
| \*\* |       | 32.64 | 71.4 | 72.1 |       | .9 |       |        |
+------+-------+-------+------+------+-------+----+-------+--------+
| 119  | 67.2  | 73.92 | -1   | -1   | 69.7  | 3  | 2.5   | -4.3   |
| \*\* |       |       | 67.8 | 72.1 |       | .7 |       |        |
+------+-------+-------+------+------+-------+----+-------+--------+

\* Based on 240 cm DBS Receive Antenna (*See*:
www.directv.com/DTVAPP/learn/FAQ_DTVBasics.jsp)

\*\*Based on 180 cm DBS Receive Antenna

+------+-------+-------+------+------+-------+----+-------+--------+
| H    |       |       |      |      |       |    |       |        |
| onol |       |       |      |      |       |    |       |        |
| ulu. |       |       |      |      |       |    |       |        |
| HI   |       |       |      |      |       |    |       |        |
+------+-------+-------+------+------+-------+----+-------+--------+
| S    | Bas   | Bas   | EPFD | FCC  | O     | Ou |       | Diff   |
| atel | eline | eline |      |      | utage | ta |       | erence |
| lite |       |       | For  | Ado  |       | ge |       |        |
|      | O     | O     |      | pted | With  | In |       | B      |
|      | utage | utage | 10%  |      |       | cr |       | etween |
|      |       |       |      | EPFD | FCC   | ea |       |        |
|      |       | plus  | Incr |      |       | se |       | Calc   |
|      |       | 10%   | ease |      | EPFD  |    |       | ulated |
|      |       |       |      |      |       |    |       |        |
|      |       | Inc   |      |      |       |    |       | And    |
|      |       | rease |      |      |       |    |       | FCC    |
|      |       |       |      |      |       |    |       |        |
|      |       |       |      |      |       |    |       | EPFDs  |
+------+-------+-------+------+------+-------+----+-------+--------+
|      | (min  | (min  | (dB  |      | (min  | \% | (min  | dB     |
|      | utes) | utes) | W/m^ |      | utes) |    | utes) |        |
|      |       |       | 2^/4 |      |       |    |       |        |
|      |       |       | kHz) |      |       |    |       |        |
+------+-------+-------+------+------+-------+----+-------+--------+
| 1    | 8758  | 9     | -1   | -1   | 10796 | 23 | 2038  | 2.8    |
| 01\* |       | 633.8 | 74.9 | 72.1 |       | .3 |       |        |
+------+-------+-------+------+------+-------+----+-------+--------+
| 1    | 468.7 | 5     | -1   | -1   | 479   | 2  | 10.3  | -6.4   |
| 10\* |       | 15.57 | 65.7 | 72.1 |       | .2 |       |        |
+------+-------+-------+------+------+-------+----+-------+--------+
| 1    | 1918  | 2     | -1   | -1   | 2092  | 9  | 174   | -0.8   |
| 19\* |       | 109.8 | 71.3 | 72.1 |       | .1 |       |        |
+------+-------+-------+------+------+-------+----+-------+--------+

\* Based on 90 cm DBS Receive Antenna

**SATELLITE OUTAGE ANALYSIS RESULTS**

<table style="width:100%;">
<colgroup>
<col style="width: 12%" />
<col style="width: 8%" />
<col style="width: 11%" />
<col style="width: 8%" />
<col style="width: 11%" />
<col style="width: 8%" />
<col style="width: 11%" />
<col style="width: 11%" />
<col style="width: 8%" />
<col style="width: 8%" />
</colgroup>
<tbody>
<tr class="odd">
<td></td>
<td colspan="2"><p>EPFD</p>
<p>Satellite @ 101 Deg. WL</p></td>
<td colspan="2"><p>EPFD</p>
<p>Satellite @ 110 Deg. WL</p></td>
<td colspan="2"><p>EPFD</p>
<p>Satellite @ 119 Deg. WL</p></td>
<td colspan="2">Average EPFD</td>
<td>Regional Average EPFD</td>
</tr>
<tr class="even">
<td></td>
<td>dBW/m<sup>2</sup></td>
<td>W/m<sup>2</sup></td>
<td>dBW/m<sup>2</sup></td>
<td>W/m<sup>2</sup></td>
<td>DBW/m<sup>2</sup></td>
<td>W/m<sup>2</sup></td>
<td>W/m<sup>2</sup></td>
<td>dBW/m<sup>2</sup></td>
<td>dBW/m<sup>2</sup></td>
</tr>
<tr class="odd">
<td></td>
<td colspan="9">Reference Bandwidth = 4 kHz</td>
</tr>
<tr class="even">
<td>Greenville</td>
<td>‑165.7</td>
<td>2.6915E‑17</td>
<td>‑168.6</td>
<td>1.3804E‑17</td>
<td>‑169.3</td>
<td>1.1749E‑17</td>
<td>1.7489E‑17</td>
<td>‑167.6</td>
<td>‑168.4</td>
</tr>
<tr class="odd">
<td>Charlotte</td>
<td>‑165.9</td>
<td>2.5704E‑17</td>
<td>‑168.8</td>
<td>1.3183E‑17</td>
<td>‑169.6</td>
<td>1.0965E‑17</td>
<td>1.6617E‑17</td>
<td>‑167.8</td>
<td>‑168.4</td>
</tr>
<tr class="even">
<td>Miami</td>
<td>‑167.9</td>
<td>1.6218E‑17</td>
<td>‑168.1</td>
<td>1.5488E‑17</td>
<td>‑168.6</td>
<td>1.3804E‑17</td>
<td>1.5170E‑17</td>
<td>‑168.2</td>
<td>‑168.4</td>
</tr>
<tr class="odd">
<td>Tampa</td>
<td>‑168.1</td>
<td>1.5488E‑17</td>
<td>‑168.2</td>
<td>1.5136E‑17</td>
<td>‑168.8</td>
<td>1.3183E‑17</td>
<td>1.4602E‑17</td>
<td>‑168.4</td>
<td>‑168.4</td>
</tr>
<tr class="even">
<td>Orlando</td>
<td>‑168.2</td>
<td>1.5136E‑17</td>
<td>‑168.2</td>
<td>1.5136E‑17</td>
<td>‑168.9</td>
<td>1.2882E‑17</td>
<td>1.4385E‑17</td>
<td>‑168.4</td>
<td>‑168.4</td>
</tr>
<tr class="odd">
<td>Washington DC</td>
<td>‑166.1</td>
<td>2.4547E‑17</td>
<td>‑171.9</td>
<td>6.4565E‑18</td>
<td>‑169.5</td>
<td>1.1220E‑17</td>
<td>1.4075E‑17</td>
<td>‑168.5</td>
<td>‑168.4</td>
</tr>
<tr class="even">
<td>Columbus</td>
<td>‑166.1</td>
<td>2.4547E‑17</td>
<td>‑172.1</td>
<td>6.1660E‑18</td>
<td>‑169.5</td>
<td>1.1220E‑17</td>
<td>1.3978E‑17</td>
<td>‑168.5</td>
<td>‑168.4</td>
</tr>
<tr class="odd">
<td>Pittsburgh</td>
<td>‑166.2</td>
<td>2.3988E‑17</td>
<td>‑172.2</td>
<td>6.0256E‑18</td>
<td>‑169.8</td>
<td>1.0471E‑17</td>
<td>1.3495E‑17</td>
<td>‑168.7</td>
<td>‑168.4</td>
</tr>
<tr class="even">
<td>Philadelphia</td>
<td>‑166.3</td>
<td>2.3442E‑17</td>
<td>‑172.0</td>
<td>6.3096E‑18</td>
<td>‑169.7</td>
<td>1.0715E‑17</td>
<td>1.3489E‑17</td>
<td>‑168.7</td>
<td>‑168.4</td>
</tr>
<tr class="odd">
<td>New York</td>
<td>‑166.3</td>
<td>2.3442E‑17</td>
<td>‑172.2</td>
<td>6.0256E‑18</td>
<td>‑169.6</td>
<td>1.0965E‑17</td>
<td>1.3478E‑17</td>
<td>‑168.7</td>
<td>‑168.4</td>
</tr>
<tr class="even">
<td>Atlanta</td>
<td>‑168.4</td>
<td>1.4454E‑17</td>
<td>‑168.6</td>
<td>1.3804E‑17</td>
<td>‑169.3</td>
<td>1.1749E‑17</td>
<td>1.3336E‑17</td>
<td>‑168.7</td>
<td>‑168.4</td>
</tr>
<tr class="odd">
<td>Boston</td>
<td>‑166.5</td>
<td>2.2387E‑17</td>
<td>‑172.4</td>
<td>5.7544E‑18</td>
<td>‑170.0</td>
<td>1.0000E‑17</td>
<td>1.2714E‑17</td>
<td>‑169.0</td>
<td>‑168.4</td>
</tr>
<tr class="even">
<td>Houston</td>
<td>‑168.3</td>
<td>1.4791E‑17</td>
<td>‑171.2</td>
<td>7.5858E‑18</td>
<td>‑168.9</td>
<td>1.2882E‑17</td>
<td>1.1753E‑17</td>
<td>‑169.3</td>
<td>‑169.8</td>
</tr>
<tr class="odd">
<td>Dallas</td>
<td>‑168.4</td>
<td>1.4454E‑17</td>
<td>‑171.4</td>
<td>7.2444E‑18</td>
<td>‑169.0</td>
<td>1.2589E‑17</td>
<td>1.1429E‑17</td>
<td>‑169.4</td>
<td>‑169.8</td>
</tr>
<tr class="even">
<td>Cincinnati</td>
<td>‑168.6</td>
<td>1.3804E‑17</td>
<td>‑171.8</td>
<td>6.6069E‑18</td>
<td>‑169.4</td>
<td>1.1482E‑17</td>
<td>1.0631E‑17</td>
<td>‑169.7</td>
<td>‑169.8</td>
</tr>
<tr class="odd">
<td>Indianapolis</td>
<td>‑168.6</td>
<td>1.3804E‑17</td>
<td>‑171.7</td>
<td>6.7608E‑18</td>
<td>‑169.5</td>
<td>1.1220E‑17</td>
<td>1.0595E‑17</td>
<td>‑169.7</td>
<td>‑169.8</td>
</tr>
<tr class="even">
<td>St. Louis</td>
<td>‑168.7</td>
<td>1.3490E‑17</td>
<td>‑171.7</td>
<td>6.7608E‑18</td>
<td>‑169.5</td>
<td>1.1220E‑17</td>
<td>1.0490E‑17</td>
<td>‑169.8</td>
<td>‑169.8</td>
</tr>
<tr class="odd">
<td>Nashville</td>
<td>‑168.7</td>
<td>1.3490E‑17</td>
<td>‑171.8</td>
<td>6.6069E‑18</td>
<td>‑169.5</td>
<td>1.1220E‑17</td>
<td>1.0439E‑17</td>
<td>‑169.8</td>
<td>‑169.8</td>
</tr>
<tr class="even">
<td>Kansas City</td>
<td>‑168.6</td>
<td>1.3804E‑17</td>
<td>‑171.6</td>
<td>6.9183E‑18</td>
<td>‑169.4</td>
<td>1.1482E‑17</td>
<td>1.0735E‑17</td>
<td>‑169.7</td>
<td>‑169.8</td>
</tr>
<tr class="odd">
<td>Chicago</td>
<td>‑168.8</td>
<td>1.3183E‑17</td>
<td>‑171.9</td>
<td>6.4565E‑18</td>
<td>‑169.7</td>
<td>1.0715E‑17</td>
<td>1.0118E‑17</td>
<td>‑169.9</td>
<td>‑169.8</td>
</tr>
<tr class="even">
<td>Milwaukee</td>
<td>‑168.9</td>
<td>1.2882E‑17</td>
<td>‑171.9</td>
<td>6.4565E‑18</td>
<td>‑169.7</td>
<td>1.0715E‑17</td>
<td>1.0018E‑17</td>
<td>‑170.0</td>
<td>‑169.8</td>
</tr>
<tr class="odd">
<td>Detroit</td>
<td>‑168.9</td>
<td>1.2882E‑17</td>
<td>‑172.2</td>
<td>6.0256E‑18</td>
<td>‑169.6</td>
<td>1.0965E‑17</td>
<td>9.9576E‑18</td>
<td>‑170.0</td>
<td>‑169.8</td>
</tr>
<tr class="even">
<td>Minneapolis</td>
<td>‑169.0</td>
<td>1.2589E‑17</td>
<td>‑171.9</td>
<td>6.4565E‑18</td>
<td>‑169.7</td>
<td>1.0715E‑17</td>
<td>9.9203E‑18</td>
<td>‑170.0</td>
<td>‑169.8</td>
</tr>
<tr class="odd">
<td>Cleveland</td>
<td>‑169.0</td>
<td>1.2589E‑17</td>
<td>‑172.1</td>
<td>6.1660E‑18</td>
<td>‑169.7</td>
<td>1.0715E‑17</td>
<td>9.8235E‑18</td>
<td>‑170.1</td>
<td>‑169.8</td>
</tr>
<tr class="even">
<td>Phoenix</td>
<td>‑171.5</td>
<td>7.0795E‑18</td>
<td>‑171.6</td>
<td>6.9183E‑18</td>
<td>‑169.5</td>
<td>1.1220E‑17</td>
<td>8.4060E‑18</td>
<td>‑170.8</td>
<td>‑171.0</td>
</tr>
<tr class="odd">
<td>San Diego</td>
<td>‑169.1</td>
<td>1.2303E‑17</td>
<td>‑172.0</td>
<td>6.3096E‑18</td>
<td>‑172.5</td>
<td>5.6234E‑18</td>
<td>8.0786E‑18</td>
<td>‑170.9</td>
<td>‑171.0</td>
</tr>
<tr class="even">
<td>Los Angeles</td>
<td>‑169.2</td>
<td>1.2023E‑17</td>
<td>‑172.0</td>
<td>6.3096E‑18</td>
<td>‑172.4</td>
<td>5.7544E‑18</td>
<td>8.0289E‑18</td>
<td>‑171.0</td>
<td>‑171.0</td>
</tr>
<tr class="odd">
<td>Denver</td>
<td>‑172.4</td>
<td>5.7544E‑18</td>
<td>‑172.3</td>
<td>5.8884E‑18</td>
<td>‑170.1</td>
<td>9.7724E‑18</td>
<td>7.1384E‑18</td>
<td>‑171.5</td>
<td>‑171.0</td>
</tr>
<tr class="even">
<td>Sacramento</td>
<td>‑171.6</td>
<td>6.9183E‑18</td>
<td>‑171.8</td>
<td>6.6069E‑18</td>
<td>‑172.4</td>
<td>5.7544E‑18</td>
<td>6.4265E‑18</td>
<td>‑171.9</td>
<td>‑172.1</td>
</tr>
<tr class="odd">
<td>San Francisco</td>
<td>‑171.9</td>
<td>6.4565E‑18</td>
<td>‑171.7</td>
<td>6.7608E‑18</td>
<td>‑172.5</td>
<td>5.6234E‑18</td>
<td>6.2803E‑18</td>
<td>‑172.0</td>
<td>‑172.1</td>
</tr>
<tr class="even">
<td>Portland</td>
<td>‑171.9</td>
<td>6.4565E‑18</td>
<td>‑172.3</td>
<td>5.8884E‑18</td>
<td>‑172.6</td>
<td>5.4954E‑18</td>
<td>5.9468E‑18</td>
<td>‑172.3</td>
<td>‑172.1</td>
</tr>
<tr class="odd">
<td>Seattle</td>
<td>‑171.9</td>
<td>6.4565E‑18</td>
<td>‑172.3</td>
<td>5.8884E‑18</td>
<td>‑172.7</td>
<td>5.3703E‑18</td>
<td>5.9051E‑18</td>
<td>‑172.3</td>
<td>‑172.1</td>
</tr>
</tbody>
</table>

+-------+-------+--------+--------+--------+--------+--------+--------+
|       | Reg   | Sat    |        | Sat    |        | Sat    |        |
|       | ional | ellite |        | ellite |        | ellite |        |
|       | Av    | @ 101  |        | @ 110  |        | @ 119  |        |
|       | erage | Deg.   |        | Deg.   |        | Deg.   |        |
|       | EPFD  | WL     |        | WL     |        | WL     |        |
+-------+-------+--------+--------+--------+--------+--------+--------+
|       | d     | EPFD   | Diff   | EPFD   | Diff   | EPFD   | Diff   |
|       | BW/m2 |        | erence |        | erence |        | erence |
|       | /4kHz | (      | from   | (      | from   | (      | from   |
|       |       | dBW/m2 | Re     | dBW/m2 | Re     | dBW/m2 | Re     |
|       |       | /4kHz) | gional | /4kHz) | gional | /4kHz) | gional |
|       |       |        | A      |        | A      |        | A      |
|       |       |        | verage |        | verage |        | verage |
|       |       |        |        |        |        |        |        |
|       |       |        | (dB)   |        | (dB)   |        | (dB)   |
+-------+-------+--------+--------+--------+--------+--------+--------+
| Green | ‑     | ‑165.7 | 2.7    | ‑168.6 | ‑0.2   | ‑169.3 | ‑0.9   |
| ville | 168.4 |        |        |        |        |        |        |
+-------+-------+--------+--------+--------+--------+--------+--------+
| Char  | ‑     | ‑165.9 | 2.5    | ‑168.8 | ‑0.4   | ‑169.6 | ‑1.2   |
| lotte | 168.4 |        |        |        |        |        |        |
+-------+-------+--------+--------+--------+--------+--------+--------+
| Miami | ‑     | ‑167.9 | 0.5    | ‑168.1 | 0.3    | ‑168.6 | ‑0.2   |
|       | 168.4 |        |        |        |        |        |        |
+-------+-------+--------+--------+--------+--------+--------+--------+
| Tampa | ‑     | ‑168.1 | 0.3    | ‑168.2 | 0.2    | ‑168.8 | ‑0.4   |
|       | 168.4 |        |        |        |        |        |        |
+-------+-------+--------+--------+--------+--------+--------+--------+
| Or    | ‑     | ‑168.2 | 0.2    | ‑168.2 | 0.2    | ‑168.9 | ‑0.5   |
| lando | 168.4 |        |        |        |        |        |        |
+-------+-------+--------+--------+--------+--------+--------+--------+
| Washi | ‑     | ‑166.1 | 2.3    | ‑171.9 | ‑3.5   | ‑169.5 | ‑1.1   |
| ngton | 168.4 |        |        |        |        |        |        |
| DC    |       |        |        |        |        |        |        |
+-------+-------+--------+--------+--------+--------+--------+--------+
| Col   | ‑     | ‑166.1 | 2.3    | ‑172.1 | ‑3.7   | ‑169.5 | ‑1.1   |
| umbus | 168.4 |        |        |        |        |        |        |
+-------+-------+--------+--------+--------+--------+--------+--------+
| Pitts | ‑     | ‑166.2 | 2.2    | ‑172.2 | ‑3.8   | ‑169.8 | ‑1.4   |
| burgh | 168.4 |        |        |        |        |        |        |
+-------+-------+--------+--------+--------+--------+--------+--------+
| Ph    | ‑     | ‑166.3 | 2.1    | ‑172.0 | ‑3.6   | ‑169.7 | ‑1.3   |
| ilade | 168.4 |        |        |        |        |        |        |
| lphia |       |        |        |        |        |        |        |
+-------+-------+--------+--------+--------+--------+--------+--------+
| New   | ‑     | ‑166.3 | 2.1    | ‑172.2 | ‑3.8   | ‑169.6 | ‑1.2   |
| York  | 168.4 |        |        |        |        |        |        |
+-------+-------+--------+--------+--------+--------+--------+--------+
| At    | ‑     | ‑168.4 | 0.0    | ‑168.6 | ‑0.2   | ‑169.3 | ‑0.9   |
| lanta | 168.4 |        |        |        |        |        |        |
+-------+-------+--------+--------+--------+--------+--------+--------+
| B     | ‑     | ‑166.5 | 1.9    | ‑172.4 | ‑4.0   | ‑170.0 | ‑1.6   |
| oston | 168.4 |        |        |        |        |        |        |
+-------+-------+--------+--------+--------+--------+--------+--------+
| Ho    | ‑     | ‑168.3 | 1.5    | ‑171.2 | ‑1.4   | ‑168.9 | 0.9    |
| uston | 169.8 |        |        |        |        |        |        |
+-------+-------+--------+--------+--------+--------+--------+--------+
| D     | ‑     | ‑168.4 | 1.4    | ‑171.4 | ‑1.6   | ‑169.0 | 0.8    |
| allas | 169.8 |        |        |        |        |        |        |
+-------+-------+--------+--------+--------+--------+--------+--------+
| Cinci | ‑     | ‑168.6 | 1.2    | ‑171.8 | ‑2.0   | ‑169.4 | 0.4    |
| nnati | 169.8 |        |        |        |        |        |        |
+-------+-------+--------+--------+--------+--------+--------+--------+
| In    | ‑     | ‑168.6 | 1.2    | ‑171.7 | ‑1.9   | ‑169.5 | 0.3    |
| diana | 169.8 |        |        |        |        |        |        |
| polis |       |        |        |        |        |        |        |
+-------+-------+--------+--------+--------+--------+--------+--------+
| St.   | ‑     | ‑168.7 | 1.1    | ‑171.7 | ‑1.9   | ‑169.5 | 0.3    |
| Louis | 169.8 |        |        |        |        |        |        |
+-------+-------+--------+--------+--------+--------+--------+--------+
| Nash  | ‑     | ‑168.7 | 1.1    | ‑171.8 | ‑2.0   | ‑169.5 | 0.3    |
| ville | 169.8 |        |        |        |        |        |        |
+-------+-------+--------+--------+--------+--------+--------+--------+
| K     | ‑     | ‑168.6 | 1.2    | ‑171.6 | ‑1.8   | ‑169.4 | 0.4    |
| ansas | 169.8 |        |        |        |        |        |        |
| City  |       |        |        |        |        |        |        |
+-------+-------+--------+--------+--------+--------+--------+--------+
| Ch    | ‑     | ‑168.8 | 1.0    | ‑171.9 | ‑2.1   | ‑169.7 | 0.1    |
| icago | 169.8 |        |        |        |        |        |        |
+-------+-------+--------+--------+--------+--------+--------+--------+
| Milw  | ‑     | ‑168.9 | 0.9    | ‑171.9 | ‑2.1   | ‑169.7 | 0.1    |
| aukee | 169.8 |        |        |        |        |        |        |
+-------+-------+--------+--------+--------+--------+--------+--------+
| De    | ‑     | ‑168.9 | 0.9    | ‑172.2 | ‑2.4   | ‑169.6 | 0.2    |
| troit | 169.8 |        |        |        |        |        |        |
+-------+-------+--------+--------+--------+--------+--------+--------+
| M     | ‑     | ‑169.0 | 0.8    | ‑171.9 | ‑2.1   | ‑169.7 | 0.1    |
| innea | 169.8 |        |        |        |        |        |        |
| polis |       |        |        |        |        |        |        |
+-------+-------+--------+--------+--------+--------+--------+--------+
| Clev  | ‑     | ‑169.0 | 0.8    | ‑172.1 | ‑2.3   | ‑169.7 | 0.1    |
| eland | 169.8 |        |        |        |        |        |        |
+-------+-------+--------+--------+--------+--------+--------+--------+
| Ph    | ‑     | ‑171.5 | ‑0.5   | ‑171.6 | ‑0.6   | ‑169.5 | 1.5    |
| oenix | 171.0 |        |        |        |        |        |        |
+-------+-------+--------+--------+--------+--------+--------+--------+
| San   | ‑     | ‑169.1 | 1.9    | ‑172.0 | ‑1.0   | ‑172.5 | ‑1.5   |
| Diego | 171.0 |        |        |        |        |        |        |
+-------+-------+--------+--------+--------+--------+--------+--------+
| Los   | ‑     | ‑169.2 | 1.8    | ‑172.0 | ‑1.0   | ‑172.4 | ‑1.4   |
| An    | 171.0 |        |        |        |        |        |        |
| geles |       |        |        |        |        |        |        |
+-------+-------+--------+--------+--------+--------+--------+--------+
| D     | ‑     | ‑172.4 | ‑1.4   | ‑172.3 | ‑1.3   | ‑170.1 | 0.9    |
| enver | 171.0 |        |        |        |        |        |        |
+-------+-------+--------+--------+--------+--------+--------+--------+
| Sacra | ‑     | ‑171.6 | 0.5    | ‑171.8 | 0.3    | ‑172.4 | ‑0.3   |
| mento | 172.1 |        |        |        |        |        |        |
+-------+-------+--------+--------+--------+--------+--------+--------+
| San   | ‑     | ‑171.9 | 0.2    | ‑171.7 | 0.4    | ‑172.5 | ‑0.4   |
| Fran  | 172.1 |        |        |        |        |        |        |
| cisco |       |        |        |        |        |        |        |
+-------+-------+--------+--------+--------+--------+--------+--------+
| Por   | ‑     | ‑171.9 | 0.2    | ‑172.3 | ‑0.2   | ‑172.6 | ‑0.5   |
| tland | 172.1 |        |        |        |        |        |        |
+-------+-------+--------+--------+--------+--------+--------+--------+
| Se    | ‑     | ‑171.9 | 0.2    | ‑172.3 | ‑0.2   | ‑172.7 | ‑0.6   |
| attle | 172.1 |        |        |        |        |        |        |
+-------+-------+--------+--------+--------+--------+--------+--------+

+--------+---------+----------+---------+----------+---------+---------+
| R      |         |          |         |          |         |         |
| esults |         |          |         |          |         |         |
| for    |         |          |         |          |         |         |
| the    |         |          |         |          |         |         |
| Sat    |         |          |         |          |         |         |
| ellite |         |          |         |          |         |         |
| at 101 |         |          |         |          |         |         |
| D      |         |          |         |          |         |         |
| egrees |         |          |         |          |         |         |
| West   |         |          |         |          |         |         |
| Lon    |         |          |         |          |         |         |
| gitude |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
|        | B       |          | New     |          | Dif     |         |
|        | aseline |          | Outage  |          | ference |         |
|        | Outage  |          |         |          | in      |         |
|        |         |          | (Rain   |          | Outage  |         |
|        | (Due to |          | plus    |          |         |         |
|        | rain)   |          | MVDDS)  |          |         |         |
|        |         |          |         |          |         |         |
|        |         |          | Based   |          |         |         |
|        |         |          | on      |          |         |         |
|        |         |          | R       |          |         |         |
|        |         |          | egional |          |         |         |
|        |         |          | Average |          |         |         |
|        |         |          | EPFD    |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
|        | Minutes | Percent  | Minutes | Percent  | Minutes | Percent |
|        |         | Avai     |         | Avai     |         |         |
|        |         | lability |         | lability |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| Gree   | 387.6   | 99.9263  | 408.7   | 99.9223  | 21.1    | 5.4     |
| nville |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| Cha    | 288.6   | 99.9451  | 304.6   | 99.9421  | 16.0    | 5.5     |
| rlotte |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| Miami  | 1720.3  | 99.6729  | 1873.0  | 99.6439  | 152.7   | 8.9     |
+--------+---------+----------+---------+----------+---------+---------+
| Tampa  | 1427.0  | 99.7287  | 1567.0  | 99.7021  | 140.0   | 9.8     |
+--------+---------+----------+---------+----------+---------+---------+
| O      | 1480.4  | 99.7185  | 1626.0  | 99.6908  | 145.6   | 9.8     |
| rlando |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| Wash   | 220.4   | 99.9581  | 233.1   | 99.9557  | 12.7    | 5.8     |
| ington |         |          |         |          |         |         |
| DC     |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| Co     | 203.1   | 99.9614  | 210.8   | 99.9599  | 7.7     | 3.8     |
| lumbus |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| Pitt   | 168.8   | 99.9679  | 178.7   | 99.9660  | 9.9     | 5.9     |
| sburgh |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| Philad | 221.4   | 99.9579  | 238.5   | 99.9547  | 17.1    | 7.7     |
| elphia |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| New    | 200.1   | 99.9620  | 211.9   | 99.9597  | 11.8    | 5.9     |
| York   |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| A      | 866.0   | 99.8353  | 952.0   | 99.8190  | 86.0    | 9.9     |
| tlanta |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| Boston | 163.7   | 99.9689  | 174.5   | 99.9668  | 10.8    | 6.6     |
+--------+---------+----------+---------+----------+---------+---------+
| H      | 1040.9  | 99.8021  | 1114.0  | 99.7882  | 73.1    | 7.0     |
| ouston |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| Dallas | 820.4   | 99.8440  | 879.9   | 99.8327  | 59.5    | 7.3     |
+--------+---------+----------+---------+----------+---------+---------+
| Cinc   | 469.1   | 99.9108  | 505.8   | 99.9038  | 36.7    | 7.8     |
| innati |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| Indian | 466.8   | 99.9112  | 477.3   | 99.9092  | 10.5    | 2.3     |
| apolis |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| St.    | 482.0   | 99.9084  | 519.3   | 99.9013  | 37.3    | 7.7     |
| Louis  |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| Nas    | 552.8   | 99.8949  | 609.7   | 99.8841  | 56.9    | 10.3    |
| hville |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| Kansas | 425.1   | 99.9192  | 458.2   | 99.9129  | 33.1    | 7.8     |
| City   |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| C      | 326.9   | 99.9378  | 353.4   | 99.9328  | 26.5    | 8.1     |
| hicago |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| Mil    | 311.3   | 99.9408  | 336.7   | 99.9360  | 25.4    | 8.2     |
| waukee |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| D      | 302.5   | 99.9425  | 327.4   | 99.9378  | 24.9    | 8.2     |
| etroit |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| Minne  | 303.3   | 99.9423  | 328.2   | 99.9376  | 24.9    | 8.2     |
| apolis |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| Cle    | 369.9   | 99.9297  | 402.3   | 99.9235  | 32.4    | 8.8     |
| veland |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| P      | 661.5   | 99.8742  | 743.2   | 99.8587  | 81.7    | 12.4    |
| hoenix |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| San    | 132.0   | 99.9749  | 140.4   | 99.9733  | 8.4     | 6.4     |
| Diego  |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| Los    | 82.2    | 99.9844  | 87.7    | 99.9833  | 5.5     | 6.7     |
| A      |         |          |         |          |         |         |
| ngeles |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| Denver | 148.6   | 99.9717  | 171.6   | 99.9674  | 23.0    | 15.5    |
+--------+---------+----------+---------+----------+---------+---------+
| Sacr   | 766.9   | 99.8542  | 838.3   | 99.8406  | 71.4    | 9.3     |
| amento |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| San    | 653.9   | 99.8757  | 722.4   | 99.8626  | 68.5    | 10.5    |
| Fra    |         |          |         |          |         |         |
| ncisco |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| Po     | 571.1   | 99.8914  | 627.7   | 99.8807  | 56.6    | 9.9     |
| rtland |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| S      | 741.0   | 99.8591  | 813.9   | 99.8453  | 72.9    | 9.8     |
| eattle |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+

+--------+---------+----------+---------+----------+---------+---------+
| R      |         |          |         |          |         |         |
| esults |         |          |         |          |         |         |
| for    |         |          |         |          |         |         |
| the    |         |          |         |          |         |         |
| Sat    |         |          |         |          |         |         |
| ellite |         |          |         |          |         |         |
| at 110 |         |          |         |          |         |         |
| D      |         |          |         |          |         |         |
| egrees |         |          |         |          |         |         |
| West   |         |          |         |          |         |         |
| Lon    |         |          |         |          |         |         |
| gitude |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
|        | B       |          | New     |          | Dif     |         |
|        | aseline |          | Outage  |          | ference |         |
|        | Outage  |          |         |          | in      |         |
|        |         |          | (Rain   |          | Outage  |         |
|        | (Due to |          | plus    |          |         |         |
|        | rain)   |          | MVDDS)  |          |         |         |
|        |         |          |         |          |         |         |
|        |         |          | Based   |          |         |         |
|        |         |          | on      |          |         |         |
|        |         |          | R       |          |         |         |
|        |         |          | egional |          |         |         |
|        |         |          | Average |          |         |         |
|        |         |          | EPFD    |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
|        | Minutes | Percent  | Minutes | Percent  | Minutes | Percent |
|        |         | Avai     |         | Avai     |         |         |
|        |         | lability |         | lability |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| Gree   | 900.6   | 99.8288  | 999.6   | 99.8099  | 99.0    | 11.0    |
| nville |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| Cha    | 692.1   | 99.8684  | 779.3   | 99.8518  | 87.2    | 12.6    |
| rlotte |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| Miami  | 1930.3  | 99.6330  | 2117.0  | 99.5975  | 186.7   | 9.7     |
+--------+---------+----------+---------+----------+---------+---------+
| Tampa  | 1597.9  | 99.6962  | 1748.0  | 99.6676  | 150.1   | 9.4     |
+--------+---------+----------+---------+----------+---------+---------+
| O      | 1668.4  | 99.6828  | 1836.0  | 99.6509  | 167.6   | 10.0    |
| rlando |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| Wash   | 1388.3  | 99.7360  | 1765.0  | 99.6644  | 376.7   | 27.1    |
| ington |         |          |         |          |         |         |
| DC     |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| Co     | 1227.5  | 99.7666  | 1459.1  | 99.7226  | 231.6   | 18.9    |
| lumbus |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| Pitt   | 1075.8  | 99.7955  | 1371.0  | 99.7393  | 295.2   | 27.4    |
| sburgh |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| Philad | 1429.0  | 99.7283  | 1842.0  | 99.6498  | 413.0   | 28.9    |
| elphia |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| New    | 1323.6  | 99.7483  | 1692.0  | 99.6783  | 368.4   | 27.8    |
| York   |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| A      | 976.1   | 99.8144  | 1082.0  | 99.7943  | 105.9   | 10.8    |
| tlanta |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| Boston | 1156.8  | 99.7801  | 1506.5  | 99.7136  | 349.7   | 30.2    |
+--------+---------+----------+---------+----------+---------+---------+
| H      | 2476.2  | 99.5292  | 2832.0  | 99.4615  | 355.8   | 14.4    |
| ouston |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| Dallas | 2016.3  | 99.6166  | 2329.0  | 99.5572  | 312.7   | 15.5    |
+--------+---------+----------+---------+----------+---------+---------+
| Cinc   | 1324.0  | 99.7483  | 1554.4  | 99.7045  | 230.4   | 17.4    |
| innati |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| Indian | 1309.4  | 99.7510  | 1464.0  | 99.7216  | 154.6   | 11.8    |
| apolis |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| St.    | 1308.5  | 99.7512  | 1426.0  | 99.7289  | 117.5   | 9.0     |
| Louis  |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| Nas    | 1504.4  | 99.7140  | 1850.1  | 99.6482  | 345.7   | 23.0    |
| hville |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| Kansas | 1134.8  | 99.7842  | 1329.7  | 99.7472  | 194.9   | 17.2    |
| City   |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| C      | 936.4   | 99.8220  | 1105.0  | 99.7899  | 168.6   | 18.0    |
| hicago |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| Mil    | 898.8   | 99.8291  | 1061.9  | 99.7981  | 163.1   | 18.1    |
| waukee |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| D      | 899.4   | 99.8290  | 1075.0  | 99.7956  | 175.6   | 19.5    |
| etroit |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| Minne  | 853.6   | 99.8377  | 1009.0  | 99.8082  | 155.4   | 18.2    |
| apolis |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| Cle    | 1094.9  | 99.7918  | 1306.0  | 99.7517  | 211.1   | 19.3    |
| veland |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| P      | 661.9   | 99.8742  | 744.6   | 99.8584  | 82.7    | 12.5    |
| hoenix |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| San    | 334.4   | 99.9364  | 378.9   | 99.9280  | 44.5    | 13.3    |
| Diego  |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| Los    | 215.8   | 99.9590  | 245.6   | 99.9533  | 29.8    | 13.8    |
| A      |         |          |         |          |         |         |
| ngeles |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| Denver | 155.6   | 99.9704  | 178.1   | 99.9661  | 22.5    | 14.5    |
+--------+---------+----------+---------+----------+---------+---------+
| Sacr   | 723.2   | 99.8625  | 798.9   | 99.8481  | 75.7    | 10.5    |
| amento |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| San    | 620.2   | 99.8821  | 678.8   | 99.8709  | 58.6    | 9.5     |
| Fra    |         |          |         |          |         |         |
| ncisco |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| Po     | 530.5   | 99.8991  | 589.6   | 99.8879  | 59.1    | 11.1    |
| rtland |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| S      | 689.0   | 99.8690  | 765.3   | 99.8545  | 76.3    | 11.1    |
| eattle |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+

