**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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

**FOURTH MEMORANDUM OPINION AND ORDER**

**Adopted: April 22, 2003 Released: April 29, 2003**

**By the Commission:** Commissioner Martin approving in part, dissenting
in part, and issuing a statement.

**TABLE OF CONTENTS**

Paragraph

[Number]{.underline}

I. INTRODUCTION 1

II\. EXECUTIVE SUMMARY 2

III\. BACKGROUND 3

IV\. DISCUSSION

A. DBS Issues 10

1\. Legal Authority and Regulatory Status

a\. Compliance with Statutes and Rules 14

b\. Other Matters 40

2\. DBS/MVDDS Sharing Rules 44

3\. Implementation Issues 64

B. Multichannel Video Distribution and Data Service Rules

1\. Dismissal of Pending Applications 73

2\. Operational Limits 86

C. NGSO FSS Issues 93

1\. MVDDS Limits 94

2\. NGSO FSS Limits 103

3\. MVDDS and NGSO FSS Information Sharing 109

V. PROCEDURAL MATTERS

A. Final Regulatory Flexibility Certification 112

B. Paperwork Reduction Analysis 113

C. Further Information 114

VI\. ORDERING CLAUSES 115

APPENDICES

Page

[Number]{.underline}

A: Petitions for Reconsideration, Oppositions and Replies
[53](#appendix-a-petitions-for-reconsideration-oppositions-and-replies)

B: Final Rules [54](#appendix-b-final-rules)

C: Final Regulatory Flexibility Certification
[57](#appendix-c-final-regulatory-flexibility-certification)

D: Summary of Numerical Results
[59](#appendix-d-summary-of-numerical-results)

# Introduction

1.  In this *Fourth Memorandum Opinion and Order* (*Fourth MO&O*), we
    address the petitions for reconsideration filed in response to the
    report and order portion of the *Memorandum Opinion and Order and
    Second Report and Order* (*Second R&O*) in this proceeding.[^1] In
    the *Second R&O*, the Commission adopted technical rules and
    procedures for spectrum sharing between Multichannel Video
    Distribution and Data Service (MVDDS) and Direct Broadcast Satellite
    (DBS) service as well as between MVDDS and Non‑geostationary
    Satellite Orbit Fixed‑Satellite Service (NGSO FSS). The Commission
    also adopted MVDDS service rules that set forth the licensing plan,
    technical rules, and competitive bidding procedures, in addition to
    application and licensing requirements, governing MVDDS operation in
    the 12.2‑12.7 GHz band. Finally, the Commission dismissed the
    pending applications of Broadwave Network, LLC (Northpoint), PDC
    Broadband Corporation (Pegasus), and Satellite Receivers, Ltd.
    (SRL), for licenses to provide MVDDS. We deny the petitions for
    reconsideration to the extent discussed below and otherwise affirm
    or clarify the decisions made in the *Second R&O*.

# Executive Summary

2.  In acting on the petitions for reconsideration filed in response to
    the *Second R&O*, we make the following major determinations:

-   We affirm the MVDDS/DBS rules and procedures adopted in the *Second
    R&O* and affirm our finding that they will protect DBS against
    harmful interference from MVDDS and will preserve the primary
    allocation status of DBS.

-   We find that the rules and procedures adopted in the *Second R&O* to
    protect DBS do not violate any provisions of the *Rural Local
    Broadcast Signal Act* (*RLBSA*), the *Satellite Home Viewer
    Improvement Act* (*SHVIA*)*,*and the *LOCAL TV Act* that seek to
    prohibit harmful interference to DBS.

-   We affirm the Commission's interpretation of Section 1012 of the
    *LOCAL TV Act* to not limit the field of MVDDS applicants to those
    entities that had an application on file at the time the statute was
    enacted.

-   We affirm the dismissal of the applications to provide terrestrial
    services filed by Northpoint, Pegasus and SRL.

-   We affirm the MVDDS/NGSO FSS technical rules and coordination
    requirements adopted in the *Second R&O*.

