[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."[^1] 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."[^2] 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. [^3] 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."[^4] 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,"[^5] and that "even higher percentage increases in
unavailability in the range of 30% or higher would still constitute a
relatively minor change."[^6] 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."[^7]

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."[^8] 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%"[^9] means "20-30%,"[^10] then does "in the range of 30% or
higher"[^11] 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?[^12] 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.[^13]

[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. [^14] 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."[^15]
Both by statute and under the Commission's rules, MVDDS is prohibited
from creating "harmful interference" to the DBS service.[^16] 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."[^17] 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.'"[^18] 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.[^19] 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"[^20] 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."[^21] 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."[^22] 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[^23] levels that that are no longer keyed to
guarantee a specific level of interference protection.[^24] 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.[^25] 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%.[^26] 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.[^27]

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."[^28] (Now it seems they believe that regardless
of the percentage increase, the interference will be "imperceptible" and
"insubstantial."[^29])

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.[^30] And, instead of
averaging the satellite calculations, MITRE recommended using only the
DBS satellite at each longitude having the largest baseline
unavailability.[^31] 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."[^32] 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.[^33] The
10% NGSO/DBS sharing criteria is an *aggregate measure-* a *maximum*
*limit* - quite the opposite of the 10% "starting point" used here.[^34]
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."[^35] 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.[^36] 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."[^37]

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.[^38] 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.[^39] 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.[^40] Indeed, new DBS
customers "shall have no further rights of complaint" against the MVDDS
licensee.[^41] 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."[^42] 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.[^43] 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."[^44] 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.[^45] 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.**[^46] **This "first in
time, first in right" doctrine, which the Commission has described as
"the mainstay of interference protection"**[^47] **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.[^48]

**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."[^49] 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.[^50]
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."[^51] 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,[^52] and notes that
"MVDDS is technologically well suited for fulfilling the local signal
delivery goals of RLBSA."[^53] The majority spends some time discussing
how MVDDS may be used to fill a void with respect to local broadcast
service.[^54] 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).[^55] 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."[^56] 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.[^57] 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,[^58] the decision not to employ DMAs is
for their own good.[^59] They state that rejecting DMAs will protect
MVDDS licensees against possible claims of copyright infringement that
may be brought by Nielsen.[^60] 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.[^61] On the other
hand, Northpoint argues that, consistent with its statutory obligation
to avoid mutual exclusivity generally,[^62] 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.[^63] 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."[^64] 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).[^65] 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.[^66] 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.[^67] 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.[^68] 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."[^69]

Furthermore, the conclusory opinion that "the specified EPFD levels will
also protect these \[excluded\] orbital locations"[^70] 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.[^71] 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.[^72] 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."[^73] 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.[^74] 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.[^75] Consumers in entire states do not even get counted
in the averaging process.[^76] Approximately 55% of the nation's
population lives in those 32 cities.[^77] 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."[^78] 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.[^79] 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."[^80] 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."[^81] "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."[^82] 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,[^83] and 11 out of the 12 "additional cities"
sampled.[^84]

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.[^85] 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."[^86] 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%.[^87] 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."[^88] 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.[^89] 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.[^90] 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.°[^91] 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.[^92] Customers obtaining service
from the satellites at 61.5°and 148° also will experience increased
outages in the 20-30% range.[^93] 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.[^94] The Further Notice asked
whether the Commission should "allow MVDDS to cause *up to 10% increased
unavailability*."[^95] The Further Notice then applied the protection
criteria to *each MVDDS transmitter* and did not discuss averaging.[^96]
Similarly, MITRE recommended a 10% increase in relative unavailability
for each *service area,* and did not recommend averaging.[^97] The
majority fails to explain sufficiently why it rejected these
recommendations and proposals.

[^1]: 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).

[^2]: Order as adopted on April 11 at ¶ 78.

[^3]: "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).

[^4]: Order as adopted on April 11, at ¶ 67.

[^5]: Order at ¶ 84, note 210.

[^6]: Appendix G at 151, note 668.

[^7]: Order as adopted on April 11 at ¶ 78.

[^8]: Joint Statement of Chairman Michael Powell and Commissioner
    Kathleen Abernathy at 5.

[^9]: Order at ¶ 78.

[^10]: Order at ¶ 84, note 210.

[^11]: Appendix G at 151.

[^12]: Order at ¶ 68. See also Order at ¶¶ 53, 72, 76 and 85.

[^13]: 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.

[^14]: *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).

[^15]: 47 C.F.R. § 2.1.

[^16]: See note 1, supra.

[^17]: Order at ¶ 68.