+--------+---------+----------+---------+----------+---------+---------+
| R      |         |          |         |          |         |         |
| esults |         |          |         |          |         |         |
| for    |         |          |         |          |         |         |
| the    |         |          |         |          |         |         |
| Sat    |         |          |         |          |         |         |
| ellite |         |          |         |          |         |         |
| at 119 |         |          |         |          |         |         |
| D      |         |          |         |          |         |         |
| egrees |         |          |         |          |         |         |
| West   |         |          |         |          |         |         |
| Lon    |         |          |         |          |         |         |
| gitude |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
|        | B       |          | New     |          | Dif     |         |
|        | aseline |          | Outage  |          | ference |         |
|        | Outage  |          |         |          | in      |         |
|        |         |          | (Rain   |          | Outage  |         |
|        | (Due to |          | plus    |          |         |         |
|        | rain)   |          | MVDDS)  |          |         |         |
|        |         |          |         |          |         |         |
|        |         |          | Based   |          |         |         |
|        |         |          | on      |          |         |         |
|        |         |          | R       |          |         |         |
|        |         |          | egional |          |         |         |
|        |         |          | Average |          |         |         |
|        |         |          | EPFD    |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
|        | Minutes | Percent  | Minutes | Percent  | Minutes | Percent |
|        |         | Avai     |         | Avai     |         |         |
|        |         | lability |         | lability |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| Gree   | 1254.8  | 99.7614  | 1416.0  | 99.7308  | 161.2   | 12.8    |
| nville |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| Cha    | 995.7   | 99.8107  | 1134.0  | 99.7844  | 138.3   | 13.9    |
| rlotte |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| Miami  | 2614.1  | 99.5030  | 2899.0  | 99.4488  | 284.9   | 10.9    |
+--------+---------+----------+---------+----------+---------+---------+
| Tampa  | 2142.2  | 99.5927  | 2390.0  | 99.5456  | 247.8   | 11.6    |
+--------+---------+----------+---------+----------+---------+---------+
| O      | 2255.1  | 99.5712  | 2516.0  | 99.5216  | 260.9   | 11.6    |
| rlando |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| Wash   | 839.2   | 99.8404  | 954.0   | 99.8186  | 114.8   | 13.7    |
| ington |         |          |         |          |         |         |
| DC     |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| Co     | 708.7   | 99.8653  | 776.6   | 99.8523  | 67.9    | 9.6     |
| lumbus |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| Pitt   | 628.3   | 99.8805  | 720.8   | 99.8629  | 92.5    | 14.7    |
| sburgh |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| Philad | 875.2   | 99.8336  | 1015.0  | 99.8070  | 139.8   | 16.0    |
| elphia |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| New    | 822.1   | 99.8437  | 943.6   | 99.8206  | 121.5   | 14.8    |
| York   |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| A      | 1331.7  | 99.7468  | 1510.0  | 99.7129  | 178.3   | 13.4    |
| tlanta |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| Boston | 733.6   | 99.8605  | 844.5   | 99.8394  | 110.9   | 15.1    |
+--------+---------+----------+---------+----------+---------+---------+
| H      | 1380.0  | 99.7376  | 1496.0  | 99.7156  | 116.0   | 8.4     |
| ouston |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| Dallas | 1099.0  | 99.7910  | 1195.0  | 99.7728  | 96.0    | 8.7     |
+--------+---------+----------+---------+----------+---------+---------+
| Cinc   | 754.9   | 99.8565  | 826.3   | 99.8429  | 71.4    | 9.5     |
| innati |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| Indian | 661.5   | 99.8742  | 763.7   | 99.8548  | 102.2   | 15.4    |
| apolis |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| St.    | 717.4   | 99.8636  | 727.3   | 99.8617  | 9.9     | 1.4     |
| Louis  |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| Nas    | 850.4   | 99.8383  | 954.7   | 99.8185  | 104.3   | 12.3    |
| hville |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| Kansas | 603.1   | 99.8853  | 659.6   | 99.8746  | 56.5    | 9.4     |
| City   |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| C      | 513.4   | 99.9024  | 563.4   | 99.8929  | 50.0    | 9.7     |
| hicago |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| Mil    | 490.4   | 99.9068  | 538.6   | 99.8976  | 48.2    | 9.8     |
| waukee |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| D      | 511.7   | 99.9027  | 562.4   | 99.8931  | 50.7    | 9.9     |
| etroit |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| Minne  | 448.7   | 99.9147  | 492.9   | 99.9063  | 44.2    | 9.8     |
| apolis |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| Cle    | 633.0   | 99.8796  | 694.7   | 99.8679  | 61.7    | 9.7     |
| veland |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| P      | 312.8   | 99.9405  | 335.4   | 99.9362  | 22.6    | 7.2     |
| hoenix |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| San    | 418.4   | 99.9204  | 469.7   | 99.9107  | 51.3    | 12.3    |
| Diego  |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| Los    | 409.1   | 99.9222  | 469.7   | 99.9107  | 60.6    | 14.8    |
| A      |         |          |         |          |         |         |
| ngeles |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| Denver | 71.2    | 99.9865  | 77.2    | 99.9853  | 6.0     | 8.4     |
+--------+---------+----------+---------+----------+---------+---------+
| Sacr   | 866.1   | 99.8353  | 967.3   | 99.8161  | 101.2   | 11.7    |
| amento |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| San    | 734.0   | 99.8604  | 820.3   | 99.8440  | 86.3    | 11.8    |
| Fra    |         |          |         |          |         |         |
| ncisco |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| Po     | 637.7   | 99.8788  | 717.6   | 99.8636  | 79.9    | 12.5    |
| rtland |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| S      | 828.1   | 99.8426  | 931.3   | 99.8229  | 103.2   | 12.5    |
| eattle |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+

+--------+---------+----------+---------+----------+---------+---------+
| Sample |         |          |         |          |         |         |
| R      |         |          |         |          |         |         |
| esults |         |          |         |          |         |         |
| for    |         |          |         |          |         |         |
| the    |         |          |         |          |         |         |
| Sat    |         |          |         |          |         |         |
| ellite |         |          |         |          |         |         |
| at     |         |          |         |          |         |         |
| 61.5   |         |          |         |          |         |         |
| D      |         |          |         |          |         |         |
| egrees |         |          |         |          |         |         |
| West   |         |          |         |          |         |         |
| Lon    |         |          |         |          |         |         |
| gitude |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
|        | B       |          | New     |          | Dif     |         |
|        | aseline |          | Outage  |          | ference |         |
|        | Outage  |          |         |          | in      |         |
|        |         |          | (Rain   |          | Outage  |         |
|        | (Due to |          | plus    |          |         |         |
|        | rain)   |          | MVDDS)  |          |         |         |
|        |         |          |         |          |         |         |
|        |         |          | Based   |          |         |         |
|        |         |          | on      |          |         |         |
|        |         |          | R       |          |         |         |
|        |         |          | egional |          |         |         |
|        |         |          | Average |          |         |         |
|        |         |          | EPFD    |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
|        | Minutes | Percent  | Minutes | Percent  | Minutes | Percent |
|        |         | Avai     |         | Avai     |         |         |
|        |         | lability |         | lability |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| Miami  | 804.2   | 99.8471  | 839.8   | 99.8403  | 35.6    | 4.4     |
+--------+---------+----------+---------+----------+---------+---------+
| Wash   | 177.8   | 99.9662  | 186.8   | 99.9645  | 9.0     | 5.0     |
| ington |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| New    | 149.0   | 99.9717  | 157.4   | 99.9701  | 8.4     | 5.6     |
| York   |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| Kansas | 513.2   | 99.9024  | 548.1   | 99.8958  | 34.9    | 6.8     |
| City   |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| D      | 276.1   | 99.9475  | 295.6   | 99.9438  | 19.5    | 7.1     |
| etroit |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| Los    | 1616.0  | 99.6927  | 1792.0  | 99.6593  | 176.0   | 10.9    |
| A      |         |          |         |          |         |         |
| ngeles |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| S      | 9038.0  | 98.2816  | 11800.0 | 97.7564  | 2762.0  | 30.6    |
| eattle |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+

+--------+---------+----------+---------+----------+---------+---------+
| Sample |         |          |         |          |         |         |
| R      |         |          |         |          |         |         |
| esults |         |          |         |          |         |         |
| for    |         |          |         |          |         |         |
| the    |         |          |         |          |         |         |
| Sat    |         |          |         |          |         |         |
| ellite |         |          |         |          |         |         |
| at 148 |         |          |         |          |         |         |
| D      |         |          |         |          |         |         |
| egrees |         |          |         |          |         |         |
| West   |         |          |         |          |         |         |
| Lon    |         |          |         |          |         |         |
| gitude |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
|        | B       |          | New     |          | Dif     |         |
|        | aseline |          | Outage  |          | ference |         |
|        | Outage  |          |         |          | in      |         |
|        |         |          | (Rain   |          | Outage  |         |
|        | (Due to |          | plus    |          |         |         |
|        | rain)   |          | MVDDS)  |          |         |         |
|        |         |          |         |          |         |         |
|        |         |          | Based   |          |         |         |
|        |         |          | on      |          |         |         |
|        |         |          | R       |          |         |         |
|        |         |          | egional |          |         |         |
|        |         |          | Average |          |         |         |
|        |         |          | EPFD    |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
|        | Minutes | Percent  | Minutes | Percent  | Minutes | Percent |
|        |         | Avai     |         | Avai     |         |         |
|        |         | lability |         | lability |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| S      | 8047.0  | 98.4700  | 9754.0  | 98.1454  | 1707.0  | 21.2    |
| eattle |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| Po     | 2054.0  | 99.6095  | 2640.0  | 99.4980  | 586.0   | 28.5    |
| rtland |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| San    | 2619.0  | 99.5020  | 3294.0  | 99.3737  | 675.0   | 25.8    |
| Fra    |         |          |         |          |         |         |
| ncisco |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| Los    | 396.0   | 99.9247  | 447.2   | 99.9150  | 51.2    | 12.9    |
| A      |         |          |         |          |         |         |
| ngeles |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| P      | 355.0   | 99.9325  | 376.1   | 99.9285  | 21.1    | 5.9     |
| hoenix |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+
| Dallas | 1962.0  | 99.6270  | 2110.0  | 99.5988  | 148.0   | 7.5     |
+--------+---------+----------+---------+----------+---------+---------+
| D      | 1679.0  | 99.6808  | 1825.0  | 99.6530  | 146.0   | 8.7     |
| etroit |         |          |         |          |         |         |
+--------+---------+----------+---------+----------+---------+---------+

# ![](media/image23.png){width="6.7in" height="5.570833333333334in"}APPENDIX h: CEA MAP  {#appendix-h-cea-map .unnumbered}

# APPENDIX i: POFS Public Safety LICENSEES {#appendix-i-pofs-public-safety-licensees .unnumbered}

**LICENSEES (listed by call‑sign)**

  --------- ----------------------------------------- --------------- -------
  Call Sign Licensee                                  City            State

  KHQ66     SANTA CLARA, COUNTY OF                    PALO ALTO       CA

  KMD36     SANTA CLARA, COUNTY OF                    SAN JOSE        CA

  KRU27     SANTA CLARA, COUNTY OF                    MORGAN HILL     CA

  WAM273    OKLAHOMA, STATE OF                        ADA             OK

  WAN212    KANSAS CITY, CITY OF                      KANSAS CITY     MO

  WAQ637    CALIFORNIA STATE UNIVERSITY CHICO         RED BLUFF       CA

  WAQ638    CALIFORNIA STATE UNIVERSITY CHICO         CHICO           CA

  WBD362    REGENTS OF THE UNIVERSITY OF CALIFORNIA   LA JOLLA        CA

  WBD363    REGENTS OF THE UNIVERSITY OF CALIFORNIA   SAN DIEGO       CA

  WBH636    PHILADELPHIA, CITY OF                     PHILADELPHIA    PA

  WBM576    PORT AUTHORITY OF NEW YORK AND NEW JERSEY NEW YORK        NY

  WBM577    PORT AUTHORITY OF NEW YORK AND NEW JERSEY FORT LEE        NJ

  WBM578    PORT AUTHORITY OF NEW YORK AND NEW JERSEY FORT LEE        NJ

  WBM579    PORT AUTHORITY OF NEW YORK AND NEW JERSEY NEW YORK        NY

  WBV242    ALASKA, STATE OF                          FAIRBANKS       AK

  WBV266    ALASKA, STATE OF                          FAIRBANKS       AK

  WCP806    REGENTS OF THE UNIVERSITY OF CALIFORNIA   SAN FRANCISCO   CA

  WCP807    REGENTS OF THE UNIVERSITY OF CALIFORNIA   SAN FRANCISCO   CA

  WCP808    REGENTS OF THE UNIVERSITY OF CALIFORNIA   SAN FRANCISCO   CA

  WCP853    YONKERS, CITY OF                          YONKERS         NY

  WCP854    YONKERS, CITY OF                          YONKERS         NY

  WCP855    YONKERS, CITY OF                          YONKERS         NY

  WCP856    YONKERS, CITY OF                          YONKERS         NY

  WDQ35     OKLAHOMA, STATE OF                        OKLAHOMA CITY   OK

  WED535    WISCONSIN, STATE OF                       MADISON         WI

  WEE352    OKLAHOMA, STATE OF                        MIAMI           OK

  WEE353    OKLAHOMA, STATE OF                        WELCH           OK

  WEE355    OKLAHOMA, STATE OF                        BARTLESVILLE    OK

  WEE422    KENTUCKY, COMMONWEALTH OF                 FRANKFORT       KY

  WEE546    OKLAHOMA, STATE OF                        GEARY           OK

  WEE547    OKLAHOMA, STATE OF                        EL RENO         OK

  WEE548    OKLAHOMA, STATE OF                        WEATHERFORD     OK

  WEE841    OKLAHOMA, STATE OF                        EMET            OK

  WEE842    OKLAHOMA, STATE OF                        DURANT          OK

  WEE843    OKLAHOMA, STATE OF                        FITTSTOWN       OK

  WEG394    PORT AUTHORITY OF NEW YORK AND NEW JERSEY UNION CITY      NJ

  WEG805    COUNTY OF LARIMER                         FORT COLLINS    CO

  WEG806    COUNTY OF LARIMER                         AULT            CO

  WEH337    Detroit, City                             DETROIT         MI

  WEH808    Detroit, City                             DETROIT         MI

  WGT37     PHILADELPHIA, CITY OF                     PHILADELPHIA    PA

  WGY341    KING, COUNTY OF                           SEATTLE         WA

  WHC763    OKLAHOMA, STATE OF                        JET             OK

  WHH456    DELAWARE RIVER AND BAY AUTHORITY          NEW CASTLE      DE

  WHH457    DELAWARE RIVER AND BAY AUTHORITY          NEW CASTLE      DE

  WHH458    DELAWARE RIVER AND BAY AUTHORITY          NEW CASTLE      DE

  WHH459    DELAWARE RIVER AND BAY AUTHORITY          NEW CASTLE      DE

  WHH460    DELAWARE RIVER AND BAY AUTHORITY          NEW CASTLE      DE

  WHH829    PORTLAND, CITY OF                         CORBETT         OR

  WHH830    PORTLAND, CITY OF                         SANDY           OR

  WHI239    ATLANTIC CITY HOUSING AUTHORITY           INLET           NJ

  WHI241    ATLANTIC CITY HOUSING AUTHORITY           SHORE PARK      NJ

  WHI504    COUNTY OF LARIMER                         FORT COLLINS    CO

  WHJ780    KENTUCKY, COMMONWEALTH OF                 FRANKFORT       KY

  WIA653    JOHNS HOPKINS UNIVERSITY SCHOOL OF        BALTIMORE       MD
            MEDICINE                                                  

  WIA810    CUYAHOGA COMMUNITY COLLEGE                CLEVELAND       OH

  WIA812    CUYAHOGA COMMUNITY COLLEGE                PARMA           OH

  WIA813    CUYAHOGA COMMUNITY COLLEGE                CLEVELAND       OH

  WIA818    CALIFORNIA STATE UNIVERSITY CHICO         CHICO           CA

  WIA951    CALIFORNIA STATE UNIVERSITY CHICO         REDDING         CA

  WJB70     RHODE ISLAND, STATE OF                    LINCOLN         RI

  WJC97     RHODE ISLAND, STATE OF                    SCITUATE        RI

  WNER313   BREVARD, COUNTY OF                        TITUSVILLE      FL

  WNER314   BREVARD, COUNTY OF                        SHARPES         FL

  WNES281   BREVARD, COUNTY OF                        MELBOURNE       FL

  WNES282   BREVARD, COUNTY OF                        ROCKLEDGE       FL

  WNES283   BREVARD, COUNTY OF                        MELBOURNE       FL

  WNES690   JACKSON COUNTY SHERIFF                    JACKSON         MI

  WNES691   JACKSON COUNTY SHERIFF                    NAPOLEON        MI

  WNES692   JACKSON COUNTY SHERIFF                    GRASS LAKE      MI

  WNES693   JACKSON COUNTY SHERIFF                    BROOKLYN        MI

  WNES695   JACKSON COUNTY SHERIFF                    JACKSON         MI

  WNES696   JACKSON COUNTY SHERIFF                    SPRINGPORT      MI

  WNTK229   PENNSYLVANIA, COMMONWEALTH OF             HARRISBURG      PA

  WOW71     SANTA CLARA, COUNTY OF                    SAN JOSE        CA

  WOW72     SANTA CLARA, COUNTY OF                    SAN JOSE        CA

  WOW73     SANTA CLARA, COUNTY OF                    SAN JOSE        CA

  WPO93     PORT AUTHORITY OF NEW YORK AND NEW JERSEY NEW YORK        NY

  WPP84     OKLAHOMA, STATE OF                        WILBURTON       OK

  WPZ80     HOUSTON, CITY OF                          HOUSTON         TX

                                                                      
  --------- ----------------------------------------- --------------- -------

# APPENDIX j: A METHOD TO CALCULATE MVDDS EPFD CONTOURS {#appendix-j-a-method-to-calculate-mvdds-epfd-contours .unnumbered}

**Description of Methodology Used To Compute EPFD Contour.**

This computer model calculates the area around an MVDDS transmitting
antenna where the specified EPFD limit may be exceeded within a DBS
subscriber's earth station (DBS receive dish). This generally occurs
when the DBS earth station has a direct line of sight to the MVDDS
transmitting antenna and its distance and orientation relative to the
MVDDS transmitting antenna are such that the MVDDS signal exceeds the
specified EPFD limit.

The model calculates the MVDDS EPFD for all azimuths around the MVDDS
transmitting antenna and a range of distances between the MVDDS
transmitting antenna and the DBS earth station. These calculated EPFDs
are then used to draw the contour within which the user specified EPFD
level may be exceeded. The contour calculation is for the worst case,
which assumes free space propagation loss and no cross polarization
isolation. The program allows the user to specify antenna gain patterns
for the MVDDS transmit antenna as well as the DBS earth station, so long
as the data is in the format shown in Annex I. Mathematical details of
the computational methods used are presented in Annex II and sample EPFD
contour plots are shown in Annex III. The model was programmed using
MATLAB and is available for downloading from the Commission's web site
at http://www.fcc.gov/oet/dockets/et98‑206/.

**General Description of Model Methodology**

Figure 1 presents a pictorial description of the general layout of the
model. It shows the relative positions and orientations of the MVDDS
transmitting antenna and DBS earth station within the model. This figure
should be used as a reference throughout the following discussion.

**Figure 1: Top View of System Configuration**

![](media/image24.wmf){width="4.821527777777778in"
height="4.154861111111111in"}

![](media/image25.wmf){width="0.3854166666666667in"
height="0.25972222222222224in"}

MVDDS main beam pointing in a user‑specified direction

![](media/image26.wmf){width="0.20833333333333334in"
height="0.20833333333333334in"}

Earth station main beam pointing at a geostationary satellite

EPFDs are calculated at each MVDDS location

The DBS earth station is located at a fixed location (user‑specified
latitude, longitude, and height above mean sea level (AMSL)) and points
at a specified geostationary satellite. The MVDDS antenna is located at
various positions around the DBS earth station and points in a specified
azimuth direction (the user also specifies a tilt angle and AMSL). The
algorithm places the MVDDS transmitting antenna a far distance from the
DBS earth station and then computes the EPFD at each azimuth, in
user‑specified degree increments, as it is revolved around the DBS earth
station. After EPFDs are computed for all azimuths, the MVDDS
transmitting antenna is moved closer to the DBS earth station and the
process is repeated. This process repeats until the MVDDS antenna
reaches a user‑specified distance from the DBS earth station.

[Note:]{.underline} For simplicity in the modeling process, our
implementation revolves the DBS earth station around the MVDDS
transmitter. In practice, the EPFD contour must reflect the situation
where a DBS earth station is revolved around the MVDDS transmitting
antenna. In both cases, the shape of the EPFD contour, over the
distances of interest, is identical,[^688] but the orientations are
inverted in the North/South and East/West directions. Therefore, by
relabeling the axes of the EPFD contour plot, one obtains the necessary
plot.

**Model Computations**

A. The EPFD is calculated using the following equation:

![](media/image27.wmf){width="2.875in" height="0.4861111111111111in"}

Where:

> ![](media/image2.wmf){width="0.2638888888888889in" height="0.25in"}=
> Total output power of the MVDDS transmitter (watts) into antenna
>
> ![](media/image3.wmf){width="0.8055555555555556in" height="0.25in"}=
> Gain of the MVDDS antenna in the direction of the DBS earth station
>
> ![](media/image28.wmf){width="0.20833333333333334in"
> height="0.25in"}and
> ![](media/image29.wmf){width="0.20833333333333334in"
> height="0.25in"}are in polar coordinates.
> ![](media/image28.wmf){width="0.20833333333333334in"
> height="0.25in"}is the angle from the Z axis
> (![](media/image28.wmf){width="0.20833333333333334in"
> height="0.25in"}=0°). The main beam of the MVDDS antenna is aligned
> with the X axis (![](media/image28.wmf){width="0.20833333333333334in"
> height="0.25in"}=90°,
> ![](media/image29.wmf){width="0.20833333333333334in"
> height="0.25in"}=0°).
>
> ![](media/image4.wmf){width="0.7083333333333334in" height="0.25in"}=
> Gain of the earth station in the direction of the MVDDS antenna

![](media/image30.wmf){width="0.18055555555555555in" height="0.25in"}
and ![](media/image31.wmf){width="0.18055555555555555in"
height="0.25in"} follow the same conventions as
![](media/image28.wmf){width="0.20833333333333334in" height="0.25in"}and
![](media/image29.wmf){width="0.20833333333333334in" height="0.25in"}.

> I = Interference scaling factor for the earth station.[^689] A
> detailed explanation of this term can be found in Section 3.3.2 of the
> MITRE Report
> (<http://www.fcc.gov/oet/info/mitrereport/mitrereport_4_01.pdf> )
>
> ![](media/image5.wmf){width="0.4166666666666667in"
> height="0.2638888888888889in"}= Maximum gain of the DBS earth station
>
> d = the distance between the MVDDS transmitting antenna and the DBS
> earth station (meters)

B. The antenna gain pattern of the MVDDS transmitting antenna and DBS
earth station are described in ASCII text files, which are entered as
input variables. An example gain input file is shown in Annex I.

C. Azimuth and elevation angles of the DBS earth station and MVDDS
transmitting antenna are defined and computed as follows (*see* Figure
2):

> 1\. The user specifies the latitude, longitude, and height AMSL of the
> DBS earth station. Additionally, the user specifies the longitude of
> the geostationary satellite to which the earth station should point.
>
> 2\. The elevation angle of the DBS earth station, θe_el, is the angle
> from the horizon to the main beam of the DBS earth station.
>
> 3\. The azimuth angle of the DBS earth station, φe_az, is the angle
> from the projection of geographic south on the horizon to the
> projection of the main beam on the horizon.
>
> 4\. The tilt angle (θm_el) and the azimuth (φm_az) of the MVDDS
> antenna are user‑specified input variables; defined by the same
> conventions as θe_el and φe_az.
>
> 5\. The method used to calculate angles θ~e~, φ~e~, θ~m~, and φ~m~ for
> all geometric configurations of the DBS earth station and the MVDDS
> transmitting antenna is presented in Annex II. ([Note:]{.underline}
> Because calculated θ~e~, φ~e~, θ~m~, and φ~m~ may not exactly match
> the values of these angles present in the input antenna gain files, a
> linear interpolation is performed to determine the values of
> G~e~(θ~e~, φ~e~) and G~m~(θ~m~, φ~m~) used in the EPFD calculation.

**Figure 2: Azimuth and Elevation Angles**

![](media/image32.wmf){width="5.997916666666667in"
height="1.8840277777777779in"}

DBS Earth Station MVDDS Transmitter

Main Beam is aligned with Xe axis Main Beam is aligned with Xm axis

D. The EPFD for each of the geometric configurations is calculated and
stored in a matrix. Once all EPFDs are calculated, the matrix is
searched, along each azimuth radial, beginning at the farthest distance
from the DBS earth station. At each distance, the calculated EPFD is
compared to the user‑specified threshold EPFD.

> If the calculated EPFD is less than the threshold EPFD, then the EPFD
> at the next point closer to the MVDDS transmitting antenna along the
> same azimuth radial is compared to the threshold EPFD.
>
> If the calculated EPFD is greater or equal to the threshold EPFD, then
> that MVDDS antenna location is plotted on a polar graph.
>
> If the threshold EPFD is not exceeded at any distance along a given
> azimuth radial, then a point is plotted at the origin of the polar
> graph (the location of the DBS earth station)
>
> This process is repeated until all azimuth radials have been checked.
>
> [Note:]{.underline} The described algorithm plots the first point it
> finds that exceeds the EPFD threshold for each azimuth radial and then
> moves on to the next azimuth radial. It is possible that if the EPFDs
> along a given azimuth are compared to the threshold at distances
> closer than this plotted point, the calculated EPFD could become lower
> than the threshold and then higher again (creating 'holes' within the
> larger contour where the EPFD limit is not exceeded). These 'holes'
> are not plotted under the current implementation of our model.

**Annex I: Sample Antenna Gain Input File**

Antenna gain data is provided over the complete sphere as a function of
spherical coordinate angles in arbitrary incremental steps. As shown in
Figure 2, the antenna is oriented so that the main beam is aligned with
the X axis.

θ is the angle from the z axis in degrees.

φ is the angle of the projection onto the XY plane relative to the X
axis.

Gain (dBi) is defined for each θ, φ, polarization, and frequency.

θ φ Gain θ φ Gain θ φ Gain θ φ Gain

  ----- ------ ------- -- ----- ------ ------- -- ----- ------ ------- -- ----- ------ -------
  0     ‑180   0.79       54    ‑180   ‑19.2      108   ‑180   ‑25        162   ‑180   ‑29.7

  1     ‑180   0.96       55    ‑180   ‑24.5      109   ‑180   ‑23.2      163   ‑180   ‑36.8

  2     ‑180   0.95       56    ‑180   ‑27.1      110   ‑180   ‑23.5      164   ‑180   ‑35.6

  3     ‑180   0.81       57    ‑180   ‑24.7      111   ‑180   ‑26.5      165   ‑180   ‑39.9

  4     ‑180   0.45       58    ‑180   ‑32.8      112   ‑180   ‑23.9      166   ‑180   ‑40.5

  5     ‑180   ‑0.15      59    ‑180   ‑31.3      113   ‑180   ‑22.3      167   ‑180   ‑29.4

  6     ‑180   ‑0.38      60    ‑180   ‑20.5      114   ‑180   ‑22.5      168   ‑180   ‑24.6

  7     ‑180   ‑0.66      61    ‑180   ‑19.3      115   ‑180   ‑22.7      169   ‑180   ‑24.3

  8     ‑180   ‑1.8       62    ‑180   ‑19.6      116   ‑180   ‑24.2      170   ‑180   ‑31.9

  9     ‑180   ‑2.72      63    ‑180   ‑17.4      117   ‑180   ‑29.2      171   ‑180   ‑32.3

  10    ‑180   ‑2.93      64    ‑180   ‑20.2      118   ‑180   ‑32.8      172   ‑180   ‑25.8

  11    ‑180   ‑3.1       65    ‑180   ‑16.2      119   ‑180   ‑29.5      173   ‑180   ‑26.3

  12    ‑180   ‑3.93      66    ‑180   ‑14        120   ‑180   ‑26.7      174   ‑180   ‑28.8

  13    ‑180   ‑5.49      67    ‑180   ‑11.7      121   ‑180   ‑25.2      175   ‑180   ‑32.5

  14    ‑180   ‑5.91      68    ‑180   ‑10.3      122   ‑180   ‑24.5      176   ‑180   ‑59.6

  15    ‑180   ‑5.38      69    ‑180   ‑12.3      123   ‑180   ‑24.8      177   ‑180   ‑34.1

  16    ‑180   ‑6.67      70    ‑180   ‑182       124   ‑180   ‑25.6      178   ‑180   ‑31.4

  17    ‑180   ‑9.66      71    ‑180   ‑24.3      125   ‑180   ‑27.2      179   ‑180   ‑35

  18    ‑180   ‑8.43      72    ‑180   ‑20.8      126   ‑180   ‑33.6      180   ‑180   ‑37.5

  19    ‑180   ‑7.21      73    ‑180   ‑14.4      127   ‑180   ‑35.6      0     ‑179   0.79

  20    ‑180   ‑9.32      74    ‑180   ‑20.8      128   ‑180   ‑30.6      1     ‑179   0.96

  21    ‑180   ‑11.3      75    ‑180   ‑21.1      129   ‑180   ‑30.7      2     ‑179   0.95

  22    ‑180   ‑10.3      76    ‑180   ‑20.9      130   ‑180   ‑29.5      .     .      

  23    ‑180   ‑12.2      77    ‑180   ‑26.5      131   ‑180   ‑28.9      .     .      

  24    ‑180   ‑13        78    ‑180   ‑25.1      132   ‑180   ‑30.5      .     .      

  25    ‑180   ‑11.6      79    ‑180   ‑25.2      133   ‑180   ‑35        180   180    

  26    ‑180   ‑12.2      80    ‑180   ‑23.7      134   ‑180   ‑33.7                   

  27    ‑180   ‑15.5      81    ‑180   ‑21        135   ‑180   ‑36.8                   

  28    ‑180   ‑12.1      82    ‑180   ‑23.6      136   ‑180   ‑36.6                   

  29    ‑180   ‑11.1      83    ‑180   ‑21.9      137   ‑180   ‑33.9                   

  30    ‑180   ‑14.9      84    ‑180   ‑22.4      138   ‑180   ‑32.1                   

  31    ‑180   ‑16.1      85    ‑180   ‑21        139   ‑180   ‑32.4                   

  32    ‑180   ‑11.3      86    ‑180   ‑22.1      140   ‑180   ‑36.8                   

  33    ‑180   ‑13        87    ‑180   ‑20.9      141   ‑180   ‑46.6                   

  34    ‑180   ‑15.3      88    ‑180   ‑22.7      142   ‑180   ‑49.7                   

  35    ‑180   ‑12        89    ‑180   ‑24.8      143   ‑180   ‑34.3                   

  36    ‑180   ‑12.5      90    ‑180   ‑22.5      144   ‑180   ‑32.8                   

  37    ‑180   ‑15.5      91    ‑180   ‑19.9      145   ‑180   ‑32.1                   

  38    ‑180   ‑9.89      92    ‑180   ‑20.1      146   ‑180   ‑32                     

  39    ‑180   ‑9.51      93    ‑180   ‑17.4      147   ‑180   ‑34.3                   

  40    ‑180   ‑12.1      94    ‑180   ‑18.4      148   ‑180   ‑39.9                   

  41    ‑180   ‑7.12      95    ‑180   ‑16.6      149   ‑180   ‑41.5                   

  42    ‑180   ‑4.24      96    ‑180   ‑17.3      150   ‑180   ‑36.1                   

  43    ‑180   ‑5.76      97    ‑180   ‑17.8      151   ‑180   ‑35                     

  44    ‑180   ‑12.2      98    ‑180   ‑18.3      152   ‑180   ‑38                     

  45    ‑180   ‑16        99    ‑180   ‑19.8      153   ‑180   ‑45.8                   

  46    ‑180   ‑13.8      100   ‑180   ‑22        154   ‑180   ‑50.6                   

  47    ‑180   ‑19        101   ‑180   ‑22        155   ‑180   ‑45.1                   

  48    ‑180   ‑16.7      102   ‑180   ‑23.2      156   ‑180   ‑42.4                   

  49    ‑180   ‑16.7      103   ‑180   ‑27.5      157   ‑180   ‑44.6                   

  50    ‑180   ‑23.4      104   ‑180   ‑24.4      158   ‑180   ‑46.7                   

  51    ‑180   ‑18.1      105   ‑180   ‑25.6      159   ‑180   ‑56.8                   

  52    ‑180   ‑19.5      106   ‑180   ‑25.8      160   ‑180   ‑49.6                   

  53    ‑180   ‑23.2      107   ‑180   ‑24.7      161   ‑180   ‑27.1                   
  ----- ------ ------- -- ----- ------ ------- -- ----- ------ ------- -- ----- ------ -------

**Annex II: Method Used to Calculate θ~e~ , φ~e~ , θ~m~ , and φ~m~**

Three coordinate systems are defined and vector analysis is used to
determine θ~e~ , φ~e~ , θ~m~ , and φ~m~. These coordinate systems,
depicted in Figure 3 are:

> 1\. (X, Y, Z), represents the earth, where X is geographic south and Y
> is geographic east, and Z is a perpendicular to the surface of the
> earth.

2\. (Xe, Ye, Ze) represents the DBS earth station with its main beam
aligned with the Xe axis.

> 3\. (Xm, Ym, Zm) represents the MVDDS transmit antenna with its main
> beam aligned with the Xm axis.

Note: Coordinate systems (Xe, Ye, Ze) and (Xm, Ym, Zm) are in the same
orientation as the antenna gain input files.

> The Vector W, is the vector between coordinate systems (Xe, Ye, Ze)
> and (Xm, Ym, Zm) which connects the two antennas.

**Figure 3: Relationship Between the Coordinate Systems**

![](media/image33.wmf){width="5.998611111111111in"
height="3.5708333333333333in"}

In this Figure, the earth station has an arbitrary azimuth angle (φe_az)
and an arbitrary elevation angle (θe_el) which are calculated based on
its latitude, longitude, height AMSL, and satellite to which it is
pointing. The MVDDS antenna also has an arbitrary azimuth angle (φm_az)
and an arbitrary tilt angle (θm_el), which are user‑specified inputs.

###### Computational Method

To determine θ~e~, a dot product operation between W and Ze is
performed.

To find φ~e~, an arctan operation between Wy and Wx is performed.

The same process is used to calculate θ~m~, and φ~m~, except in this
case W is negative.

The detailed computational method is presented below.

*DBS Antenna:*

![](media/image34.wmf){width="5.75in" height="0.9611111111111111in"}

Solve for X, Y, and Z:

![](media/image35.wmf){width="6.430555555555555in"
height="1.0555555555555556in"}![](media/image36.wmf){width="0.125in"
height="0.19375in"}

![](media/image37.wmf){width="1.875in" height="1.6666666666666667in"}

*MVDDS antenna:*

![](media/image38.wmf){width="6.736111111111111in"
height="1.0694444444444444in"}

Solve for X, Y, and Z:

![](media/image39.emf){width="1.0in" height="1.0in"}

![](media/image39.emf){width="1.0in" height="1.0in"}

**Annex III: Sample EPFD Contour Plots**

A sample EPFD contour plot is presented for one city in each of the
regions defined in the *Second Report and Order*. These are Washington,
DC in the East, Indianapolis, IN in the Midwest, Phoenix, AZ in the
Southwest, and Seattle WA in the Northwest. Unless indicated, each of
these plots represents the worst‑case (or largest zone); the MVDDS
transmit antenna and the DBS earth station are at the same height AMSL.
In addition, plots for Washington DC show the effect on the size of the
EPFD contour of different DBS receive antennas and when the MVDDS
transmitting antenna is raised 50 meters above the DBS earth station.

Each plot is drawn under the following conditions:

> DBS earth station antenna pattern: 18 inch single feed, 24x18 inch
> single and dual feed (as indicated on plot)
>
> DBS antenna pattern data is available for downloading at
> [http://www.fcc.gov/oet/info/mitrereport/](http://www.fcc.gov/oet/info/mitrereport/.html)

MVDDS transmitting antenna pattern: Northpoint large sector horn (as
measured by MITRE)

> Antenna pattern data as measured by MITRE is available for downloading
> at
> [http://www.fcc.gov/oet/info/mitrereport/](http://www.fcc.gov/oet/info/mitrereport/.html)
>
> DBS earth station pointing toward the satellite at 110^o^ West
> Longitude
>
> MVDDS transmitter pointing toward geographic South
>
> In all cases, these plots are drawn by revolving the MVDDS transmitter
> around a DBS earth station. As explained above, the EPFD contour is
> inverted prior to plotting.

Figure 1: Washington, DC EPFD Contour Using Eastern Region EPFD.

MVDDS Transmit and DBS Receive (18‑inch Reflector) Antennas Are At Same
Height.

![](media/image40.wmf){width="1.2229166666666667in"
height="1.2569444444444444in"}

Figure 2: Indianapolis, IN EPFD Using Midwestern Region EPFD.

MVDDS Transmit and DBS Receive (18‑inch Reflector) Antennas Are At Same
Height.