# Background

3.  In November 1998, the Commission released a notice of proposed
    rulemaking in this proceeding that proposed to permit NGSO FSS
    operations in certain segments of the Ku‑band.[^2] NGSO FSS can
    provide a variety of new services to the public, such as high‑speed
    Internet and on‑line access, plus other types of high‑speed data,
    video and telephony services. In the *November 24, 1998 NPRM*, the
    Commission proposed to allow NGSO FSS operations to use the
    10.7‑12.7 GHz band for NGSO downlinks on a co‑primary basis and to
    use the 12.75‑13.25 GHz and 13.8‑14.5 GHz bands for NGSO uplinks on
    a co‑primary basis.[^3] Among other matters, the *November 24, 1998
    NPRM* also asked for comments on a Petition for Rulemaking filed by
    Northpoint Technology, Ltd. (Northpoint) that proposed to provide
    terrestrial retransmission of local television signals and data
    services in the 12.2‑12.7 GHz band[^4] which is used by the
    Broadcast Satellite Service (BSS)[^5] and is one of the bands in
    which the Commission proposed to authorize NGSO FSS operations.

4.  On November 29, 1999, the *Satellite Home Viewer Improvement Act*
    (*SHVIA*) was enacted.[^6] The *SHVIA* legislation generally seeks
    to place satellite carriers on equal footing with local cable
    operators concerning the availability of broadcast programming, and
    thus is intended to give consumers more and better choices in
    selecting a multichannel video programming distributor (MVPD).[^7]
    In addition to the 1999 *SHVIA* legislation, Congress passed a
    provision entitled the *Rural Local Broadcast Signal Act*
    (*RLBSA*).[^8] Among other things, this law required the Commission
    to make a determination by November 29, 2000, regarding licenses or
    other authorizations for facilities that will utilize, for
    delivering local broadcast television signals to satellite
    television subscribers in unserved and underserved local television
    markets, spectrum otherwise allocated to commercial use.[^9] The
    *RLBSA* legislation also requires that the Commission ensure that no
    facility licensed or authorized to deliver such local broadcast
    television signals "causes harmful interference to the primary users
    of that spectrum or to public safety spectrum use."[^10]

5.  On November 29, 2000, the Commission adopted the *First R&O* and
    *Further Notice* in the subject proceeding.[^11] Among other
    decisions in the *First R&O*, the Commission made the threshold
    finding that MVDDS can operate in the 12.2‑12.7 GHz band under the
    existing primary Fixed Service (FS) allocation without causing
    harmful interference to incumbent BSS operations.[^12] The
    Commission also decided to permit NGSO FSS to operate service
    downlinks on a co‑primary basis with DBS and MVDDS in the same
    band.[^13] At present the 12.2‑12.7 GHz band is used by DBS under
    the primary BSS allocation. With the *Further Notice*, the
    Commission set in motion the final regulatory process for licensing
    MVDDS. In light of these determinations, the Commission concluded
    that it had met the deadline for action set forth in the *RLBSA*.

6.  Furthermore, the Commission concluded that it would define MVDDS
    technical rules and requirements in a later order that would protect
    BSS operations and that it could establish criteria that would
    permit MVDDS/NGSO FSS sharing. To that end, the Commission sought
    detailed comment in the *Further Notice* regarding the technical
    sharing criteria between MVDDS and BSS and NGSO FSS, and on the
    MVDDS service, technical and licensing rules under Part 101 of the
    Commission\'s Rules. Finally, the Commission requested comment on
    the disposition of the pending 12 GHz applications filed by
    Northpoint, Pegasus, and SRL.

7.  On December 21, 2000, Congress enacted Section 1012, *Prevention of
    Interference to Direct Broadcast Satellite Services,* of the
    Commerce, Justice, State and Judiciary Appropriations Act, H.R.
    5548.[^14] Section 1012 required the Commission to arrange for
    independent testing of "any terrestrial service technology proposed
    by any entity that has filed an application to provide terrestrial
    service" in the 12 GHz band. The Commission selected The MITRE Corp.
    (MITRE) to conduct this testing. MITRE filed its report detailing
    its testing on April 18, 2001.[^15]

8.  On April 11, 2002, the Commission adopted the *Memorandum Opinion
    and Order and Second Report and Order* (*Second R&O*) in this
    proceeding.

