**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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**ORDER**

**Adopted:** April 19, 2001 **Released:** April 27, 2001

By the Commission:

# introduction

1.  With this Order, we implement the provisions of the LPTV Pilot
    Project Digital Data Services Act (DDSA). The DDSA mandates that the
    Commission issue regulations establishing a pilot project pursuant
    to which specified Low Power Television (LPTV) licensees or
    permittees can provide digital data services to demonstrate the
    feasibility of using low-power television stations to provide
    high-speed wireless digital data service, including Internet access,
    to unserved areas.[^1] As defined by the new law, digital data
    service includes: (1) digitally-based interactive broadcast service;
    and (2) wireless Internet access.[^2] The DDSA identifies twelve
    specific LPTV stations that are eligible to participate in this
    pilot project, and directs the Commission to select a station and
    repeaters to be determined by the FCC to provide service to
    specified areas in Alaska.

2.  The DDSA requires that the Commission promulgate regulations with
    respect to this pilot project by April 20, 2001,[^3] and specifies
    interference and other criteria that the designated LPTV stations
    must meet.[^4] The Commission is not required to use notice and
    comment rule making under 5 U.S.C. § 553 to promulgate these
    regulations and the other provisions of that section are also
    inapplicable.[^5] Further, the DDSA specifies that the Commission
    require quarterly reports from the specified LPTV stations
    participating in the project, including information with respect to
    interference and market success in providing digital data
    service.[^6] In addition, the Commission is required to collect fees
    with respect to the new service.[^7] Finally, on June 30, 2001 and
    on June 30, 2002, the Commission is required to submit a report to
    Congress, under Section 143(b) of the new law, "evaluating the
    utility of using low-power television stations to provide high-speed
    digital data service," based on the pilot projects.

# DISCUSSION

## Authorization and Filing Requirements

3.  [Eligibility]{.underline}. The DDSA specifies twelve LPTV stations
    eligible to participate in the pilot project. These are: KHLM-LP,
    Houston, Texas; WTAM-LP, Tampa, Florida; WWRJ-LP, Jacksonville,
    Florida; WVBG-LP, Albany, New York; KHHI-LP, Honolulu, Hawaii;
    KPHE-LP (K19DD), Phoenix, Arizona; K34FI, Bozeman, Montana; K65GZ,
    Bozeman, Montana; WXOB-LP, Richmond, Virginia; WIIW-LP, Nashville,
    Tennessee; WSPY-LP, Plano, Illinois; and W24AJ, Aurora, Illinois.
    The DDSA also includes in the LPTV stations eligible to participate
    in the pilot project a station and repeaters to be determined by the
    Federal Communications Commission for the sole purpose of providing
    service to communities in the Kenai Peninsula Borough and Matanuska
    Susitna Borough in Alaska.[^8] We invite LPTV stations in these
    locations to come forward and present their proposals to commence
    such a pilot project. The proposal should be submitted in an
    informal application complying with the requirements set out in this
    [Order]{.underline}.

4.  [Services to be provided]{.underline}. The DDSA defines permissible
    digital data services to include: digitally based interactive
    broadcast service and wireless Internet access.[^9] Wireless
    Internet can be provided on a one-way or two-way basis on the LPTV
    channel and may be portable or fixed. The DDSA also provides that
    the service may be connected to the Internet "via a band allocated
    to Interactive Video and Data Service." Use of frequencies for this
    service, now called 218-219 MHz service under Part 95, subpart F,
    must be in accordance with the licensing and other rules established
    for that service. Specifically, an entity will be permitted to use
    218-219 MHz Service frequencies for provision of digital data
    services pursuant to the DDSA by obtaining a 218-219 MHz Service
    license via competitive bidding or by entering into an agreement
    with a 218-219 MHz Service licensee regarding use of its spectrum
    ([e.g.]{.underline}, through partitioning and/or disaggregation
    agreements under 47 C.F.R. § 95.823).[^10] The DDSA specifically
    indicates that LPTV digital data services may be delivered via
    multiple transmitters at multiple locations. Therefore, we will
    fashion the requirements for this service to allow the authorized
    LPTV facility to be converted to a main base station and to allow
    additional base stations to be authorized as on-channel boosters.

5.  [General Requirements]{.underline}. As participants in this pilot
    program are LPTV stations, we believe that the LPTV rules, contained
    in Subpart G of Part 74 of the Commission's rules, should continue
    to apply to these stations in all respects, except as specified in
    the statute and in this [Order]{.underline}. First and foremost, the
    LPTV stations participating in the pilot project will continue to
    have the secondary regulatory status accorded to all other LPTV
    stations. Thus, for example, the stations participating in the pilot
    project must provide protection from interference to all primary
    uses of the spectrum, including authorized full-service TV stations,
    authorized full-service DTV stations, and land mobile service
    provided on a "shared-channel" basis. Furthermore, such stations
    must provide protection to other secondary uses that were previously
    authorized or proposed in pending applications relative to the pilot
    project stations' underlying LPTV authorizations. Such other
    secondary uses include other LPTV stations, TV translator stations,
    and TV booster stations. In addition, protection must be afforded
    pursuant to the existing LPTV rules to Class A TV stations.
    Additionally, except as specified herein, all non-technical
    requirements applied to LPTV stations, such as, for example, the
    rules and procedures relating to transfer of LPTV stations, shall
    apply to the stations participating in the pilot project. Any other
    of the Commission's rules that apply to LPTV stations also will
    apply to the participants in the pilot program, except as specified
    herein.[^11] In sum, all rules that apply to LPTV stations will
    apply to the LPTV pilot project stations except as otherwise
    specified herein.