![](media/image40.wmf){width="1.2229166666666667in"
height="1.2569444444444444in"}

Figure 3: Phoenix, AZ EPFD Contour Using Southwestern EPFD.

MVDDS Transmit and DBS Receive (18‑inch Reflector) Antennas Are At Same
Height.

![](media/image40.wmf){width="1.2229166666666667in"
height="1.2569444444444444in"}

Figure 4: Seattle, WA EPFD Contour Using Northwestern EPFD.

MVDDS Transmit and DBS Receive (18‑inch Reflector) Antennas Are At Same
Height.

![](media/image40.wmf){width="1.2229166666666667in"
height="1.2569444444444444in"}

Figure 5: Washington, DC EPFD Contour Using Eastern Region EPFD.

MVDDS Transmit Antenna is 50 Meters higher than DBS Receive (18‑inch
Reflector) Antenna.

![](media/image40.wmf){width="1.2229166666666667in"
height="1.2569444444444444in"}

Figure 6: Washington, DC EPFD Contour Using Eastern Region EPFD.

MVDDS Transmit and DBS Receive (24 x 18‑inch Reflector With Single Feed)
Antennas Are At Same Height.

![](media/image40.wmf){width="1.2229166666666667in"
height="1.2569444444444444in"}

Figure 7: Washington, DC EPFD Contour Using Eastern Region EPFD.

MVDDS Transmit and DBS Receive (24 x 18‑inch Reflector With Dual Feed)
Antennas Are At Same Height.

![](media/image40.wmf){width="1.2229166666666667in"
height="1.2569444444444444in"}

**[JOINT STATEMENT OF]{.underline}**

**[CHAIRMAN MICHAEL POWELL AND]{.underline}**

**[COMMISSIONER KATHLEEN Q. ABERNATHY]{.underline}**

In re: Amendment of Parts 2 and 25 of the Commission's Rules to Permit
Operation of NGSO FSS Systems Co-Frequency with GSO and Terrestrial
Systems in the Ku-Band Frequency Range (ET Docket No. 98-206, RM-9147,
RM-9245) (rel. May 23, 2002).

This proceeding has challenged the Commission to balance conflicting
goals, promote competition through new technology, and minimize
interference to existing licensees. We believe the Commission and its
excellent staff have done an admirable job.

Nonetheless, we believe a few aspects of the decision deserve particular
attention. First, the Commission has wisely chosen not to saddle the new
Multichannel Video Distribution and Data Service (MVDDS) with regulatory
burdens based on the types of services some expect it to provide.
Instead the Commission has exercised regulatory restraint to allow MVDDS
to evolve in the marketplace first and as a topic of regulation second.
In addition, we believe the Commission wisely adopted strict
interference rules for MVDDS operations to ensure a regulatory regime
that is clear and enforceable, yet flexible. Although many
well-intentioned proposals were considered, including compensation
formulas, mandated service calls, mitigation zones and hundreds of
precision measurements, we believe the Commission correctly chose the
best approach in this Order that limits the equivalent power flux
density (EPFD) at DBS receive sites. Although there has been some
criticism of certain variables used in the technical analysis, we
believe the Commission's engineering staff has developed a reasonable
calculation methodology consistent with best engineering practices and
the record in this proceeding.

**What is MVDDS?**

The short answer is that we do not know. Its name, Multichannel Video
Distribution and Data Service, seems to suggest everything is possible
-- and perhaps it is. But the service rules the Commission has adopted
do not [require]{.underline} MVDDS to provide any particular kind of
service -- it could be a multichannel video, or data, or digital radio
service, or any other permutation on spectrum use. The Commission was
once in the business of requiring spectrum holders to provide a certain
type of service. That approach failed because government is a very bad
predictor of technology and markets -- both of which move a lot faster
than government. Over the past decade or so, the Commission has adopted
more flexible service rules that bound a service based largely on
interference limitations and its allocation (fixed or mobile,
terrestrial or satellite). In this Order, we follow that flexible model
for MVDDS.

Regardless of the type of service MVDDS ultimately is, if successful, it
has remarkable potential to benefit the American people.

If successful, MVDDS creates the possibility of an additional
competitive provider of MVPD service. That service is now dominated by
the satellite and cable platforms. In turn, consumers spend a
significant amount of their communications budget on these services. In
response to the limited intermodal competition for MVPD services, the
Commission has long sought to facilitate the development of a
terrestrial wireless alternative, with limited success. MVDDS offers the
possibility of another MVPD alternative.

Yet it is also quite possible that MVDDS will be used to provide a
one-way data path for broadband services. Today that market too is
dominated by two platforms -- cable and wireline telephony. As demand
for broadband increases, it will become increasingly important to
Americans' communications needs. The Commission has sought to facilitate
the development of a wireless alternative, thus far with limited
success. MVDDS offers the possibility of another broadband alternative.

Because the Commission has not dictated what type of service MVDDS will
become, we believe it is premature to impose obligations inherent in
other service offerings (like Title VI cable television regulation or
Title II common carrier regulation). For example, imposing must carry
obligations on a broadband service does not serve the public interest;
nor would open access be a reasonable regulation of MVPD service.
Moreover, some mandates -- such as must carry -- are statutorily limited
to certain platforms (such as cable or satellite).[^690] It is not at
all clear that we have the statutory authority to impose these
obligations on other MVPD providers, such as MVDDS. Since we do not
believe it is desirable or necessarily legal to impose these
obligations, we would not do so here. Moreover, potential individual
licensee's business plans should not guide Commission policy because the
Commission cannot know who will prevail at auction. Developing service
rules based on one applicant's business plan, even with the best of
intentions, may inadvertently tip the auction in their favor. If MVDDS
ultimately offers a service that fits squarely into one of our
regulatory boxes, we can assess what additional regulatory safeguards,
if any, are required. In the meantime, we are not troubled that a
nascent service may initially not be constrained by legacy regulatory
strictures.

Relatedly, we do not support adopting a rule barring DBS providers from
holding an MVDDS license. We are generally extremely reluctant to
artificially limit auction participants for any reason. We agreed to
limit cable providers ability to bid in their own regions based on the
well-reasoned economic analysis in the Order. In contrast, DBS providers
explain that they may well have a need for a terrestrial MVDDS component
as either a broadband pipe or as an alternative path to carry even more
local signals. DBS providers contend that they are currently capacity
constrained for broadband offerings and comprehensive local-into-local
service. Indeed, the original vision for the new, terrestrial use of
this spectrum was as a method for DBS licensees to get local broadcast
signals to their subscribers.[^691] Based on these factors, the best
course is to allow DBS the opportunity to hold these licenses. There are
two important caveats to this policy. First, MVDDS networks should not
be utilized by DBS providers as a means of avoiding their carry-one
carry-all responsibilities. Second, in the event that the
EchoStar-DirecTV merger is approved, the Commission may need to
re-examine the eligibility of the combined provider to bid for MVDDS.
With these two caveats, we believe open eligibility to DBS best serves
the interests of the American people by providing an alternative method
to expand broadband and local broadcast carriage.

**DBS Installations More than Thirty Days After MVDDS Begins Service**

The dissent raises a legitimate concern about the fate of DBS antennas
installed more than thirty days after initiation of MVDDS service.[^692]
The interference limits in the new rules will apply to all existing DBS
customers 30 days after the MVDDS provider notifies the DBS carriers
that it intends to construct a tower. During this period, the MVDDS
provider is responsible for ensuring that no DBS customers will
experience greater than the mandated EPFD limit at the site of each DBS
antenna. It is important to recognize that there may be substantial
variation in the amount of interference based on antenna placement. That
is, an antenna placed on an exposed roof may exceed the EPFD limit,
while an antenna under the eaves of the same roof may not. Once the DBS
provider is on notice of the pending MVDDS tower, it is reasonable to
expect the DBS provider to place future antenna dishes so as to ensure
that interference is minimized. The burden on DBS to act responsibly to
avoid interference is consistent with the approach we have taken for
similarly situated services and is consistent with our statutory
charge.[^693] In contrast, if we were to require the EPFD limit to be
met for DBS antennas installed more than 30 days after notice of the
MVDDS tower's construction, each MVDDS tower could be forced to "turn
off" whenever a customer places their DBS antenna such that the EPFD
limit is violated. Since DBS and MVDDS are likely competitors, the
ability of any single DBS customer to force MVDDS off the air due to
poor antenna placement would render the service unworkable.[^694]
Whether by preventing MVDDS deployment in certain areas or showing some
interference to new DBS deployments, there will be some limitations on
each service as a result of our decision today. These are difficult
choices -- but we believe getting a new competitor for the vast majority
of the American people outweighs the possible loss of a single
competitor for a few.[^695]

**Calculation Methodological Concerns**

Interference issues are among the most vexing public policy problems
this agency faces. The Commission has defined "harmful
interference"[^696] -- but our service rules are generally based on a
permissible level of interference that far more narrowly restricts
operations. Here the Commission has followed the permissible
interference course and determines that MVDDS service should not exceed
an EPFD limit set in each of four regions.[^697] The EPFD limits are
designed to limit the increase in average outage times to an average of
10%. Therefore if the average consumer loses service for 10 minutes a
year, the EPFD figure is calculated so that the average increase would
be to no more than 11 minutes of total outage a year. The 10% figure and
the Commission's calculation methodology echoes the international
approach adopted in this band for NGSO/DBS sharing.[^698] The 10% figure
is also significantly less than the variation in outage times between
different parts of the country, different satellites, different
providers or weather variations in a given region from year to year. For
example, the outage levels from different DBS dishes serving New York
currently vary dramatically: 200.1 minutes per year from the satellite
at 101^o^, 1323.6 minutes per year from the satellite at 110^o^, and
822.1 minutes per year from the satellite at 119^o^. Based on this
multitude of variables, the Commission adopted rules that create average
interference thresholds. Of course, in some averaged areas, the outage
time will be less and in other areas more.

To the extent that individual market areas have rain or other
characteristics not adequately captured by the regional EPFD limits, the
Commission has adopted a safety valve approach that allows licensees to
petition the Commission for a distinct EPFD limit for that license
area.[^699]

The Commission's calculations are very conservative and likely overstate
the amount of additional interference that will result from MVDDS
operations. None of these calculations take into account any natural
shielding or manmade attenuation that occurs for the vast majority of
DBS antennas. Our calculations essentially assume the worst case
scenario -- that no attenuation due to natural shielding or manmade
structures occurs. This is a highly unlikely event and as a result the
model will generally overstate the amount of increased interference that
any individual DBS subscriber may experience. The Commission model also
adopted a conservative assumption regarding a second key variable -- the
relative strength of the DBS and MVDDS signals. The model assumed a
rain-faded DBS signal and a full strength MVDDS signal. Yet rain would
likely impact the MVDDS signal as well, further reducing outage times.

The dissent attempts to make much of the alleged imprecision of the
Commission's EPFD figures and the alleged corresponding lack of
protection for DBS subscribers. While these arguments may seem facially
persuasive, the Order adopts a more sound approach. As an initial
matter, the dissent fails to describe how it would calculate these
figures, and instead second-guesses our engineering staff's
calculations. It appears, however, that one of the dissent's proposed
alternatives would be to impose a "hard and fast" 10% limit per service
area. Even putting aside the failure to acknowledge the conservative
assumptions about shielding and the strength of the MVDDS signal set out
above, there is no technical way to achieve, in all cases and in all
circumstances, the \"hard and fast\" 10% limit the dissent claims as its
goal. As in all of our proceedings where the Commission grants licensees
the privilege of accessing public airwaves that are necessarily shared
with others, it strives to achieve rational sharing rules. And in all
cases the licensees utilize the spectrum with the knowledge that
interference protection will not be [exactly]{.underline} the same
across the country with diverse terrain and atmospheric conditions.

Fundamentally, the dissent's two stated goals are mutually exclusive.
The very use of [any]{.underline} generalized formula requires that
[some]{.underline} consumers will experience a greater than 10% increase
in outage times. For example, even if the Commission were to average the
satellite orbital position, power, and antenna gain pattern across five
DBS satellites (as the dissent argues), any individual DBS customer is
likely only to receive service from one. Then, under this standard, by
definition some subscribers would experience greater than 10%
interference, thereby violating the steadfast limit. Similarly, in 2001
Louisville Kentucky may have received 50 inches of rain, and the dissent
would have us base that service area's EPFD limit on last year's
rainfall amount. Yet this year Louisville may receive half that amount,
resulting in a significant increase in the outage time percentage for
the entire service area -- once again, violating the steadfast limit. So
even if one believes in a "hard" limit -- there is no practical
sustainable way of achieving it.[^700] In fact, it would seem to require
an impossibly burdensome and complex individualized real-time dynamic
measurement at each DBS subscriber's home.

If we move beyond these inconsistencies, it appears the dissent's
concerns are not with the formula used to calculate the EPFD limits --
rather the concerns are with weather prediction and failure to include
two DBS satellite orbital locations in the interference calculation.
Thus, it is the input data points for two variables in the formula --
rather than the calculation itself that appears to motivate the dissent.

The EPFD limits are based on at least seven key variables -- satellite
orbital position, power, antenna gain pattern, receiver elevation angle,
antenna size, gain and pattern, and a propagation and rain model. Each
DBS customer has a unique combination of these variables -- plus a
unique shielding pattern based on where the dish is installed, etc. So
even assuming some of the variable modifications in the dissent were
adopted, there would still be thousands of customers that would have
interference levels above and below what the model produces. Each
customer has a distinct combination of a particular satellite with a
particular orbital position, power and antenna gain pattern. Each
customer would also have distinct receiver elevation angle, antenna
size, gain and pattern. Finally each customer has distinct weather
conditions.[^701]

Fundamentally, the dissent is mostly concerned about the imprecision of
weather forecasting. While we recognize that reasonable people can
disagree about the best method, the Commission has exercised its
reasoned technical judgment with the advice and consultation of the FCC
engineering staff to arrive at the regionalized rainfall estimates. The
dissent argues that the Commission should predict annual rainfall in
each of 354 areas.[^702] Others argued that the Commission should
conduct measurements at each MVDDS transmitter. We believe that a
regionalized approach that divides the country into four rainfall zones
is appropriate. Yet rainfall varies significantly from year to year and
even within the same region. The Commission used the top 32 cities to
generate the regionally averaged rainfall data. When plotted they
appeared to cluster into four sets, each representing a relatively small
incremental change in EPFD characteristics. For example, under the
-172.1 EPFD limit for the Northwest, there is a 9.3% average potential
increase in outage times in Sacramento, 9.8% in Seattle, 9.9% in
Portland, and 10.5% in San Francisco. Our engineering staff also did
some random sampling of additional locales to confirm the legitimacy of
the regional figures. For example, applying the regional average to
Alaska yields an average increase in outage times of 5.4% and for Hawaii
11.5%. As a technical matter these measurements confirm that the overall
rainfall data and the regionalized figures are reasonable. Although more
data points (through the addition of more locales or the tower-by-tower
approach) could be added, we believe they would add little to the
accuracy of the EPFD.

The assertion that the Order "ignored" two satellites is inaccurate. The
Commission decided to utilize three satellites because those three (101,
110 and 119) are the only orbital locations with full coverage of the
United States and provide the overwhelming majority of service to DBS
subscribers today.[^703] Including the two satellites would actually
make the ultimate calculations less precise because they would give
equal weight to satellites that do not provide service to a similar
number of consumers. In order to assure that customers receiving service
from these two satellites do not suffer from dramatically different
interference, the staff sampled data from these locations in assessing
the accuracy of the other numbers. The staff concluded that the two
excluded satellite slots have similar operating characteristics to the
other three. Thus, there are sound interference reasons for looking
predominantly to the three satellites that provide most DBS
service.[^704] The dissent also later argues that the Order failed to
adopt the Mitre Report's recommendation that EPFD be based on a single
satellite with the largest baseline of unavailability.[^705] Yet such an
approach would, by necessity, render the first criticism (ignoring two
satellites) completely irrelevant because under the Mitre approach we
would ignore four of the five. The Commission rejected the Mitre
approach because the satellite that would have set the baseline is soon
to be retired.

Concerns were also raised regarding the final drafting of the item that
should be addressed.[^706] In response to the draft item, the dissent
raised some concerns about various aspects of the Order that had not
previously been discussed. Some of those concerns were well thought-out
and prompted the majority to rethink its position and further explain
its rationale.[^707] Those steps improved this Order -- and in turn
resulted in a higher quality product for the American people. At the end
of the day that should be the goal of all the Commissioners. It is ours.
And while ideally we would engage in the dialogue at an earlier stage,
continuous improvement of our items is the right thing to do. The end
result is one that this Commission can and should be proud of --
efficient and effective spectrum sharing on a broad scale that allows us
to license an entirely new service.

**Why an auction?**

Broadwave USA (commonly known as Northpoint), and its affiliates, have
vigorously argued that an auction is not required or in the public
interest for these licenses. Northpoint arrived at the Commission many
years ago with a proposal for a new and innovative way to share the DBS
spectrum. Today, thanks in large part to its fine work and diligence,
that service will go forward. Many have claimed that Northpoint deserves
a nationwide 500 MHz terrestrial license for free based on its
regulatory and technical efforts to make this service a reality. We
sympathize with the sentiments that underlie these claims. There is
little question that had it not been for Northpoint, the MVDDS service
would not be ready to move forward today. Northpoint has put significant
time and resources into developing its service model as well as its
Commission and congressional advocacy over a long period of time. We
applaud these efforts. But the statute does not support exempting this
spectrum from auction nor does it grant Northpoint the exclusive
privilege it seeks. We also do not believe other licensing distribution
mechanisms that avoid mutual exclusivity are appropriate for this
service. While we understand the equitable basis for Northpoint's
claims, we cannot support that equitable concern trumping the auction
regime Congress created in the statute, or the value of allowing other
competitors to vie for a chance to offer service to the public. If
Northpoint's service model is a winner, the market will reward it just
as it has done for other technology companies.

> \* \* \* \* \*

This has been an extremely difficult docket for the Commission, but I
believe we have arrived at a policy that appropriately balances the
competing interests while allowing an important new service to move
forward. We look forward to an auction for these licenses and the
provision of the corresponding new services to the American people.

**[STATEMENT OF COMMISSIONER]{.underline}**

[MICHAEL J. COPPS]{.underline}

[Approving in Part and Dissenting in Part]{.underline}

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

Authorizing and licensing the Multichannel Video Distribution and Data
Service (MVDDS) serves the public interest. Therefore I agree with
today's decision to move forward with authorizing MVDDS. I continue to
believe, however, that the Commission can reduce uncertainty and promote
greater efficiency by establishing a more universal understanding of the
meaning of "harmful interference" rather than establishing new standards
each time a dispute arises. Such an effort would reduce uncertainty and
would lead to fewer firefights between new and incumbent spectrum users.
Short of this larger effort, however, I believe that the rules
established here will allow a new service to move forward and will
protect customers of existing services. I therefore agree with the
interference portions of the item.

I regret that I must dissent, however, to two portions of today's order.
I am of firm belief that the open eligibility established by this Order
will not maximize the potential benefits of MVDDS or minimize the
potential pitfalls of an unconditioned auction. Therefore I must dissent
to the eligibility and auction portions of the order.

Additionally, I believe that one of the main benefits of the MVDDS
service is the opportunity to increase the distribution of local
television programming. One potential MVDDS applicant has offered to
accept full must carry responsibilities as a condition of becoming a
licensee. I am opposed to determining at this stage that MVDDS licensees
should be exempt from the must carry obligations carried by their cable
and DBS competitors. Those obligations were imposed to advance the
public interest; I see no reason for jettisoning them here.

I want to commend the work of the FCC staff who worked on this
incredibly difficult proceeding over a period of several years. Each
time a thorny spectrum dispute arises, I become more convinced that the
FCC has the best engineers and communications lawyers in the country
working for our consumers. We are all lucky to have them as public
servants.

# MVDDS Offers Great Potential Value to Consumers

In November, 2000, in the *First Report and Order and Further Notice of
Proposed Rulemaking* in this proceeding we concluded that "\[a\]fter an
exhaustive analysis and the time-consuming development on the
international front of a consensus regarding critical technical issues,
we have made a major threshold determination to authorize a new service,
MVDDS, that will be capable of delivering local broadcast television
station signals to satellite television subscribers in unserved and
underserved local television markets."[^708]

I commend the previous Commission for this correct and forward-looking
decision. I believe that authorizing and licensing this new service has
great potential to serve the public interest. Companies hoping to win
licenses have stated on the record that an MVDDS system can be a
low-cost terrestrial wireless multi-channel video and broadband Internet
service. This service has the potential to further several of my most
important goals as a Commissioner.

First, MVDDS has the potential to serve as an important new competitor
to cable and DBS in the provision of video services. Encouraging such
competition is an important Commission responsibility. Improved
competition in multi-channel video services can drive down prices and
create incentives for service improvements. As consolidation throughout
the communications industry continues unabated, the creation of a new
competitor is of great importance.

Secondly, MVDDS has the potential to provide service in rural areas
where today DBS is the only option. Encouraging rural service is, of
course, a high responsibility incumbent upon the FCC.

Thirdly, MVDDS has the potential significantly to increase the
availability of local television service. Because MVDDS technology uses
local facilities to transmit signals, it can transmit local television
signals, much like a cable service. While some rural areas receive local
television signals via DBS, most do not. Potential MVDDS operators have
promised, on the record, that they will offer local television stations
where they offer service. One company has volunteered to accept full
must carry responsibilities and provide all local television channels in
all 210 local television markets.

Fourthly, MVDDS has the potential to speed the deployment of broadband
telecommunications services throughout the country, and especially to
rural America. The MVDDS service includes the ability to offer broadband
services, such as Internet access, via terrestrial wireless facilities.
Today, many rural consumers are unserved by *any* broadband service
provider. In many other areas a single provider serves residential
consumers. MVDDS can therefore bring broadband services to literally
millions of rural Americans, and it can increase competition throughout
the country. Congress in 1996 instructed the Commission to make
broadband deployment a top priority. By licensing a viable new MVDDS
service, we would be working toward Congress's mandate and the
Commission's own priority.

Finally, authorizing the MVDDS service in the 12.2 -- 12.7 GHz band is
an efficient and innovative use of increasingly scarce spectrum. The FCC
has determined that MVDDS operators can provide terrestrial service in
the same band used by others to provide satellite services. As we
struggle with ever increasing demands on spectrum resources, we should
work hard to find ways to allow innovative spectrum arrangements where
they are technically possible, do not cause harmful interference, and
serve the public interest.

# The Majority's Form of Auction Undermines the Value of MVDDS

It is our obligation to develop an assignment mechanism that maximizes
the potential value of the MVDDS service. This means, as outlined above,
finding a way of assigning MVDDS licenses so that licensees: (1) provide
new competition to cable and DBS; (2) increase the distribution of local
television channels; (3) can combine multi-channel video services with
broadband telecommunications services so as to speed broadband
deployment; and (4) use the spectrum efficiently and intensively.

The Commission could easily have designed an auction and licensing
process to further these goals. We should have limited auction
participation to entities that would provide new competition in the
multi-channel video market. That would have meant excluding DBS
licensees. In addition, we should have committed to explore ways to
ensure that the process placed a priority on the value of local
ownership, sustainable rural service, diversity, small business
ownership, and the provision of local television stations. Instead, the
Commission sacrificed these public interest mandates to the theory that
an unconstrained auction will, by itself, yield the best result.

Auctions are far from perfect in recent history. Examples in both in the
United States and across the world invalidate the assumption that
auctions will automatically assign spectrum to an entity that will put
spectrum to its most efficient, highest, and best use. Nonetheless, in
order to avoid legal challenges and in the interest of stabilizing our
spectrum management system, I was willing to use a carefully constructed
auction to assign MVDDS licenses provided that eligibility for those
licenses was limited so as to promote competition. Unfortunately we did
not get there. I am pleased, however, that the Commission will at least
bar dominant cable providers from this service, and will permit some
small business incentives.

But I am still faced with an auction process where incumbent DBS
companies can buy spectrum that I hoped would be used to heighten
competition. Futhermore, I am left without any guarantees that we will
be aggressive in finding service and auction rules that, consistent with
*Adarand*, can account for the value of local ownership, sustainable
rural service, diversity, and the provision of local television
channels. These values are substantial, and we must work to make sure
that they play a central role in any assignment mechanism. In this case
they are, however, marginalized.

Given the choice between a bad auction and no auction, I must choose no
auction. Therefore, I will dissent from both the eligibility and the
auction provisions of this order.

# The Commission Should Not Preclude Must Carry Responsibilities

Local television is of great importance to consumers and Congress.
Promoting the increased availability of local channels has always been a
priority of the Commission. Broadcast stations are at the center of a
locality's marketplace of ideas, a function critical to our democratic
society. It is important that any multi-channel video distribution
service licensed by the Commission serve the particular needs of local
communities.

Broadcasting is a uniquely local medium. Local broadcasters understand
what it means to serve their community. They provide local news, public
affairs, and entertainment programming that serves the particular needs
of ethnic or demographic groups within their community. One hundred and
fifty-five million Americans regularly receive their news from local TV
stations; another sixty-seven million often do. If localism becomes a
casualty of this Commission's fear of rules, American consumers will
suffer; the country will suffer.

That is why I believe we should ask the question of whether MVDDS
licensees should have must carry obligations. As already noted, one
potential MVDDS applicant has offered to accept must carry. It
understands that must carry here is feasible and workable. Why, then, do
we cast overboard this important public interest principle? Both cable
and DBS have important must carry obligations. There may be unique
reasons to create service-specific must carry for MVDDS, but we have an
ongoing obligation to American consumers to ensure the continued
viability of the free-over-the-air broadcast service, and local
television stations in each market. By prematurely closing the door on
must carry for MVDDS at this stage we are not meeting that obligation.

Additionally, I believe that the combination of foreclosing must carry
responsibilities here and allowing DBS to hold MVDDS licenses creates an
opportunity to evade the will of Congress. Congress imposed a
"carry-one, carry-all" rule on DBS. If a DBS company carries one local
station in a community, it must carry ***all*** local stations in a
community. Exempting MVDDS service from such a requirement and allowing
DBS to hold MVDDS licenses means that a DBS company would have the
technical and legal means to circumvent the carry-one, carry-all rule.
Such a company could use a MVDDS license to distribute a selected group
of local channels in a community without distributing all the channels,
while continuing to provide national channels via their satellites. This
end-run around the will of Congress would make a mockery of the public
interest.

In order to protect local broadcasting and to eliminate a carry-one,
carry-all loophole, therefore, I would have at least asked whether MVDDS
should have must carry responsibilities, and, if so, what
responsibilities. Because the majority disagreed, I must strongly
dissent from the must carry portion of the order.

# Conclusion

I have high hopes for MVDDS. The market cries out for competition. I,
for one, would have welcomed the legal rationale to proceed immediately
to license a service. Unfortunately, that legal underpinning could not
be found. This being so, I believe the approach I have outlined herein
is, far and away, the best available option. MVDDS has the technical
ability to compete and offer valuable new service to consumers. I also
believe that FCC rules can reduce interference to an acceptable level
and can provide mechanisms to resolve unacceptable interference.

I fear, however, that our auction design, and our premature foreclosure
of must carry responsibilities will result in MVDDS failing to reach its
potential. For these reasons I respectfully agree in part and dissent in
part to this order.

[STATEMENT OF COMMISSIONER]{.underline}

[KEVIN J. MARTIN]{.underline}

[Dissenting in Part and Approving in Part]{.underline}

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

After several years and thousands of pages of debate, today the
Commission finally acts on Northpoint's application. I am glad we are
finally moving forward. I am glad that the majority is revealing its
technical criteria for introducing MVDDS service into the 12 GHz band.

I fear, however, that the Commission is placing too much of the burden
of MVDDS deployment on the backs of DBS licensees and their customers.
The arbitrary nature of the technical requirements in this item are both
disappointing and troubling. By law, DBS service is entitled to
protection from "harmful interference."[^709] Even more important,
existing DBS customers deserve to be protected from unreasonable
interference. This item does neither. Indeed, today the majority rejects
language it adopted only a few weeks back proclaiming that "all DBS
customers, regardless of which satellite(s) they are using, are entitled
to interference protection."[^710] While I admire their elimination of
any such pretense and appreciate their candor, I am disturbed by the
implications of this viewpoint.

I believe that all DBS customers are entitled to interference
protection. I support a 10% limit per service area for increased
interference caused by MVDDS. A 10% limit strikes a reasonable balance
among the services sharing this band. Indeed, in the version of the
Order adopted on April 11^th^, the majority seemed to agree. At that
time, they announced at least eight times that the technical
requirements which they were adopting would "limit" the outages caused
by MVDDS to "10%" over the baseline. [^711] The majority further
concluded in the April 11th version that this "10%" criterion was the
"appropriate" measure because it would "ensure that any interference
caused to DBS customers will not exceed a level that is considered
permissible."[^712] I was encouraged by this language in the Order. I
was concerned however, because the complex methodology contained in the
Appendix, which was used to implement the "10%" criterion in the Order,
resulted in actual levels of interference higher than 10% - even double
or triple those levels - to vast numbers of DBS customers. I distributed
a detailed statement to my colleagues explaining my support for the 10%
limit contained in the Order, but my concerns with the implementation of
that limit as reflected in the Appendix.

I was hopeful that in response to my statement, the majority would
adjust the implementation methodology in the Appendix to comply with the
"10% limit" they had concluded was "appropriate" in the text of the
adopted Order. Instead, they did the opposite. They chose,
post-adoption, to change the language of the adopted Order to coincide
with the implementation methodology in the Appendix. Frankly, I am a
little surprised that my colleagues were more familiar with the complex
implementation methodology found in the Appendix and that it more
accurately reflected their conclusions than the simple and
straightforward 10% "limit" contained in the Order.

Regardless of my surprise, I appreciate their adjustment of the Order to
conform to the Appendix. In the post-adoption version of the Order, the
former "10% limit" is now merely a "starting point" for an analysis.
Indeed, they now proclaim that increased interference as high as 20-30%
is "acceptable,"[^713] and that "even higher percentage increases in
unavailability in the range of 30% or higher would still constitute a
relatively minor change."[^714] I am surprised by this change in
language and in tone. And I am disturbed by their removal and rejection
of the basic principle that "all DBS customers...are entitled to
interference protection."[^715]

I find the choices made by my colleagues to be curious, at best. Why
would they *allow* "harmful" interference to some DBS customers and
reject *any* practical limit on interference to existing DBS customers?
Why would they claim to implement a percentage-based interference
approach without actually picking a specific "harmful" or even
"permissible" interference percentage? My colleagues now express that
there is "no technical way to achieve" a "10% limit."[^716] Why, then,
after declaring just weeks ago that a 10% limit is the "appropriate" and
"correct" measure of the burden that should be placed on DBS customers,
would the majority change their minds post-adoption to reject the once
"appropriate" and "correct" 10% limit and convert it to merely a
"starting point"? And, if the majority believes that "in the range of
10%"[^717] means "20-30%,"[^718] then does "in the range of 30% or
higher"[^719] mean 60-90%? Why do they prefer to keep us guessing? Why,
after originally concluding that a 10% limit "strikes a reasonable
balance," do they now emphasize five times post-adoption that seemingly
*any* amount of MVDDS-related interference is "balanced" by the ability
of MVDDS to deploy?[^720] Unfortunately, these questions seem to lead to
only one conclusion: the majority's technical requirements are driven by
a desire for MVDDS deployment, regardless of cost to DBS licensees and
their customers.

I have often expressed my belief that we should proactively seize
opportunities to encourage, and even insist on, more efficient use of
current spectrum, particularly through sharing. But the Commission must
do so in a manner that protects the rights of existing licensees and
their customers. At the very least, we should be clear about the levels
of protection we are providing. As we exploit new technological
opportunities for sharing, we must carefully weigh the costs, and ensure
that the harms do not outweigh the benefits. Unfortunately, today's
Order fails to strike an appropriate balance. It places too much of the
burden of MVDDS deployment on the backs of DBS licensees and their
customers. It rejects any interference limits. It injects uncertainty
into the spectrum market. Accordingly, I dissent from the majority of
this decision.[^721]

[The Adopted Technical Parameters are Arbitrary and
Capricious]{.underline}

Agencies are required to act in a reasoned fashion -- not arbitrarily
and capriciously. The Commission must explain its actions -- and its
explanation must reflect reasoned decision making. [^722] Unfortunately,
I believe this Order does not reflect sufficiently reasoned
decisionmaking.

One of the Commission's most important responsibilities related to
spectrum management is to define the interference parameters under which
licensees may operate. The Commission's rules define "harmful
interference" generally as interference which "seriously degrades,
obstructs, or repeatedly interrupts a radiocommunication service."[^723]
Both by statute and under the Commission's rules, MVDDS is prohibited
from creating "harmful interference" to the DBS service.[^724] And, as
the majority states, it is of "primary importance" that these technical
requirements do not cause MVDDS-interference to "exceed a level" that is
considered "permissible."[^725] Yet the majority will not reveal to us
what that important "permissible level" actually is. Instead, the
majority asserts, with "confidence," that the adopted rules will "limit"
interference potential from MVDDS to a level that "does not rise to
'harmful interference.'"[^726] I am not so confident.

The original version of the item, as it was adopted on April 11,
emphasized at least eight times that a "10% limit" on such interference
is the "appropriate" measure of the burden that should be placed on DBS
customers.[^727] Post-adoption, however, the majority has deleted from
the item all references to a "10% limit." Post-adoption, they decided to
change the original 10% "limit" to a 10% "starting point"[^728] for the
interference analysis. And, in their new version of the Order, the
possibilities for MVDDS interference seem limitless. Indeed, the
majority now concludes that "the additional service outage that may
result here over and above the 10% starting point falls within the
permissible level."[^729] Without defining "permissible level," they now
simply characterize the resulting interference - even interference that
is *more than double* or *triple* 10% - as "approximately," "on
average," "about," and "in the range of" 10%, and therefore
"permissible."[^730] Such hasty and dramatic changes, and continued
refusal to adopt any "limit" on interference, do not, at least to me,
seem to reflect careful and reasoned decisionmaking.

The Order sets certain EPFD[^731] levels that that are no longer keyed
to guarantee a specific level of interference protection.[^732] Rather
than setting an interference limit, the majority announces that these
EPFD levels are based on "10%" as a "starting point" for an increase in
DBS outages caused by MVDDS.[^733] However, as reflected in Appendix G,
the method used to calculate the EPFD levels is so unrelated to actual
interference levels experienced by vast numbers of consumers that it
appears to be arbitrary. As explained in more detail in my own Appendix,
the methodology used to implement the "10% starting point" only
exacerbates the majority's failure to limit interference. The EPFD
levels are calculated using a complex, underinclusive,
"double-averaging" approach that further removes the 10% starting point
from 10%. The calculations exclude altogether two out of the five
orbital slots through which DBS service is provided, and they count only
the top 32 television markets. Then the majority averages the level of
interference across the three selected orbital slots. On top of this,
the majority again averages those satellite interference averages within
each of four Commission-constructed "regions" (which consist of anywhere
from seven to 23 states), based on the results of the 32 selected
cities.

As a result of this complex implementation methodology, increased
interference caused by MVDDS is usually higher than 10%. Appendix G
reveals that, as a result of the implementation scheme, DBS customers in
31 out of the 32 television markets from which the majority basis its
interference calculations will experience increased interference higher
than 10%. The new "additional city" analysis in Appendix G shows that
customers in 11 out of the 12 additional cities will also experience
outage increases higher than 10%.[^734] And for many customers in the
top television markets alone, the actual increases in interference will
be *double and triple* the "10% starting point" referenced in the order.
For example, by the Commission's own estimates, some DBS customers in
Seattle will experience more than a 30% increase in unavailability,
translating to over 45 additional hours of outages annually caused by
MVDDS. Other DBS customers in Portland, San Francisco, Washington D.C.,
Pittsburgh, Philadelphia, New York, Boston and Nashville all will
experience a 23-30% increase in DBS unavailability caused by
MVDDS.[^735]

More fundamentally, however, it is not clear to me why *any* customer
should be subject to interference greater than the "10% limit"
originally adopted by the majority. Indeed, a few weeks ago, the
majority believed that a "10%" outage increase was defensible because
such a limited interference increase is "not perceptible to the DBS
customer in most cases."[^736] (Now it seems they believe that
regardless of the percentage increase, the interference will be
"imperceptible" and "insubstantial."[^737])

I support a 10% interference limit per service area. Indeed, MITRE, the
Commission's own expert, recommends allowing no more than a 10% increase
in MVDDS-related outages per service area.[^738] And, instead of
averaging the satellite calculations, MITRE recommended using only the
DBS satellite at each longitude having the largest baseline
unavailability.[^739] The majority fails to explain sufficiently why it
rejected these recommendations and proposals.