9.  Six parties filed petitions for reconsideration of the *Second R&O*,
    three parties filed oppositions to these petitions, and seven
    parties filed replies/comments.[^16] In addition, appeals of the
    *Second R&O* have been filed with the circuit court of appeals for
    the District of Columbia in this proceeding.[^17]

# Discussion

## DBS Issues

10. In the memorandum opinion and order portion of the *Second R&O*, the
    Commission concluded that the decision to authorize MVDDS in the
    12 GHz band met the rule making requirements of the *Administrative
    Procedure Act* (*APA*).[^18] The Commission found that the decision
    to authorize MVDDS to share the 12 GHz band complies with the
    harmful interference prevention requirements and legislative intent
    of the *Rural Local Broadcast Signal Act* (*RLBSA*) and *Satellite
    Home Viewer Improvement Act* (*SHVIA*).[^19] The Commission found
    that the decision to authorize MVDDS in the 12 GHz band instead of
    alternative frequency bands was carefully considered and rationally
    explained based upon all the available information in the
    record.[^20] The Commission affirmed that MVDDS is authorized on a
    primary, rather than secondary, basis under the existing primary FS
    allocation for the 12 GHz band but must protect DBS from harmful
    interference.[^21] The Commission concluded that the adopted rules
    would limit the interference potential from MVDDS to a level that
    does not rise to harmful interference under our rules.[^22] In the
    absence of harmful interference from MVDDS, the Commission found
    that the primary or co‑primary status of either DBS or NGSO FSS
    would not be derogated.[^23] The Commission found that the MVDDS
    rules are technologically neutral.[^24] The Commission noted that
    the DBS/NGSO FSS unavailability allowances described in ITU
    Recommendation ITU‑R BO.1444 are inappropriate for MVDDS.[^25] The
    Commission dismissed, as untimely, a petition for consolidation
    filed by EchoStar and DIRECTV that urged us to declare other
    frequency bands available for MVDDS in lieu of the 12.2‑12.7 GHz
    band.[^26] The Commission found that the petition, although styled
    as a petition to consolidate three rulemaking proceedings,
    essentially asked us to reconsider our threshold decision in the
    *First R&O* to authorize MVDDS in the 12 GHz band.[^27]

11. In the report and order portion of the *Second R&O*, the Commission
    developed requirements that it concluded would limit the amount of
    increased DBS unavailability due to the presence of MVDDS. DBS
    satellites are designed to provide very reliable service with
    typical service availabilities on the order of 99.8‑99.9%.[^28] Thus
    unavailability or service outage generally ranges from 0.1‑0.2%.
    This small amount of unavailability primarily occurs during heavy
    rain events due to DBS signal fading. In the *Second R&O*, using a
    prescribed methodology, the Commission predictively modeled, for
    various areas, rain rates and the amount of outage a typical DBS
    subscriber could expect to incur in any given year. Using that as a
    baseline, the Commission developed criteria that would limit the
    amount of increased DBS unavailability due to the presence of MVDDS
    to a negligible level.[^29] The Commission decided that the best
    means of controlling any effect of MVDDS on DBS would be by limiting
    the equivalent power flux density (EPFD) of an MVDDS transmit signal
    at a DBS receiver. Using an increase of 10% DBS unavailability as a
    starting point,[^30] the Commission developed rules that provide for
    four regional EPFD limits that MVDDS providers are required to
    meet.[^31] The Commission adopted a maximum power limit of 14 dBm
    per 24 megahertz Effective Isotropic Radiated Power (EIRP) for
    MVDDS.[^32] The Commission specified an EPFD limit for each of four
    regions across the United States.[^33] The regions and corresponding
    EPFD limits are: East: ‑168.4 dBW/m^2^/4kHz, Midwest:
    ‑169.8 dBW/m^2^/4kHz, Southwest: ‑171.0 dBW/m^2^/4kHz, and
    Northwest: ‑172.1 dBW/m^2^/4kHz.[^34] The Commission decided that
    the unavailability allowance ascribed to MVDDS is in addition to the
    unavailability allowance ascribed to NGSO FSS operations in the
    12.2‑12.7 GHz band.[^35] Finally, because the Commission recognized
    that there could be anomalous situations, the Commission adopted a
    "safety valve" by which we will consider requests to adjust the EPFD
    for specific locations should a DBS provider demonstrate a tangible
    detrimental impact on DBS caused by MVDDS operations.[^36]