6.  [Service Area]{.underline}. Since these stations will be
    participating in a pilot project to demonstrate the feasibility of a
    new mode of operation for LPTV stations, we conclude that it is
    appropriate that the protected service area of the pilot project
    station be within the protected service signal contour of the
    existing LPTV station under its authorized analog facilities. For
    eligible LPTV stations that have both a license and a construction
    permit to modify the licensed facilities, the pilot project station
    may be operated consistent with either the licensed facilities or
    the facilities authorized in the construction permit (channel and
    service area). Participants will not be allowed to operate both the
    licensed and construction permit facilities at the same time, that
    is, one for digital data transmissions and the other for analog LPTV
    broadcast service. If a pilot project station requests use of
    construction permit facilities, operation of the licensed LPTV
    facilities must cease when operation of the construction permit
    facilities commences. This provision is intended to address
    situations where a station's license and construction permit serve
    mostly different areas, where they are authorized on different
    channels or where both conditions exist. We will afford protection
    to pilot project operations based only on the protection afforded
    the underlying analog LPTV authorization. If an interfering source
    would not be required to protect the underlying LPTV station's
    service (for example interference from a full service analog TV or
    DTV station), then it will not be required to eliminate or reduce
    interference to the pilot project operation. Further, if an
    interfering source would not cause unacceptable interference to the
    underlying LPTV station (based on the LPTV station operating as
    authorized to provide analog TV service), then it also will not be
    required to eliminate or reduce interference to the pilot project
    operation.

7.  [Term of pilot project]{.underline}. The DDSA does not specify how
    long the pilot project should last. Nonetheless, it indicates that
    our last report to Congress on the pilot project is due on June
    30, 2002. Accordingly, we hereby clarify that we will issue
    experimental letter authorizations for the pilot project that will
    expire on June 30, 2002, unless the term is extended prior to that
    date. We delegate authority to the Mass Media Bureau to extend the
    term of the authorizations for individual participants or for
    participants as a group, and to do so by Public Notice, in the event
    that it is determined that the term of the pilot project should be
    extended.

8.  [Application requirements]{.underline}. The DDSA requires that we
    establish "requirements as to the form, manner, and information
    required for submitting requests to the Commission to provide
    digital data service as a pilot project."[^12] The legislation
    specifies that digital data services may not be provided unless
    interference and other criteria are met.[^13] In general, we have
    determined that it is most appropriate to require submission of an
    informal application for experimental authority in a manner
    consistent with Section 73.1510(b) of our rules.[^14] All other
    aspects of Section 73.1510 will not be applicable because they are
    inconsistent with the DDSA.[^15] We will accept applications only
    from the eligible station specified in the DDSA.[^16] Exhibits to
    the informal applications must fully describe the proposed
    experimental program and the technical facilities that are proposed.
    Specifically, for a main base station and any base station boosters,
    we will require information that is also sought in Form 346, which
    is used to request authority to construct or make changes to an
    LPTV, TV translator or TV booster station. The application should
    contain the general information requested in questions 1-3 of
    Section I, the legal certification requested in question 10 of
    Section II, and, for each requested facility, all of the engineering
    information requested in Section III of Form 346. With respect to
    the engineering information: the modulation type and bandwidth
    should be specified; the digital average power should be provided in
    lieu of the peak analog power; base or fixed station transmitting
    antenna beam tilt, if any, and polarization should be specified; for
    response stations, the maximum number of units, the area of
    anticipated operation, the receive and transmit antenna
    characteristics including polarization, gain and directional
    patterns, the largest average digital transmitter output power and
    effective radiated power contemplated for the pilot project, and the
    expected worst-case antenna height above ground should be specified.
    In addition, the application must contain a certification that the
    facilities in the pilot project will conform to the Commission's
    environmental impact rules, including explicitly that the proposed
    operation will not result in RF exposure in excess of the pertinent
    limits and the provisions set forth below. The application should
    also contain certifications of the applicant and of the preparer of
    the engineering information, attesting to the accuracy and
    completeness of the information furnished. Consistent with the
    Commission's treatment of applications for other experimental
    authorizations, this application for digital data services will be
    fee exempt.