Even the Further Notice asked whether the Commission should "allow MVDDS
to cause *up to 10% increased unavailability,"* which, as was explained,
"is the same criteria developed by the ITU-R for interference from all
NGSO FSS systems."[^740] I do not agree with the suggestion of my
colleagues that the "approximately 10%" measure as used by the majority
either "echoes" the international approach to NGSO/DBS sharing.[^741]
The 10% NGSO/DBS sharing criteria is an *aggregate measure-* a *maximum*
*limit* - quite the opposite of the 10% "starting point" used
here.[^742] Although the majority no longer seems to feel constrained by
any upper limit, I have outlined in my own Appendix some reasonable
measures that could have been implemented to at least keep interference
much closer to their new 10% "starting point," and additional arguments
and concerns regarding the majority's Appendix G.

The majority recently implemented a "safety valve" to address some of my
concerns. The item now allows DBS licensees to present evidence that the
appropriate EPFD for a given service area should be different from the
region wide EPFD level. However, there is no guidance as to how much
interference would cause the majority to trigger that safety valve.
Apparently, even interference in the 20-30% range, or even higher than
30%, would not be enough. Moreover, the fact that a safety valve is
necessary is recognition of the fact that the proposed interference
scheme will not adequately protect DBS consumers in all parts of the
country.

I find the majority's failure to limit MVDDS-related interference to DBS
customers troubling. It is arbitrary to allow such varying and unlimited
levels of interference to different groups of DBS subscribers
particularly where, as explained in my Appendix, some more reasonable
measures are available. In a separate context, the agency was recently
chided for failing to provide "clarity as to its choice of the
appropriate interference threshold."[^743] The court found the "omission
of an explanation" to be "particularly troubling" because the test data
relied upon by the Commission did not include a representative
real-world sampling.[^744] I fear the Commission is repeating those
mistakes.

[The Technical Rules are Contrary to Law]{.underline}

The approach taken by the majority is contrary to statute, and contrary
to the "fundamental principle that existing co-primary spectrum users
are protected from harmful interference that may be caused by
later-in-time co-primary users."[^745]

The Rural Local Broadcast Signal Act requires the Commission to "ensure"
that MVDDS licensees do not cause "harmful interference" to the primary
users of the spectrum occupied by DBS operations.[^746] Despite this
statutory directive, the Order allows MVDDS licensees to cause harmful
interference to significant numbers of DBS subscribers. The rule adopted
today only prohibits harmful interference during the initial deployment
to existing customers. However, the Order *allows* MVDDS licensees to
cause harmful interference to new DBS subscribers.[^747] Consumers
living in proximity to an MVDDS transmitter may be subject to so much
interference from MVDDS that as a practical matter, they are excluded
from having even the choice of DBS service.[^748] Indeed, new DBS
customers "shall have no further rights of complaint" against the MVDDS
licensee.[^749] The majority has recently added language to the Order
expressing its belief that new DBS licensees "can take modest measures,
e.g., siting and shielding steps or use of a larger antenna, to account
for the presence of an MVDDS signal."[^750] However, the majority does
not dispute that there still may be exclusion zones where consumers will
not be able to receive DBS service due to MVDDS interference, despite
such measures. The Order also allows MVDDS licensees to cause harmful
interference to pre-existing DBS subscribers after one year of MVDDS
operation, even if the increased interference is caused by a change in
the MVDDS operation.[^751] And, the Order allows MVDDS licensees to
cause harmful interference to pre-existing DBS subscribers who decide to
move to a new location where there is a pre-existing MVDDS transmitter.
Similarly, the Order allows MVDDS licensees to cause harmful
interference to pre-existing DBS subscribers who may not have provided
notification of interference in the one-year complaint deadline.

In addition, the majority's decision to protect only existing DBS
subscribers for one year is also contrary to the MITRE report, which
recommends that future DBS customers be protected for "as long as the
MVDDS transmitter operates."[^752] I am disappointed that the majority
rejected MITRE's recommendation to place interference limits on MVDDS
operation going forward.

The approach is also contrary to the Commission's own rules and
precedent. The definition of "harmful" interference in the Commission's
own rules is not limited to blanketing interference. On its face it
includes serious degradation, obstruction, or repeated interruption of a
radiocommunication service.[^753] It does not depend on "averages."

**Moreover, this scheme is a significant departure from the established
principle that new users of spectrum must not impede or interfere with
existing uses that serve the public interest.**[^754] **This "first in
time, first in right" doctrine, which the Commission has described as
"the mainstay of interference protection"**[^755] **has long governed
the sharing of frequencies by co-primary licensees:**

> Under our first-in-time rule, the first co-primary licensee is
> entitled to protection from harmful interference by subsequent
> licensees. . . . \[T\]he subsequent licensees . . . have the option of
> sharing spectrum . . . , provided that they do not cause harmful
> interference to the incumbents.[^756]

**The majority is violating this fundamental principle by allowing
MVDDS, the second co-primary licensee, to cause harmful interference to
DBS. Inexplicably, the majority narrowly applies the first in time rule
only to *existing DBS* *customers,* and not to the *DBS licensees,*
which obtained their licenses first, and have already expended several
billion dollars to construct, launch and run satellite systems that
operate throughout the entire United States. The majority further
departs from the first in time rule by allowing protection for even
those current customers *for only one year*. I find such limited
protection for existing licensees to be quite troubling. Indeed, this
would be akin to telling cell phone service providers that, in order to
make room for a new competitor, they are suddenly entitled to limited
interference protection for only their *current* customers. And, by the
way, those current customers are entitled to protection for only one
year. I cannot support such an approach.**

[This Order Unduly Burdens DBS Subscribers]{.underline}

This order unfairly places the burden of MVDDS deployment on the backs
of DBS licensees and their customers. These rules are unfair to DBS
customers, who have purchased a dish and have contracted for service
based on the expectation of a certain level of reliability. These
subscribers are left with no idea regarding how much additional
interference the majority would be willing to permit. The rules are
unfair to consumers who wish to purchase DBS service in the future, but
who may now be blocked from having that choice as a result of MVDDS
deployment. They are unfair to DBS licensees, who have invested
tremendous resources to construct and operate a system without the
opportunity to build into its costs the additional level of
interference, and potential exclusion zones, that may now be caused by
the MVDDS service.

The asserted justification for this scheme is "simplicity, clarity and
ease of implementation."[^757] I believe it would be much more simple
and straightforward to have a hard and fast interference limit than a
scheme that arbitrarily sanctions varying, and unpredictable, amounts of
additional interference to different consumers. Moreover, the safety
valve process will undermine the simplicity they advocate.[^758]
Providing a standard EPFD limit, and then allowing case-by-case and
service area-by-service challenges to those EPFD limits if the limits
are not "appropriate" will create a series of challenges that the
Commission will still have to resolve. Such a process is far from
"simple, clear, or easy." Simplicity of process, clarity of decision
making, and achievement of an easy implementation standard that protects
consumers from unreasonable interference all dictate in favor of
establishing a clear, consistent, and rational interference limit in
each service area up front.

To add insult to injury, the MVDDS licensee may begin operations even in
the face of a protest by the DBS licensee that the required EPFD levels
in the order will not be met. The complaint procedures set forth in the
order do not allow for a Commission resolution of a dispute prior to the
MVDDS licensee turning on its system. Furthermore, there is no expedited
complaint resolution procedure in place to quickly resolve such an
allegation even after MVDD has turned on its system.

I do not believe that such a scheme is in the public interest. There is
always a varying degree of commercial risk in any business venture. The
Commission's decisions should strive to minimize the amount of
"regulatory risk" faced by the industry, by promoting predictability and
regulatory certainty. I fear that this order injects uncertainty into
the spectrum market. Allowing such a significant change to the spectrum
environment has undermined the commercial decisions made by DBS
licensees in purchasing their spectrum and building out their systems.
Moreover, as the majority continues to be silent with respect to
precisely how much interference they will be willing to permit, both DBS
and MVDDS licensees will waste resources making decisions based on
guesswork. Creating such uncertainty will negatively impact the market
for spectrum going forward.

[Service Areas]{.underline}

The majority attempts to justify the interference caused to DBS with the
assertion that such harms are "outweighed by the potential benefit to
the public of providing for a new potential competitor in the
multichannel video and data markets."[^759] However, it is not clear
that the adopted licensing approach will promote such competition. In
order to compete effectively with cable and DBS service, MVDDS will need
to be able to offer local broadcast service. The majority observes that
most MVPD service remains local or regional service,[^760] and notes
that "MVDDS is technologically well suited for fulfilling the local
signal delivery goals of RLBSA."[^761] The majority spends some time
discussing how MVDDS may be used to fill a void with respect to local
broadcast service.[^762] Yet if the majority had wanted to take
advantage of this capability and wanted to promote the carriage of local
broadcast signals, it should have chosen service areas corresponding to
local television markets. The obvious choice would have been the 211
designated market areas (DMAs), which correlate directly to those local
television markets. Instead, the majority has chosen much smaller
service areas -- 354 Component Economic Areas (CEAs).[^763] This
approach makes it more difficult for MVDDS licensees to carry local
broadcasts because it may have to acquire multiple CEAs to cover one
local television market. Furthermore, depending on how the CEA boundary
is drawn, there may be subscribers from more than one local television
market in a given CEA, adding to the difficulty.

The reasons offered by the majority against employing DMAs seem odd. The
Order notes that Nielsen is the copyright owner of the DMA listing and
"has not given the Commission a blanket license to use its copyrighted
DMA listing for MVDDS."[^764] However, a quick check of the Nielsen
website reflects that Nielsen has granted all members of the public use
of their papers and publications (which would include their DMA listing
and DMA map of local markets) as long as that material is used only for
non-commercial purposes.[^765] So it seems that the Commission could, in
fact, use the copyrighted DMA listing for the non-commercial purpose of
dividing the country into service areas. At the very least it would seem
worthwhile simply to ask Nielsen whether Nielsen would consider such a
use of the DMA listing to be a copyright violation.

The majority next states that, although some potential MVDDS licensees
favor DMA-based service areas,[^766] the decision not to employ DMAs is
for their own good.[^767] They state that rejecting DMAs will protect
MVDDS licensees against possible claims of copyright infringement that
may be brought by Nielsen.[^768] It is not obvious how simply holding a
license with specific geographic boundaries based on DMAs would subject
a licensee to a claim of copyright infringement. The majority offers no
legal analysis to support this strange conclusion. Given the advantages
of using service areas based on local television markets, it would seem
worthwhile to think more carefully about the rationale for rejecting
DMAs.

[Competitive Bidding]{.underline}

This item concludes that by statute, we are required to auction mutually
exclusive applications submitted by potential MVDDS licensees.
Compelling statutory, policy and equitable arguments were made both in
support of auctions and against them under these circumstances. The
arguments favoring an auction rely primarily on Section 309(j) of the
Communications Act, which mandates that the Commission grant mutually
exclusive applications through competitive bidding.[^769] On the other
hand, Northpoint argues that, consistent with its statutory obligation
to avoid mutual exclusivity generally,[^770] the Commission should
reject applications from any entity other than Northpoint because it is
the only potential licensee that has complied with the independent
testing requirement of the LOCAL TV Act.[^771] Alternatively, Northpoint
argues that the ORBIT Act bars an auction because that same spectrum is
used "for the provision of international or global satellite
communications services."[^772] Northpoint's most recent application to
provide satellite service on those frequencies bolsters this argument.
As a general policy matter I agree that competitive bidding can be a
useful mechanism for distributing licenses, but auctions are not a goal
in and of themselves. For me, this was a very close call, and it is with
some difficulty that I support the recommended decision to support
auctions in this case. I am sensitive, however, to the impact that the
Commission's lengthy delay has had on all the parties to this
proceeding, and proceed today to avoid the harms resulting from even
further delay.

[Conclusion]{.underline}

The Commission should always work hard to promote creative and
innovative uses of spectrum. Indeed, as I have said before, one of the
Commission's objectives should be to create incentives for the efficient
utilization of spectrum at every given point in time, by both
established users and new entrants. However, it should exercise
particular care in the implementation of schemes that will impact
existing licensees and their customers. All DBS licensees and their
customers are entitled to interference protection. The Commission should
take an approach which specifies rational and defensible interference
limits, and then clearly and simply implements those limits. The public
deserves no less. Yet this Order sanctions the severe disruption of DBS
service for an untold number of consumers when some additional
reasonable limits could have been adopted. I am disappointed that the
majority has taken this approach. Accordingly, I must dissent.

**APPENDIX**

The originally adopted April 11^th^ version of the item contained
language in the Order "limiting" MVDDS-related interference to 10%.
While I supported a 10% interference limit, I criticized the
implementation methodology in Appendix G because it failed to result in
an actual 10% limit. In response to my criticism, the majority has,
post-adoption, eliminated any interference limit, and is now using 10%
as a "starting point" for their interference analysis. As explained in
my statement, I find the majority's dramatic shift in viewpoint and
unwillingness to place any limits on MVDDS-related interference to be
disturbing.

The methodology used to implement the "10% starting point" only
exacerbates the majority's failure to limit interference. The EPFD
levels are calculated using a complex, underinclusive,
"double-averaging" approach that further removes the 10% starting point
from 10%. The calculations are underinclusive in two fundamental
respects. First, they exclude altogether two out of the five orbital
slots through which DBS service provided. Second, they count only the
top 32 television markets. The majority then further distances the
results from 10% by averaging the level of interference across the three
selected orbital slots. On top of this, the majority averages those
interference averages within each of four Commission-constructed
"regions" (which consist of anywhere from seven to 23 states), based on
the results of the 32 selected cities. The Order concludes that the
MVDDS licensee need only meet this underinclusive, double-averaged EPFD
level when it initially deploys. As long as it meets this initial
threshold, there is no cap on the actual amount of interference from
MVDDS that DBS customers may experience.

For example, the calculations exclude entire states with high DBS
penetration rates and unique geographic characteristics, such as Montana
(where an estimated 39% of the television households subscribe to DBS),
Maine (with a 24% penetration rate), Louisiana (with a 19% penetration
rate), and Alaska (with a 15% penetration rate).[^773] Indeed, half of
the Nation's population, and most of the Nation's geography, is not
considered in calculating the appropriate interference protection
standards. This is particularly troubling because DBS is such an
important service to the millions of consumers who live in rural areas
and do not have access to cable. Yet those are the very subscribers
whose interference levels are not directly considered when evaluating
whether the new service meets the "range of 10%" additional outage level
the majority has now deemed appropriate.

I find quite perplexing their rejection of even reasonable measures to
at least keep MVDDS-related interference closer to their new "10%
starting point." For example, the majority rejected the following
measures:

1\. [The majority rejected consideration of two orbital
slots.]{.underline}

The majority could have considered all of the orbital slots used to
provide DBS service to consumers in the United States, instead of
calculating EPFD levels based on the results for only *three* of those
slots.[^774] Thus, customers receiving service from the excluded
satellites (located at 61.5°and 148°) could experience significantly
more interference than the "10% starting point."

Only limited sample data is provided for the satellites at 61.5°and
148.° The majority explains that the three selected slots provide the
majority of service to DBS subscribers today.[^775] Even if this is
true, this does not explain why it is reasonable or legally defensible
to ignore altogether the interference caused to the subscribers
purchasing service from the excluded satellites. Echostar has stated on
the record that it serves over 400,000 thousand subscribers from those
two satellites.[^776] Moreover, the majority itself acknowledges
protection for these other satellites is "essential" because at least
one service provider, Dominion, "operates [solely]{.underline} from the
satellite located at 61.5°," and also because "the other DBS licensees
could shift programming to make heavier use of \[those\] satellites ...
in the future."[^777]

Furthermore, the conclusory opinion that "the specified EPFD levels will
also protect these \[excluded\] orbital locations"[^778] seems contrary
to the sample results in Appendix G -- which reveal an additional *45
hours* of additional annual outage to DBS subscribers in Seattle using
one of those "other" satellite slots. MITRE recommended excluding
[only]{.underline} the locations with more than 100 hours of baseline
unavailability.[^779] The Order fails to explain why this would not have
been a more appropriate standard. Indeed, the majority even cites to
this MITRE recommendation in attempting to justify its failure to
consider the 45 additional outage hours in Seattle.[^780] But the
majority can't have it both ways. If the majority believes it is
justifiable based on MITRE to exclude Seattle from protection, then it
is equally imperative, based on MITRE, to *include* all locations with
less than 100 hours of baseline availability. Considering all of the
satellites would cause fewer DBS customers to experience increased
interference greater than 10%.

> 2\. [The majority rejected basing its EPFD calculations on the
> satellite with the largest baseline unavailability.]{.underline}

The majority could have chosen the satellite with the largest baseline
unavailability as the basis for its EPFD calculations. Instead, the
majority *averages* the results for the three chosen satellites, further
distancing the "10% starting point" from 10%. The majority defends this
choice with the following *non sequitur*: "Averaging ensures that the
EPFD for neither the 'worst case' nor the 'best case' satellite
predominates."[^781] Yes -- obviously, averaging "ensures" such a
result. But this still does not explain why it is reasonable to allow
even more increases in outage. MITRE did not recommend averaging, and
instead recommended using the satellite with the largest baseline
unavailability.[^782] Under the MITRE approach, fewer DBS customers
would experience increased interference greater than 10%.

3\. [The majority rejected utilizing data from more cities and
towns.]{.underline}

The majority could have utilized data from more cities and towns. The
EPFD levels are based only on 32 cities in the entire nation. They are
the top 32 television markets -- no other city or town is averaged into
the calculation.[^783] Consumers in entire states do not even get
counted in the averaging process.[^784] Approximately 55% of the
nation's population lives in those 32 cities.[^785] This means 45% of
the nation's population is left out of the process. Ironically,
consumers in rural areas, who are likely to benefit most from both DBS
and MVDDS service because they may not have access to cable, are the
very consumers who are left out of the calculations altogether. The
majority recently added language to defend this limited sampling,
stating that: "choosing a limited number of representative satellite
links for analysis purposes to determine an appropriate EPFD or similar
value is an acceptable engineering and scientific approach."[^786] While
this may be true for some purposes, it is equally clear that such an
approach is not acceptable here, where the methodology does not result
in EPFD levels that provide any upper limit on increased DBS outages.

> 4\. [The majority rejected basing its EPFD calculations on a wider
> variety of geographic areas.]{.underline}

The majority could have taken data from a wider variety of geographic
areas. The majority's 32-city approach excludes enormous geographic
areas of the country, including all of Alaska and all of Hawaii, from
the process. However, the EPFD levels and interference effects are very
sensitive to rain models and geography, which vary dramatically from
across geographic areas and from city to city.[^787] After acknowledging
that EPFD levels vary across geographic conditions, I am confused as to
why the majority picks such a small geographic sample, and ignores
states with unique characteristics.

The majority contends that the "additional precision that would be
provided by analyzing additional or other locations is unnecessary and
unlikely to be significant given other factors, such as, the large
variability that already exists in rainfall patterns from season to
season and year to year."[^788] Strangely, the majority seems to be
defending a less precise methodology for MVDDS interference calculations
based on the variability of non-MVDDS factors.

The majority further contends that the results of those 32 cities "in
fact apply to much larger areas...because satellite signal strength and
rainfall patterns tend to change only gradually over great
distances."[^789] "Therefore," the majority continues, "the results for
New York and Philadelphia reasonably apply for the areas between those
cities \[as they do\] for Chicago and Cincinnati, Los Angeles and San
Diego, Seattle and Portland, etc."[^790] Yet even this rough "gradual
change" rationale does not explain why huge swaths of the Nation are
excluded from the analysis. For example, even assuming there is only a
"gradual change" in the areas between Portland, Seattle, Sacramento and
San Francisco, this still does not explain why it is rational to apply
the results of those four cities to all of Alaska, Hawaii, Idaho,
Montana and North Dakota, states from which no data is collected.
Indeed, the limited sample results recently added to Appendix G reflect
the folly of this rationale. The majority's methodology of applying the
data from those four cities actually results in DBS outages greater than
10% in four out of the five excluded states - Hawaii, Idaho, Montana and
North Dakota,[^791] and 11 out of the 12 "additional cities"
sampled.[^792]

5\. [The majority rejected using smaller regions.]{.underline}

The majority could have picked smaller areas for application of their
EPFD levels, such as states or smaller regions. The majority divides the
entire United States into four enormous regions (ranging anywhere from
seven to 23 states), and then picks an EPFD level for that entire region
based on the results of only a few cities in the entire region. For
example, the limit for the 7-state "southwestern region" only includes
data from 3 cities, and excludes any data from 5 of the states in the
region - Nevada, New Mexico, Utah, Arizona and Wyoming.[^793] Similarly,
the limit for the 8-state "northwestern region" is based on only 4
cities, and excludes altogether any data from Hawaii, Alaska, Montana,
North Dakota and Idaho.

6\. [The majority rejected using the most stringent EPFD level per
region.]{.underline}

Given the majority's determination to section the entire nation into
four large regions and the very limited number of data points within
each region, the majority could have used the most stringent EPFD limit
for the region. Instead, the majority *averages* the level of
interference within that region based on those few cities within the
multi-state region. Their averaging approach further distances the "10%
starting point" from 10%.

7\. [The majority rejected using weighted averages for its EPFD
calculations.]{.underline}

Given the majority's determination to base interference levels on data
from a few major cities in each large region, they could have used
weighted averages to reflect the population in a given city. For
example, the EPFD limit for the 7-state southwestern region is based on
the levels for three cities, including Los Angeles and Denver. Although
Los Angeles has a population four times larger than Denver, they are
given equal weight in the averaging process. I do not understand my
colleagues' contention that weighted averaging "would only further
diminish the weight given to the rural areas."[^794] Given that no
weight at all is given to rural areas, and data is only taken from the
top 32 television markets, I am not sure how it is possible for the
majority to even further diminish their consideration of rural areas. If
the majority had included data from any rural area, as opposed to only
data from the top 32 television markets, then I might agree to not
include weighted averages.

As a result of this complex underinclusive, double-averaging approach,
many DBS customers will, by the majority's own estimates, experience
increased interference double and triple the 10% starting point. The
majority attempts to justify the 20-30% interference increases on
various grounds. First they state that the corresponding decrease in
service unavailability is "only" 0.05-0.08%.[^795] If the majority
believes that "corresponding decrease in service availability" is a
relevant test, then why not pick a strict number for an interference
limit, instead of the loose "about in the range of 10% average
approximate guideline"? Ironically, the majority has emphasized in the
latest version of the item that "it is important to bear in mind that
DBS is, on the whole, extremely reliable with typical service
availabilities on the order of 99.8 to 99.9 percent."[^796] That being
the case, then even a 0.05-0.08% decrease in service availability
significantly impacts the extreme levels of reliability that DBS
licensees have invested billions of dollars to achieve. Indeed, as a
practical matter, additional interference in the 20-30% range can mean
increases in outages ranging from 300 to almost 3,000 minutes.[^797] The
majority next contends that additional interference in the range of
20-30% is "not significant" because there are "other factors," both in
the control of DBS licensees and out of their control, which could
result in similar or greater increases in unavailability.[^798] It seems
strange to justify sanctioning varying and high levels of MVDDS-induced
interference simply because other factors may also be variable. The
opposite should be true \-- if other factors really do cause such large
variability, then it is even more imperative to be as precise as
possible when sanctioning additional interference caused by MVDDS.
Finally, the majority states that increased unavailability in the 20-30%
range is justifiable because such increases are "only" in the case of
the satellite at 110.°[^799] This is incorrect as a factual matter. The
limited "additional city" sampling in Appendix G reflects that some
customers in Hawaii obtaining service from the satellite at 101° will
experience a 23.3% increase in outages.[^800] Customers obtaining
service from the satellites at 61.5°and 148° also will experience
increased outages in the 20-30% range.[^801] Furthermore, there is
simply not enough analysis to determine whether customers in other
locations will experience similar increases in outages.

I am forced to conclude that the majority's approach and implementation
is not rationally related to actual interference levels, and thus the
resulting EPFD limits are arbitrary and capricious. At the very least,
the public deserves more precision. The Commission could have calculated
interference based on service areas rather than multi-state regions. The
Commission could have measured the effect of the worst performing
satellite, rather than averaging the impact of three orbital slots.
Indeed, neither the Further Notice nor the MITRE report proposed the
rough approach reflected in today's Order.[^802] The Further Notice
asked whether the Commission should "allow MVDDS to cause *up to 10%
increased unavailability*."[^803] The Further Notice then applied the
protection criteria to *each MVDDS transmitter* and did not discuss
averaging.[^804] Similarly, MITRE recommended a 10% increase in relative
unavailability for each *service area,* and did not recommend
averaging.[^805] The majority fails to explain sufficiently why it
rejected these recommendations and proposals.

[^1]: *First Report and Order and Further Notice of Proposed Rule
    Making*, FCC 00‑418, ET Docket No. 98‑206, 16 FCC Rcd 4096 (2000)
    (*First R&O* and *Further Notice*).

[^2]: A list of the parties filing petitions, oppositions and replies is
    provided in Appendix A.

[^3]: *See* 47 C.F.R. §§ 1.106, 1.429 regarding the legal standards for
    petitions for reconsideration.

[^4]: *See First R&O,* 16 FCC Rcd 4160 at ¶¶ 166‑167.

[^5]: The BSS is also referred to as DBS. In this item, we will use the
    terms "BSS" and "DBS" interchangeably.

[^6]: Amendment of Parts 2 and 25 of the Commission's Rules to Permit
    Operation of NGSO FSS Systems Co‑Frequency with GSO and Terrestrial
    Systems in the Ku‑Band Frequency Range; Amendment of the
    Commission's Rules to authorize subsidiary Terrestrial Use of
    the12.2‑12.7 GHz Band by Direct Broadcast Satellite Licensees and
    Their Affiliates, ET Docket No. 98‑206, *Notice of Proposed Rule
    Making*, ET Docket No. 98‑206, 14 FCC Rcd 1131 (1998) (*November 24,
    1998 NPRM*).

[^7]: *See* 5 U.S.C. Chapter 5, *et. seq.*, *Administrative Procedure
    Act (APA).*

[^8]: *See* Pub. L. 106‑113 Stat. 1501 (enacting S. 1948, including the
    SHVIA and the RLBSA, Titles I and II of the Intellectual Property
    and Communications Omnibus Reform Act of 1999).

[^9]: *See* footnote Error: Reference source not found for a definition
    of customer of record.

[^10]: CEAs are based on Economic Areas delineated by the U.S. Dept. of
    Commerce. Each CEA consists of a single economic node and the
    surrounding counties that are economically related to the node. The
    354 CEA service areas are based on the 348 Component Economic Areas
    delineated by the Regional Economic Analysis Division, Bureau of
    Economic Analysis, U.S. Department of Commerce February 1995, with
    the following six FCC‑defined service area additions: American
    Samoa, Guam, Northern Mariana Islands, San Juan (Puerto Rico),
    Mayagüez/Aguadilla‑Ponce (Puerto Rico), and the United States Virgin
    Islands.

[^11]: SkyBridge Petition for Rule Making (filed July 3, 1997)
    (SkyBridge Petition).

[^12]: Northpoint Petition for Rule Making (filed March 6, 1998)
    (Northpoint Petition). On March 23, 1998, the Commission invited
    comment on the Northpoint Petition. *See* *Corrected Public Notice*,
    Report No. 2265 (Mar. 23, 1998). Northpoint explained that the
    primary benefits of its proposal included reuse of existing
    spectrum, facilitation of localism, and more effective DBS and cable
    competition. *Id.*

[^13]: All POF point‑to‑point microwave stations in the 12.2‑12.7 GHz
    band operate on a secondary basis to DBS. Specifically, 47 C.F.R. §
    101.147(p) states: *12,200‑12,700 MHz*. The Commission has allocated
    the 12.2‑12.7 GHz band for use by the broadcasting‑satellite
    service. Private operational fixed point‑to‑point microwave stations
    authorized after September 9, 1983, have been licensed on a
    non‑interference basis and are required to make any and all
    adjustments necessary to prevent interference to operating domestic
    broadcasting‑satellite systems. Notwithstanding any other provision,
    no private operational fixed point‑to‑point microwave stations are
    permitted to cause interference to broadcasting‑satellite stations
    of other countries operating in accordance with the Region 2 plan
    for the broadcasting‑satellite service established at the 1983 WARC.

[^14]: *Public Notice*, International Bureau Satellite Policy Branch
    Information: Cut‑off Established for Additional Applications and
    Letters of Intent in the 12.75‑13.25 GHz, 13.75‑14.5 GHz,
    17.3‑17.8 GHz and 10.7‑12.7 GHz Frequency Bands, Report No. SPB‑141,
    1998 WL 758449 (rel. Nov. 2, 1998) (*Ku‑Band Cut‑Off Notice*). *See
    also November 24, 1998 NPRM*, 14 FCC Rcd at 1169 ¶ 71.

[^15]: *November 24, 1998 NPRM*, 14 FCC Rcd at 1134‑42 ¶¶ 4‑13. The Ku
    band is generally defined as frequencies in the 12‑18 GHz range.

[^16]: We received 33 comments and 24 reply comments in response to the
    *November 24, 1998 NPRM*.

[^17]: Northpoint states that through its subsidiary BroadwaveUSA, Inc.,
    it has an affiliate relationship with the 68 entities that have
    applied for licenses to deploy the Northpoint technology nationwide.
    The applicants refer to themselves as Broadwave, followed by their
    city of proposed service (*i.e.*, Broadwave Albany, L.L.C.).
    Broadwave proposed to use the technology developed by Northpoint to
    enable sharing of this spectrum with existing DBS, geostationary
    satellite, and fixed microwave services. For the purposes of this
    proceeding, we will consider Northpoint and Broadwave to be one and
    the same and will refer to them both as "Northpoint."

[^18]: *Public Notice,* Wireless Telecommunications Bureau Seeks Comment
    on Broadwave Albany, L.L.C., *et al*. Requests for Waiver of Part
    101 Rules, DA 99‑494, 14 FCC Rcd 3937 (1999) (Northpoint Waiver
    Request). The comment period ended on April 22, 1999.

[^19]: *Id*.

[^20]: *Id.*

[^21]: *See, e.g.,* Northpoint's December 1998, Progress Report WA2XMY;
    Northpoint's October 1999 Progress Report WA2XMY, Technical Annex to
    their Comments; and other *ex parte* filings. *See also* Northpoint
    *ex parte* filing of February 10, 2000 at 5.

[^22]: On October 29, 1999, DirecTV Inc. (Direct TV) and EchoStar
    Satellite Corporation (EchoStar) (collectively, DBS licensees) filed
    comments addressing Northpoint's experimental tests. On January 27,
    2000, DirecTV filed a report and studies asserting that Northpoint's
    proposal would cause unacceptable interference to DBS operations. On
    Feb. 4, 2000, the Commission denied an application for review and
    petitions for reconsideration and for a cease and desist order that
    DirecTV and EchoStar filed against Diversified's experimental
    license. Finally, on February 9, 2000, the Commission granted
    DirecTV and EchoStar experimental authorizations in Washington, D.C.
    and Denver, CO to test DBS sensitivity to fixed service
    transmissions, such as those proposed by Northpoint. On July 25,
    2000, DirecTV and EchoStar filed a "Report of the Interference
    Impact on DBS Systems from Northpoint Transmitter Operating at Oxon
    Hill, MD, May 22 to June 7, 2000" for the Commission's
    consideration.

[^23]: *See* SHVIA, Title I of the Intellectual Property and
    Communications Omnibus Reform Act of 1999 (IPACORA), relating to
    copyright licensing and carriage of broadcast signals by satellite
    carriers, codified in scattered sections of 17 and 47 U.S.C.).
    *See*, *generally*, Implementation of the Satellite Home Viewer
    Improvement Act of 1999: Application of Network Nonduplication,
    Syndicated Exclusivity, and Sports Blackout Rules to Satellite
    Retransmissions, CS Docket No. 00‑2, *Notice of Proposed Rule
    Making*, 15 FCC Rcd 434 (2000); Implementation of the Satellite Home
    Viewer Improvement Act of 1999, CS Docket No. 99‑363, *Notice of
    Proposed Rule Making*, 14 FCC Rcd 21736 (1999) (*1999 SHVIA
    Implementation NPRM*).

[^24]: *See 1999 SHVIA Implementation NPRM,* 14 FCC Rcd at 21736 ¶ 1.
    The MVPD definition includes cable operators, multichannel
    multipoint distribution service, DBS service, television
    receive‑only satellite program distributors, video dialtone service
    providers, and satellite master antenna television service providers
    that make available for purchase, by subscribers or customers,
    multiple channels of video programming. *See* 47 C.F.R. § 76.905(d).

[^25]: Act of Nov. 29, 1999, Pub. L. 106‑113, 113 Stat. 1501, 1501A‑544
    to 1501A‑545 (enacting S. 1948, Title II of the IPACORA.

[^26]: *Id*. While this provision does not identify the 12 GHz band
    specifically, MVDDS is one alternative to satisfy this demand in
    rural and underserved local television markets. *See also* Letter
    from Senator Ted Stevens, *et al.*, Committee on Commerce, Science,
    and Transportation to Chairman, William E. Kennard, Federal
    Communications Commission, dated July 27, 2000.

[^27]: Act of Nov. 29, 1999, Pub. L. 106‑113, 113 Stat. 1501, 1501A‑544
    to 1501A‑545.

[^28]: *See* Experimental License Callsign WC2XPU. *See also*, MDSA
    Clewiston Phase I Test Report, (Oct. 16, 2001).

[^29]: MDSA Comments at (i), 4-5.

[^30]: S*ee, e.g.*, Letter from Michael K. Kellogg, counsel for
    Northpoint Technology, Ltd. to Jane Mago, General Counsel, Federal
    Communications Commission 1 (May 9, 2001) (*May 9, 2001 Northpoint
    Letter*); *see also* Letter from Michael K. Kellogg, counsel for
    Northpoint Technology, Ltd. to Norman Goldstein, Enforcement Bureau,
    Federal Communications Commission (July 3, 2001).

[^31]: *See, e.g., May 9, 2001 Northpoint Letter* at 5.

[^32]: *See, e.g.,* Letter from James W. Olson, counsel for MDSA to Jane
    Mago, General Counsel, Federal Communications Commission (May 21,
    2001).

[^33]: *First R&O and Further Notice*, 16 FCC Rcd 4096.

[^34]: The MITRE Corporation, "Analysis of Potential MVDDS Interference
    to DBS in the 12.2‑12.7 GHz Band" (filed April 18, 2001) (MITRE
    Report). The Commission placed the MITRE Report on public notice on
    April 23, 2001. Comments responsive to the study were due on May 15,
    2001 and replies were due on May 23, 2001.

[^35]: *See* 5 U.S.C. Chapter 5, *et. seq.*, *Administrative Procedure
    Act (APA).*

[^36]: *See* SkyBridge petition for reconsideration at 2.

[^37]: *See* Northpoint Opposition to Petitions for Reconsideration
    generally at 11 et seq.

[^38]: *See* 5 U.S.C. § 553(b)(3).

[^39]: *November 24, 1998 NPRM*, 14 FCC Rcd at 1177‑81 ¶¶ 91‑98.

[^40]: *Id.*

[^41]: *Id.*

[^42]: *See* 47 C.F.R. §§ 2.106, 101.147(p).

[^43]: *See First R&O*, 16 FCC Rcd at 4161 ¶167

[^44]: *First* *R&O,* 16 FCC Rcd at 4181 ¶ 224.

[^45]: *See* SkyBridge petition for reconsideration at 11.

[^46]: *Id.* at 15.

[^47]: *See* Northpoint Opposition to Petitions for Reconsideration
    generally at 4, 10 & 14, et seq*.*

[^48]: *See* RLBSA, § 2002(b)(2).

[^49]: *See* SkyBridge petition for reconsideration at 10.

[^50]: Section 2.1 defines "harmful interference" as "interference which
    endangers the functioning of a radionavigation service or of other
    safety services or *seriously degrades, obstructs, or repeatedly
    interrupts a radiocommunication service* ..." (Emphasis added).
    *See* 47 C.F.R. § 2.1.

[^51]: *See* Cong. Rec. 106^th^ Cong., 1^st^ Sess. at S‑15014.

[^52]: *Id.*

[^53]: *See* SkyBridge petition for reconsideration at 15.

[^54]: *Id.*

[^55]: *See* Northpoint Opposition to Petitions for Reconsideration at
    14*.*

[^56]: *See* RLBSA § 2002(a).

[^57]: *See*, *generally*, Annual Assessment of the Status of
    Competition in the Market for the Delivery of Video Programming, CS
    Docket No. 00‑132, *Seventh Annual Report*, 16 FCC Rcd. 6005 (2001)
    (*Seventh Annual Report*).

[^58]: *Id.*

[^59]: *See* Northpoint Opposition to Petitions for Reconsideration at
    14*.*

[^60]: *See* SkyBridge petition for reconsideration at 6.

[^61]: *See*, *e.g.*, petitions for reconsideration of DirecTV at 5, 6 &
    14‑17, and EchoStar at 9 *et seq*.

[^62]: *See* EchoStar petition for reconsideration at 22.

[^63]: *Id.*

[^64]: *See*, generally, petitions for reconsideration of SkyBridge,
    DirecTV, SBCA, EchoStar, and Boeing.