12. In addition, the Commission decided that MVDDS providers must site
    and design transmitting antennas to avoid causing harmful
    interference to existing DBS customers of record.[^37] The
    Commission required the MVDDS operator to ensure that the prescribed
    EPFD limits are not exceeded at any DBS customer of record location,
    and to conduct a survey of the area around their proposed
    transmitting antenna site to determine the location of all DBS
    customers who may potentially be affected by the introduction of the
    MVDDS service.[^38] The Commission required the MVDDS operator to
    notify the DBS providers of the operational characteristics of its
    transmitter, service area and site survey results at least 90‑days
    prior to commencement of transmission from their facility
    ("coordination notification").[^39] The Commission required the DBS
    providers, no later than 45 days after receiving the coordination
    notification, to identify any new subscribers that signed up within
    30 days after the receipt of the MVDDS notice and any areas where
    the DBS providers believes that the EPFD values may be
    exceeded.[^40] The Commission required that the MVDDS licensee must
    satisfy all complaints of interference caused to a DBS customer of
    record which are received during a one year period[^41] after
    commencement of operation of the MVDDS transmitting facility or
    cease operation if it is demonstrated that the DBS customer is
    receiving harmful interference from MVDDS or if the MVDDS signal
    exceeds the permitted EPFD levels at the DBS customer location.[^42]

13. Concerning new DBS customers who subscribe after the commencement of
    MVDDS operation in a given area, the Commission also found that
    those new DBS customers could take modest self‑mitigation measures
    such as siting and shielding or using larger receive antennas to
    account for the presence of an MVDDS signal.[^43] Because such steps
    are simple, effective and consistent with existing DBS installation
    practices, the Commission concluded that it is reasonable to expect
    DBS licensees to incorporate the presence of an MVDDS signal into
    their installation guidelines for new DBS customers.[^44]

### Legal Authority and Regulatory Status

#### Compliance with Statutes and Rules 

14. *Positions of the Parties.* EchoStar Satellite Corporation and
    DIRECTV, Inc. (EchoStar and DIRECTV), Satellite Broadcasting and
    Communications Association (SBCA), and SES Americom, Inc. (SES
    Americom) assert that the MVDDS technical rules the Commission
    adopted are unlawful because they do not protect the DBS service
    from harmful interference as required by various Congressional
    mandates and the Commission's own rules. In particular, the
    petitioners allege that our technical rules violate the provisions
    of the *Rural Local Broadcast Signal Act* (*RLBSA*) and the
    *Satellite Home Viewer Protection Act* (SHVIA)[^45] that prohibit
    harmful interference to DBS.[^46] Petitioners argue that by using a
    10% increase in unavailability as a starting point, rather than as a
    "ceiling," for establishing the EPFD limits the Commission adopted,
    the Commission did not establish a firm limit on the amount of
    increased unavailability that MVDDS could cause to DBS
    operations.[^47] Petitioners argue that the Commission thus
    effectively failed to define what constitutes harmful interference
    in a manner that can be either discerned or relied upon by DBS
    providers and customers. As a consequence, petitioners broadly
    assert that the Commission failed to comply with the cited statutes
    that require us to make a finding of no harmful interference to DBS.
    SBCA argues that this lack of definition weakens the interference
    protection rights of DBS customers because they will not be able to
    demonstrate that they are receiving harmful interference if the
    Commission has not identified a quantitative measure.[^48] EchoStar
    and DIRECTV also argue that our technical rules are arbitrary and
    capricious because the Commission ignores prior Commission decisions
    that found that ubiquitous satellite and terrestrial services could
    not share the same band and the Commission failed to explain how the
    adopted technical limits would allow two such services to do so in
    this case.