9.  [RF Safety]{.underline}. We will require pilot project licensees and
    permittees employing two-way technology to attach labels to every
    response station transceiver (fixed or portable) in a conspicuous
    fashion visible in all directions and readable at distances beyond
    the minimum separation distances. These labels shall give notice of
    the potential radiofrequency safety hazards, and specify minimum
    separation distances. Such labels should include reference to the
    Commission guidelines that apply.[^17] The general
    populations/uncontrolled limits apply to consumer response stations.
    In addition, pilot project licensees and permittees employing
    two-way technology must include a full explanation of the labels
    that appear on their transceivers, as well as reference to the
    applicable Commission guidelines in the instruction manuals and
    other information accompanying the transceivers. This information
    should include advice as to the minimum separation distances
    required between users and radiating antennas to meet the
    Commission\'s exposure guidelines. We will not mandate the specific
    language that must be used, however we will require the use of the
    ANSI-specified warning symbol for RF exposure. We also recommend
    that fixed response antennas be installed by pilot project
    licensees/permittees or by professional personnel under their
    direction. Professional installation will minimize the possibility
    that an antenna will be placed in a location that could expose
    participants in the pilot project or other persons to the radiated
    signal at close proximity and for an extended period of time.

10. [Description of experiment]{.underline}. Section 73.1510(b) requires
    the application to include a description of the nature and purpose
    of the experimentation and of the nature of the experimental signal
    to be transmitted. We will require these applications to specify a
    program of experimentation that fulfills the requirements of the
    DDSA. Specifically, the experiments must address a determination of
    the threshold of perceptible interference to DTV receivers from all
    types of transmission that the pilot project stations operate
    with.[^18] In so doing, the LPTV participants should assess the
    potential for causing interference to the reception of nearby DTV
    stations, including DTV stations that begin operating during the
    pilot project. For instance, LPTV participants should carefully
    assess the potential for interference in those situations where
    pilot project base and/or response stations would operate in the
    service area of a DTV station operating on a first adjacent channel.
    Testing should be designed to facilitate the establishment of
    appropriate operating parameters for all types of proposed
    transmitting facilities, including desired-to-undesired signal
    strength ratios for interference situations and the field strength
    values that represent the range of service. For 2-way service,
    establishing the service range involves reception both to and from
    subscriber or consumer transmission/reception facilities (response
    stations). To the extent possible based on the DTV station
    environment, testing should determine the distances from DTV
    receivers at which pilot project stations, including fixed and/or
    portable response stations, can operate without causing any
    perceptible interference. We believe meaningful interference testing
    would include a combination of observations and signal measurements
    considering such factors as the strengths of desired and undesired
    signals, the nature of the DTV reception equipment (indoor or
    outdoor antennas) and the local signal to noise environment. If
    relevant to the nature of the LPTV data transmissions, interference
    testing should also consider the effects of the simultaneous
    transmissions of multiple response stations, compared with the
    effects of those of single response stations. Testing also must
    include an evaluation of consumer or marketplace acceptance of the
    LPTV digital data technology.

11. [Resolution of interference]{.underline}. The DDSA requires that the
    Commission establish procedures "for the receipt and review of
    interference complaints on an expedited basis...."[^19] In addition,
    the legislation provides that the Commission may limit the provision
    of such service if irremediable interference is caused.[^20] Section
    74.703 of the Commission's rules specifies the applicable
    requirement for LPTV stations correcting a situation of actual
    interference.[^21] Stations participating in this pilot project must
    comply strictly with the requirements of this rule. In addition,
    pursuant to the DDSA, we will require stations in the pilot project
    to take steps to resolve any reported interference promptly.[^22]
    Specifically, upon receipt of a valid interference complaint, the
    licensee or permittee should make every effort to modify or suspend
    operation within 3 hours to eliminate the interference. An
    interference complaint is considered valid if the interference is to
    reception of a station or service that must be protected and it is
    reasonably determined that the interference is from the operation of
    the pilot project station (for example, if the interference is to a
    service on a channel where predicted interference is a concern and
    the interference commenced when a new mode of pilot project station
    operation began). If the complaint is received from any source other
    than the affected broadcaster or station, the pilot project
    participant should fax a copy of the complaint to the affected
    station within 48 hours of its receipt. If the pilot project station
    claims that it is not causing the interference or that the
    interference is not to protected service, it must fax the
    interference complaint and its opposition to the Commission's Mass
    Media Bureau, Video Services Division within 48 hours.[^23] If the
    complaint is received from any source other than the affected
    broadcaster or station, the pilot project participant should at the
    same time fax a copy of the complaint to the affected station. In
    addition, the pilot project participant should fax a copy of its
    opposition to the affected broadcaster or station even if the
    complaint is received from that broadcaster or station. Thereafter,
    the Commission's staff will review the situation and issue a
    decision as quickly as possible, but in any case within the 60 days
    provided in the DDSA.[^24]

12. [Technical operation]{.underline}. We believe that we should permit
    as much flexibility as possible with respect to technical operation.
    We want to allow each station to choose a type of digital modulation
    that it determines appropriate. Where the type of modulation differs
    from the standard DTV system 8-VSB, we will require a full
    description of the modulation the station is proposing to use and an
    exhibit demonstrating that its use would not be expected to cause
    interference to DTV and analog TV service. Such an exhibit is also
    required if a proposed 8-VSB transmission would not comply with the
    out-of-band emission requirements specified in the DTV rules.[^25]

13. We anticipate the possibility that several types of transmission
    facilities may be involved in each pilot project station. First, we
    expect that most, if not all, of these projects will involve digital
    transmissions from a main base station at the authorized site of the
    underlying LPTV station. Unless the evaluation of its digital
    modulation method requires otherwise, we will assume that operation
    of such a facility will not represent a significantly increased
    interference threat compared to the authorized LPTV station if the
    antenna height is not increased and the digital average power does
    not exceed 10 percent of the authorized analog LPTV power (10 dB
    less power). In DTV service, this level of digital power is adequate
    to provide coverage of the same area. Accordingly, the Commission's
    staff will not evaluate at the application stage the interference
    potential of a main digital base station conforming to this
    restriction.