[^65]: *See*, *generally,* Northpoint Opposition to Petitions for
    Reconsideration*.*

[^66]: *See* para. 88 and note Error: Reference source not found,
    *infra*.

[^67]: *See* 47 C.F.R. § 2.106 (Table of Frequency Allocations).

[^68]: *See* 47 C.F.R. § 2.105(c)(1)(i) which states, "\[s\]ervices, the
    names of which are printed in "capitals" \[example: FIXED\]; these
    are called "primary" services;" Compare with 47 C.F.R. §
    2.105(c)(1)(ii) which specifies that, "\[s\]ervices, the names of
    which are printed in "normal characters" \[example: Mobile\]; these
    are called "secondary" services."

[^69]: While there were over 10,000 incumbent fixed point‑to‑point links
    originally in the band, approximately 370 licensees remain on a
    non‑harmful interference basis because they are in locations that
    have not caused a problem for BSS deployment.

[^70]: *See* para. 90, *infra*.

[^71]: *See* para. 123, *infra*.

[^72]: *See* para*.* 112, *infra*.

[^73]: *See* EchoStar petition for reconsideration at 22.

[^74]: *Id*. at 23*.*

[^75]: *Id.* at 23‑24*.*

[^76]: *See* note 43, *supra*, for a definition of harmful interference.

[^77]: This was done, for example, in the case of DTV where we balanced
    new interference to existing TV service against new digital TV
    capabilities. *See* Advanced Television Systems and Their Impact
    Upon The Existing Television Broadcast Service, MM Docket No.
    87‑268, *Sixth Report and Order*, 12 FCC Rcd 14,588 (1997).
    Similarly, for the Location and Monitoring Service (LMS) in the
    902‑928 MHz band, we conditioned operation of certain stations upon
    the licensee's ability to demonstrate that their systems do not
    cause unacceptable levels of interference to 47 C.F.R. Part 15
    devices. *See* 47 C.F.R. § 90.353(d). Also, we have allowed
    automated maritime telecommunication systems (AMTS) on frequencies
    near TV channels 10 and 13 and required the licensee to make such
    adjustments as may be necessary to fix any interference to household
    TV receivers. *See* 47 C.F.R. § 80.215(h).

[^78]: *See, e.g., First R&O*, 16 FCC Rcd at 4161 ¶ 168.

[^79]: *See* Northpoint Opposition to Petitions for Reconsideration at
    13*.*

[^80]: *First R&O*, 16 FCC Rcd at4181 ¶ 224.

[^81]: *See* Boeing petition for reconsideration at 20.

[^82]: *Id.* at 21*.*

[^83]: *See* SkyTower petition for reconsideration at 2.

[^84]: *See* "Independent Testing" at para. 229 *et. seq. infra*.

[^85]: *See* "Permissible Operations for MVDDS" at para. 136 *infra*.

[^86]: *See* Petitions for Reconsideration of EchoStar at 12‑19; SBCA at
    7‑9; and SkyBridge at 6‑7.

[^87]: *See* Recommendation ITU‑R BO.1444, "Protection of The BSS In The
    12 GHz Band And Associated Feeder Links In The 17 GHz Band from
    Interference Caused by Non‑GSO FSS Systems."

[^88]: To the extent that the petitioners' arguments on reconsideration
    rely on proposals that were raised in the *Further Notice* and not
    the *First R&O*, our decision on reconsideration does not go to the
    merits of their arguments on the unavailability criteria. Those
    issues are properly addressed in the *Second R&O*.

[^89]: *See* *First Report and Order*, 16 FCC Rcd at 4107 ¶ 15.

[^90]: *See* Recommendation *ITU‑R BO.1444* at "*recommends*" 1 and 1.1
    that reads, in part, " ... \[the\] emissions of all *[non‑GSO FSS
    satellite networks]{.underline}* operating in the same frequency
    band, should: be responsible for at most ten percent of the time
    allowance(s) for unavailability ..." (Emphasis added).

[^91]: *See* EchoStar petition for reconsideration at 13.

[^92]: *See* petitions for reconsideration of SkyBridge at 6 and SBCA at
    7.

[^93]: *See* Northpoint Opposition to Petitions for Reconsideration at
    5.

[^94]: *See* Petition for Consolidation of Rulemaking Proceedings and
    for a Declaration that Alternative Spectrum is Suitable for the
    Proposed "Multichannel Video Distribution and Data Service,"
    received Dec. 3, 2001 (DBS Petition for Consolidation and
    Declaration).

[^95]: *See* Petition for Rulemaking to Amend Eligibility Requirements
    in Part 78 Regarding 12 GHz Cable Television Relay Service, CS
    Docket No. 99‑250; RM‑9257.

[^96]: *See* Amendment of Part 2 of the Commission's Rules to Allocate
    Spectrum Below 3 GHz for Mobile and Fixed Services to Support the
    Introduction of New Advanced Wireless Services, Including Third
    Generation Wireless System*,* ET Docket No. 00‑258*.*

[^97]: *See* DBS Petition for Consolidation and Declaration at 5 et seq.

[^98]: *See* Opposition of Northpoint Technology, Ltd., and Broadwave
    USA, Inc., to DBS Petition for Consolidation and for Declaration
    that Planned Terrestrial Services in the 12.2--12.7 GHz Band Should
    be Moved to Alternate Spectrum, received Dec. 21, 2001.

[^99]: *See* Letter from NCTA to Magalie R. Salas, Secretary, Federal
    Communications Commission (FCC), dated Jan. 11, 2002.

[^100]: *Id.*

[^101]: *See* MDSA, *Ex Parte* FCC, letter to Secretary Magalie Roman
    Salas, FCC, dated Dec. 10, 2001.

[^102]: *See* 47 U.S.C. § 308(b). "All applications for station licenses
    ... shall set forth such facts as ... the *frequencies and power
    desired to be used* ... " Emphasis added).

[^103]: *See, e.g., First R&O, 16 FCC Rcd* at 4161 ¶ 168.

[^104]: CARS, BAS, FS, and FSS uplinks.

[^105]: *See Further Notice,* 16 FCC Rcd at 4196 ¶¶ 267‑268.

[^106]: *See* 47 C.F.R. § 2,106, footnote S5.490. *See also First R&O*,
    16 FCC Rcd at 4177 ¶ 213.

[^107]: DBS reception in any given geographic area is dependent on the
    satellite downlink power budget and the frequency, duration, and
    intensity of rain. During a period of significant rain, the presence
    of interference from a terrestrial fixed service could advance the
    onset of picture loss and could cause the duration of this picture
    loss to last longer than experienced from rain alone.

[^108]: *See First R&O*, 16 FCC Rcd at 4177 ¶ 213.

[^109]: *See Further Notice,* 16 FCC Rcd at 4196‑98 ¶¶ 268‑271.

[^110]: *See Further Notice,* 16 FCC Rcd at 4198 ¶ 272 and Appendix H.

[^111]: *See*, *e.g*., Northpoint Comments at Technical Appendix, p. 7;
    Pegasus Reply Comments at 7. Northpoint proposes a plan in which it
    would be required to mitigate interference on a customer complaint
    basis in the first eighteen months after deployment within a
    mitigation zone based on an EPFD contour. *See also*, EchoStar
    Comments at 20; DirecTV Reply Comments at 18. EchoStar and DirecTV
    assert that shielding or relocation of the MVDDS transmitter is the
    only acceptable mitigation to protect DBS subscribers.

[^112]: *See* para. 13, *supra*.

[^113]: Pictorial representations of the antenna patterns can be found
    in the MITRE Report, Section 4. The measured data, in a format
    suitable for use in a simulation, is available on the FCC's web site
    at http://www.fcc.gov/oet/info/mitrereport/.

[^114]: *See* MITRE Report at Section 3.

[^115]: In general, a threshold is the minimum value of a signal that
    can be detected by the system under consideration.

[^116]: *See* MITRE Report at Section 5.

[^117]: For example, MITRE predicted that a DBS customer viewing the
    satellite at 101^o^ W longitude would experience additional outages
    of less than 18 minutes per year over the entire MVDDS service area.
    For the satellite at 110^o^ W longitude, an additional outage of 18
    minutes per year would be experienced in a small zone approximately
    1 km x 0.2 km in front of the MVDDS transmitting antenna; additional
    outages would be less than 18 minutes over the rest of the MVDDS
    service area. For the satellite at 119^o^ W longitude, a DBS
    customer would experience additional outages of 3 hours per year in
    a zone approximately 1 km x 0.2 km; of 1 hour per year in a zone
    approximately 1.75 km x 0.4 km; and of 18 minutes per year in a zone
    approximately 6.2 km x 1 km. Variations occur due to differences in
    satellite power levels and the elevation angle of the DBS receive
    dish. *See* MITRE Report at Section 5 and Appendix B for all
    simulation results.

[^118]: *See* MITRE Report at 6‑1.

[^119]: These include using low power, using a 7 megahertz frequency
    offset from the satellite carrier frequencies, increasing the MVDDS
    antenna height, and adjusting the MVDDS antenna elevation tilt
    angle. *See* MITRE Report at 6‑2.

[^120]: These include using real time power control, using multiple
    MVDDS transmitting antenna beams, using circularly polarized
    transmitting antennas, and using larger receive antennas. *See*
    MITRE Report at 6‑3.

[^121]: These include relocation of the DBS receive antenna, use of clip
    on shielding on the DBS receive antenna, replacement of the DBS
    receive antenna, and replacement of older DBS set‑top boxes. *See*
    MITRE Report at 6‑4.

[^122]: DirecTV Comments at 6‑7; EchoStar at 18.

[^123]: DirecTV Reply Comments at Appendix C.

[^124]: Specifically, DirecTV proposes that MVDDS systems be limited to
    2.86% of the time allowance for unavailability of the
    carrier‑to‑noise (C/N) value specified for operational performance
    objectives of the BSS network, where N is the total noise level in
    the noise bandwidth associated with the wanted carrier including all
    other non‑time varying sources of interference. DirecTV also
    proposes that there be no loss of video picture continuity under
    clear sky conditions, and that the criteria be met over all
    habitable land. DirecTV Comments at 20‑21.

[^125]: DirecTV Reply Comments at 20.

[^126]: DirecTV Comments at 7, citing Recommendation ITU‑R BO.1444;
    EchoStar Comments at 10. All NGSO FSS systems in this band are not
    to cause more than a ten percent increase in unavailability to BSS
    networks. Single entry (per system) limits were derived based on a
    factor of 3.5 systems, *i.e.*, each NGSO FSS system should not
    contribute more than a 2.86% increase in unavailability. *See*
    Recommendation ITU‑R BO.1444.

[^127]: EchoStar Comments at 15.

[^128]: DirecTV Comments at 20‑21.

[^129]: *Id*. DirecTV notes that EPFD is an interference limit that can
    be measured in the field, and is an acceptable means to determine if
    the 2.86% criteria are met. *Id.* at 18‑19.

[^130]: *Id*. at 17.

[^131]: *Id*. at 26‑27, citing the RLSBA and the deployment of Local
    Multipoint Distribution Service (LMDS) as precedents.

[^132]: Pegasus Comments at 4‑7; Pegasus Reply Comments at 5.

[^133]: Pegasus Comments at 4. Pegasus would accept an EPFD value,
    rather than a C/I value, because they have a one‑to‑one
    relationship. Pegasus Reply Comments at 6.

[^134]: Pegasus proposes: (a) a maximum power limit of 12.5 dBm EIRP,
    with a corresponding PFD limit at any DBS receiver of --181.5
    dBW/m^2^/MHz (at 2 km for a 500 MHz bandwidth); and (b) clarifying
    that the "southerly" pointing for the MVDDS antenna azimuth, *e.g.*,
    transmitter radiation of a 3 dB beamwidth should be at least 48
    degrees from the boresight azimuth of the DBS antenna. Pegasus
    Comments at 4‑6.

[^135]: DirecTV April 5, 2001 Reply Comments at 14.

[^136]: Northpoint Reply Comments at Technical Appendix, 1‑2. *See also*
    note Error: Reference source not found, *supra* for the definition
    of harmful interference.

[^137]: It is important to note that EPFD as used with respect to MVDDS
    is slightly different from the EPFD associated with NGSO FSS
    systems. In the NGSO FSS case, EPFD considered the time varying case
    of multiple NGSO FSS satellites that may be in view into various DBS
    dishes on the ground at different locations around the world. With
    respect to MVDDS, EPFD calculations consider static sources of MVDDS
    signal energy to a worst case DBS receive antenna, so there are no
    cases of time variance and the analysis is greatly simplified. *See*
    Northpoint Comments Technical Appendix, at 5, 15‑16.

[^138]: *See First R&O,* 16 FCC Rcd at 4129 ¶¶ 77‑80.

[^139]: Northpoint Comments Technical Appendix at 5.

[^140]: Northpoint Comments Appendix 2 at 13.

[^141]: Northpoint Reply Comments at Technical Appendix, 4‑5, citing a
    1994 DirectTV report on terrestrial interference, 1998 Tempo
    Comments filed in this proceeding, and 1998 EchoStar Comments filed
    in this proceeding.

[^142]: Northpoint Comments Technical Appendix at 6.

[^143]: Northpoint defines the southeastern region to include Florida,
    Georgia, Alabama, Mississippi, and Louisiana. In satellite
    applications, measurements are generally referenced to a 4 kHz
    bandwidth, rather than the 40 kHz used by Northpoint. The equivalent
    EPFD for this region based on a 4 kHz bandwidth is ‑166.7
    dBW/m^2^/4 kHz.

[^144]: Northpoint defines the southern region to include New Mexico,
    Texas, Oklahoma, Arkansas, Tennessee, South Carolina, and North
    Carolina. The equivalent EPFD for this region based on a 4 kHz
    bandwidth is ‑168.7 dBW/m^2^/4 kHz.

[^145]: Northpoint defines the northeastern region as bounded by and
    inclusive of North Dakota, Kansas, Virginia, and Maine. The
    equivalent EPFD for this region based on a 4 kHz bandwidth is
    --170.5 dBW/m^2^/4 kHz.

[^146]: Northpoint defines the western region as bounded by and
    inclusive of California, Arizona, Colorado, Montana, and Washington.
    The equivalent EPFD for this region based on a 4 kHz bandwidth is
    --173.0 dBW/m^2^/4 kHz.

[^147]: Northpoint Comments at 34.

[^148]: *Id*.

[^149]: DirecTV Reply Comments at 19.

[^150]: *Id*. at 12‑13.

[^151]: DirecTV Comments at 27. DirecTV argues that the 20 dB C/I would
    result in a 37% increase in unavailability in Washington, DC and a
    16.6% increase in Seattle, WA. DirecTV Reply Comments at 11.

[^152]: DirecTV Reply Comments at Appendix C.

[^153]: *Id*. at 10.

[^154]: MITRE Report at 5 to 34.

[^155]: *Id.*

[^156]: *Id*. at 6‑5 to 6‑6.

[^157]: *Id* at 6‑6.

[^158]: *Id*. at 6‑5 to 6‑7.

[^159]: *See* Satellite Outage Analysis Results in Appendix G, which
    show in all our calculations baseline service availability exceeding
    99.5% from the CONUS satellites. For the thirty-two cities analyzed,
    the data show the following:

    Satellite Location

    (Degrees West Longitude)AvailabilityMean

    (%)Standard Deviation

    (%)Median

    (%)10199.90 0.0899.9211099.79 0.1099.7911999.83 0.1199.83

[^160]: This tolerance is reflected by the fact that the subscriber
    rates in areas experiencing the highest rates of unavailability are
    comparable to those in areas with the lowest such rates. *See*
    Comments of SBCA in CS Docket No. 01-129 (In the Matter of Annual
    Assessment of the Status of Competition in the Market for the
    Delivery of Video Programming). In Appendix A of their comments,
    SBCA provides state-by-state penetration rates for DBS. This data
    show penetration rates of 41.27% for Vermont to 1.80% for Hawaii;
    half of the States have penetration rates between 20 and 30 percent.
    From the data, it appears that the penetration rate for DBS is not
    sensitive to the amount of baseline outage for a particular
    location. Examples are provided below:

    State/CityState

    Penetration Rate

    (%)Baseline Outage Per Satellite

    (Minutes/Year)101^o^ W.L.110^o^ W.L.119^o^ W.L.Colorado

    Denver21.78

    148

    156

    71Washington

    Seattle17.12

    741

    689

    828Florida

    Miami

    Tampa

    Orlando17.85

    1720

    1427

    1480

    1930

    1598

    1668

    2614

    2142

    2255Texas

    Houston

    Dallas24.88

    1040

    820

    2476

    2016

    1380

    1099

[^161]: *See* para. 76, *infra* for discussion regarding the impact on
    DBS networks.

[^162]: The presence of an MVDDS signal could be detected under some
    circumstances even under the relatively strict limits we are
    adopting. For example, in certain rain events, the DBS signal from
    the satellite could be faded significantly while the terrestrial
    MVDDS signal is not, which could cause a rain induced DBS outage to
    last slightly longer than it would have if MVDDS were not present.

[^163]: *See* para. 196, *infra*.

[^164]: EPFD and C/I are directly related. For a given satellite link
    the C/I is the difference between the satellite PFD and MVDDS EPFD.

[^165]: The actual percentage increase in unavailability can only be
    determined after the specified time period elapses and then only if
    each outage can be attributed to either natural phenomena (*e.g.*,
    rain fade, solar outage) or the presence of an MVDDS signal. For
    example, if the criterion is that MVDDS can cause no more than an
    increase in outage of 2.86% per year, then outages must be monitored
    for an entire year and the cause of each determined. From that data,
    the baseline outage due to natural phenomena and the increase due to
    MVDDS can be determined.

[^166]: MITRE Report at 6-6.

[^167]: *See* Appendix G.

[^168]: *See* Appendices E and J, respectively.

[^169]: *See* DirecTV Comments at Appendix I.

[^170]: *See Further Notice,* 16 FCC Rcd at Appendix H and MITRE Report
    at Section 2. MITRE's model differed from the Commission's in that
    it added a value for cross polarization isolation and a reference
    DBS antenna horizontal gain pattern. Those patterns are accounted
    for in the model used for this analysis. *See* Appendix J for
    detailed information on the model.

[^171]: Northpoint Comments at Appendix 2, pp. 17‑24.

[^172]: DirecTV Reply Comments on the MITRE Report at 19; Northpoint
    Reply Comments on MITRE Report at Technical Appendix, p. 4 (argues
    that because the program code was not made available publicly, the
    Commission cannot rely on the MITRE estimates of unavailability or
    impact).

[^173]: For example, Northpoint and DirecTV use a spreadsheet for their
    computations. However, inputs to that spreadsheet come from the
    computational methods of ITU‑R Recommendation P.618. *See, e.g.*,
    DirecTV Comments at Appendix I, Table A, Lines 42 and 47. Under that
    approach, separate calculations would be needed to determine the
    necessary inputs. The Commission's Mathcad model combines all the
    calculations into one self‑contained module, which incorporates the
    same methodology as DirecTV and Northpoint, but also incorporates
    the computations of the ITU Recommendation. A description of the
    Commission's model is provided in Appendix J.

[^174]: *See* Appendix G for analysis results.

[^175]: DirecTV Comments at Appendix I.

[^176]: For example, a DBS customer in Denver, CO viewing the satellite
    at 101^o^ W longitude currently experiences an average outage of
    148.6 minutes per year and a DBS customer in Washington, DC viewing
    the same satellite currently experiences an average yearly outage of
    220.0 minutes per year. With an increase in unavailability due to
    MVDDS of approximately ten percent, these customers would experience
    average outage increases of 14.9 and 22.0 minutes per year for
    Denver and Washington, respectively.

[^177]: *See Further Notice,* 16 FCC Rcd at 4196‑97 ¶¶ 268‑270.

[^178]: The performance threshold is used to define when an outage
    occurs, as discussed in para. 79, *infra*.

[^179]: Although DBS licensees attempt to equalize service levels across
    various areas of the country, differences in geography and climactic
    conditions limit the ability to achieve this goal. Variations exist
    on a city‑to‑city basis due to a combination of these factors. In
    addition, variations exist within cities due to seasonal and yearly
    variations in the amount of rain. This is shown in the following
    tables. The first table shows the variation in the amount of rain
    for January and August for Reno, NV and Allentown, PA over a 12 year
    period (1990‑2001) (Source: National Climatic Data Center
    <http://lwf.ncdc.noaa.gov/oa/climate/research/cag3/city.html>). The
    second table shows the variation in baseline outage time due to
    differences in geography (elevation above mean sea level) and rain
    rate. Note: some of the variation of the second table can also be
    attributed to differences in the elevation angle of the DBS receive
    antenna.

    Table 1 Table 2

    Rain (inches/month)Elevation

    (km)Rain Rate\*

    (mm/hr)Baseline Outage\*\*

    (min)Reno, NVAllentown,
    PAYearJanuaryAugustJanuaryAugust20010.180.002.372.50Denver1.5830.2950.020002.140.791.995.22San

    Francisco0.0333.63225.319990.760.825.443.81Miami0.0095.76550.419981.100.003.423.12\*
    Rain rate exceeded 0.01% of time in an average
    year.19973.320.003.385.1219961.330.167.320.91\*\* For the satellite
    at 101o W
    longitude.19953.310.003.490.7619940.060.005.696.1819932.420.001.985.3919920.130.281.734.0819910.010.242.772.5419900.620.214.576.47

[^180]: *See* MITRE Report at 3‑12 to 3‑13.

[^181]: The minimum signal level for GSO satellite to maintain
    communications is defined by an operational threshold in terms of a
    given carrier‑to‑noise ratio (C/N). The operating threshold defines
    the minimum C/N required for the link to achieve desired
    communications.

[^182]: When the bit error rate of the demodulated MPEG video bit stream
    is sufficiently high to cause the associated video MPEG decoder to
    cease to provide one or more pictures, the video decoder initiates
    error concealment techniques, such as the presentation of the last
    available MPEG picture (freeze frame).

[^183]: *See* DirecTV Comments at 20‑21 and Appendix I; Northpoint
    Comments at Technical Appendix, Page 19.

[^184]: *See* MITRE Report at 3‑13.

[^185]: *Id*. at 3‑12 to 3‑13 and 6‑5.

[^186]: *See* EchoStar Comments to MITRE Report at 11.

[^187]: *See* Northpoint Comments to MITRE Report at Technical Appendix,
    Page 8.

[^188]: *Id*. at 10‑11.

[^189]: QEF threshold values of 8.1 dB and 8.4 dB are used for EchoStar
    and DirecTV's systems, respectively. *See* MITRE Report at 3‑18.

[^190]: Forward error correction (FEC) is a technique used for data
    transmission wherein the receiving device has the capability to
    detect and correct any character or code block that contains fewer
    than a predetermined number of symbols in error. FEC is accomplished
    by adding bits to each transmitted character or code block, using a
    predetermined algorithm.

[^191]: *See* ITU‑R Recommendation BO.1444, Annex 1. The database of
    representative links is available on the ITU's website at
    [http://www.itu.int//itudoc/itu‑r/sg11/docs/sg11/1998‑00/contrib/138e2.html](http://www.itu.int//itudoc/itu-r/sg11/docs/sg11/1998-00/contrib/138e2.html).
    With respect to the threshold values used by DirecTV, we note that 5
    dB is used for weaker transponders and 7.6 is used for stronger
    transponders. Also, in two cases DirecTV assumed a threshold value
    of 11 dB.

[^192]: These are the threshold values used in their example
    calculations for Washington, DC and Seattle, WA. *See* DirecTV
    Comments at Appendix I.

[^193]: For DirecTV, MITRE uses a VQ6 threshold of 7.3 dB which is
    approximately the same as DirecTV's 7.6 dB threshold and more
    stringent than their 5.5 dB threshold.

[^194]: MITRE chose the VQ6 threshold because it was mid‑range in the
    span over which signal degradation could actually be observed
    repeatedly and reduced the amount of time in test execution. *See*
    MITRE Report at A‑8.

[^195]: *See* MITRE Report at A‑9.

[^196]: The ITU Recommendation P.618 is titled, "Propagation Data and
    Prediction Methods Required for the Design of Earth‑Space
    Telecommunication Systems."

[^197]: DirecTV Comments at Appendix I, page 2.

[^198]: *Id*.

[^199]: These changes include the removal of a step‑by‑step procedure
    for calculating gaseous attenuation and a removal of some
    information included with the section on estimating total
    attenuation due to multiple sources of simultaneously occurring
    atmospheric attenuation. In both instances, the updated
    recommendation references the methods of ITU Rec. P.676.

[^200]: Actual transponder usage at each orbital location is shown in
    the table below:

    Orbital Location

    (west longitude)DirecTV

    (transponders)EchoStar

    (transponders)Dominion (transponders)

    General Usage\*61.5^o^30\*\*2\*\*\*International / Special/
    Religious101.0^o^32Basic / Premium / Sports / Local
    (29)109.8^o^3Local (2)110.0^o^29Local (34)118.8^o^11Spanish / Local
    (10)119.0^o^21Basic / Premium / Sports / National network feeds
    (4)148.0^o^24International / Special157.0^o^166.0^o^175.0^o^

    > \* This column only indicates general usage. In many cases
    > additional types of programming are present.
    >
    > \*\* EchoStar uses 13 channels on a temporary basis pursuant to
    > Special Temporary Authority only.

    \*\*\* Dominion leases 8 transponders on the EchoStar's EchoStar III
    satellite and subleases 6 transponders back to EchoStar.

    \(x\) x indicates the number of markets served. There are several
    channels (ABC, NBC, CBS, FOX, WB, UPN, etc.) per market.

    Source:

    Transponders -- Satellite Broadcasting and Communications
    Association training materials.

    Usage information -- [www.lyngsat.com](http://www.lyngsat.com/)

[^201]: The satellite at 61.5^o^ has very low look angles in the
    northwestern U.S. and the satellites at 148^o^‑175^o^ are below the
    horizon in the eastern U.S.

[^202]: Under the various implementations, DirecTV subscribers can
    receive all programming from a single feed receive antenna while
    EchoStar subscribers require a dual feed receive antenna or a second
    single feed receive antenna to receive both core programming and
    local channels. *See*

    http://faq.dishnetwork.com/questions/85.asp?sc=%2F&cboSubCategory=0&cboCategory=0&txtSearch=local+broadcast&pg=1.

[^203]: *See* Appendix G.

[^204]: The EPFD limits are incorporated into the rules in 47 C.F.R. §
    101.105.

[^205]: The Eastern region consists of the following states: Maine, New
    Hampshire, Vermont, Massachusetts, Rhode Island, Connecticut, New
    York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, West
    Virginia, Kentucky, Tennessee, North Carolina, South Carolina,
    Georgia, Alabama, Mississippi, Louisiana, and Florida.

[^206]: The Midwestern region consists of the following states: Ohio,
    Michigan, Indiana, Wisconsin, Illinois, Minnesota, Iowa, Missouri,
    Arkansas, South Dakota, Nebraska, Kansas, Oklahoma, and Texas.

[^207]: The Southwestern region consists of the following states:
    Wyoming, Colorado, New Mexico, Utah, Arizona, Nevada, and California
    (south of 37^o^ North Latitude).

[^208]: The Northwestern region consists of the following states:
    Washington, Oregon, California (north of 37^o^ North Latitude),
    Idaho, Montana, North Dakota, Alaska, and Hawaii.

[^209]: The calculated outage from an average EPFD will vary from ten
    percent. The amount of variance depends on the satellite EIRP,
    average rainfall in a specific location, and elevation angle of the
    DBS receive antenna. *See* Appendix G.

[^210]: *See* Appendix G. As a consequence of using an average EPFD
    value, many of the "difference in outage" values for the 32-city
    sample are above the starting basis of a 10% increase in
    unavailability. In many instances, this is only by a small nominal
    amount of a few percentages. In others, however, the differences are
    larger. For example, in a few instances, the increase in
    unavailability was on the order of 20-30%. However, the
    corresponding decrease in DBS service availability for these
    instances was only on the order of 0.05-0.08%. There are factors
    within DBS providers' control that affect the link budget and could
    result in similar increases in unavailability. These include the way
    available satellite power is apportioned among transponders and the
    amount of forward error correction being used. Less power allocated
    to a given transponder and less forward error correction results in
    a decrease in the margin and an increase in unavailability. Other
    factors such as actual seasonal and yearly precipitation conditions
    will cause much greater variations in the DBS service availability.
    Therefore, engineering judgment suggests that these differences are
    not significant and represent an acceptable range. Further, the
    instances where unavailability was on the order of 20-30% occurred
    only in the case of the satellite at 110º. This DBS satellite is
    scheduled to be replaced with a newer higher-powered satellite well
    in advance of MVDDS deployment. A higher-powered satellite will
    reduce service unavailability due to MVDDS. *See*, *e.g.*, footnote
    Error: Reference source not found*, infra*. While these values are
    taken into account in the averaging to determine the regional EPFDs,
    as noted above, we conclude that they should not predominate in the
    determination of the EPFDs given the scheduled satellite upgrade and
    the fact that even a 20-30% increase in predicted unavailability
    (under our conservative model) should be considered permissible.

[^211]: For example, we calculated a baseline outage of 1331.7 minutes
    per year in Atlanta when viewing the satellite at 119^o^ west
    longitude. On February 21, 2002, EchoStar launched a new satellite,
    EchoStar 7, to this orbital location. This satellite is more
    powerful than the previous satellite at 119^o^ west longitude and
    will also use spot beams to many markets. In Atlanta, this
    translates to a reduction in baseline outage to 645.9 minutes per
    year for the general DBS signal and to 156.5 minutes per year for
    those channels that are transmitted using the spot beam. *See*
    Application of EchoStar Satellite Corporation for Minor Modification
    of DBS Authorization, Launch and Operating Authority for EchoStar 7,
    File Nos. SAT-MOD-20010810-00071 & SAT-A/O-20010810-00073, (August
    10, 2001). As shown in the table below, a corresponding decrease in
    the outages caused by MVDDS would also be seen:

    Atlanta, GASatelliteBaseline

    OutageBaseline

    Outage

    plus 10%

    IncreaseEPFD

    For

    10%

    IncreaseFCC

    Adopted

    EPFDOutage

    With

    FCC

    EPFDOutage IncreaseDifference

    Between

    Calculated

    And FCC

    EPFDs(minutes)(minutes)(dBW/m^2^/4
    kHz)(minutes)%(minutes)DBPrevious1331.71464.87-169.4-168.4151013.4178.30.96Echo7
    (General)645.9710.49-166.5-168.4686.46.340.5-1.9Echo 7
    (Spot)156.5172.15-160.3-168.4158.71.42.2-8.1

[^212]: *See Further Notice,* 16 FCC Rcd at 4198‑99 ¶¶ 272‑274.

[^213]: *Id.* at 4199 ¶ 273.

[^214]: *Id.* at 4199 ¶ 276.

[^215]: *See* DirecTV Comments at 14; EchoStar Comments at 20; DirecTV
    Reply Comments at 18. EchoStar and DirecTV argue that MVDDS
    operations have a secondary allocation status in the frequency band,
    and thus MVDDS has the burden of avoiding harmful interference to
    the primary DBS service. They also argue that mitigation at a DBS
    subscriber premise should not be allowed because it would
    effectively render DBS a secondary service in the band.

[^216]: *See* 47 C.F.R. § 2.105(c) (in the Table of Frequency
    Allocations, the names of primary services are listed in all
    capitals, whereas a mix of upper and lower case characters are used
    for secondary services). The Fixed Service in the 12.2‑12.7 GHz band
    is listed in all capitals. Footnote S5.490 specifically states: "In
    Region 2, in the band 12.2‑12.7 GHz, existing and future terrestrial
    radiocommunication services shall not cause harmful interference to
    space services operating in conformity with the
    broadcasting‑satellite Plan for Region 2 contained in Appendix S30."
    Although the fixed and satellite services are co‑primary in the
    Table of Allocations, the fixed services must not cause harmful
    interference to the DBS assignments that have been implemented in
    accordance with Appendix S30 as opposed to any DBS operations that
    are not consistent with the Plan. We note that, in general, the DBS
    satellites have characteristics that require modification to the
    Plan assignments. These assignment modifications have to be
    coordinated through the Appendix S30 process with other affected
    assignments and accepted into the Plan before they can be protected
    from the existing and future fixed services. Hence, it is more
    efficient to implement sharing and protection guidelines between the
    fixed service and these modified DBS assignments as outlined herein
    rather than wait for the outcome of the ITU coordination process,
    which is not guaranteed.

[^217]: *See* para*.* 92, *infra* which discusses the obligations of
    both MVDDS and DBS licensees.

[^218]: *See* MITRE Report at 6‑3 to 6‑4.

[^219]: *See*, *e.g.* EchoStar MITRE Report Comments at 4.

[^220]: *See* MITRE Report at 6‑4.

[^221]: DBS customers of record are those who had their DBS receive
    antennas installed prior to or within the 30 day period after
    notification to the DBS operator by the MVDDS licensee of the
    proposed MVDDS transmitting antenna site. *See* para. 92, *infra*.
    for a discussion of the notification requirement.

[^222]: We note that this is analogous to the approach we adopt for NGSO
    FSS/MVDDS sharing where we require that an MVDDS operator meet a PFD
    limit at all locations 3 km from its transmitting facility. *See*
    para. 112, *infra*.

[^223]: *See* Appendix J for a detailed model description.

[^224]: We note that the determination of MVDDS EPFD at a DBS subscriber
    location is dependent on many factors, including the location of the
    MVDDS transmitter, transmit and receive antenna gain patterns, MVDDS
    EIRP, and the relative height between the MVDDS transmitting antenna
    and the DBS receive antenna.

[^225]: While conducting its survey of the local area around a proposed
    transmit site, the MVDDS licensee may determine that its signal
    level would comply with the EPFD limit at all existing DBS customer
    locations; or it may determine that the EPFD limit would be exceeded
    at certain DBS customer locations.

[^226]: The Commission elsewhere requires primary users to incorporate
    protective measures, up to and including antenna replacement, to
    avoid receiving harmful interference. *See, e.g.,* 47 C.F.R. §
    74.937(a) ("Should interference occur and it can be demonstrated
    that the existing \[primary ITFS\] receiving antenna is inadequate,
    a more suitable antenna should be installed. In such cases,
    installation of the new receiving antenna will be the responsibility
    of the \[ITFS\] system operator serving the receive site."); 47
    C.F.R. § 101.115(d) ("The Commission shall require the replacement
    of any \[primary Fixed microwave directional\] antenna ... that does
    not meet performance Standard A ... at the expense of the licensee
    operating such antenna, upon a showing that said antenna \[is likely
    to\] receive interference from ... any other authorized antenna or
    applied for station whereas a higher performance antenna is not
    likely to involve such interference."); 47 C.F.R. § 90.361 (finding
    that primary multilateration LMS systems cannot claim harmful
    interference from parts 15 and 97 operations that operate under
    certain conditions).\] Given the conservative MVDDS transmitting
    power level and the availability of simple protective measures, we
    find that DBS licensees can introduce new DBS receiver antennas
    without experiencing harmful interference from the MVDDS signal.

[^227]: *See* RLBSA, § 2002(B)(2).

[^228]: *See* 47 C.F.R. § 1.929.

[^229]: *See*, *generally*, *Further Notice,* 16 FCC Rcd at 4200‑01 ¶¶
    277‑281.

[^230]: *Id.* at 4201 ¶¶ 280, 281.

[^231]: *Id.*.

[^232]: *Id.*.

[^233]: *Id.* at 4200 ¶ 279. In particular, we proposed to require NGSO
    FSS downlinks in the 12.2‑12.7 GHz band to meet a reduced PFD limit
    of --158 dB (W/m^2^/4kHz) for angles of 0‑2° above the horizon, and
    a reduced PFD limit of --158 + 3.33(δ‑2) dB(W/m^2^/4kHz) for angles
    of 2‑5° above the horizon.

[^234]: *Id.* at 4201 ¶ 281.

[^235]: *Id.*

[^236]: *See* SkyBridge comments at 33‑47. *See*, *also*, SkyBridge *ex
    parte* letter from Jeffrey H. Olson to Magalie Roman Salas,
    Secretary, FCC (filed Jul 10, 2000).

[^237]: In the *First R&O*, we authorized NGSO FSS downlink operations
    in both the 11.7‑12.2 and 12.2‑12.7 GHz bands for a total 1,000
    megahertz of spectrum. *See First R&O,* 16 FCC Rcd at 4159 ¶¶ 161,
    165.

[^238]: Northpoint Comments at 26‑28.

[^239]: *See, e.g.,* Northpoint Comments at 27. *See also*, para. 63,
    *supra* for a complete description of Northpoint's EPFD proposal.

[^240]: The exceptional conditions enumerated by Northpoint that would
    allow for an EIRP in excess of 12.5 dBm include, 1) locations near
    large unpopulated areas, 2) transmitters located at heights above
    average terrain (HAAT) greater than 300 feet, or 3) to accommodate
    improved transmit antenna technologies that might be developed in
    the future. *See* Northpoint Comments at 28.

[^241]: *See*, *generally*, Northpoint Comments at 12‑21.

[^242]: Northpoint Reply Comments at 19.