15. EchoStar and DIRECTV, SBCA, and SES Americom also object to our
    decision that new DBS customers are required to take measures, on an
    as‑needed basis, to avoid receiving harmful interference from
    pre‑existing MVDDS transmitters. Petitioners contend that these
    self‑mitigation responsibilities effectively render DBS secondary to
    MVDDS. Petitioners argue that the self‑mitigation rules are unlawful
    because they violate the provisions of the *RLBSA* and *SHVIA* that
    prohibit harmful interference to DBS as well as various sections of
    our rules that prohibit harmful interference to the DBS service and
    ignore the overall 20‑year history of the original DBS
    allocation.[^49] Specifically, petitioners argue that the MVDDS/DBS
    sharing rules violate footnote S5.490 of the U.S. Table of
    Allocations concerning harmful interference caused by terrestrial
    radio communication services.[^50] EchoStar and DIRECTV argue that
    the MVDDS/DBS sharing rules violate section 47 C.F.R. § 101.147(p)
    of our rules concerning interference caused by fixed point‑to‑point
    microwave stations.[^51] SBCA also argues that it is unlawful to
    make DBS licensees responsible for protecting DBS receivers from
    interference since they often don't do these installations and
    further that our rules will inhibit self‑installation by DBS
    customers who might have to seek engineering guidance to protect
    themselves from MVDDS interference. [^52]

16. In support of these arguments, SBCA claims that our DBS
    implementation plan effectively limited the co‑primary status of FS
    to five years, after which FS operations were to become secondary to
    DBS.[^53] SBCA contends that the history of the DBS allocation
    combined with the cited rules and footnotes confirm that
    interference protection afforded to the DBS service is not
    time‑limited.[^54] SES Americom concurs and argues that our rules
    are inconsistent with the Commission's long‑standing practice to
    ensure the continued growth and development of DBS.[^55]

17. SES Americom also asserts that our sharing rules and the imposition
    of self‑mitigation responsibilities on new DBS subscribers are
    inconsistent with a co‑primary allocation of ubiquitous services and
    that there is no reasonable interpretation of the U.S. Allocation
    Table that could justify discriminating between existing and future
    DBS subscribers or systems.[^56] SES Americom further argues that,
    while a "first‑come, first‑served" procedure is often used in order
    to resolve mutually exclusive proposals for discrete radio
    communication stations, such an approach is illogical in the context
    of sharing between two different consumer services, both of which
    depend upon blanket coverage of the same geographic regions.[^57]
    SES Americom asserts that there is no rational basis for the
    contention that the service enjoys primary status if the customer
    base may be limited by the deployment of a second service in that
    region.[^58] For example, if a DBS provider launches its satellite
    and commences service before installation of an MVDDS transmitter in
    a particular area, many of the DBS provider's customers (those whose
    receivers are installed or relocated after the MVDDS system is
    deployed) will be relegated to secondary status.[^59] SES Americom
    also claims that the rules provide no meaningful restriction on the
    EPFD that an MVDDS transmitter can emit into a later‑deployed DBS
    receiver and thus will hinder the introduction of competition to the
    incumbent providers.[^60] In the case of any later‑deployed DBS
    system, all of its customers will be subject to secondary
    status.[^61] Finally, SES Americom urges that our treatment of new
    DBS customers with respect to MVDDS is inexplicable when compared
    with the rules for sharing between DBS and NGSO FSS which are also
    allocated in the band on a co‑primary basis.[^62]

18. Based upon the premise that future DBS subscribers will suffer
    harmful interference from MVDDS, SES Americom argues that the
    MVDDS/DBS rules are inconsistent with the ITU Radio Regulations and,
    therefore, international treaty obligations of the United
    States.[^63] In support, SES Americom cites ITU Radio Regulation 342
    and footnote S5.490, both of which contain prohibitions against
    harmful interference being caused to primary ITU allocated
    services.[^64] SES Americom further argues that the impact of this
    alleged interference will not be limited to domestic DBS providers,
    but will also have an impact on foreign BSS Plan assignments or
    proposed Plan modifications that include U.S. coverage by foreign
    systems.[^65] SES Americom argues, therefore, that the purported
    detrimental effect of our decisions has international
    ramifications.[^66]