14. The second type of transmission facility might consist of one or
    more additional base stations (boosters) located at sites away from
    the authorized LPTV transmitter site. We propose to treat such
    stations as we have analog TV booster stations except that each
    booster may originate its own data messages. As such, we expect such
    facilities to be limited to a site location, power and antenna
    height combination that does not extend the coverage area of the
    main base station in any direction. We will require an exhibit
    demonstrating that booster coverage is contained within main base
    station coverage, based on the digital field strength predicted from
    the main base station at the protected contour of the underlying
    analog LPTV authorization. Further, we will assume that such an
    operation will not cause additional interference unless an
    interference situation is demonstrated in an informal objection to
    the application. Absent such an objection, the Commission's staff
    will not evaluate at the application stage the interference
    potential of an additional digital base station conforming to this
    restriction.

15. A third possible type of transmission facility is a fixed response
    station communicating with a base station.[^26] We are concerned
    about the interference potential of such facilities, but want to
    allow sufficient flexibility for such stations to allow productive
    testing of desirable power levels and permitted range in terms of
    distance from base station. On balance, we conclude that such
    response stations in this pilot project should use as low an
    effective radiated power (ERP) as is consistent with satisfactory
    communication with a base station, and in no case should the ERP
    (digital average power) exceed 10 watts. We will not specifically
    limit the range of operation from the main or additional base
    stations, but caution participants in this pilot project that they
    must protect other stations from interference in accordance with the
    discussion above.

16. A fourth possible type of transmission facility is a portable
    response station. Again, while we are concerned about the
    interference potential of such a station, we want to allow
    productive testing of desirable power levels and permitted range in
    terms of distance from a base station. Accordingly, we conclude that
    such response stations should use as low an effective radiated power
    (ERP) as is consistent with satisfactory communication with the base
    station, and in no case should the digital average ERP exceed 3
    watts. In addition, the transmitting antenna should be built into
    the portable transceiver. We will not specifically limit the range
    of operation from the main or additional base stations, but caution
    participants in this pilot project that they must protect other
    stations from interference in accordance with the discussion above
    and will not be protected at locations beyond the underlying LPTV
    station's protected signal contour.

17. Additional types of transmission facilities may be proposed, as may
    facilities that conform to one of the listed types, but do not meet
    the specified restrictions. For such requests, the applicant must
    provide sufficiently detailed analysis to allow the Commission staff
    to conclude that interference is unlikely.

18. [Processing]{.underline}. We intend to accept these applications in
    the same manner used in processing other experimental applications.
    The normal "broadcast applications" public notice will be issued,
    and a copy of the application will be available in the public
    reference room. Where an application is found to be acceptable, the
    Mass Media Bureau is delegated authority to authorize the proposed
    operation by an informal letter grant within 60 days, subject to any
    appropriate conditions that we may impose in the authorization. As
    this is an informal application, we will not entertain petitions to
    deny. Informal objections can be filed any time before the
    application is granted.

19. [Facilities changes]{.underline}. The DDSA establishes criteria by
    which to evaluate requests by participants for facilities
    changes.[^27] We interpret this provision as applying to any
    requested changes to the underlying analog LPTV authority. Thus, an
    application to change channel or location must be filed on Form 346
    seeking a construction permit to make changes in a licensed LPTV
    station or a modification of an existing LPTV station construction
    permit. Following grant of the change in the authorized facilities
    of the underlying LPTV station, an informal application to modify
    the pilot project authorization may be filed in accordance with the
    above procedures.

## Notification and Reporting Requirements

20. [Notification Requirements]{.underline}. The DDSA requires that we
    establish "procedures by which a low power television licensee
    participating in a pilot project shall notify television broadcast
    stations in the same market upon commencement of digital data
    services and for ongoing coordination with local broadcasters during
    the test period. ..."[^28] Accordingly, at least twenty days before
    an LPTV licensee or permittee commences operations pursuant to the
    pilot program, it must notify all permittees and licensees of
    television stations in the same market concerning the particulars of
    its proposed operation. For this purpose, we will consider the
    market to include all stations assigned to the Designated Market
    Area (DMA) in which the LPTV pilot project station is located.
    Similarly, the pilot project stations must notify any authorized
    full service TV station whose Grade B contour, authorized DTV
    station whose predicted service contour[^29] and any Class A station
    whose protected service contour overlaps the protected service
    contour of the pilot project station's underlying LPTV
    authorization. The LPTV station that is commencing such operations
    must notify such other television stations in writing or
    electronically and must provide a complete description of its
    technical facilities, including power, modulation format, antenna
    height, and coordinates of any fixed base or booster facilities; the
    power, modulation format, anticipated antenna height, and the
    expected area of operation of any fixed and portable response units;
    as well as the name and telephone number of a person who may be
    contacted in the event of interference. We will require the LPTV
    station to coordinate with such other television stations in its
    market, as defined in this paragraph, before it makes any change to
    its facilities or services that might cause interference to those
    stations, including proposals to expand the range of operation of
    response units beyond the range initially notified. We will also
    require the LPTV stations participating in the pilot project to
    permit local broadcasters to observe the interference testing
    aspects of the pilot project.