[^243]: *Id.*

[^244]: Boeing Comments at 28.

[^245]: *Id.*

[^246]: *See*, *generally,* Virtual Geo Comments at 1‑4.

[^247]: *Id.*

[^248]: *Id.*

[^249]: *Id*.

[^250]: Boeing Comments at 30.

[^251]: *See*, *generally,* Virtual Geo Comments at 1‑4.

[^252]: *See, e.g.*, Boeing Comments at 14.

[^253]: *See* para. 198, *infra*.

[^254]: Some types of MVDDS transmitting antennas, such as the large and
    small sector horns proposed by Northpoint, may be restricted to EIRP
    values somewhat less than 14 dBm at some lower heights by the PFD
    limit at 3 km. However, we also note that use of other types of
    known antenna configurations, such as the cosecant‑squared type,
    would allow for essentially the full 14 dBm EIRP for most antenna
    heights. Therefore, we find that the limit we adopt will also serve
    to encourage the use and further development of alternative antenna
    forms that could provide improved service and protection
    characteristics.

[^255]: In an *ex parte* filing, Northpoint cautions that we should not
    determine MVDDS/NGSO FSS sharing criteria based upon NGSO FSS
    antennas that do not comply with the rules in 47 C.F.R. § 25.209 for
    GSO FSS antennas. *See* Northpoint *ex parte* filing of Feb. 6,
    2002. However, as SkyBridge correctly points out in response, the
    Commission declined to adopt antenna standards for NGSO FSS user
    terminals in the *First R&O*. *See* SkyBridge *ex parte* filing of
    March 1, 2002. *See, also*, *First R&O,* 16 FCC Rcd at 4186 ¶ 240.
    In any event, notwithstanding Northpoint's concerns, we note that
    the PFD limits that we adopt herein do not depend upon the
    characteristics of the NGSO FSS receive antennas and instead are
    designed to limit the geographic extent of potential MVDDS
    interference to NGSO FSS regardless of the NGSO FSS antenna used.

[^256]: SkyBridge explains in an *ex parte* communication that the
    percentage figures they proposed are achievable when MVDDS is
    limited to a single linear polarization mode of transmission or
    whenever MVDDS utilizes a single polarization mode dissimilar to
    that used by NGSO FSS. SkyBridge asserts that, under those
    constraints, NGSO FSS receivers would benefit from a 3 dB reduction
    in interference due to polarization discrimination. *See* SkyBridge
    *ex parte*, Letter from Jeffrey H. Ohlson, Paul, Weiss, Rifkind, *et
    al*. to Magalie Roman Salas, Secretary, FCC (filed Nov. 15, 2001).
    In response, Northpoint reiterates its position that MVDDS operation
    is not feasible under the SkyBridge proposed limits. *See*
    Northpoint *ex parte* Letter from Robert Combs of Broadwave USA, to
    Magalie Roman Salas, Secretary, Federal Communications Commission
    (filed Jan. 14, 2002).

[^257]: The significance of the 1 km distance is that it equates very
    nearly to the 0.2% of the MVDDS service area specified by SkyBridge
    as an acceptable "saturation zone" threshold when referenced to an
    EIRP of 14 dBm. When viewed in that context, the SkyBridge proposal
    implicitly accepts a worst‑case "saturation buffer" EPFD limit of
    --135 dBW/m^2^/4kHz that extends at least 1 km from the MVDDS
    transmitter for a worst‑case 19.5 km service area radius at 14 dBm.
    We find, however, that EIRP constraints on MVDDS would be so extreme
    with the PFD limit established at 1 km ‑ as low as 4 to 6 dBm EIRP
    with some common antenna type and height combinations ‑ that MVDDS
    service quality could be significantly impaired. At the other end of
    the scale, fixing the distance at 3 km for the --135 dBW/m^2^/4kHz
    saturation limit would allow for an unrestricted EIRP of 14 dBm with
    any antenna type and height.

[^258]: SkyBridge Comments at 33‑34.

[^259]: *Id.* at 36.

[^260]: *See* Northpoint Reply Comment (Technical Appendix) at 13;
    SkyBridge Comments at 38*.*

[^261]: *See* Transmitting Equipment Section at para. 206, *supra*.

[^262]: Where δ is defined as the angle of arrival above the horizontal
    plane.

[^263]: *See* Northpoint Reply Comments at 20‑21*.*

[^264]: *See* SkyBridge Comments at 44‑45*.*

[^265]: *See First R&O*, 16 FCC Rcd at 4170 ¶ 195.

[^266]: Our choice of 10 km is based upon the distance to the --144
    dBW/m^2^/4kHz PFD contour -- which we equate to the "frequency
    diversity" zone limit proposed by SkyBridge -- that extends
    approximately 9 to 10 km from the MVDDS transmitting site in the
    worst‑case with an EIRP of 14 dBm per 24 megahertz.

[^267]: *See, e.g.*, NCTA Comments at 5, (CSB Docket No. 01‑129) (Aug.
    2, 2001) (the presence of DBS affects the market power of the
    incumbent -- cable ‑ where it has the capacity to challenge the
    incumbent in almost 100% of the nation).

[^268]: *Further Notice*, 16 FCC Rcd at 4202 ¶ 284.

[^269]: *Id*.

[^270]: *Id.* at 4202 ¶ 285.

[^271]: Nielsen Media Research (Nielsen) has developed 211 county‑based
    Designated Market Areas (DMAs) utilizing audience survey information
    from cable and non‑cable households to determine the assignment of
    counties to local television markets. Nielsen determines what
    constitutes a separate market by applying a complex statistical
    formula based upon viewership and other factors.

[^272]: An MSA is a geographic area defined by the Office of Management
    and Budget. There are 306 MSAs including New England County
    Metropolitan Areas and the Gulf of Mexico Service Area (water area
    of the Gulf of Mexico, border is the coastline). An RSA consists of
    428 areas, which when combined with the 306 MSAs, comprise the 734
    Cellular Market Areas (CMAs). *See also* Implementation of Section
    309(j) of the Communications Act -- Competitive Bidding, PP Docket
    No. 93‑253, *Fourth Report and Order*, 9 FCC Rcd 2330, 2333 ¶ 16
    (1994).

[^273]: An EA is a geographic area established by the Bureau of Economic
    Analysis of the Department of Commerce. There are 172 EAs, plus
    three EA‑like areas, encompassing the Northern Mariana Islands,
    Guam, American Samoa, the United States Virgin Islands and Puerto
    Rico. Each EA consists of one or more economic nodes -- metropolitan
    areas or similar areas that serve as centers of economic activity --
    and the surrounding counties that are economically related to the
    nodes. *See Final Redefinition of the BEA Economic Areas*, 60 Fed.
    Reg. 13,114, 13,114‑118 (Mar. 10, 1995).

[^274]: An REAG is a geographic area created by Commission staff. REAGs
    are based on groupings of 172 EAs and four EA‑like areas (consisting
    of Guam and the Northern Mariana Islands, Puerto Rico and the United
    States Virgin Islands, American Samoa, and the Gulf of Mexico) which
    were developed by the Bureau of Economic Analysis of the Department
    of Commerce. Because REAGs are an aggregation of EAs, REAGs are
    substantially larger than EAs.

[^275]: ^?^ An MEA is a geographic area created by Commission staff. An
    MEA is an aggregation of EAs which consists of 52 regions, including
    the Gulf of Mexico.

[^276]: *Further Notice*, 16 FCC Rcd at 4203 ¶ 286.

[^277]: Northpoint Comments at 32 (believes DMAs are well suited to the
    low‑power character of its technology); SRL Comments at 3.

[^278]: Rand McNally & Company owns the copyright to the MTA/BTA
    Listings, which identify the BTAs contained in each MTA and the
    counties comprising each BTA. *See* Rand McNally, 1992 Commercial
    Atlas and Marketing Guide 36‑39 (123^rd^ ed. 1992).

[^279]: RTG Reply Comments at 2‑3 (smaller license areas will facilitate
    opportunities for small and rural carriers to obtain spectrum for
    their customers and ensure that rural regions of the country benefit
    from MVDDS).

[^280]: AT&T Comments at 16 (AT&T opposes geographic service boundaries
    that are less than 20 miles across in any direction).

[^281]: *See, e.g.,* Revision of Part 22 and 90 of the Commission's
    Rules to Facilitate Future Development of Paging Systems, *Second
    Report and Order and Further Notice of Proposed Rulemaking*, 12 FCC
    Rcd 2732, 2735 n.3 (1997).

[^282]: We adopt the service area requirement as the newly codified 47
    C.F.R § 101.1401. *See* Appendix D.

[^283]: *See* Annual Assessment of the Status of Competition in the
    Marketplace for the Delivery of Video Programming*, Eight Annual
    Report*, CS Docket No. 01‑129, 17 FCC Rcd 1244 (2002);
    Implementation of Cable Television Consumer Protection and
    Competition Act of 1992, *Notice of Proposed Rulemaking*, CS Docket
    No. 01‑290, 16 FCC Rcd 19074 (2001).

[^284]: *See* Kenneth P. Johnson, *Redefinition of the BEA Economic
    Areas*, 2 Survey of Current Business (February 1995). *See also*
    Appendix H for CEA map. The 354 CEA service areas are based on the
    348 Component Economic Areas delineated by the Regional Economic
    Analysis Division, Bureau of Economic Analysis, U.S. Department of
    Commerce February 1995, with the following six FCC‑defined service
    area additions: American Samoa, Guam, Northern Mariana Islands, San
    Juan (Puerto Rico), Mayagüez/Aguadilla‑Ponce (Puerto Rico), and the
    United States Virgin Islands. County definitions for the U.S.
    Department of Commerce delineated Component Economic Areas were
    obtained from the following file posted on the internet at
    <http://www.fcc.gov/oet/info/maps/areas/>. (This is a
    self‑extracting, executable file that generates the text file
    EACODES.FIN ‑ this file includes county, metro area, component
    economic area, and economic area codes for each county, and
    alphabetic names for all counties, component economic areas, and
    economic areas.)

[^285]: RTG Reply Comments at 2‑5.

[^286]: *Further Notice*, 16 FCC Rcd at 4204 ¶ 288.

[^287]: *Id*.

[^288]: *Id*.

[^289]: "In prescribing regulations ... the Commission shall ...
    prescribe area designations and bandwidth assignments that promote
    (i) an equitable distribution of licenses and services among
    geographic areas, (ii) economic opportunity for a wide variety of
    applicants, including small businesses, rural telephone companies,
    and businesses owned by members of minority groups and women, and
    (iii) investment in and rapid deployment of new technologies and
    services." 47 U.S.C. § 309(j)(4)(C).

[^290]: AT&T Comments at 16 (states that the Commission's proposal would
    reduce the number of technical and interference problems that could
    develop between licensees); Northpoint Comments at 32 (a smaller
    block of spectrum would cripple any effort to effectively compete
    with local cable and DBS operators, who routinely provide hundreds
    of channels to subscribers and would not promote the objectives of
    47 U.S.C. § 309(j)(4)(C)); SRL Comments at 4.

[^291]: The channeling plan for this service is codified at 47 C.F.R. §
    101.1405. *See* Appendix D.

[^292]: Pegasus Comments at 15; Pegasus Reply Comments at 16 (by using
    advanced digital compression techniques, 50 digital video channels
    and one‑way Internet services can be provided).

[^293]: Pegasus Comments at 15.

[^294]: EchoStar Comments at 29‑30.

[^295]: EchoStar maintains that DBS licensees are entitled to use a
    significant portion of 12.2‑12.7 GHz band for terrestrial services
    because its licenses were paid for at auction and its rights should
    extend to any use of the spectrum, whether satellite or terrestrial,
    that does not cause interference into any other DBS licensee. As
    explained in paras. 254‑255, *infra*, we find this argument to be
    without merit.

[^296]: *See, e.g.*, Northpoint Reply Comments at 18.

[^297]: *See, e.g., First R&O*, 16 FCC Rcd at 4176‑79 ¶¶ 212‑217.

[^298]: *Further Notice*, 16 FCC Rcd at 4204 ¶ 289.

[^299]: *Id*.

[^300]: *Id*.

[^301]: *Id*.

[^302]: *Id*.

[^303]: AT&T Comments at 11‑13 (two‑way service could be provided within
    the band via spread‑spectrum return paths that limit any
    interference with DBS to very small increases in the background
    noise floor experienced in satellite reception; or, in the
    alternative, licensees could use narrowband interstitial signals
    between DBS channels for return paths); AT&T Reply Comments at 6‑7;
    MDS America Comments at 11; National Indian Telecommunications
    Institute (NITI) Comments at 3; RTG Reply Comments at 5; SRL
    Comments at 3‑4; SkyTower Comments at 2 (permit MVDDS licensees to
    use stratospheric platforms to provide service).

[^304]: DirecTV Reply Comments at 24‑25.

[^305]: A "downstream" path is the data information from the service
    provider to the customer.

[^306]: An "upstream" path is the data information from the customer to
    the service provider.

[^307]: Permissible operations for MVDDS are codified at 47 C.F.R §
    101.1407. *See* Appendix D. We find that it is not necessary to
    modify 47 C.F.R. Part 21 to accommodate MVDDS.

[^308]: 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*). The
    Commission later clarified the broadcast signal carriage
    requirements. *See* Implementation of the Cable Television Consumer
    Protection and Competition Act of 1992, Broadcast Signal Carriage
    Issues, *Order*, 8 FCC Rcd 4142 (1993) (*Clarification Order*);
    Cable Television Consumer Protection and Competition Act of 1992,
    Pub. L. No. 102‑385, 106 Stat. 1460 (1992).

[^309]: 47 U.S.C. §§ 534, 535; *see also* 47 C.F.R. § 76.56.

[^310]: 47 U.S.C. § 614.

[^311]: A headend is the originating point of a signal in cable TV
    systems. The principal headend is the headend, in the case of a
    cable system with a single headend. In the case of a cable system
    with more than one headend, the principal headend is designated by
    the cable operator. *See* 47 C.F.R. § 76.5.

[^312]: 47 U.S.C. § 615.

[^313]: *Further Notice*, 16 FCC Rcd at 4205 ¶ 292.

[^314]: *Id.* at 4205‑06 ¶ 292.

[^315]: *Id.* at 4205 ¶ 292.

[^316]: S.Rep. No. 102‑92, p. 58 (1991). *See also Turner Broadcasting
    System v. FCC*, 512 U.S. 622, 662 (1994) *citing* S.Rep. No. 102‑92,
    p. 58 (1991).

[^317]: *See* *Satellite Broadcasting & Communications Association v.
    FCC*, 146 F.Supp.2d 803, 822‑823 (E.D. Va. 2001).

[^318]: *See Turner Broadcasting System v. FCC*, 520 U.S. 180, 191‑192
    (1997).

[^319]: *Id*.

[^320]: Northpoint Comments at 32; Pegasus Comments at 16. We note that
    APTS argues that mandatory carriage obligations are consistent with
    the intent of promoting localism and providing service to unserved
    and underserved areas. APTS Comments at 5‑6. At this time, however,
    we do not agree that it is necessary to require mandatory carriage
    in the new MVDDS service.

[^321]: *See* SRL Comments at 5.

[^322]: 47 U.S.C. § 325(b)(1).

[^323]: 47 U.S.C. § 522(13).

[^324]: 47 U.S.C. § 325(b)(1).

[^325]: 47 U.S.C. § 534.

[^326]: 47 U.S.C. § 325(b)(2).

[^327]: Pegasus Comments at 17 (it is "reasonable" to apply these
    requirements to MVDDS licensees because they are designed to protect
    local television stations); NAB Reply Comments at 10‑12 (strongly
    urges the application of program exclusivity rules such as network
    nonduplication, syndicated exclusivity, and sports blackout rules).

[^328]: Implementation of the Satellite Home Viewer Improvement Act of
    1999: Application of Network Nonduplication, Syndicated Exclusivity,
    and Sports Blackout Rules to Satellite Retransmissions, *Notice of
    Proposed Rulemaking*, CS Docket No. 00‑2, 15 FCC Rcd at 438‑39 ¶ 9.

[^329]: 47 C.F.R. §§ 76.95(a), 76.106, 76.111(f).

[^330]: The newly codified 47 C.F.R. § 101.1409 governs the treatment of
    incumbent licensees. *See* Appendix D.

[^331]: Low‑power limited coverage systems are a type of POFS licensee.

[^332]: *See* Inquiry into the Development of Regulatory Policy in
    Regard to Direct Broadcast Satellites for the Period Following the
    1983 Regional Administrative Radio Conference, Gen. Docket No.
    80‑603, *Report and Order*, 90 FCC 2d 676 (1982).

[^333]: *Id.*; *see also* Initiation of Direct Broadcast Satellite
    Service -- Effect on 12 GHz Terrestrial Point‑to‑Point Licensees in
    the Private Operational Fixed Radio Service, *Public Notice*, 10 FCC
    Rcd 1211 (1994). The Commission indicated that in the event that DBS
    service experiences interference from terrestrial point‑to‑point
    operations, it is the sole responsibility of terrestrial licensees
    to eliminate such interference immediately.

[^334]: *See* para. 11, *supra*.

[^335]: *See* *Further Notice*, 16 FCC Rcd at 4206 ¶ 293; *see also*
    RLBSA, Pub. L. 106‑113, 113 Stat. 1501, 1537 (1999).

[^336]: *Further Notice*, 16 FCC Rcd at 4206 ¶ 294.

[^337]: *Id*.

[^338]: Pegasus Comments at 17.

[^339]: A transfer and/or assignment of a license by a public safety
    entity to a non‑public safety entity will result in a loss of
    protected status such that neither MVDDS nor NGSO FSS licensees will
    be required to protect the non‑public safety license areas.

[^340]: *See* paras. 134‑135, *supra*.

[^341]: *See, e.g.,* Amendment of the Commission's Rules Regarding
    Multiple Address Systems, WT Docket No. 97‑81, *Report and Order*,
    15 FCC Rcd 11956, 12002‑12005 ¶¶ 109‑115 (2000) (*MAS Report and
    Order*) *citing* Revision of Part 22 and Part 90 of the Commission's
    Rules to Facilitate Future Development of Paging Systems,
    Implementation of Section 309(j) of the Communications Act --
    Competitive Bidding, WT Docket No. 96‑18, *Notice of Proposed Rule
    Making*, 11 FCC Rcd 3108, 3136 & n.270 (1996).

[^342]: *See* 47 C.F.R. § 1.929 for a description of major and minor
    filings.

[^343]: We will require the assignees and transferees of such
    transactions and their successors to comply with the revised service
    rules with respect to the treatment of incumbents as set forth
    herein.

[^344]: *See* Appendix I for a list of POFS licensees.

[^345]: *See, e.g.*, DirecTV Reply Comments at 22‑23; EchoStar Comments
    at 20.

[^346]: DirecTV Reply Comments at 22‑23; EchoStar Comments at 20; SBCA
    Comments at 7‑8; SBCA Reply Comments at 7‑8.

[^347]: MITRE Report, Policy Issues and Recommendations at 6‑5 to 6‑8.

[^348]: Creation of Low Power Radio Service, *Report and Order*, MM
    Docket 99‑25, 15 FCC Rcd 2205 (2000) (statement of Commissioner
    Michael K. Powell, Dissenting in Part).

[^349]: We note that the MITRE Report is based on test results utilizing
    equipment supplied by Northpoint, EchoStar and DTV and technical
    specifications provided by Pegasus. We are confident that the
    technical operating parameters we adopt in light of the MITRE Report
    provide for the necessary protection against harmful interference.

[^350]: *See* MITRE Report at 6.1 to 6.2.

[^351]: *Further Notice*, 16 FCC Rcd at 4206‑07 ¶ 295. *See* para. 210,
    *infra* for a separate discussion concerning pending applications.

[^352]: Northpoint Comments at 31.

[^353]: *See* paras. 215‑228, *infra.*

[^354]: 47 C.F.R. § 101.101.

[^355]: *Further Notice*, 16 FCC Rcd at 4203, 4205 ¶¶ 287, 291.

[^356]: 47 C.F.R. § 101.147.

[^357]: *See First R&O*, 16 FCC Rcd at 4177‑80 ¶¶ 213‑218.

[^358]: *Further Notice*, 16 FCC Rcd at 4206‑07 ¶ 295.

[^359]: *See* 47 U.S.C. § 153(10) which provides that a common carrier
    is "any person engaged as a common carrier for hire, in interstate
    or foreign communication by wire or radio or in interstate or
    foreign radio transmission of energy, except where reference is made
    to common carriers not subject to this Act; but a person engaged in
    radio broadcasting shall not, insofar as such person is so engaged,
    be deemed a common carrier." *See* also 47 C.F.R. § 32.9000.

[^360]: Video programming service will be treated as a non‑common
    carrier service. *See* Rule Making to Amend Parts 1, 2, 21, and 25
    of the Commission\'s Rules to Redesignate the 27.5‑29.5 GHz
    Frequency Band, to Establish Rules and Policies for Local Multipoint
    Distribution Service and for Fixed Satellite Services, CC Docket No.
    92‑297, *Second Report and Order*, *Order on Reconsideration and
    Fifth Notice of Proposed Rule Making*, 12 FCC Rcd 12545, 12639‑41,
    ¶¶ 213‑15 (1997) (*LMDS Second R&O*). Thus, any applicant intending
    to provide a video programming service would appropriately indicate
    a choice of non‑common carrier regulatory status. We note that in
    other services we adopted a more flexible approach wherein an
    applicant may elect common carrier status and/or non‑common carrier
    status under its authorization. For instance, in the LMDS
    proceeding, we permitted licensees to operate exclusively as a
    common carrier or non‑common carrier or to provide services on both
    bases. *See LMDS Second R&O*, 12 FCC Rcd 12545, ¶¶ 245‑251.
    Similarly, in the 39 GHz proceeding, we adopted a flexible approach
    where we permitted licensees to serve as either a common carrier or
    a private licensee, permitting licensees that selected to provide
    common carrier service to private service as well. *See* Amendment
    of the Commission\'s Rules Regarding the 37.0‑38.6 GHz and
    38.6‑40.0 GHz Bands, ET Docket No. 95‑183, *Report and Order and
    Second Notice of Proposed Rule Making*, 12 FCC Rcd 18600, 18636
    (1997) (*39 GHz R&O*).

[^361]: *Further Notice*, 16 FCC Rcd at 4206‑07 ¶ 295.

[^362]: Pegasus Comments at 20.

[^363]: *See* Appendix D. Accordingly, we will not amend 47 C.F.R. Part
    21.

[^364]: *See Further Notice*, 16 FCC Rcd at 4206‑07 ¶ 295.

[^365]: *See, e.g.*, *LMDS Second R&O*, 12 FCC Rcd 12545 ¶¶ 245‑251;
    *24 GHz Report and Order*, 15 FCC Rcd at 16946‑48 ¶¶ 26‑29.

[^366]: Pegasus Comments at 18. No commenter recommended limiting the
    scope to non‑common carrier status, however, Pegasus recommended
    permitting MVDDS licensees to provide services on a non‑common
    carrier basis.

[^367]: We note that we are currently exploring our forbearance
    authority in the context of Title II with respect to the Part 101
    Services in an outstanding proceeding. *See* Reorganization and
    Revision of Parts 1, 2, 21, and 94 of the Rules to Establish a New
    Part 101 Governing Terrestrial Microwave Fixed Radio Services, WT
    Docket No. 94‑148, *Memorandum Opinion and Order and Notice of
    Proposed Rule Making*, 15 FCC Rcd 3129 ¶ 83 (2000) (*Part 101 MO&O
    and NPRM*).

[^368]: *See* 47 C.F.R. § 1.947(b). However, if the change results in
    discontinuance, reduction, or impairment of the existing service,
    the licensee may be subject to a different time period. Also, to the
    extent that a licensee's decision to change its regulatory status
    raises issues with respect to that licensee exceeding the benchmark
    contained in 47 U.S.C. § 310(b)(4), our Rules require the
    Commission's prior approval before the licensee can make this
    change. Rules and Policies on Foreign Participation in the U.S.
    Telecommunications Market and Market Entry and Regulation of
    Foreign‑Affiliated Entities, IB Docket Nos. 97‑182 and 95‑22,
    *Report and Order and Order on Reconsideration*, 12 FCC Rcd 23,891,
    23,940‑41 ¶¶ 111‑118 (1997) (*Foreign Participation Order*). *See,
    e.g.,* 47 C.F.R. § 101.305.

[^369]: 47 C.F.R. § 101.101.

[^370]: 47 C.F.R. § 101.147(p).

[^371]: *See* *Further Notice*, 16 FCC Rcd at 4207‑08 ¶ 297. *See also*
    47 U.S.C. § 309(j)(3); *Cincinnati Bell Tel. Co. v. FCC*, 69 F.3d
    752, 761‑762 (6^th^ Cir. 1995) (*Cincinnati Bell*). Our use of that
    authority to "place restrictions on the bidding process in order to
    ensure that a wide variety of applicants are able to meaningfully
    participate" in the market for the service being auctioned has been
    upheld by the courts.

[^372]: *See Further Notice*, 16 FCC Rcd at 4207 ¶ 296; *See* *also*, 47
    U.S.C. § 151.

[^373]: *See, e.g., 39 GHz R&O*, 12 FCC Rcd 18600, 18619; Rule Making to
    Amend Parts 1, 2, 21 and 25 of the Commission's Rules to Redesignate
    the 27.5‑29.5 GHz Frequency Band, to Reallocate the 29.5‑30.0 GHz
    Frequency Band, to Establish Rules and policies for Local Multipoint
    Distribution Service and for Fixed Satellite Services, CC Docket
    92‑297*, Third Report and Order and Memorandum Opinion and Order*,
    15 FCC Rcd 11857 (2000).

[^374]: *Further Notice*, 16 FCC Rcd at 4208‑10 ¶¶ 298‑299.

[^375]: *Id.* at 4208‑09 ¶ 298.

[^376]: *Id*. at 4209‑10 ¶ 299.

[^377]: *Id*.

[^378]: *See*, *e.g.*, *Seventh Annual Report*, 16 FCC Rcd 6005, 6008 ¶¶
    5, 8 (cable television is still the dominant technology for the
    delivery of video programming to consumers in the MVPD marketplace),
    (growth of non‑cable MVPD subscribers continues to be primarily
    attributable to the growth of DBS).

[^379]: *See* NCTA Comments (CSB Docket No. 01‑129) at 7 (filed Aug. 2,
    2001).

[^380]: Pegasus Comments at 18 (preclude incumbent cable operators from
    acquiring an attributable interest in an MVDDS license that is
    located within a franchised cable service area, unless deemed
    characterized by effective competition); EchoStar Comments at 26‑28
    (cable systems should be barred from applying for the new service
    because they have been found to possess market power in a relevant
    market); EchoStar Reply Comments at 19‑21 (bar all companies found
    to possess market power in a relevant market, including incumbent
    cable systems); SBCA Comments at 8‑9 (bar only cable systems found
    to possess market power in a relevant market).

[^381]: *See, e.g.*, Pegasus Comments at 18; EchoStar Comments at 26;
    SBCA Comments at 8‑9.

[^382]: Generally, "in‑region" describes those MVPDs with service areas
    that have significant overlap with MVDDS service areas. *See* para.
    165 *supra*.

[^383]: Two Commission DBS licensees, EchoStar and DirecTV, have agreed
    to a merger and have submitted an application to the Commission for
    consent to transfer control of Commission licenses and authorization
    to a newly created entity, EchoStar Communications Corporation (New
    EchoStar). *See* *Application of EchoStar Communications
    Corporation, General Motors Corporation, Hughes Electronics
    Corporation, Transferors, and EchoStar Communications Corporation,
    Transferee, for Authority to Transfer Control*, (filed December 3,
    2001) CS Docket No. 01‑348 (EchoStar/DirecTV Application). The
    application was placed on public notice on December 21, 2001, DA
    01‑3005. According to the merger applicants, EchoStar, through its
    DISH Network brand, currently provides DBS service to more than 6
    million subscribers in the United States (EchoStar/DirecTV
    Application, p. 10) and DirecTV currently provides DBS service to
    approximately 10.3 million subscribers in the United States
    (EchoStar/DirecTV Application p.13).

[^384]: In the event that the EchoStar‑DirecTV merger is approved, we
    may re‑examine the imposition of eligibility restrictions with
    regards to DBS.

[^385]: DirecTV Reply Comments at 32. We note that EchoStar and DirecTV
    assert that consent to their merger would also enhance their
    capacity to provide local signals.

[^386]: AT&T Comments at 18; AT&T Reply Comments at 7‑8.

[^387]: MDSA Comments at 16; MDSA Reply Comments at 10‑14.

[^388]: *See* para. 139, *supra*.

[^389]: *See, e.g.,* NCTA Comments (CSB Docket No. 01‑129) at 5 (filed
    August, 2, 2001 (cable still has the largest share of multichannel
    video customers); *Seventh Annual Report*, 16 FCC Rcd at 6008, 6010,
    6015‑25 (cable television still is the dominant technology for the
    delivery of video programming to consumers in the MVPD marketplace;
    the cable industry has continued to grow in homes passed, basic
    cable subscribership, premium service subscriptions, basic cable
    viewership, basic cable penetration and channel capacity).

[^390]: One commenter asserts that the launch of a fourth competitor to
    compete with the two DBS operators and the cable operators would
    result in a decrease in cable rates of five per cent and an annual
    savings of \$2 billion for U.S. households. Northpoint Comments,
    Hazlett Declaration at 17.

[^391]: *See, e.g.*, Amendment of the Commission's Rules to Establish
    New Personal Communications Services, GEN Docket No. 90‑314, *Second
    Report and Order*, 8 FCC Rcd 7700, 7744‑45 ¶¶ 105‑106 (1993) (PCS
    *Second Report and Order*) (Commission's earlier policies did not
    allow cellular incumbents to acquire the broadband Personal
    Communications Services (PCS) licenses in the areas of their current
    operations).

[^392]: The attributable interest percentage in this instance will
    parallel that employed for purposes of applying the eligibility
    restriction in other wireless services, such as LMDS and the
    Commission's CMRS spectrum cap. *See* Amendment of Parts 1,2, 21,
    and 25 of the Commission's Rules -- To Establish Rules and Policies
    for Local Multipoint Distribution Service, CC Docket No. 92-297,
    *Second Report and Order, Order on Reconsideration , and Fifth
    Notice of Proposed Rulemaking*, 12 FCC Rcd 12545, 12628‑29 ¶¶
    186‑188 (*LMDS* *Second Report and Order*); Amendment of Parts 20
    and 24 of the Commission's Rules -- Broadband PCS Competitive
    Bidding and the Commercial Mobile Radio Service Spectrum Cap, WT
    Docket No. 96‑59, *Report and Order*, 11 FCC Rcd 7824, 7876 ¶ 107
    (1996) (*CMRS Spectrum Cap Report and Order*). This restriction
    generally provides that an entity owning 20% or more of an MVDDS
    license would have ownership of that license attributed to it.

[^393]: Department of Justice, Federal Trade Commission, *Notice,* 1992
    Horizontal Merger Guidelines, § 2.22, 57 FR 41552, 41560 (1992)
    (*Horizontal Merger Guidelines*)*.*

[^394]: *See* *PCS Second Report and Order,* 8 FCC Rcd at 7744‑45 ¶ 105.

[^395]: *See* *CMRS Spectrum Cap Report and Order*, 11 FCC Rcd at 7876 ¶
    107; 49 C.F.R. § 20.6 (the CMRS spectrum cap rule). *See also* *LMDS
    Second Report and Order*, 12 FCC Rcd at 12628‑29 ¶¶ 186‑188 (the
    Commission found that use of a ten percent threshold for geographic
    overlap was appropriate for the purposes of the temporary LMDS
    eligibility restriction, basing this in part on a desire to conform
    to the CMRS spectrum cap overlap rule).

[^396]: We codify the MVDDS eligibility restrictions for cable companies
    at 47 C.F.R. § 101.1412. *See* Appendix D.

[^397]: *See, e.g.*, *LMDS Second Report and Order*, 12 FCC Rcd at 12630
    ¶¶ 190-192; 2000 Biennial Regulatory Review Spectrum Aggregation
    Limits for Commercial Mobile Radio Services, *Report and Order*, 16
    FCC Rcd 22,668, 22672 ¶ 10 (2001) (*CMRS Spectrum Cap Report and
    Orde*r); .

[^398]: *See, e.g. LMDS Second Report and* Order, 12 FCC Rcd at 12630-31
    ¶¶ 190-192.

[^399]: *Id.*

[^400]: *Id.*

[^401]: *Id.*

[^402]: *Id.*

[^403]: *See* 47 U.S.C. § 310(a)‑(b).

[^404]: *See* 47 C.F.R. § 101.7(a)‑(b).

[^405]: *Id*.

[^406]: *Further Notice*, 16 FCC Rcd at 4210 ¶ 300.

[^407]: *Id.* at 4210 ¶ 301.

[^408]: Pegasus Comments at 20 (supports foreign ownership
    restrictions).

[^409]: *See* *Foreign Participation Order*, 12 FCC Rcd at 23935‑47 ¶¶
    97‑132; Rules and Policies on Foreign Participation in the U.S.
    Telecommunications Market, IB Docket No. 97‑142, *Order on
    Reconsideration*, 15 FCC Rcd 18158 (2000). *See also, e.g.*,
    Application of VoiceStream Wireless Corporation, Powertel, Inc.,
    Transferors, and Deutsche Telekom AG, Transferee, for Consent to
    Transfer Control of Licenses and Authorizations Pursuant to Sections
    214 and 310(d) of the Communications Act and for Declaratory Ruling
    Pursuant to Section 310 of the Communications Act, *Memorandum
    Opinion and Order*, 16 FCC Rcd 9779 (2001); DiGiPH PCS, Inc. and
    Eliska Wireless Ventures License Subsidiary I, L.L.C., *Memorandum
    Opinion and Order*, 15 FCC Rcd 24501, (2000); Global Crossing Ltd.
    and Frontier Corporation, *Memorandum Opinion and Order*, 14 FCC Rcd
    15911 (1999).

[^410]: *See* para. 156, *supra*.

[^411]: The newly codified 47 C.F.R. § 101.1411 governs the regulatory
    status of and eligibility for MVDDS. *See* Appendix D.

[^412]: *See* Revisions to Part 21 of the Commission's Rules Regarding
    the Multipoint Distribution Service*, CC Docket No. 86‑179, Report
    and Order*, 2 FCC Rcd 4251, 4253 ¶ 16 (1987); *LMDS Second Report
    and Order*, 12 FCC Rcd at 12651 ¶ 243; *24 GHz* *Report and Order*,
    15 FCC Rcd at 16958 ¶ 54.

[^413]: *See* 47 C.F.R. § 101.7(a)‑(b).

[^414]: We note, however, that to the extent a licensee's decision to
    change its regulatory status raises issues with respect to that
    licensee exceeding the 25% indirect foreign ownership benchmark
    contained in 47 C.F.R. § 310(b)(4), the licensee must seek prior
    Commission approval before it can make this change. *See Foreign
    Participation Order*, 12 FCC Rcd at 23940‑41 ¶¶ 111‑118.

[^415]: *Further Notice*, 16 FCC Rcd at 4210‑11 ¶¶ 302‑304.

[^416]: *Id*. at 4211 ¶ 302.

[^417]: *Id*. at 4211 ¶ 303.

[^418]: *Id*.

[^419]: The license term and renewal expectancy for MVDDS are codified
    at 47 C.F.R. § 101.1413. *See* Appendix D.

[^420]: *Cf*. 47 C.F.R. §§ 22.940(a)(2)(i)‑(iv).

[^421]: *See, e.g.,* RLBSA, Pub. L. 106‑113, 113 Stat. 1501, 1537. *See
    also* Letter from The Honorable Mary L. Landrieu, *et al*., U.S.
    Senate to Chairman Michael K. Powell, FCC (dated July 20, 2001);
    Letter from The Honorable William Frist, U.S. Senate to Chairman
    Michael K. Powell, FCC (July 16, 2001); Letter from The Honorable
    Trent Lott , U.S. Senate to Chairman Michael K. Powell, FCC (dated
    June 29, 2001); Letter from The Honorable Ed Bryant, House of
    Representatives to Chairman Michael K. Powell, FCC (dated July 27,
    2001).

[^422]: Pegasus Comments at 19.

[^423]: *Id*.

[^424]: *See* 47 C.F.R. § 22.940(a)(1)(i). *See also LMDS Second Report
    and Order*, 12 FCC Rcd at 12660; Amendment of the Commission's Rules
    to Establish Part 27, the Wireless Communications Service, GN Docket
    No. 96‑228, *Report and Order*, 12 FCC Rcd 10785, 10843‑10844 (1997)
    (*WCS Report and Order*); Amendment of Part 95 of the Commission's
    Rules to Provide Regulatory Flexibility in the 218‑219 MHz Service,
    WT Docket No. 98‑169, *Report and Order and Memorandum Opinion and
    Order*, 15 FCC Rcd 1497, 1537‑38 (1999); *MAS Report and Order*, 15
    FCC Rcd 11956.