19. MDS America argues in response that DBS is entitled to protection
    only from "harmful interference" not from all interference, even if
    it is measurable.[^67] MDS America also argues that the DBS
    petitioners overlook that it is the Commission, not the DBS
    operators, whose role it is to define what will legally constitute
    "harmful interference" in accordance with the definition contained
    in Section 2.1 of the rules.[^68] Under that definition, MDS America
    urges, interference is not to be deemed harmful unless it "seriously
    degrades, obstructs, or repeatedly interrupts" the subject
    service.[^69] Consequently, MDS America contends, DBS service is not
    entitled to absolute protection from interference, and it is for the
    Commission to determine what constitutes serious impairment of
    service.[^70] MDS America continues that, while the DBS petitioners
    may disagree with the Commission's decision not to define harmful
    interference in terms of an absolute ceiling on the maximum
    permitted percentage of increased outage, nothing requires the
    Commission to adopt a definition in such terms.[^71] In this light,
    MDS America argues that the Commission may specify what interference
    would be deemed harmful in terms that best serve the context in
    which the definition would be applied -- and in this case,
    geographic based EPFD limits were chosen.[^72] MDS America further
    adds that use of 10% additional unavailability as a starting point,
    rather than as a rigid ceiling, for developing regional EPFD levels
    was a reasonable approach because it does not impose percentage
    limitations in an arbitrary and unreasonable way when the actual
    minutes of increased unavailability were minimal.[^73] MDS America
    also responds that the DBS petitioners' argument---that if Private
    Operational Fixed Service (POFS) users were given secondary status
    and required to relocate to avoid interference to DBS, then the same
    is required of MVDDS---erroneously presumes that the services are
    similar and that MVDDS, which was not at issue when such relocation
    was before the Commission, must be treated the same way.[^74]

20. MDS America argues that the Commission's decision to grandfather a
    higher level of protection to DBS receivers installed within 30 days
    of a new or modified MVDDS transmitter reflected an appropriate
    balancing of inter‑related policy needs and a careful review of the
    record.[^75] MDS America suggests that adopting the SES Americom
    approach would subject future MVDDS operations to a "possible time
    bomb" \[that could shut down existing MVDDS operations\] depending
    upon what decisions a future DBS provider might make.[^76] Instead,
    MDS America continues, the Commission reasonably, and consistent
    with its approach in the NGSO and other contexts, left to the DBS
    operators making later installations the decision as to
    implementation of DBS system‑based mitigation techniques that would
    provide greater protection from MVDDS signals than that generally
    afforded by the Commission's technical rules restricting MVDDS
    operations.[^77] In response to SES Americom's claim that service
    provided by its future DBS satellite would be subject to
    interference under our approach, MDS America maintains that to the
    extent DBS service is protected by signal strength and other
    technical limitations imposed on MVDDS, SES Americom is not treated
    differently than any other DBS operator.[^78] Moreover, MDS America
    maintains that later‑installed DBS receivers will have the ability
    to use improved equipment and to adjust the installation to account
    for potential interference from MVDDS.[^79] The Commission's
    approach, MDS America urges, leaves to the marketplace the
    cost‑benefit analysis with respect to additional mitigation efforts
    and encourages the deployment of more spectrum‑efficient DBS
    equipment, but does not require it.[^80] Finally, MDS America argues
    that the Commission's approach recognizes the likely tendency for
    DBS operators to resist new competition from MVDDS, and use claims
    of possible interference as a shield to prevent competitive, rather
    than interference, harm.[^81] MDS America concludes that the
    Commission's decision is therefore a reasoned approach to maximizing
    consumer choice, and thereby consumer welfare.[^82]

21. Northpoint, in response, states that the DBS industry ignores the
    Commission's definition of harmful interference and asserts that the
    DBS/MVDDS sharing rules are more than adequate to prevent anything
    approaching harmful interference.[^83] Northpoint also argues that
    even if, *arguendo*, our sharing plan is unprecedented, it is so -
    not because the Commission has refused to apply its first‑in‑time
    rule to such a situation in the past; instead, it is unprecedented
    because the Commission has never before authorized multiple
    ubiquitous services using the same spectrum in overlapping areas
    licensed on a geographic basis.[^84] Now that the Commission has
    done so, Northpoint asserts, it has appropriately applied its rules
    for co‑primary use to the current situation. More specifically,
    Northpoint argues that a later‑deployed DBS system would not be
    secondary to MVDDS, nor would MVDDS be secondary to a later‑deployed
    DBS system, because the Commission has determined that terrestrial
    and satellite services are co‑primary in the 12 GHz band.[^85] In
    that light, Northpoint urges that SES Americom does not directly
    challenge the validity of this principle but, instead, merely claims
    that the Commission's application of the principle in the context of
    DBS/MVDDS sharing is unprecedented.[^86]