[^18]: Order at ¶19.

[^19]: See note 3, above.

[^20]: 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.

[^21]: Order at ¶ 72.

[^22]: 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).

[^23]: EPFD represents the MVDDS signal power detected by the DBS
    transmitter.

[^24]: See Order at ¶ 68.

[^25]: See Order at ¶¶ 72, 79, 84, note 210, and at Appendix G at 150.

[^26]: 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.

[^27]: See Appendix G.

[^28]: April 11th version of item.

[^29]: See Order at ¶¶ 71, 72, 79 and 85.

[^30]: 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.

[^31]: See MITRE report at 6-5 - 6-7.

[^32]: 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*.*

[^33]: Joint Statement of Chairman Powell and Commissioner Abernathy at
    4.

[^34]: See Order at ¶¶ 40, 42-44. See also Further Notice, 16 FCC Rcd.
    at 4197, ¶ 269.

[^35]: *AT&T Wireless Services, Inc. v. FCC,* 270 F.3d 959, 968 (D.C.
    Cir. 2001).

[^36]: Id.

[^37]: *Preparation for International Telecommunication Union World
    Radiocommunication Conferences,* IC Docket 94-31, *Report,* 10
    F.C.C.R. 12,783, 12,803 (1995).

[^38]: RLBSA §2002(b)(2); See also Order at ¶¶ 8, 18-20.

[^39]: See Order at Appendix D, § 101.1440(e).

[^40]: 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.

[^41]: Order at Appendix D, § 101.1440(e).

[^42]: Order at ¶ 92.

[^43]: 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.

[^44]: MITRE Report at 6-6.

[^45]: 47 C.F.R. § 2.1(c).

[^46]: *See, e.g., Midnight Sun Broadcasting Co.,* 11 F.C.C. 1119
    (1947); *Sudbrink Broadcasting of Georgia,* 65 F.C.C.2d 691 (1977).

[^47]: *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).

[^48]: *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).

[^49]: Joint Press Statement of Chairman Michael Powell and Commissioner
    Kathleen Abernathy (April 23, 2002).

[^50]: See Order at ¶¶ 83 and 85.

[^51]: Order at ¶ 53.

[^52]: Order at ¶ 132.

[^53]: Order at ¶ 24.

[^54]: Order at ¶¶ 23-24.

[^55]: Order at ¶ 4, note 10.

[^56]: See Order at ¶ 132.

[^57]: See www.nielsenmedia.com/copyright.html.

[^58]: See Northpoint comments at 32; see also SRL comments at 3.

[^59]: See Order at ¶ 132.

[^60]: Order at ¶ 132.

[^61]: See Order at ¶ 239.

[^62]: See 47 U.S.C. § 309(j)(6)(E).

[^63]: See 47 U.S.C. § 1110.

[^64]: See 47 U.S.C. § 647. See also *National Public Radio,* 254 F.3d
    226 (D.C. Cir. 2001).

[^65]: 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).

[^66]: 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°.

[^67]: Order at ¶ 82.

[^68]: 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*.

[^69]: Order at ¶ 82 (emphasis added).

[^70]: Order at ¶ 82.

[^71]: MITRE report at 6-5 -- 6-7; see also Appendix G at 152, note 672.

[^72]: Appendix G at 152, note 672.

[^73]: Appendix G at 154**.**

[^74]: MITRE report at 6-5 -- 6-7.

[^75]: See Appendix G at 152.

[^76]: 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.

[^77]: January 1, 2002 Nielsen Media Research Estimates.

[^78]: Appendix G at 152.

[^79]: See Order at ¶ 79, note 179.

[^80]: Appendix G at 152.

[^81]: Appendix G at 152.

[^82]: Appendix G at 153.

[^83]: Appendix G at 158-160.

[^84]: Appendix G at 157-160.

[^85]: See Appendix G.

[^86]: Joint Statement of Chairman Powell and Commissioner Abernathy at
    5, note 7.

[^87]: Order at ¶ 84, note 210.

[^88]: Order at ¶ 67.

[^89]: See Appendix G.

[^90]: Order at ¶ 84, note 210.

[^91]: Order at ¶ 84, note 210. The majority states that this satellite
    will be replaced with a newer, higher-powered satellite.

[^92]: Appendix G at 160.

[^93]: Appendix G at 167.

[^94]: See Further Note, 16 FCC Rcd 4096, ¶¶ 266-276; MITRE Report at
    6-5 -- 6-7.

[^95]: Further Notice at ¶ 269.

[^96]: Id. at ¶ 270.

[^97]: MITRE Report at 6-5 - 6-7.