21. [Reporting requirements]{.underline}. The DDSA requires that the
    Commission establish quarterly reporting requirements for LPTV
    stations participating in the pilot project.[^30] These quarterly
    reports should be filed by the tenth day of the month following the
    end of the quarter,[^31] and must include information: on the
    station\'s experience with interference complaints and the
    resolution thereof; and information on the station\'s market success
    in providing digital data service.[^32] In addition, the DDSA
    provides that the reports must include "such other information as
    the Commission may require in order to administer this
    subsection."[^33] We will require each pilot project station to
    include a complete description of any interference complaints it
    receives, any interference it determines it may be causing and any
    interference it determines it has received, in its required
    quarterly report to the Commission. We also will require the
    quarterly reports to include data concerning transmission format,
    power and antenna height and determinations of the range within
    which its desired service could be provided, and any other matters
    of technical or operational significance. The reporting requirement
    will commence once experimental authority is granted.

## Fees 

22. Under new Section 336(h)(6), the Commission must assess and collect
    from LPTV stations authorized to participate in the pilot project
    "an annual fee or other schedule or method of payment comparable to
    any fee imposed under the authority of this Act on providers of
    similar services."[^34] The statute allows the Commission to retain
    receipts of the fee "as an offsetting collection to the extent
    necessary to cover the costs of developing and implementing the
    pilot program authorized by this subsection, and regulating and
    supervising the provision of digital data service by low-power
    television stations under this subsection."[^35] The legislation
    also provides that excess amounts "shall be deposited in the
    Treasury in accordance with chapter 33 of title 31, United States
    Code."[^36]

23. Based on the statute, we believe that the services that will be
    offered by LPTV licensees in the pilot project (digitally-based
    interactive broadcast services and wireless Internet access) are
    similar to certain of the services, including ancillary or
    supplementary services, that may be offered by Digital Television
    (DTV) licensees. Accordingly, we will impose on the LPTV licensees a
    comparable fee to that imposed on DTV licensees that offer feeable
    ancillary or supplementary services. Thus, we will impose a fee of
    five percent of gross revenues derived from the digital data
    services provided pursuant to the pilot project to the extent to
    which these services would be feeable if offered by DTV
    licensees.[^37]

24. Not only are the digital data services that may be provided by LPTV
    stations similar to those that may be provided by DTV licensees,
    but, in addition, we believe that a fee of five percent will not
    discourage the provision of these services just as we noted that it
    would not dissuade DTV broadcasters from offering such DTV ancillary
    or supplementary services.[^38] The amount of the fee will vary with
    the gross revenues from these services, *i.e*., with the willingness
    of consumers to pay for such services. Under this fee structure, if
    a given provider of the new service does not find a market and is
    not profitable, its fee will be low. Finally, we believe that this
    fee is a relatively simple fee for LPTV stations to calculate and
    for the Commission to apply. Thus, we believe that it is an
    appropriate fee.[^39]

25. The fee of five percent of gross revenues will apply to the extent
    to which the services provided would be feeable if offered by a DTV
    licensee.[^40] Thus, to the extent that the services are provided
    for a subscriber fee, they will be feeable. Free over-the-air video
    program services will not be feeable. If questions arise as to
    whether certain services are feeable or not,[^41] we can address
    them in the context of an appropriately filed request for
    declaratory ruling.

26. Collection procedures with respect to the five percent of gross
    revenues fee will be identical to those that apply to DTV licensees,
    as outlined in the *Fees R&O*. Since the DDSA requires participating
    licensees to submit quarterly reports, the annual report, on FCC
    Form 317, applicable to DTV licensees will not apply. However, LPTV
    stations in the pilot project that have provided feeable services at
    any point during the twelve-month period ending on September 30,
    will file the FCC's standard remittance form (Form 159) on the
    subsequent December 1. Such annual fee filings will apply until the
    end of the pilot project unless continued thereafter by the FCC. For
    revenues reported December 1, 2001 only, licensees are to certify
    revenues received from the feeable services provided from the
    inception date of the services through September 30, 2001 and remit
    payment of the required fee for that period.