22. [Decision]{.underline}. In essence, petitioners argue two broad
    propositions. First, that the technical rules adopted in the *Second
    R&O* will result in harmful interference to DBS. Second, that such
    harmful interference, along with the self‑mitigation
    responsibilities imposed on new DBS subscribers, violate applicable
    statutes, FCC rules, international regulations and the primary
    status of DBS. This assertion of harmful interference and the
    alleged resulting violations of various statutory and regulatory
    prohibitions against such harmful interference repeat some of the
    same arguments that were raised by petitioners against our basic
    threshold decision in the *First R&O* to authorize MVDDS in the
    12 GHz band. The Commission denied those earlier petitions in the
    memorandum opinion and order portion of the *Second R&O* because the
    Commission rejected the central premise upon which they were based,
    namely that that MVDDS will cause harmful interference to DBS. We
    again deny the instant petitions insofar as they assert that harmful
    interference will be caused to DBS. EchoStar and DIRECTV also argue
    that the Commission disregarded prior decisions in other proceedings
    that sharing between two ubiquitous satellite and terrestrial
    services is not feasible and failed to explain why sharing in the
    12 GHz band is more feasible than in other bands.[^87] We dismiss
    this aspect of their petition as repetitious because we addressed
    the same question previously in the memorandum opinion and order
    portion of the *Second R&O* and found that the record supported our
    threshold decision to authorize MVDDS in the 12 GHz band.[^88] As we
    discuss below, we also deny the instant petitions insofar as they
    argue that the specific technical rules adopted in the *Second R&O*,
    including the self‑mitigation responsibilities imposed on new DBS
    subscribers, violate various statutes and rules.

23. As a fundamental matter, the Communications Act grants us broad
    statutory power to make spectrum allocation decisions.[^89] Of
    particular relevance in this proceeding is our general authority
    under the Act to make decisions concerning harmful interference and
    to make rules for spectrum sharing between services.[^90] Indeed,
    the overriding question upon which the Commission has sought comment
    throughout this proceeding has been whether MVDDS can operate in the
    12 GHz band without causing harmful interference to DBS. Section 47
    C.F.R. § 2.1 defines *harmful interference* as "... interference
    which ... seriously degrades, obstructs, or repeatedly interrupts a
    radiocommunication service ..." In the *First R&O*, the Commission
    made the threshold finding that it was technically feasible for
    MVDDS to operate in the 12 GHz band without causing harmful
    interference to DBS. Consequently, along with the *First R&O*, the
    Commission simultaneously issued the *Further Notice of Proposed
    Rule Making* to develop specific technical criteria and rules that
    would achieve the twin goals of protecting DBS from harmful
    interference while allowing the initiation of the new MVDDS.

24. Although the statutes require that harmful interference is not
    caused to DBS, neither the *RLBSA* nor *SHVIA* provides a definition
    of harmful interference, nor does the legislative history address
    how this term should be construed. Given that these laws are silent
    on this issue, we conclude they do not circumscribe our authority
    under the Communications Act to give meaning to the term "harmful
    interference" through our usual rule making procedures. That is
    precisely what the Commission has done through consideration of the
    comments and analysis of all record information in the *Second R&O*.
    The rules the Commission adopted are the result of that notice and
    comment rule making process. We disagree with petitioners\' claims
    that the Commission acted in an arbitrary and capricious manner and
    contrary to law in crafting the rules at issue here. We find that
    these rules are reasonable based upon the record and constitute
    objective criteria that presumptively define DBS interference limits
    that are well below what could be considered harmful under our
    rules. Therefore, we conclude that the Commission has complied with
    the no‑harmful‑interference provisions of *SHVIA* and *RLBSA*.

25. As we explain in more detail below in addressing technical issues,
    the rules adopted in this proceeding will prevent harmful
    interference to DBS. Stated in slightly different terms, the
    relatively small theoretical changes in DBS unavailability or system
    link budget margins that might result from MVDDS operations under
    the rules adopted were analyzed vis-à-vis their potential to
    increase either the incidence or duration of service outages by a
    matter of minutes over a year. Quite simply, the Commission
    promulgated regulations that ensure that any degradation of DBS
    would be quite small and that the additional impact that could occur
    to DBS service would not amount to a serious degradation,
    obstruction or repeated interruption of service and thus would not
    be considered harmful interference under our rules.