[^425]: In other fixed wireless services such as the 39 GHz Service, the
    Commission provides a safe harbor example consisting of "four links
    per million population within a service area." *See 39 GHz R&O*, 12
    FCC Rcd at 18625 ¶ 46. We believe that the nature of this service
    requires us to provide a different example from that suggested in
    other fixed wireless services such as the 39 GHz Service. We
    anticipate that an MVDDS license will more likely be used to provide
    a wireless service as opposed to being used to provide backbone
    support for other networks by way of independent point‑to‑point
    links as in the 39 GHz Service. Therefore, we believe that
    describing the safe harbor example in terms of transmitter location
    sites is more appropriate for the MVDDS service.

[^426]: *See, e.g., 24 GHz Report and Order*, 15 FCC Rcd at 16934.

[^427]: *Further Notice*, 16 FCC Rcd at 4212 ¶ 305.

[^428]: *Id*.

[^429]: *Id*.

[^430]: *Id*. "Disaggregation" is the assignment of discrete portions or
    "blocks" of spectrum within one license area. Disaggregation allows
    for multiple transmitters in the same area operated by different
    companies (thus the possibility of harmful interference from MVDDS
    to DBS increases). *See, e.g.*, Geographic Partitioning and Spectrum
    Disaggregation by Commercial Mobile Radio Services Licensees and
    Implementation of Section 257 of the Communications Act ‑
    Elimination's of Market Barriers, WT Docket No.96‑148, *Report and
    Order and Further Notice of Proposed Rulemaking*, 11 FCC Rcd 21831,
    21833 n.2 (1996) (*Partitioning and Disaggregation Report and
    Order*).

[^431]: *Further Notice*, 16 FCC Rcd at 4212 ¶ 306.

[^432]: *Id.*

[^433]: *Id.* at 4212 ¶ 306.

[^434]: *See* para. 134, *supra*.

[^435]: 47 U.S.C. §§ 309(j)(3)(B), 309(j)(4)(C).

[^436]: 47 C.F.R. § 1.2105.

[^437]: *See, e.g., Partitioning and Disaggregation Report and Order*,
    11 FCC Rcd at 21843‑44 ¶¶ 13‑17.

[^438]: Teligent Comments at 25‑26.

[^439]: We codify this understanding at 47 C.F.R. § 101.1415. *See*
    Appendix D. We find that partitioning along county lines best
    comports with one of the underlying considerations for crafting
    CEAs, namely, that each CEA consists of a single economic node and
    the surrounding counties that are economically related to the node.
    *See* Kenneth P. Johnson, *Redefinition of the BEA Economic Areas*,
    2 Survey of Current Business (February 1995).

[^440]: *See, e.g., LMDS Fourth Report and Order*, 13 FCC Rcd at
    11664‑65 ¶ 16.

[^441]: *See, e.g., PCS Order*, 11 FCC Rcd at 21855; *LMDS Report and
    Order*, 13 FCC Rcd at 11665 ¶ 16.

[^442]: *See, e.g., LMDS Report and Order,* 13 FCC Rcd at 11665 ¶ 16.

[^443]: *Id.*

[^444]: *See, e.g., 39 GHz Report and Order*, 12 FCC Rcd at 18635 ¶ 73.

[^445]: *See* 47 C.F.R. § 1.948.

[^446]: 47 C.F.R. § 1.2111(e).

[^447]: *See, e.g.,* SkyBridge Comments at 12; Boeing Comments at 38.

[^448]: *See, e.g.*, 47 C.F.R. § 21.911 ("Annual Reports" for MDS).

[^449]: *Further Notice*, 16 FCC Rcd at 4212 ¶ 307.

[^450]: *See, e.g.,* 47 C.F.R. § 21.911 ("Annual Reports" for MDS).

[^451]: *Further Notice*, 16 FCC Rcd at 4213 ¶ 308.

[^452]: *24 GHz Report and Order*, 15 FCC Rcd at 16963‑64 ¶¶ 65‑67.

[^453]: *See* para*.* 147, *supra*.

[^454]: *Id.*

[^455]: 47 C.F.R. § 101.103.

[^456]: *Further Notice*, 16 FCC Rcd at 4201‑02 ¶ 282.

[^457]: 47 C.F.R. §§ 101.111(a)(2)(i), (a)(2)(iii).

[^458]: SkyBridge Comments at 28‑29.

[^459]: *See* 47 C.F.R. § 2.301.

[^460]: *Further Notice*, 16 FCC Rcd at 4213 ¶¶ 309‑310.

[^461]: Northpoint Reply Comments at 11‑12.

[^462]: Telesat Canada is a Canadian‑licensed FSS provider.

[^463]: Telesat Comments at 2.

[^464]: Pegasus Reply Comments at 19; Northpoint Reply Comments at 12
    (Telesat's concerns are unfounded; the same measures that will
    protect U.S. DBS systems will likewise protect Canadian satellite
    operators).

[^465]: 47 C.F.R. §§ 101.147(p), 1.928(f)(1), (2).

[^466]: 47 C.F.R. § 101.147(p).

[^467]: 47 C.F.R. § 1.928(f).

[^468]: *Id.*

[^469]: *Further Notice*, 16 FCC Rcd at 4213 ¶ 311.

[^470]: *Id.* at 4213‑14 ¶ 312.

[^471]: *Id*.

[^472]: *See* SRL Comments at 5.

[^473]: *See* Northpoint Comments at Technical Annex at 27‑28.

[^474]: *See* MDS America *ex parte* (filed Feb. 12, 2002). In this
    filing, MDS America defines an urban area as one of the 50 largest
    markets as determined by population density.

[^475]: *Id*. at 5.

[^476]: *See* MITRE Report at 6‑5. Rain scatter interference occurs when
    energy that is transmitted from the MVDDS terrestrial terminal into
    a rain cell is scattered by the rain cell and the scattered energy
    is received by the DBS earth station. The necessary conditions for
    this interference to occur are that the main beams of the
    terrestrial terminal and the DBS earth station antenna patterns must
    create a common volume in which there is rain. *Id.* at 2‑8. Because
    such interference is dependent on the location of the rain cell and
    the location and pointing direction of the transmitting and receive
    antennas, it is difficult to predict (*e.g.*, it could occur in a
    shielded south pointing receive antenna even when the MVDDS
    transmitting antenna is also pointing south) and at high power
    levels could occur at significant distances away from the offending
    MVDDS transmitter; possibly in another MVDDS licensee's service
    area.

[^477]: *See, e.g.*, Pegasus Comments at 4 (recommends 12.5 dBm EIRP).

[^478]: *See, e.g*., EchoStar Comments to MITRE Report at Technical
    Appendix, Page 1.

[^479]: *Further Notice*, 16 FCC Rcd at 4214 ¶ 313.

[^480]: *Id.*; *see* 47 C.F.R. § 1.1307.

[^481]: *Id.*

[^482]: *Further Notice,* 16 FCC Rcd at 4214 ¶ 314; *See* 47 C.F.R. §
    1.924.

[^483]: *Id*.

[^484]: SRL Comments at 5.

[^485]: 47 C.F.R. § 1.924. We note, however, that the Commission is
    currently considering changes to this rule in a separate proceeding.
    In the Matter of Review of Quiet Zones Application Procedures, WT
    Docket No. 01‑319, FCC 01‑333, *Notice of Proposed Rulemaking* (Rel.
    Nov. 21, 2001).

[^486]: *Further Notice*, 16 FCC Rcd at 4214 ¶ 315.

[^487]: *Id. citing* 47 C.F.R. Part 17, Subpart C.

[^488]: *Id.* at 4214 ¶ 315.

[^489]: A "look angle" is the elevation angle and azimuth of the antenna
    pointing at the satellite.

[^490]: *See Further Notice,* 16 FCC Rcd at 4199 ¶ 273.

[^491]: MITRE Report at 6‑2.

[^492]: *Id*. at 6‑3.

[^493]: *Id*. at 6‑4

[^494]: *Id*. at 6‑2 to 6‑4.

[^495]: MDSA Comments at 11‑12; MDSA Reply Comments at 13‑14.

[^496]: *See* MDSA Comments at 12; Northpoint Comments, Technical Index
    at 25.

[^497]: *See* 47 C.F.R. § 1.4000. *See also* Promotion of Competitive
    Networks in Local Telecommunications Markets, Implementation of the
    Local Competition Provisions in the Telecommunications Act of 1996,
    *First Report and Order and Further Notice of Proposed Rule Making,*
    WT Docket No. 99‑217*, Fifth Report and Order and Memorandum Opinion
    and Order, CC* Docket No. 96‑98*, and Fourth Report and Order and
    Memorandum Opinion and Order,* CC Docket No. 88‑57, 15 FCC Rcd 22983
    (2000) (*Competitive Networks R&O*).

[^498]: *Further Notice,* 16 FCC Rcd at 4214 ¶ 316.

[^499]: *See* Implementation of Section 207 of the Telecommunications
    Act of 1996*, Report and Order,* 11 FCC Rcd 19276 (1996).

[^500]: *See* *Competitive Networks R&O,* 15 FCC Rcd at 23,027‑28, and
    23,031 ¶¶ 97‑100, 106*.*

[^501]: 47 C.F.R § 1.4000.

[^502]: *See* 47 C.F.R. § 1.4000(a).

[^503]: 47 C.F.R. § 101.139.

[^504]: 47 C.F.R. § 21.120.

[^505]: *Further Notice*, 16 FCC Rcd at 4215 ¶ 317.

[^506]: *Id.*

[^507]: *Id.*

[^508]: *Id.*

[^509]: *Id*.

[^510]: *Id*.

[^511]: SkyBridge Comments at 38‑39.

[^512]: *Id*. at 39.

[^513]: 47 C.F.R. § 78.103.

[^514]: 47 C.F.R. § 101.111.

[^515]: SkyBridge Comments at 39.

[^516]: *Id.* at 40.

[^517]: *See* 47.C.F.R. § 101.111.

[^518]: *See* 47.C.F.R. § 101.111(a)(2).

[^519]: *See* 47 C.F.R. § 101.141.

[^520]: *See*, *e.g.*, *LMDS Second Report and Order*, 12 FCC Rcd at
    12672 ¶ 301; *24 GHz Report and Order*, 15 FCC Rcd at 16962 ¶ 62.

[^521]: *See* paras. *7, 9*, *supra*.

[^522]: *Further Notice*, 16 FCC Rcd at 4217 ¶ 325.

[^523]: *See* *Ku‑Band Cut‑Off Notice.*

[^524]: *See November 24, 1998 NPRM*, 14 FCC Rcd at 1138 ¶¶ 8‑9.

[^525]: *Further Notice*, 16 FCC Rcd at 4219 ¶¶ 328‑329.

[^526]: *See* para. 13, *supra*; *see* also Prevention of Interference
    to Direct Broadcast Satellite Services, Pub. L. No. 106‑553, App. B.
    Tit. X, § 1012(a), 114 Stat. 2762, 2762A‑128, 2762A‑141 (codified at
    47 U.S.C. § 1110) (2000), discussed in detail at para. 229, *infra*.

[^527]: *Radio Athens, Inc. v. FCC*, 401 F.2d 398, 404 (D.C. Cir. 1968).

[^528]: Northpoint Comments at 17‑18, 22‑25; Northpoint Reply Comments
    at 4‑6; Joint Broadcasters Comments at 4‑6; Consumers Union,
    Consumer Federation of America, Leadership Conference on Civil
    Rights, Center for Media Education, League of United Latin American
    Citizens, the Media Access Project (CU *et al.*) at 2.

[^529]: Northpoint Comments at 17; Northpoint Reply Comments at 5; Joint
    Broadcasters Comments at 5.

[^530]: *See November 24, 1998 NPRM*, 14 FCC Rcd at 1138 ¶¶ 8‑9.

[^531]: Northpoint Comments at 31; Joint Broadcasters at 2; NITI
    Comments at 3; Paxson Comments at 1‑2; Northpoint Reply Comments at
    3; CU *et al*. Reply Comments at 6.

[^532]: AT&T Comments at 4‑10; Boeing Comments at 38‑40; DirectTV
    Comments at 33‑34; EchoStar Comments at 22‑24, 29; MDS America *Ex
    Parte* Presentation (filed Oct. 26, 2000); MDS America *Ex Parte*
    submission at 1‑2 (filed March 18, 2002); SBCA Comments at 9‑12;
    SkyTower Comments at 3‑4.

[^533]: AT&T Comments at 4 *citing* *McElroy Electronics Corp. v. FCC*,
    86 F.3d 248, 257 (D.C. Cir. 1996); DirectTV Comments at 33 *citing
    Ridge Radio Corp. v. FCC*, 292 F.2d 770, 773 (D.C. Cir. 1961);
    EchoStar Comments at 23‑24 *citing Maxcell Telecom Plus, Inc. v.
    FCC*, 815 F.2d 1551 (D.C. Cir. 1987).

[^534]: *See Ku‑Band Cut‑Off Notice*.

[^535]: *Id*.

[^536]: *McElroy Electronics Corp. v. FCC*, 86 F.3d at 257; *Ridge Radio
    Corp. v. FCC*, 292 F.2d at 773; *Maxcell Telecom Plus, Inc. v. FCC*,
    815 F.2d at 1551.

[^537]: *See* Broadwave Network, LLC Application for License to Provide
    a New Terrestrial Transport Service in the 12.2‑12.7 GHz Band (filed
    Jan. 8, 1999), Exhibit 3 (Broadwave application); 47 C.F.R. §§
    101.105, 101.107, 101.109, 101.111, 101.115, 101.139, 101.603. We
    note that the waiver requests of Pegasus and SRL raise similar
    issues and are resolved herein as well.

[^538]: *See* 47 C.F.R. § 1.925(b)(1).

[^539]: 47 C.F.R. §§ 101.105, 101.107, 101.109, 101.111, 101.115.

[^540]: Broadwave Application Exhibit 3, page 3.

[^541]: Northpoint Reply Comments to Northpoint Waiver at 5.

[^542]: *Id*.

[^543]: *See*, *e.g.* MITRE Report.

[^544]: For example, in the *35 MHz MO&O*, the Commission determined
    that a change of policy with respect to the use of certain
    frequencies should take place within the context of a rule making
    rather than a series of waivers. Amendment of Section 22.501(a) of
    the Rules to Allow the 35 MHz Frequency Band to be used for One‑way
    Signaling on an Exclusive Basis in the Domestic Public Land Mobile
    Radio Service, *Memorandum Opinion and Order and Notice of Proposed
    Rule Making*, 78 FCC2d 438 (1980) (*35 MHz MO&O*)*.* In addition,
    the Commission declined to grant waivers that raised policy
    questions involving the best use of the spectrum, and opted for a
    rulemaking proceeding to address additional rules that would be
    needed to govern new uses of the band. Rulemaking to Amend Parts 1,
    2, 21, and 25 of the Commission\'s Rules to Redesignate the
    27.5‑29.5 GHz Frequency Band, to Reallocate the 29.5‑30.0 GHz
    Frequency Band, to Establish Rules and Policies for Local Multipoint
    Distribution Service and for Fixed Satellite Services, *Report and
    Order*, 12 FCC Rcd 12,545 (1997). The Commission's decision to allow
    all interested parties the opportunity to comment and provide an
    opportunity to proceed in a thorough manner in that proceeding was
    affirmed in *Melcher v. FCC*, 134 F.3d 1143 (D.C.Cir. 1998).

[^545]: *See Stockholders of Renaissance Communications Corp. and
    Tribune Co.*, 12 FCC Rcd 11866, 11887‑88 ¶ 50 (1997) *citing
    Community Television of Southern California v. Gottfried*, 459 U.S.
    at 511 (1983).

[^546]: *See Stockholders of Renaissance Communications Corp. and
    Tribune Co.*, 12 FCC Rcd at 11887‑88 ¶ 50 *citing Community
    Television of Southern California v. Gottfried*, 459 U.S. at 511.

[^547]: *See id.*

[^548]: *FCC v. National Citizens Com. For Broadcasting*, 98 S.Ct. 2096,
    2119 n.29 (1978); *SEC v. Chernery Corp*. 332 U.S. 194, 202‑203
    (1947).

[^549]: *See* Fresno Mobile Radio, Inc. *et. al*., *Order on
    Reconsideration*, (rel. May 13, 1986) (*Fresno Mobile*) *citing
    National Petroleum Refiners Assoc. v. FTC*, 482 F.2d 672, 681‑683
    (D.C. Cir. 1973), *cert. Denied*, 415 U.S. 951 (1974).

[^550]: *NLRB v. Wyman Gordon Co*., 394 U.S. 759, 764 (1969).

[^551]: *See* para. 6; We also note that Northpoint's Petition sought to
    modify our Rules to authorize DBS licensees and their affiliates to
    provide this new service. Northpoint Petition. Although the Petition
    is different from the waiver in that Northpoint sought the
    authorizations for itself, we do not believe this change in the
    ultimate licensee negates the global interference concerns or the
    far‑reaching impact of permitting this new service in the
    12.2‑12.7 GHz band. The Northpoint Petition was filed on March 6,
    1998. The Commission invited comment on the petition on March 23,
    1998.

[^552]: Northpoint Reply Comments to the Northpoint Waiver at 12.

[^553]: *Id*.

[^554]: Redesignation of the 17.9‑19.7 GHz Frequency Band, Blanket
    Licensing of Satellite Earth Stations in the 17.7‑20.2 GHz and
    27.5‑30.0 GHz Frequency Bands, and the Allocation of Additional
    Spectrum in the 17.3‑17.8 GHz and 24.75‑25.25 GHz Frequency Bands
    for Broadcast Satellite‑Service Use*, Report and Order*, 15 FCC Rcd.
    13,430, 13,443‑13,462 (2000).

[^555]: *See, e.g.,* SRL Application Exhibit 1 page 3; Pegasus
    Application Exhibit 1 page 1; MDS America Comments at 10‑11.

[^556]: *See* The Boeing Company Application for Blanket Authority to
    Operate Up to Eight Hundred Technically Identical Transmit and
    Receive Mobile Earth Stations Aboard Aircraft in the 14.0-14.5 GHz
    and 11.7-12.2 GHz Frequency Bands, *Order and Authorization*, 16 FCC
    Rcd 22,645, at 22652, 22653 ¶¶ 16, 18 ( 2001*)(Boeing Two-Way
    Order*); The Boeing Company, *Order and Authorization*, 16 FCC Rcd
    5864 ¶ 9 (Int'l Bur./OET 2001) (*Boeing Receive-Only Order*).

[^557]: 47 C.F.R. § 2.106.

[^558]: *Boeing Two-Way Order,* 16 FCC Rcd at 22652 ¶ 16; *Boeing
    Receive-Only Order*, 16 FCC Rcd at 5866-7 ¶ 9.

[^559]: *Boeing Two-Way Order*, 16 FCC Rcd at 22,653 ¶ 18.

[^560]: *Boeing Two-Way Order*, 16 FCC Rcd at 22,647-9 ¶¶ 5-8.

[^561]: *Boeing Two-Way Order*, 16 FCC Rcd at 22,653 ¶ 18. For example,
    we note that the Commission already permitted mobile communications
    with satellite on a waiver basis in this band for Omnitracs.
    Therefore, the feasibility of these operations had been demonstrated
    and was not highly contested.

[^562]: *Boeing Receive-Only Order*, 16 FCC Rcd at 5866-7 ¶ 9; *Boeing
    Two-Way Order*, 16 FCC Rcd at 22650-1¶ 12.

[^563]: *Boeing Receive-Only Order*, 16 FCC Rcd at 5867 ¶ 10.

[^564]: *See* *Boeing Two-Way Order*, 16 FCC Rcd at 22652 ¶ 16; *Boeing
    Receive-Only Order*, 16 FCC Rcd at 5866-7 ¶ 9).

[^565]: *See* Ex Parte Letter to Mr. William Caton, Acting Secretary,
    FCC, from J.C. Rozendaal, Counsel for Northpoint Technology, Ltd.,
    dated Feb. 22, 2002.

[^566]: *See* paras. 13, 210, *supra*.

[^567]: Prevention of Interference to Direct Broadcast Satellite
    Services, Pub. L. No. 106‑553, App. B. Tit. X, § 1012(a), 114 Stat.
    2762, 2762A‑128, 2762A‑141 (2000) (LOCAL TV Act). This legislation
    reads as follows:

    \(a\) Testing for Harmful Interference.‑The Federal Communications
    Commission shall provide for an independent technical demonstration
    of any terrestrial service technology proposed by any entity that
    has filed an application to provide terrestrial service in the
    direct broadcast satellite frequency band to determine whether the
    terrestrial service technology proposed to be provided by that
    entity will cause harmful interference to any direct broadcast
    satellite service.

    \(b\) Technical Demonstration.‑In order to satisfy the requirement
    of subsection (a) for any pending application, the Commission shall
    select an engineering firm or other qualified entity independent of
    any interested party based on a recommendation made by the Institute
    of Electrical and Electronics Engineers (IEEE), or a similar
    independent professional organization, to perform the technical
    demonstration or analysis. The demonstration shall be concluded
    within 60 days after the date of enactment of this Act and shall be
    subject to public notice and comment for not more than 30 days
    thereafter.

    \(c\) Definitions.‑As used in this section:

    > \(1\) Direct broadcast satellite frequency band.‑The term \"direct
    > broadcast satellite frequency band\" means the band of frequencies
    > at 12.2 to 12.7 gigahertz.
    >
    > \(2\) Direct broadcast satellite service.‑The term \"direct
    > broadcast satellite service\" means any direct broadcast satellite
    > system operating in the direct broadcast satellite frequency band.

[^568]: Northpoint Reply Comments at 9.

[^569]: As a general matter, the use of different words within the same
    statutory context strongly suggests that different meanings were
    intended. "Where Congress has chosen different language in proximate
    subsections of the same statute, courts are obligated to give that
    choice effect." *See Cable Huntington Hospital, Inc. v. Shalala*,
    101 F.3d 984, 988 (4^th^ Cir. 1996) (quotation omitted); *see also*
    2A N. Singer, Sutherland on Statutory Construction § 46.07 (5th
    ed.1992 and Supp.1996) (\"\[W\]hen the legislature uses certain
    language in one part of the statute and different language in
    another, the court assumes different meanings were intended.\").

[^570]: As a matter of statutory interpretation, we are obligated to
    interpret statutory language in a manner that gives meaning to each
    word ‑‑ if at all possible ‑‑ over an interpretation that renders
    certain words superfluous. *See, e.g., Hoffman v. Connecticut Dept.
    of Income Maintenance*, 429 U.S. 96, 103 (1989) (statute should be
    construed to "give effect, if possible, to every clause and word"*);
    Northwest Forest Resource Council v. Glickman*, 82 F.3d 825, 833‑34
    (9th Cir. 1996) ("statute must be interpreted to give significance
    to all of its parts ... statutes should not be construed to make
    surplusage of any provision."). *See also Office of Consumer\'s
    Counsel v. FERC*, 783 F.2d 206, 220 (D.C. Cir. 1986) (same).

[^571]: MDS America *Ex Parte* submission at 2‑3 (filed March 18, 2002),
    concurring.

[^572]: *See* MITRE Report at Executive Summary xvi, xvii.

[^573]: Any request for waiver of these rules would likewise have to
    show that the waiver would not cause harmful interference to DBS
    services. *See* para. 235, *supra*.

[^574]: LOCAL TV Act § 1012(a).

[^575]: For example, the American Heritage Dictionary of the English
    Language contains a definition of technology as "the scientific
    method and material used to achieve a commercial or industry
    objective." *See* <http://www.bartleby.com/61/91/T0079100.html>. The
    Merriam‑Webster's Collegiate Dictionary includes a definition of
    technology that is "the specialized aspects of a particular field of
    endeavor." *See* http://www.m‑w.com.

[^576]: To illustrate this relationship, we note that MITRE recommended
    that power levels above 14 dBm could be problematic due to rain
    scatter, and the rules we adopt here limit maximum MVDDS power to 14
    dBm. MITRE provided measurements and test results which form the
    basis of the antenna pattern used here to evaluate the EPFD
    contours. Although MITRE recommended that the
    interference‑mitigation region be based on an increase in DBS
    baseline unavailability of ten percent and used a receiver threshold
    of video quality 6 or VQ6 (equivalent to less than 1 uncorrected
    error per 15 seconds, but more than 1 per minute), we adopt the ten
    percent baseline but use a more conservative threshold for
    acceptable interference to a consumer, QEF (equivalent to 1
    uncorrected error per hour). For purposes of clarification, we note
    further that although MITRE recommends defining an
    interference‑mitigation region based on a carrier‑to‑interference
    ratio (C/I), our rules use equivalent power flux density (EPFD),
    which is a logical outgrowth of C/I that is related by a
    straightforward conversion. C/I is a comparison measurement in clear
    air of the undesired MVDDS transmitter signal and desired satellite
    signal received at any given point, while EPFD is a measurement
    taken after the DBS receiver and considers many other factors such
    as obstructions and the receive antenna characteristics.

[^577]: *See* 47 U.S.C. § 309(j)(1), (2). Section 309(j)(2) exempts from
    auctions licenses and construction permits for public safety radio
    services, digital television service licenses and permits given to
    existing terrestrial broadcast licensees to replace their analog
    television service licenses, and licenses and construction permits
    for noncommercial educational broadcast stations and public
    broadcast stations under 47 U.S.C. § 397(6).

[^578]: *Further Notice,* 16 FCC Rcd at 4221 ¶ 334.

[^579]: *Id.* at 4218 ¶ 326. *See also* ORBIT Act, Pub. L. 106‑180, 114
    Stat. 48 § 647 (codified at 47 U.S.C. § 647).

[^580]: *See* para.130, *supra*.

[^581]: Northpoint Comments at 22 *citing* 47 U.S.C. § 309(j)(1).

[^582]: Northpoint Comments at 23.

[^583]: *Id.*

[^584]: *Id*. at 23‑31. CU *et al*. and NABOB also support Northpoint's
    contention that the grant of Northpoint's application would promote
    the public interest objectives of Section 309(j)(3). *See* CU *et
    al.* Reply Comments at 9‑10, 17‑18; NABOB Reply Comments at 3‑7.
    *See also* NAB Reply Comments at 3 (urging the Commission to grant
    Northpoint's waiver request).

[^585]: AT&T Comments at 3, 6, 8; AT&T Reply Comment at 3‑4; NRTC
    Comments at 13; Boeing Comments at 39‑40; Boeing Reply Comments at
    13‑14; EchoStar Comments at 29; EchoStar Reply Comments at 7; SBCA
    Reply Comments at 6; SkyBridge Reply Comments at 18. *See also* 47
    U.S.C. § 309(j)(13)(F).

[^586]: *See* Implementation of Sections 309(j) and 337 of the
    Communications Act of 1934 as Amended, WT Docket No. 99‑87, *Report
    and Order and Further Notice of Proposed Rule Making*, 15 FCC Rcd
    22709 (2000) (*BBA Report and Order)*.

[^587]: *Id.* at 22718-23 ¶¶ 20‑27.

[^588]: *Id.*

[^589]: *Id.* Consistent with this conclusion, the U.S. Court of Appeals
    for the D.C. Circuit has concluded that the Section 309(j)(6)(E)
    obligation does not foreclose new licensing schemes that are likely
    to result in mutual exclusivity. The court stated that if the
    Commission finds such schemes to be in the public interest, it may
    implement them "without regard to \[S\]ection 309(j)(6)(E) which
    imposes an obligation only to minimize mutual exclusivity 'in the
    public interest,' ... and 'within the framework of existing
    policies' ..." *See Benkelman Telephone Co., et al. v. FCC*, 220
    F.3d 601, 606 (D.C. Cir. 2000) (*petition for rehearing on other
    grounds pending*).

[^590]: Site‑based licensing does not provide licensees with the same
    flexibility and, as discussed above, it is also resource intensive
    for applicants and licensees. *See* paras. 130-132, *supra*, where
    we also decline to adopt a nationwide license area. The auction of a
    single nationwide license would disadvantage small businesses
    seeking to participate in MVDDS.

[^591]: *See* Implementation of Section 309(j) of the Communications Act
    -- Competitive Bidding, *Second Report and Order,* 9 FCC Rcd 2348,
    2352 ¶¶ 3‑7 (1994).

[^592]: *See* 47 U.S.C. § 309(j)(13)(F).

[^593]: Northpoint Comments at 16.

[^594]: Section 647 provides: "Notwithstanding any other provision of
    law, the Commission shall not have the authority to assign by
    competitive bidding ... spectrum used for the provision of
    international or global satellite communications services." ORBIT
    Act, Pub. L. No. 106‑180, 114 Stat. 48 § 647 (enacted Mar. 12,
    2000).

[^595]: Northpoint Comments at 16; Northpoint Reply Comments at 6.

[^596]: *National Public Radio, Inc. v. FCC*, 254 F.3d 226 (D.C. Cir.
    2001) (*NPR*).

[^597]: Northpoint Ex Parte filing on Sept. 19, 2001.

[^598]: In the *Further Notice* we rejected Northpoint's interpretation
    of the ORBIT Act and stated that where we establish a domestic
    terrestrial service, as we proposed to do here, the ORBIT Act does
    not bar auctioning licenses to provide that service. *See* *Further
    Notice,* 16 FCC Rcd at 4218 ¶ 326. *See also* Amendment of the
    Commission\'s Rules With Regard to the 3650‑3700 MHz Government
    Transfer Band, ET Docket No. 98‑237; The 4.9 GHz Band Transferred
    from Federal Government Use, WT Docket No. 00‑32, *First Report and
    Order and Second Notice of Proposed Rule Making,* 15 FCC Rcd 20488
    at ¶ 20 n.64 (2000) (stating that the assignment of licenses for
    terrestrial services by competitive bidding is not prohibited by the
    ORBIT Act); *24 GHz Report and Order*, 15 FCC Rcd 16934 (adopting
    rules to award licenses for terrestrial fixed service by competitive
    bidding in the 24 GHz band, which is also allocated to satellite
    services); *39 GHz* *R&O*, 12 FCC Rcd 18600; 39 GHz Band Auction
    Closes, *Public Notice,* DA 00‑1035, Report No. AUC‑30‑E (rel. May
    10, 2000) (assigning terrestrial fixed service licenses by auction
    in the 39 GHz band, which is also allocated to satellite services).
    *See also* TRW INC., Request for Waiver of the Commission's Rules to
    Provide Fixed Satellite Service in the 39 GHz Band, *Memorandum
    Opinion and Order*, DA 01‑371, File No. 0000137436 (rel. March 12,
    2001). *But cf.* Flexibility for Delivery of Communications by
    Mobile Satellite Service Providers in the 2 GHz Band, the L‑Band,
    and the 1.6/2.4 GHz Band, IB Docket No. 01‑185*, Notice of Proposed
    Rule Making,* 16 FCC Rcd 15532 (2001).

[^599]: *See* EchoStar Comments at 29; EchoStar Reply Comments at 14‑15;
    Boeing Comments at 39‑40; AT&T Comments at 3; AT&T Reply Comments at
    2; DTV Reply Comments at 31; NRTC Comments at 13; NRTC Reply
    Comments at 6‑7; SBCA Reply Comments at 8‑9; SkyBridge Reply
    Comments at ii, 19‑20 and 22.

[^600]: The legislative history explains the purpose of the section as
    follows:

    > New section 649 \[section 647\] prevents the Commission from using
    > competitive bidding procedures (*i.e.*, auctions) to award
    > licenses for spectrum or orbital locations used for providing
    > international satellite services. In addition, it requires the
    > Administration to oppose the adoption of auctions to award
    > licenses for orbital locations or satellite services in the ITU
    > and other fora*.*
    >
    > The Committee believes that auctions of spectrum or orbital
    > locations could threaten the viability and availability of global
    > and international satellite services, particularly because
    > concurrent or successive spectrum auctions in the numerous
    > countries in which U.S.‑owned global satellite service providers
    > seek downlink or service provision licenses could place
    > significant financial burdens on providers of such services. This
    > problem would be compounded by the fact that the multi‑year period
    > required for design, construction and launch of global and
    > international satellite systems usually requires service providers
    > to invest substantial resources well before they obtain all needed
    > worldwide licenses and spectrum assignments. The uncertainty
    > created by spectrum auctions could disrupt the availability of
    > capital for such projects, and significantly reduce the available
    > benefits offered by global and international satellite systems.

    Report of Committee on Commerce, Communications Satellite
    Competition and Privatization Act of 1998, H.R. Rep. No.494, 105
    Cong., 2nd Sess. 64‑65 (1998). *See also* Report on the Activity of
    the Committee on Commerce for the 106^th^ Congress. H.R. Rep.
    106‑1047 at 38. (Jan. 2, 2001) (stating that the bill prohibits the
    Commission from auctioning orbital slots or spectrum assignments for
    global satellite systems).

[^601]: *Id*.

[^602]: *NPR,* 254 F. 3d at 228‑29.

[^603]: Letter from J.C. Rozendaal, counsel for Northpoint Technology,
    Ltd., to Magalie Roman‑Salas, Secretary, FCC (filed Sept. 19, 2001)
    at 2.

[^604]: LOCAL TV Act, § 1012(b).

[^605]: *See* SBCA *Ex Parte* (filed Dec. 21, 2001) at 11 ("If Congress
    had meant to establish a deadline, it would have done so directly.
    Indeed, in other parts of the LOCAL TV Act, Congress specifically
    directed the Commission not to accept particular filings. *See,
    e.g.,* section 1007(a)(2), 47 U.S.C. § 1106(a)(2) (precluding
    petitions to deny major modifications of cellular applications). The
    fact that explicit language precluding the submission of certain
    documents is set forth in section 1007 but not in section 1012
    undermines Northpoint's argument that such a limitation should be
    read into section 1012. *See, e.g., Moshe Gozlon‑Peretz v. United
    States*, 498 U.S. 395, 404 (1990) (when Congress includes language
    in one section of a statutory scheme but omits it in another, the
    exclusion is presumed "intentional and purposeful"); *Russello v.
    United States,* 463 U.S. 16, 23, 78 (1983) (same)).

[^606]: Ex‑Parte Letter to The Honorable Michael K. Powell, Chairman,
    FCC, from Sophia Collier, President, BroadwaveUSA, dated Nov. 28,
    2001.

[^607]: *Id*. Notably, Northpoint does not distinguish between
    site‑based and geographic area licenses. Site‑based licenses
    authorize one or more individual transmitters in a city, or a set of
    microwave paths. In contrast, the auctioned licenses authorize
    service in an entire geographic area, *e.g.*, nationwide, MTA, EA,
    etc. The proffered calculation inaccurately suggests that award of a
    large number of licenses is tantamount to award of a large amount of
    spectrum when, in fact, a single geographic area license may confer
    the right to use more spectrum than many site‑based licenses. A
    comparison of license grants is only indicative of the number of
    physical license records that we retain.

[^608]: *See Bachow Commmunications, Inc. v. FCC*, 237 F.3d 683, 691‑692
    (D.C. Cir. 2001); *Benkelman Telephone Co. v. FCC*, 220 F.3d at 606.

[^609]: Ex‑Parte Letter to The Honorable Michael K. Powell, Chairman,
    FCC, from Sophia Collier, President, BroadwaveUSA, dated Nov. 28,
    2001. SkyBridge disputes Northpoint's contention and states that
    Northpoint mischaracterizes many relevant facts and regulatory
    practices. *See* SkyBridge *Ex‑Parte* filed on Dec. 21, 2001.

[^610]: *See* MCI Telecommunications Corporation bids \$682,500,000 for
    last available nationwide DBS slot, *FCC News* (rel. Jan. 25, 1996);
    EchoStar DBS Corporation wins 24 DBS channels at the 148 degree
    orbital location with a high bid of \$52,295,000, *FCC News* (rel.
    Jan. 26, 1996); Wireless Telecommunications Bureau announces auction
    winners of DBS auction, *Public Notice* (rel. Jan. 29, 1996); and
    FCC Announces Auction Winners for Digital Audio Radio Service,
    *Public Notice*, DA 97‑656 (rel. Apr. 2, 1997).

[^611]: 47 U.S.C. § 309(j)(3), (6).

[^612]: *See* *BBA NPRM*, 14 FCC Rcd 5206, ¶ 65 (1999).

[^613]: *See* H.R. Conf. Rep. No. 105‑217, 105^th^ Cong., 1^st^ Sess.,
    at 572 (stating that the Balanced Budget Act's omission of an
    auction exemption for licenses to provide global satellite services
    should not be construed as a Congressional endorsement of auctions
    for such licenses and stating that the treatment of global satellite
    systems raises numerous public policy questions which are better
    handled in the context of substantive legislation rather than budget
    legislation).

[^614]: *See* para. 242, *supra*.

[^615]: *Further Notice,* 16 FCC Rcd at 4221‑4222 ¶ 335.