27. LPTV licensees should use Form 159 (the standard fee remittance
    form) for the purpose of paying this fee, filing it by December 1.
    They should follow the instructions for DTV licensees, except
    instead of paying with respect to feeable ancillary or supplementary
    services, they will pay with respect to feeable services provided
    pursuant to the pilot project. They should specify on line 23A the
    station's call sign; on 24A the payment type code "MDDA"; on line
    29A the amount of gross revenues received from feeable services; on
    line 27A the fee which they remit with Form 159, in the amount of
    five percent of the amount specified on line 29A; and on line 28 the
    facility identification number assigned to their station by the
    Commission. The licensee's signature on line 30 certifies under
    penalty of perjury the accuracy of the information reported on Form
    159.[^42]

28. The Commission delegates authority to the Office of Managing
    Director to specify by Public Notice any additional procedures for
    filing and processing the fees required by this [Order]{.underline}
    that are necessary or warranted. The Commission reserves the right
    to audit each participating licensee's records which support the
    calculation of the amount specified on line 27A of Form 159. Each
    such licensee, therefore, is required to retain such records for the
    duration of the pilot program, or for three years from the date of
    remittance of fees pursuant to this Order, whichever is longer.

29. While we do not here include automatic confidentiality for
    information submitted pursuant to this [Order]{.underline},
    submission of the required reporting form, and/or remittance of fee
    payment may be accompanied by a request for confidentiality pursuant
    to 47 C.F.R. § 0.459.

## Other Requirements

30. [Application of experimental rules]{.underline}. In addition to the
    foregoing, we believe that requirements similar to those contained
    in Sections 5.93(a) and (b) of the rules should apply to the pilot
    program.[^43] Thus, we will require that all transmitting and/or
    receiving equipment used in the pilot program be owned by, leased
    to, or otherwise under the control of the LPTV licensee.[^44]
    Response station equipment may not be owned by subscribers to the
    experimental data service. This will insure that the LPTV licensee
    has control of the equipment if and when the pilot program
    terminates. In addition, we will require the LPTV licensee to inform
    anyone participating in the experiment, including but not limited to
    subscribers or consumers, that the service or device is provided
    pursuant to a pilot program and is temporary.[^45]

# Administrative matters

31. [Paperwork Reduction Act Analysis]{.underline}. This Order may
    contain either proposed or modified information collections. As part
    of our continuing effort to reduce paperwork burdens, we invite the
    general public to take this opportunity to comment on the
    information collections contained in this Order, as required by the
    Paperwork Reduction Act of 1996. Public and agency comments are due
    60 days after publication in the federal register. Comments should
    address: (a) 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; (b) ways to enhance the quality, utility, and clarity of
    the information collected; and (c) 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. In addition to filing comments with the Secretary, a
    copy of any comments on the information collections contained herein
    should be submitted to Judy Boley, Federal Communications
    Commission, 445 Twelfth Street, S.W., Room C-1804, Washington, DC
    20554, or via the Internet to jboley@fcc.gov and to Edward C.
    Springer, OMB Desk Officer, 10236 NEOB, 725 17th Street, NW,
    Washington, DC 20503 or via the Internet to
    <Edward.Springer@omb.eop.gov>.

32. [Additional Information]{.underline}. For additional information on
    this proceeding, please contact Gordon Godfrey, Policy and Rules
    Division, Mass Media Bureau, (202) 418-2120 or Keith Larson, Mass
    Media Bureau at (202) 418-2600.

33. [Final Regulatory Flexibility Analysis]{.underline}. No regulatory
    flexibility analysis is required because the rules adopted in this
    Order are being adopted without notice and comment rule making.

34. [Congressional Review Act]{.underline}. These rules, promulgated
    without notice and comment rule making, are not subject to the
    provisions of the Congressional Review Act.

    **VIII. ORDERING CLAUSES**

35. Accordingly, IT IS ORDERED that, pursuant to the authority contained
    in Sections 1, 2(a), 4(i),7, and 336 of the Communications Act of
    1934 as amended, 47 U.S.C. §§ 1, 2(a), 4(i), 7 and 336, Part 74 of
    the Commission's rules, 47 C.F.R. Part 74, IS AMENDED as set forth
    in Appendix A of this Order.

36. IT IS FURTHER ORDERED that the rule amendments set forth in Appendix
    A SHALL BE EFFECTIVE immediately.

    FEDERAL COMMUNICATIONS COMMISSION

    Magalie Roman Salas Secretary

APPENDIX A

Subpart G of Part 74 of the Commission's Rules and Regulations (Chapter
I of Title 47 of the Code of Federal Regulations) is amended to read as
follows:

1.  The authority citation for Part 74 is amended to read as follows:

Authority: 47 U.S.C. 154, 303, 307, 336(f), 336(h) and 554.

2\. A new Section 74.785 is added to read as follows:

§ 74.785 Low power TV digital data service pilot project.

Low power TV stations authorized pursuant to the LPTV Digital Data
Services Act (P.L. 106-554, 114 Stat. 4577, December 1, 2000) to
participate in a digital data service pilot project shall be subject to
the provisions of the Commission *Order* implementing that Act. FCC
01-137, adopted April 19, 2001.

[^1]: P.L. 106-554, 114 Stat. 4577 (December 21, 2000), Consolidated
    Appropriations---FY 2001, Section 143, amending Section 336 of the
    Communications Act of 1934, as amended, 47 U.S.C. § 336, to add new
    subsection (h).

[^2]: 47 U.S.C. § 336(h)(7).