[^616]: *Id.*

[^617]: *See*, *e.g.,* Amendment of Part 1 of the Commission\'s Rules --
    Competitive Bidding Procedures, WT Docket No. 97‑82, *Order,
    Memorandum Opinion and Order and Notice of Proposed Rule Making,* 12
    FCC Rcd 5686 (1997); Amendment of Part 1 of the Commission\'s Rules
    -- Competitive Bidding Procedures, Allocation of Spectrum Below
    5 GHz Transferred from Federal Government Use, *Third Report and
    Order and Second Further Notice of Proposed Rule Making*, 13 FCC Rcd
    374 (1997) (modified by Erratum, DA 98‑419 (rel. Mar. 2, 1998))
    (*Part 1 Third Report and Order)*; Amendment of Part 1 of the
    Commission\'s Rules -- Competitive Bidding Procedures, *Order on
    Reconsideration of the Third Report and Order, Fifth Report and
    Order, and Fourth Further Notice of Proposed Rule Making*, 15 FCC
    Rcd 15293 (2000) (*Part 1 Recon Order and Part 1 Fifth Report and
    Order)*; Amendment of Part 1 of the Commission\'s Rules --
    Competitive Bidding Procedures, *Seventh Report and Order*, 16 FCC
    Rcd 17546 (2001); Amendment of Part 1 of the Commission\'s Rules --
    Competitive Bidding Procedures, *Eighth Report and Order*, FCC 02-34
    (rel. Feb. 13, 2002).

[^618]: *See* Pegasus Comments at 19.

[^619]: *See Part 1 Recon Order and Part 1 Fifth Report and Order*, 15
    FCC Rcd 15293 (recons. pending).

[^620]: *Further Notice,* 16 FCC Rcd at 4222‑4223 ¶¶ 336‑339.

[^621]: *Id.*

[^622]: In the *Part 1 Third Report and Order*, we adopted a standard
    schedule of bidding credits, the levels of which were developed
    based on the Commission's auction experience. *Part 1 Third Report
    and* Order, 13 FCC Rcd at 403‑04 ¶ 47. *See also* 47 C.F.R.
    § 1.2110(f)(2).

[^623]: 47 C.F.R. § 1.2110(f)(2).

[^624]: EchoStar Comments at 29‑30.

[^625]: *Id.* at 30.

[^626]: *Id*.

[^627]: Pegasus Reply Comments at 21.

[^628]: *See, e.g*., Inquiry into the Development of Regulatory Policy
    in Regard to Direct Broadcast Satellite or the Period Following the
    1983 Regional Administrative Radio Conference, *Report and Order,*
    90 FCC2d 676 (1982); Revisions of Rules and Policies for the Direct
    Broadcast Satellite Service, *Report and Order*, 11 FCC Rcd 9712
    (1995); Amendment to Commission's Regulatory Policies Governing
    Domestic Fixed Satellite and Separate International Satellite
    Systems, *Report and Order,* 11 FCC Rcd 2429 (1996); Policy and
    Rules for the Direct Broadcast Satellite Service, 13 FCC Rcd 6907
    (1998); Amendment to Commission's Regulatory Policies Governing
    Domestic Fixed Satellite and Separate International Satellite
    Systems, *Order on Reconsideration*, 16 FCC Rcd 15579 (2001); and 47
    C.F.R. Part 100. *See also* 47 U.S.C. § 301. Section 301 expressly
    states that a license does not convey the ownership of the channels
    and no license shall be construed to create any rights beyond the
    terms, conditions, and periods of the license.

[^629]: 47 U.S.C. § 309(j)(6)(B)(C). *See also* 47 U.S.C. § 309(j)(6)(D)
    for the fact that a license obtained in an auction will not convey
    any additional rights beyond its terms and conditions.

[^630]: *See* paras.134-135, *supra*.

[^631]: *See* 47 U.S.C. § 309(j)(3)(B).

[^632]: EchoStar Comments at 30 (citing Promoting Efficient Use of
    Spectrum Through Elimination of Barriers to the Development of
    Secondary Markets*, Notice of Proposed Rulemaking,* 15 FCC Rcd 24203
    (2000) (*Secondary Markets NPRM*)).

[^633]: *See* *Policy Statement on Principles for Reallocation of
    Spectrum to Encourage the Development of Telecommunications
    Technologies for the New Millennium*, 14 FCC Rcd 19868 (1999)
    (*Spectrum* *Policy* *Statement*). *See also* Principles for
    Promoting the Efficient Use of Spectrum by Encouraging the
    Development of Secondary Markets, *Policy Statement,* 15 FCC Rcd
    24178 (2000) (*Secondary Markets Policy Statement)*.

[^634]: We note that the Commission has sought comment, in a pending
    rulemaking proceeding, on its DBS \"non‑conforming use\" policy.
    Specifically, the Commission has asked whether it should eliminate,
    relax, or maintain time or other restrictions on non‑DBS uses of DBS
    spectrum, and whether permitting \"flexible use\" of DBS spectrum
    will enhance or impede competition in the multichannel video
    programming distribution market. The Commission\'s request for
    comment, however, is limited to the issue of DBS providers\'
    satellite uses of DBS spectrum and does not contemplate flexible use
    that would extend to DBS licensees\' use of their authorizations to
    provide terrestrial service. *See* *Public* *Notice*, \"The
    Commission Requests Further Comment in Part 100 Rulemaking
    Proceeding on Non‑Conforming Use of Direct Broadcast Satellite
    Service Spectrum,\" IB Docket No. 98‑21, FCC 00‑426 (rel. Dec. 8,
    2000).

[^635]: EchoStar Comments at 30‑31.

[^636]: *Id.* Pegasus disagrees, noting that EchoStar provides no
    appropriate precedent*. See* Pegasus Reply Comments at 21‑22.

[^637]: 47 U.S.C. § 309(j)(8).

[^638]: EchoStar Comments at 31.

[^639]: *See* 47 C.F.R. § 1.2101 *et. seq*.

[^640]: *Id.*

[^641]: *See* para.180, *supra*. *See also Secondary Markets Policy
    Statement,* 15 FCC Rcd 24178, and *Secondary Markets NPRM,* 15 FCC
    Rcd 24203.

[^642]: 47 U.S.C. §§ 309(j)(3)(B), 309(j)(4)(C).

[^643]: *See* Pub. L. No. 104-13.

[^644]: *See* 5 U.S.C. § 603. The RFA, *see* 5 U.S.C. § 601 *et. seq*.,
    has been amended by the *Contract With America Advancement Act of
    1996*, Pub. L. No. 104‑121, 110 Stat. 847 (1996) (CWAAA). Title II
    of the CWAAA is the *Small Business Regulatory Enforcement Fairness
    Act of 1996* (SBREFA).

[^645]: *First R&O and Further Notice*, 16 FCC Rcd at 4269 (2001).

[^646]: *See* 5 U.S.C. § 604.

[^647]: 47 U.S.C. §§ 257, 309(j)(Communications Act).

[^648]: *See, e.g.*, MDS America Reply Comments at 14; Northpoint
    Comments at 33; Pegasus Comments at 19; Satellite Receivers Ltd.
    Comments at 4.

[^649]: *See* RTG Reply Comments at 2‑3.

[^650]: *See* Pegasus Comments at 14‑15; Pegasus Reply Comments at 15.

[^651]: 5 U.S.C. § 603(b)(3).

[^652]: 5 U.S.C. § 601(6).

[^653]: 5 U.S.C. § 601(3) (incorporating by reference the definition of
    "small business concern" in 15 U.S.C. § 632). Pursuant to the RFA,
    the statutory definition of a small business applies "unless an
    agency, after consultation with the Office of Advocacy of the Small
    Business Administration and after opportunity for public comment,
    establishes one or more definitions of such term which are
    appropriate to the activities of the agency and publishes such
    definition(s) in the Federal Register." 5 U.S.C. § 601(3).

[^654]: Small Business Act, 15 U.S.C. § 632 (1996).

[^655]: 13 C.F.R. § 121.201 (Cable Networks (NAICS 513210) Cable and
    Other Program Distribution (NAICS 513220)).

[^656]: *Id.* (U.S. Department of Commerce, Bureau of the Census,
    Industry and Enterprise Receipts Size Report, Table) (Bureau of the
    Census data under contract to the Office of Advocacy of the SBA).

[^657]: 47 C.F.R. § 76.901(e). The Commission developed this definition
    based on its determinations that a small cable system operator is
    one with annual revenues of \$100 million or less. *Sixth Report and
    Order and Eleventh Order on Reconsideration*, MM Docket Nos. 92‑266
    and 93‑215, 10 FCC Rcd 7393 (1995).

[^658]: Paul Kagan Associates, Inc., Cable TV Investor, Feb. 29, 1996
    (based on figures for Dec. 30, 1995).

[^659]: 47 U.S.C. § 543(m)(2).

[^660]: Paul Kagan Associates, Inc., Cable TV Investor, Feb. 29, 1996
    (based on figures for Dec. 30, 1995).

[^661]: These definitions have been approved by the U.S. Small Business
    Administration. *See* Letter to Margaret W. Weiner, Deputy Chief,
    Auctions and Industry Analysis Division, Wireless Telecommunications
    Bureau, from Aida Alvarez, Administrator, U.S. Small Business
    Administration (Sept. 14, 2000).

[^662]: *See* 5 U.S.C. § 801(a)(1)(A).

[^663]: *See* 5 U.S.C. § 604(b).

[^664]: A method for converting annual statistics to worst‑month
    statistics is contained in Recommendation ITU‑R P.841‑1, *Conversion
    Of Annual Statistics To Worst‑Month Statistics*.

[^665]: In this analysis, we omitted the uplink (earth‑to‑space) outage
    contribution.

[^666]: ITU‑R Recommendation P.618‑6 "Propagation Data and Prediction
    Method required for the Design of Earth‑Space Telecommunication
    Systems" provides a procedure to estimate the long‑term statistics
    of the space‑to‑earth path precipitation attenuation and the
    associated percentage of outage time.

[^667]: The interference scaling factor is 1 dB for MVDDS transmitters
    employing the modulation discussed in Section 3.1.5 of the MITRE
    Report (*i.e.*, a QPSK modulated signal passed through a square‑root
    raised cosine filter). For other modulation and filtering schemes,
    the interference scaling factor can be measured using the procedures
    described in Appendix A of the MITRE Report.

[^668]: MITRE, for example, simulated DBS receiver susceptibilities for
    all combinations of code rate, interleaver length, and Reed-Solomon
    error correction used by DBS vendors and compared those results with
    its field and laboratory measurements.

[^669]: In a few instances, the increase in unavailability was on the
    order of 20-30%. This occurred, for example, in some locations
    served by the satellite at 110º. This DBS satellite is scheduled to
    be replaced with a newer higher-powered satellite. As discussed
    below, it was not felt that the relatively poorer performance of
    this satellite should dominate the determination of the EPFDs. It
    should also be noted that these cases where the "difference in
    outage" or increase in unavailability was above 20% did not include
    the "worst case" (*i.e.*, the situation with the largest minutes of
    unavailability). The analysis also shows that in these cases the new
    total calculated outages will still be less than the current outages
    in a few of the cities served by that satellite. More generally, as
    discussed elsewhere, the increase in unavailability due to an MVDDS
    signal -- even beyond 10% \-- do not rise to the level of harmful
    interference.

[^670]: *See, for example,* column labeled Baseline Outage, Percent
    Availability in Satellite Outage Analysis Results below.

[^671]: We note that, for the same reasons, even higher percentage
    increases in unavailability in the range of 30% or higher would
    still constitute a relatively minor change. Since we have used a 10%
    starting point as a basis for calculating a small set of easily
    administered power limits (*i.e.*, the four regional EPFD limits),
    however, we have ensured that the likely real world unavailability
    increases that occur under these limits will generally not range
    this high.

[^672]: *See* footnote Error: Reference source not found, *supra*.

[^673]: *See*, Satellite Outage Analysis Results below.

[^674]: The angle at which the DBS receiver looks at the satellite is
    called the elevation angle of the receiver. For example, a receiver
    located at the equator looking at a satellite directly overhead has
    the maximum elevation angle of 90 degrees and a receiver located at
    the same longitude as the satellite and about 80º North latitude
    would have the minimum elevation angle of zero degrees. DBS system
    performance is directly related to the elevation angle, as trees,
    buildings and other obstacles can prevent optimum reception of the
    satellite transmission. Elevation angles of 20 degrees or greater
    are generally considered acceptable for DBS reception using small
    antennas. *See*, for example, *Staff Report on Policies for
    Regulation of Direct Broadcast Satellites,* September 1980.

[^675]: *See* *infra* Satellite Outage Results Analysis for the
    Satellites at 61.5^o^ and 148^o^. As the MITRE Report suggested, it
    does not make sense to tailor the MVDDS interference criterion to
    protect DBS operations where reliable service is not now expected.
    *See* MITRE Report at 6-7 (suggesting that locations with more than
    100 hours of baseline outage should not be protected). In this
    regard, the two sample calculations for Seattle from both the
    satellite at 61.5º and at 148º had baseline outages in excess of 100
    hours indicating that calculations should take into account the use
    of larger DBS receive antennas. Excluding the values for Seattle,
    the data for the satellites at 61.5^o^ and 148^o^ show "outage
    increases" from 4.4% to 28.5% with a median value of 7.3% and a mean
    of 10.8%. These values compare favorably with the values for the
    CONUS satellites in our 32-city sample.

[^676]: For example, if one were to look at the values for the DBS
    satellite at 101º, one would see that the outage increases are 9.8%
    for Seattle, 9.9% for Portland, 10.5% for San Francisco and 9.3% in
    Sacramento. These values indicate that the overall impact throughout
    the Pacific Northwest/Northern California region including for those
    DBS customers in rural areas of this region will be between about 9
    and 10%.

[^677]: For example, EchoStar submitted an application that shows an
    EIRP of 53 dBW for the entire eastern half of the United States.
    Similarly, this application generally shows an EIRP of 51 dBW for
    the rest of the continental United States. *See*, Application for
    Minor Modifications of DBS Authorizations, Launch and Operation
    Authority, File No. DBS-88-01/68-SAT-ML-96/70, File No.
    DBS-88-02/6-SAT-ML-97/71, File No. DBS-74-SAT-P/L-96/72, Filed Dec.
    30, 1997. Long term climatology data show the mean annual
    precipitation in inches does not fluctuate significantly over large
    areas throughout the United States. *See* climatography of the U.S.
    No. 81 - Supplement \# 3, Maps of Annual 1961-1990 Normal
    Temperature, Precipitation and Degree Days. This supplement is
    available at
    http://lwf.ncdc.noaa.gov/oa/documentlibrary/clim81supp3/clim81.html.

[^678]: That is, the DBS receive antenna and the MVDDS transmitter were
    assumed to be at the same elevation AMSL and the MVDDS transmitter
    had a clear line-of-sight to the DBS receive antenna.

[^679]: *See* Recommendation ITU-R BO.1444, *Protection of the BSS in
    the 12 GHz Band and Associated Feeder Links in the 17 GHz Band from
    Interference Caused by Non-GSO FSS Systems.* The cities are:
    Seattle, WA; Tampa, FL; Minneapolis, MN; Juneau, AL; Anchorage, AL;
    Honolulu, HI; Chicago, IL; Dallas, TX; Houston; TX; San Antonio, TX;
    Los Angeles, CA; Miami, FL; Salt Lake City, UT.

[^680]: The elevation above mean sea level, however, was used in the
    model to determine the baseline DBS outage and the outage that would
    be present with MVDDS.

[^681]: *Id*. at 5-6.

[^682]: *Id*.

[^683]: *See* Satellite Outage Analysis Results below.

[^684]: The Eastern region consists of the District of Columbia and the
    following states: Maine, New Hampshire, Vermont, Massachusetts,
    Rhode Island, Connecticut, New York, New Jersey, Pennsylvania,
    Delaware, Maryland, Virginia, West Virginia, Kentucky, Tennessee,
    North Carolina, South Carolina, Georgia, Alabama, Mississippi,
    Louisiana, and Florida.

[^685]: The Midwestern region consists of the following states: Ohio,
    Michigan, Indiana, Wisconsin, Illinois, Minnesota, Iowa, Missouri,
    Arkansas, South Dakota, Nebraska, Kansas, Oklahoma, and Texas.

[^686]: The Southwestern region consists of the following states:
    Wyoming, Colorado, New Mexico, Utah, Arizona, Nevada, and California
    (south of 37^o^ North Latitude).

[^687]: The Northwestern region consists of the following states:
    Washington, Oregon, California (north of 37^o^ North Latitude),
    Idaho, Montana, North Dakota, Alaska, and Hawaii.

[^688]: This result occurs because the change in elevation angle of the
    DBS earth station over the distance of an MVDDS service area is
    negligible. For example, the elevation angle of a DBS earth station
    in Washington, DC (38.9^o^ north latitude, 77.0^o^ west longitude,
    0.01 km AMSL) pointed toward the satellite at 101^o^ west longitude
    is 38.52 degrees. If that earth station were moved 20 miles east
    (38.9^o^ north latitude, 76.63^o^ west longitude, 0.01 km AMSL), the
    elevation angle changes by 0.19 degrees to 38.33 degrees. Because
    MVDDS service areas will generally be much less than 20 miles
    across, the difference between the elevation angles of earth
    stations at the edges of the service area will be even less.

[^689]: The interference scaling factor is 1 dB for MVDDS transmitters
    employing the modulation discussed in Section 3.1.5 of the MITRE
    Report (*i.e.*, a QPSK modulated signal passed through a square‑root
    raised cosine filter). For other modulation and filtering schemes,
    the interference scaling factor can be measured using the procedures
    described in Appendix A of the MITRE Report.

[^690]: See 47 U.S.C. § 614 (cable); 47 U.S.C. § 338 (satellite).

[^691]: See Northpoint Petition for Rulemaking, RM 9245, filed March 6,
    1998.

[^692]: The term "dissent" here and subsequently refers to Commissioner
    Martin's dissent.

[^693]: The Commission elsewhere requires primary users to incorporate
    protective measures, up to and including antenna replacement, to
    avoid receiving harmful interference. See, e.g., 47 C.F.R. 74.937(a)
    (\"Should interference occur and it can be demonstrated that the
    existing \[primary ITFS\] receiving antenna is inadequate, a more
    suitable antenna should be installed. In such cases, installation of
    the new receiving antenna will be the responsibility of the \[ITFS\]
    system operator serving the receive site.\"); 47 C.F.R. 101.115(d)
    (\"The Commission shall require the replacement of any \[primary
    Fixed microwave directional\] antenna . . . that does not meet
    performance Standard A . . . at the expense of the licensee
    operating such antenna, upon a showing that said antenna \[is likely
    to\] receive interference from . . . any other authorized antenna or
    applied for station whereas a higher performance antenna is not
    likely to involve such interference.\"); 47 C.F.R. 90.361 (finding
    that primary multilateration LMS systems cannot claim harmful
    interference from parts 15 and 97 operations that operate under
    certain conditions).

[^694]: The dissent notes that the majority "allows MVDDS licensees to
    cause harmful interference . . after one year . . . even if it is
    caused by a change in MVDDS operation." Yet the Order concluded that
    any major modification would trigger a new one year period during
    which complaints could be filed. Major modifications include: any
    change in frequency tolerance, bandwidth, emission type, transmit
    antenna height more than 3 meters, antenna polarization, in the
    radius of a circular area of operation, or any change in any other
    kind of area operation. See 47 CFR § 1.929(d)(1).

[^695]: A similar argument applies to DBS interference complaints that
    arise more than a year after the MVDDS service is installed. Any
    interference issues should be detected and repaired in a reasonable
    time -- and providing all parties a year to "get it right" strikes a
    reasonable balance of the interests.

[^696]: See 47 C.F.R. 2.1 ("harmful interference" is defined as
    "interference which endangers the functioning of a radionavigation
    service or of other safety services or seriously degrades obstructs,
    or repeatedly interrupts a radiocommunication service.. .. ")
    Harmful interference has never been defined on a service specific
    basis. Therefore the dissent's criticism of our "failure" to do so
    here also rings hollow. Prior to initiation of service and for one
    year thereafter, existing DBS subscribers may bring a claim
    asserting MVDDS has exceeded the EPFD limit. The MVDDS base
    transmitter must then turn off if it exceeds the cap.

[^697]: The four regions were created to account for variations in DBS
    reliability due to changes in rainfall and the satellite power and
    antenna gain pattern for different locations.

[^698]: The DBS community reached a voluntary agreement on NGSO/DBS
    sharing with the same 10% figure. The 10% for NGSOs is also an
    "average" and is based on the construction and operation of 3.5 NGSO
    systems. In that case, the parallel calculations were based on data
    from 14 U.S. cities -- rather than the 32 cities used for our
    calculations here.

[^699]: Significantly the sum total of the entire range of EPFDs across
    all 32 markets and all three satellites is less than 8 dB. We note
    that DBS providers would have the right to petition for special
    relief from our rules even if we chose not to adopt a specific
    safety valve procedure. *See, e.g.,* 47 CFR §§ 1.2, 1.3.

[^700]: Similarly the dissent criticizes the model for failing to weight
    the rainfall data based on the population. For example by weighting
    Los Angeles at four times the weight given to Denver based on
    population. Yet if such weighting were to occur it would only
    further diminish the weight given to the rural areas that the
    dissent later argues need to be given greater weight.

[^701]: Obviously each customer also has a unique DBS antenna mount with
    particularized shielding and protection dynamics that are not
    accounted for in any proposed formula. These protections make the
    actual occurrence of the predicted interference levels unlikely.

[^702]: The dissent's most recent draft adds the failure to use
    Nielsen's Designated Market Areas (DMAs) to its criticisms. Although
    we are sympathetic to the use of DMAs, the Commission does not have
    a blanket licenses from Nielsen to use these designations. The
    Commission pursued possible use of DMAs with Nielsen during this
    proceeding, but ultimately concluded that use of DMAs could raise
    copyright infringement issues. To the extent the FCC can overcome
    this legal hurdle, the use of DMAs may well serve the public
    interest.

[^703]: The dissent makes much of some city data that shows a potential
    increase in unavailability of 20-30%. However that data is largely
    from the satellite at 110 degrees -- a satellite that is scheduled
    to be retired long before MVDDS is due to be deployed.

[^704]: The selectivity of the dissent's data points is illustrated by
    its discussion of the Seattle market. The dissent chooses to analyze
    Seattle's increase in outage times based on a satellite designed to
    serve the Eastern United States.

[^705]: The satellite with the largest baseline outage time is actually
    at 119 degrees. In February 2002 Echostar launched a new more
    powerful satellite to this orbital position.

[^706]: There is nothing procedurally inappropriate in making changes,
    substantive or non-substantive, after adoption to further elucidate
    the rationale for the Commission's decision. Such revisions are
    permissible when all non-dissenting Commissioners concur in the
    changes. Here all of the Commissioners who supported the relevant
    sections agreed to the post-adoption edits.

[^707]: The Commission did not alter the fundamental policy approach --
    that an EPFD based on a average increase of 10% in outage time was
    appropriate.

[^708]: *First Report and Order and Further Notice of Proposed
    Rulemaking*, 16 FCC Rcd 4096, ¶ 18 (2001)

[^709]: See Rural Local Broadcast Signal Act (RLBSA) § 2002(b)(2). See
    also Order at ¶¶ 8 and 18-20, discussing the non-interference
    provisions of RLBSA and SHVIA; and 47 C.F.R. § 2.106, Footnote
    S5.490 (prohibiting "harmful interference" by terrestrial
    radiocommunications services to DBS services).

[^710]: Order as adopted on April 11 at ¶ 78.

[^711]: "We used a prescribed methodology and a predictive model to
    calculate EPFD values, based on a criterion that would *limit the
    amount of increased BSS unavailability to ten percent* over a
    baseline level of BSS unavailability due to the presence of MVDDS."
    (emphasis supplied). Order as adopted on April 11 at ¶ 67.

    \"At the outset, we conclude that the appropriate criterion on which
    to base the EPFD level is DBS unavailability of an *additional ten
    percent over the baseline* unavailability, and that this increase in
    unavailability would be in addition to the unavailability allowance
    relied upon for developing NGSO FSS limits.\" ^?^ Order as adopted
    on April 11 at ¶ 73 (emphasis supplied).

    \"We also conclude that our decision *to use a ten percent increase*
    in unavailability as a criteria for developing EPFD limits for
    MVDDS, in addition to the unavailability allowance relied upon for
    developing NGSO FSS limits, *strikes an appropriate balance* among
    the three services that will share this frequency band.\" Order as
    adopted on April 11 at ¶ 74 (emphasis supplied).

    \"We now conclude, based on further analysis of these issues by
    Commission staff and independent analysis performed by MITRE, that
    calculating MVDDS EPFD *limits based on a criterion on ten percent*
    *strikes a reasonable balance* between protecting DBS from
    interference and deploying MVDDS.\" Order as adopted on April 11 at
    ¶ 75 (emphasis supplied).

    \"In addition, a criterion of *ten percent unavailability for
    developing MVDDS EPFD limits* is the same used by NGSO FSS for the
    aggregate interference level from all of the NGSO FSS systems.\"
    Order as adopted on April 11 at ¶ 75 (emphasis supplied).

    \"We believe that in this band, under these circumstances, a *ten
    percent increase in unavailability* is the correct basis on which to
    calculate EPFD limits for MVDDS. On a going forward basis, the DBS
    operators should take this into account in designing future
    satellites.\" Order as adopted on April 11 at ¶ 75 (emphasis
    supplied).

    "We modeled the satellites at 61.5 degrees and 148 degrees west
    longitude to ensure that the effect of our adopted EPFD limits on
    outage time is consistent with the protection criterion from which
    we started (i.e., allow *additional outage of ten percent* over
    baseline)." Order as adopted on April 11 at ¶ 80, note 198 (emphasis
    supplied).

    \"Using the parameters and assumptions described above, we analyzed
    the top 32 television markets to determine an EPFD value for each
    market consistent *with limiting additional DBS outages to ten
    percent* over the baseline.\" Order as adopted on April 11 at ¶ 80
    (emphasis supplied).

[^712]: Order as adopted on April 11, at ¶ 67.

[^713]: Order at ¶ 84, note 210.

[^714]: Appendix G at 151, note 668.

[^715]: Order as adopted on April 11 at ¶ 78.

[^716]: Joint Statement of Chairman Michael Powell and Commissioner
    Kathleen Abernathy at 5.

[^717]: Order at ¶ 78.

[^718]: Order at ¶ 84, note 210.

[^719]: Appendix G at 151.

[^720]: Order at ¶ 68. See also Order at ¶¶ 53, 72, 76 and 85.

[^721]: I approve only the auctions, eligibility and broadcast carriage
    sections of the Order at §§ V.B.5, V.B.2.b and V.B.1.d respectively.

[^722]: *Fox Television Stations v. FCC,* 280 F.3d 1027, 1042 (D.C. Cir.
    2002); *United States Telephone Association v. FCC,* 188 F.3d 521
    (D.C. Cir. 1999).

[^723]: 47 C.F.R. § 2.1.

[^724]: See note 1, supra.

[^725]: Order at ¶ 68.

[^726]: Order at ¶19.

[^727]: See note 3, above.

[^728]: Order at ¶ 72: "In adopting these EPFD limits, we find that an
    increase of 10% over current DBS unavailability is the appropriate
    *starting point* for our analysis but need not be a strict limit."
    (emphasis supplied). See also ¶¶ 79 and 84, note 210, and Appendix G
    at 150.

[^729]: Order at ¶ 72.

[^730]: See, e.g., Order at ¶¶ 72 and 78, And Appendix G at 150, 151 and
    156.

    Order at ¶ 72: "Our EPFD limits result in increased unavailability
    of *approximately 10%* \-- in some instances it is greater than 10%
    of current unavailability, while in others it is less than 10%."
    (emphasis supplied).

    Order at ¶ 78: "We now conclude, based on further analysis of these
    issues by Commission staff and the independent analysis performed by
    MITRE, that calculating MVDDS EPFD limits that allow additional
    increased unavailability *in the range of 10%* ensures DBS of
    protection from harmful interference while creating an opportunity
    to deploy MVDDS." (emphasis supplied).

    Appendix G at 150:

    "It should be noted that this 10% *criterion is not used as a strict
    limit but rather as a guideline* in developing the actual regional
    EPFD requirements, described below." (emphasis supplied).

    "In specific cases, calculated outages *may be above or below this
    10% value*." (emphasis supplied).

    In light of the conservative nature of this overall approach, sound
    engineering judgment suggests that using the *10% average
    unavailability criterion* as a strict limit is unnecessary and
    inappropriate especially given the wide variability in the provision
    of DBS services noted above." (emphasis supplied).

    Appendix G at 151:

    "Based on the wide deviation already present in the provision of DBS
    service, an increase in unavailability of *about 10%* is a
    relatively minor change and should not be perceptible to DBS
    customers." (emphasis supplied).

    "...even higher percentage increases in unavailability *in the range
    of 30% or higher* would still constitute *a relatively minor
    change*." (emphasis supplied).

    Appendix G at 156:

    "That is, the EPFD for the region would *generally ensure* that for
    locations within the region any increase in DBS outage would be
    consistent with our *10% approximate increase in unavailability
    guideline."* (emphasis supplied).

    "Further, the data for all locations show outage increases for
    locations throughout the U.S. are consistent with our *10%
    approximate increase in unavailability guideline."* (emphasis
    supplied).

[^731]: EPFD represents the MVDDS signal power detected by the DBS
    transmitter.

[^732]: See Order at ¶ 68.

[^733]: See Order at ¶¶ 72, 79, 84, note 210, and at Appendix G at 150.

[^734]: These 11 cities include Baton Rouge, Louisiana; New Orleans,
    Louisiana; Shreveport, Louisiana; Billings, Montana; Fargo, North
    Dakota; Salt Lake City, Utah; Omaha, Nebraska; Oklahoma City,
    Oklahoma; Boise, Idaho; Jackson, Mississippi; and Honolulu, Hawaii.

[^735]: See Appendix G.

[^736]: April 11th version of item.

[^737]: See Order at ¶¶ 71, 72, 79 and 85.

[^738]: MITRE report at 6-5. MITRE is the independent expert selected by
    the Commission to analyze the potential for harmful interference
    between DBS and an entity applying to provide terrestrial service in
    the 12 GHz band.

[^739]: See MITRE report at 6-5 - 6-7.

[^740]: Further Notice, 16 FCC Rcd. at 4197, ¶ 269. The majority
    characterizes the Further Notice as seeking comment on
    percentage-based increases in unavailability such as "2.86%, ten
    percent, *or any other percentage*." Order at ¶ 78. If they actually
    picked some other percentage, that may have been helpful. However,
    the majority seems to have interpreted "any other" percentage to
    mean either *every other* percentage*,* or *no particular*
    percentage*.*

[^741]: Joint Statement of Chairman Powell and Commissioner Abernathy at
    4.

[^742]: See Order at ¶¶ 40, 42-44. See also Further Notice, 16 FCC Rcd.
    at 4197, ¶ 269.

[^743]: *AT&T Wireless Services, Inc. v. FCC,* 270 F.3d 959, 968 (D.C.
    Cir. 2001).

[^744]: Id.

[^745]: *Preparation for International Telecommunication Union World
    Radiocommunication Conferences,* IC Docket 94-31, *Report,* 10
    F.C.C.R. 12,783, 12,803 (1995).

[^746]: RLBSA §2002(b)(2); See also Order at ¶¶ 8, 18-20.

[^747]: See Order at Appendix D, § 101.1440(e).

[^748]: See Order at ¶ 55 ("there will likely be an area surrounding the
    MVDDS transmitting antenna where the interference criteria may not
    be met without some form of mitigation being performed"). However,
    the Order allows continued operation even if there are no techniques
    that would mitigate such interference to new DBS customers.

[^749]: Order at Appendix D, § 101.1440(e).

[^750]: Order at ¶ 92.

[^751]: See Order at Appendix D, § 101.1440(g). The rules require the
    MVDDS licensee to provide the technical parameters of its operation
    at a particular transmitting site to the DBS licensee prior to
    deployment. However, the MVDDS licensee may later change those
    parameters without notice as long as the change does not qualify as
    a "major modification" or cause an "increase in the EPFD contour in
    any direction" pursuant to 47 C.F.R. §1.929. See Order at Appendix
    D, § 101.1440(f). The Order does not protect existing DBS
    subscribers in such situations.

[^752]: MITRE Report at 6-6.

[^753]: 47 C.F.R. § 2.1(c).

[^754]: *See, e.g., Midnight Sun Broadcasting Co.,* 11 F.C.C. 1119
    (1947); *Sudbrink Broadcasting of Georgia,* 65 F.C.C.2d 691 (1977).

[^755]: *Deployment of Wireline Services Offering Advanced
    Telecommunications Capability,* CC Dockets 98-147, 96-98, *Third
    Report and Order in CC Docket 98-147 and Fourth Report and Order in
    CC Docket 96-98,* 14 FCC Rcd. 20,912, ¶ 211 (1999).

[^756]: *Amendment of Section 2.106 of the Commission's Rules to
    Allocate Spectrum at 2 GHz for Use by the Mobile-Satellite Service,*
    ET Docket 95-18, *Second Report and Order and Second Memorandum
    Opinion and Order,* 15 FCC Rcd. 12,315, ¶ 133 (2000).

[^757]: Joint Press Statement of Chairman Michael Powell and
    Commissioner Kathleen Abernathy (April 23, 2002).

[^758]: See Order at ¶¶ 83 and 85.

[^759]: Order at ¶ 53.

[^760]: Order at ¶ 132.

[^761]: Order at ¶ 24.

[^762]: Order at ¶¶ 23-24.

[^763]: Order at ¶ 4, note 10.

[^764]: See Order at ¶ 132.

[^765]: See www.nielsenmedia.com/copyright.html.

[^766]: See Northpoint comments at 32; see also SRL comments at 3.

[^767]: See Order at ¶ 132.

[^768]: Order at ¶ 132.

[^769]: See Order at ¶ 239.

[^770]: See 47 U.S.C. § 309(j)(6)(E).

[^771]: See 47 U.S.C. § 1110.

[^772]: See 47 U.S.C. § 647. See also *National Public Radio,* 254 F.3d
    226 (D.C. Cir. 2001).

[^773]: Penetration rate statistics taken from www.echostarmerger.com.
    See also state-by-state penetration rate statistics provided by SBCA
    in CS Docket No. 01-129, *Matter of the Annual Assessment of the
    State of Competition in the Market for Delivery of Video
    Programming* (Aug. 3, 2001).

[^774]: DBS service is provided from the satellites located at the
    following five orbital slots: 61.5°, 101.0°, 110.0°, 119.0°, and
    148.0°. Order at ¶ 82, and note 205. The Order considers only the
    satellites providing service to the contiguous United States -
    101.0°, 110.0°, and 119.0,° and excludes the satellites at 61.5° and
    148.0°.

[^775]: Order at ¶ 82.

[^776]: Letter from Pantelis Michalopoulos and Steven Reed, counsel for
    Echostar Satellite Corporation, to William F. Canton, Acting
    Secretary, Federal Communications Commission, (February 12, 2002),
    ex parte comment in CS Docket No. 00-96, *In the Matter of
    Implementation of the Satellite Home Viewer Improvement Act of 1999;
    Broadcast Signal Carriage Issues*.

[^777]: Order at ¶ 82 (emphasis added).

[^778]: Order at ¶ 82.

[^779]: MITRE report at 6-5 -- 6-7; see also Appendix G at 152, note
    672.

[^780]: Appendix G at 152, note 672.

[^781]: Appendix G at 154**.**

[^782]: MITRE report at 6-5 -- 6-7.

[^783]: See Appendix G at 152.

[^784]: The following 28 states are not included in the sampling:
    Alabama, Alaska, Arkansas, Connecticut, Delaware, Hawaii, Idaho,
    Iowa, Kentucky, Louisiana, Maine, Mississippi, Montana, Nebraska,
    Nevada, New Hampshire, New Jersey, New Mexico, North Dakota,
    Maryland, Oklahoma, Rhode Island, South Dakota, Utah, Vermont,
    Virginia, West Virginia, Wyoming.

[^785]: January 1, 2002 Nielsen Media Research Estimates.

[^786]: Appendix G at 152.

[^787]: See Order at ¶ 79, note 179.

[^788]: Appendix G at 152.

[^789]: Appendix G at 152.

[^790]: Appendix G at 153.

[^791]: Appendix G at 158-160.

[^792]: Appendix G at 157-160.

[^793]: See Appendix G.

[^794]: Joint Statement of Chairman Powell and Commissioner Abernathy at
    5, note 7.

[^795]: Order at ¶ 84, note 210.

[^796]: Order at ¶ 67.

[^797]: See Appendix G.

[^798]: Order at ¶ 84, note 210.

[^799]: Order at ¶ 84, note 210. The majority states that this satellite
    will be replaced with a newer, higher-powered satellite.

[^800]: Appendix G at 160.

[^801]: Appendix G at 167.

[^802]: See Further Note, 16 FCC Rcd 4096, ¶¶ 266-276; MITRE Report at
    6-5 -- 6-7.

[^803]: Further Notice at ¶ 269.

[^804]: Id. at ¶ 270.

[^805]: MITRE Report at 6-5 - 6-7.