[^3]: According to new Section 336(h)(3), 47 U.S.C. § 336(h)(3):

    > Notwithstanding any requirement of section 553 of title 5, United
    > States Code, the Commission shall promulgate regulations
    > establishing the procedures, consistent with the requirements of
    > paragraphs (4) and (5), governing the pilot projects for the
    > provision of digital data services by certain low power television
    > licensees within 120 days after the date of enactment of LPTV
    > Digital Data Services Act. The regulations shall set forth---

    requirements as to the form, manner, and information required for
    submitting requests to the Commission to provide digital data
    service as a pilot project;

    procedures for testing interference to digital television receivers
    caused by any pilot project station or remote transmitter;

    procedures for terminating any pilot project station or remote
    transmitter or both that causes interference to any analog or
    digital full- power television stations, class A television station,
    television translators or any other users of the core television
    band;

    specifications for reports to be filed quarterly by each low power
    television licensee participating in a pilot project;

    procedures by which a low power television licensee participating in
    a pilot project shall notify television broadcast stations in the
    same market upon commencement of digital data services and for
    ongoing coordination with local broadcasters during the test period;
    and

    procedures for the receipt and review of interference complaints on
    an expedited basis consistent with paragraph (5)(D).

[^4]: 47 U.S.C. § 336(h)(4).

[^5]: 47 U.S.C. § 336(h)(3).

[^6]: 47 U.S.C. § 336(h)(5)(C).

[^7]: 47 U.S.C. § 336(h)(6).

[^8]: 47 U.S.C. § 336(h)(2).

[^9]: Under 47 U.S.C. § 336(h)(2), digital data service includes:

    > \(A\) digitally-based interactive broadcast service; and
    >
    > \(B\) wireless Internet access, without regard to\--
    >
    > \(i\) whether such access is\--
    >
    > \(I\) provided on a one-way or a two-way basis;
    >
    > \(II\) portable or fixed; or
    >
    > \(III\) connected to the Internet via a band allocated to
    > Interactive Video and Data Service; and
    >
    > \(ii\) the technology employed in delivering such service,
    > including the delivery of such service via multiple transmitters
    > at multiple locations.

[^10]: Permission may be sought under a separate experimental
    authorization under Part 5 of the Commission's rules.

[^11]: These include, but are not limited to the rules contained in
    Subpart-General; Rules Applicable to all Services in Part 74.

[^12]: 47 U.S.C. § 336(h)(3)(A).

[^13]: Under 47 U.S.C. § 336(h)(4), participating LPTV stations may not
    provide digital data service unless:

    > \(A\) the provision of that service, including any remote
    > return-path transmission in the case of 2-way digital data
    > service, does not cause any interference in violation of the
    > Commission\'s existing rules, regarding interference caused by low
    > power television stations to full-service analog or digital
    > television stations, class A television stations, or television
    > translator stations; and
    >
    > \(B\) the station complies with the Commission\'s regulations
    > governing safety, environmental, and sound engineering practices,
    > and any other Commission regulation under paragraph (3) governing
    > pilot program operations.

[^14]: 47 C.F.R. § 73.1510(b). This Part 73 rule section is made
    applicable to Part 74 LPTV stations pursuant to 47 C.F.R. § 74.780.

[^15]: The prohibition on sponsored programs or commercial announcements
    during experimental operation in Section 73.1510(c)(4) and the
    prohibition on charges being made for the experimentation in Section
    73.1510(c)(6) are notably inconsistent with the services envisioned
    by the DDSA.

[^16]: We include in these entities an LPTV station to provide service
    to the designated locations in Alaska.

[^17]: *See* Guidelines for Evaluating the Environmental Effects of
    Radiofrequency Radiation, ET Docket No. 93-62, *Report and Order*,
    11 FCC Rcd 15123, 15124, 15152 (1996); 47 C.F.R. §§ 1.1307(b)(1),
    1.1310.

[^18]: Under 47 U.S.C. § 336(h)(3)(B), the Commission must establish
    procedures "for testing interference to digital television receivers
    caused by any pilot project station or remote transmitter."

[^19]: 47 U.S.C. § 336(h)(3)(F).

[^20]: Under 47 U.S.C. § 336(h)(5)(A):

    > The Commission may limit the provision of digital data service by
    > a low-power television station to which this subsection applies if
    > the Commission finds that\--
    >
    > \(i\) the provision of 2-way digital data service by that station
    > causes any interference that cannot otherwise be remedied; or
    >
    > \(ii\) the provision of 1-way digital data service by that station
    > causes any interference.

[^21]: 47 C.F.R. § 74.703(b) indicates:

    > ... the responsibility of the licensee of a low power TV, TV
    > translator, or TV booster station to correct at its expense any
    > condition of interference to the direct reception of the signal of
    > any other TV broadcast analog station and DTV station operating on
    > the same channel as that used by the low power TV, TV translator,
    > or TV booster station or an adjacent channel which occurs as a
    > result of the operation of the low power TV, TV translator, or TV
    > booster station. Interference will be considered to occur whenever
    > reception of a regularly used signal is impaired by the signals
    > radiated by the low power TV, TV translator, or TV booster
    > station, regardless of the quality of the reception or the
    > strength of the signal so used. If the interference cannot be
    > promptly eliminated by the application of suitable techniques,
    > operation of the offending low power TV, TV translator, or TV
    > booster station shall be suspended and shall not be resumed until
    > the interference has been eliminated.

[^22]: Under 47 U.S.C. § 336(h)(3)(C), the Commission must establish
    procedures "for terminating any pilot project station or remote
    transmitter or both that causes interference to any analog or
    digital full-power TV stations, class A television station,
    television translators or any other users of the core television
    band."

[^23]: The Video Services fax number is currently (202) 418-2827.

[^24]: 47 U.S.C. § 336(h)(6).

[^25]: 47 C.F.R. § 73.622(h).

[^26]: *See*, for example, the definition of a Multipoint Distribution
    Service response station given in 47. C.F.R. § 21.2.

[^27]: Under 47 U.S.C. § 336(h)(5)(B):

    > The Commission shall grant any such station, upon application
    > (made in such form and manner and containing such information as
    > the Commission may require) by the licensee or permittee of that
    > station, authority to move the station to another location, to
    > modify its facilities to operate on a different channel, or to use
    > booster or auxiliary transmitting locations, if the grant of
    > authority will not cause interference to the allowable or
    > protected service areas of full service digital television
    > stations, National Television Standards Committee assignments, or
    > television translator stations, and provided, however, no such
    > authority shall be granted unless it is consistent with existing
    > Commission regulations relating to the movement, modification, and
    > use of non-class A low power television transmission facilities in
    > order\--
    >
    > \(i\) to operate within television channels 2 through 51,
    > inclusive; or
    >
    > \(ii\) to demonstrate the utility of low-power television stations
    > to provide high-speed 2-way wireless digital data service.

[^28]: 47 U.S.C. § 336(h)(3)(E).

[^29]: *See* 47 C.F.R. § 73.622(e).

[^30]: 47 U.S.C. § 336(h)(3)(D).

[^31]: For example, April 10, July 10, October 10 and January 10.

[^32]: 47 U.S.C. § 336(h)(5)(C)(i), (ii).

[^33]: 47 U.S.C. § 336(h)(5)(C)(iii).

[^34]: Under 47 U.S.C. § 336(h)(6):

    The Commission shall assess and collect from any low-power
    television station authorized to provide digital data service under
    this subsection an annual fee or other schedule or method of payment
    comparable to any fee imposed under the authority of this Act on
    providers of similar services. Amounts received by the Commission
    under this paragraph may be retained by the Commission as an
    offsetting collection to the extent necessary to cover the costs of
    developing and implementing the pilot program authorized by this
    subsection, and regulating and supervising the provision of digital
    data service by low-power television stations under this subsection.
    Amounts received by the Commission under this paragraph in excess of
    any amount retained under the preceding sentence shall be deposited
    in the Treasury in accordance with chapter 33 of title 31, United
    States Code.

[^35]: 47 U.S.C. § 336(h)(6).

[^36]: [Id]{.underline}.

[^37]: [See]{.underline} 47 C.F.R. 73.624(g); [Report and
    Order]{.underline} in MM Docket No*.* 97-247[, Fees for Ancillary or
    Supplementary Use of Digital Television Spectrum Pursuant to Section
    336(e)(1) of the Telecommunications Act of 1996]{.underline}, 14 FCC
    Rcd. 3259 (1998) (Fees R&O), [recon. denied]{.underline}, 14 FCC
    Rcd. 19,931 (1999) ([Fees Recon]{.underline}.). Under the DDSA, the
    fee may be used by the Commission to offset its costs in
    implementing, regulating, and supervising this program.

[^38]: [See Fees R&O]{.underline}, ¶¶ 20, 30.

[^39]: [See Fees Recon]{.underline}., ¶ 16.

[^40]: Included in such feeable ancillary or supplementary services are
    services for which consumers pay subscriber fees or ancillary or
    supplementary services "for which the licensee directly or
    indirectly receives compensation from a third party in return for
    transmitting material furnished by such third party (other than
    commercial advertisements used to support broadcasting for which a
    subscription fee is not required)." 47 U.S.C. § 336(e)(1)(B). In
    addressing the issue of whether a given service is feeable, we will
    follow the foregoing statutory criteria, as well as Commission rules
    and precedent established with respect to fees for DTV ancillary or
    supplementary services.

[^41]: In the DTV fees proceeding, we declined to decide whether home
    shopping, infomercials, direct marketing and similar services made
    via an interactive system (whereby the viewer may be able purchase a
    product shown on a home shopping program by clicking an icon
    displayed on the screen and transmitting a purchase order via the
    licensee's bit stream) provided by the licensee on its DTV bit
    stream were ancillary or supplementary services subject to a fee. We
    noted that such services are only at a nascent stage and that the
    particular circumstances are unclear. [Fees Recon.]{.underline}, ¶
    26. We see no need to make this determination here as it is unclear
    whether this service will be provided pursuant to the pilot project
    or, if so, what the circumstances will be.

[^42]: [Compare Fees R&O]{.underline}, ¶ 58.

[^43]: No other provisions of Part 5 of the Commission's rules apply.

[^44]: [See]{.underline} 47 C.F.R. § 5.93(a).

[^45]: [See]{.underline} 47 C.F.R. § 5.93(b).