26. We disagree with petitioners that, because the Commission used the
    10 percent increase in unavailability as a guide but not a strict
    limit in developing EPFD limits, the Commission had not provided a
    meaningful limit on the amount of interference that a DBS customer
    may receive from MVDDS. As explained in the *Second R&O*, the
    Commission chose not to place a cap on the percentage increase in
    potential unavailability, but rather limit interference through a
    very conservative EPFD level. The Commission further stated that
    given the conservative nature of our overall approach, sound
    engineering judgment suggested that using a 10% increase in DBS
    unavailability as a strict limit is unnecessary and inappropriate
    given the variability that currently exists in the provision of DBS
    services.[^91] As MDS America points out, it is the Commission's
    role to define what will legally constitute harmful interference in
    accordance with the definition in Section 2.1 of the rules.[^92] MDS
    America further recognizes that the Commission, after weighing
    various factors, may choose from a variety of mechanisms to limit
    harmful interference.[^93] After extensive analysis, the Commission
    decided that, in this case, limiting the EPFD level from an MVDDS
    station to a DBS receiver would be the best means of interference
    control. Furthermore, this approach is consistent with that required
    (and agreed to by the DBS licensees) for NGSO FSS sharing with
    DBS---*i.e*., NGSO FSS licensees must comply with a set of EPFD
    levels that were developed based on technical analysis. We thus find
    that none of the statutory or regulatory provisions cited by
    petitioners supports their contention that our rules are infirm
    because the Commission did not impose a hard percentage‑based
    interference limit as opposed to the objective criteria the
    Commission adopted.

27. As explained in the *Second R&O*, it would be impractical for an
    MVDDS operator to demonstrate compliance with a strict percentage
    criterion or an EIRP limit that would always meet a strict
    percentage criterion. In particular, the Commission stated that it
    would be extremely difficult to measure compliance of a strict
    percentage criterion with sufficient accuracy for meaningful
    enforcement.[^94] The Commission noted that compliance with a
    percentage criterion could only be determined after the fact. The
    Commission used data on yearly DBS unavailability as the basis for
    developing additional unavailability due to MVDDS. Thus, we would
    need to define a reference year (*e.g*. a calendar year), measure
    DBS outage times, and attribute each outage or portion thereof to
    either natural phenomena or MVDDS. Moreover, such measurements and
    attributions would be required at every receiver. Only then could we
    determine compliance with a strict percentage increase.[^95]
    However, at that point, it would be too late for any meaningful
    remedy. Further, the determination of an EPFD that would comply with
    a strict cap in unavailability increase would be impractical for
    another reason -- it would require the Commission to predict in
    advance the yearly rainfall for a given area so that the appropriate
    EPFD could be determined *a priori* on a yearly basis. Clearly, even
    if this could be done, it would not serve either DBS or MVDDS
    licensees to have the regulations change on a yearly basis. Finally,
    if we were to adjust EPFD values to yield a cap of 10%, then it
    would seem reasonable to adjust the permitted EPFD limits generally
    upwards as DBS licensees replaced existing satellites with more
    powerful satellites. However, we believe such an approach would
    remove the incentive for DBS licensees to further mitigate the
    potential for interference from MVDDS by upgrading their satellite
    networks.[^96]

28. We also disagree with petitioners' claims that the Commission has
    not provided a meaningful restriction on the EPFD that an MVDDS
    transmitter can emit into a later‑deployed DBS receiver. The
    Commission adopted a set of technical parameters (EPFD and EIRP
    limits) and service rules that do, in fact, limit the amount of
    interference that may be received by later installed DBS receivers.
    These parameters determine the size, shape, and orientation of the
    mitigation zone.[^97] Because an MVDDS licensee cannot deploy unless
    it ensures that the EPFD is met at all DBS customers of record
    locations, all later installed DBS receivers gain the benefits of
    the choice of MVDDS operating parameters.[^98] In other words, once
    operational, the technical parameters of an MVDDS station are known
    prior to the installation of any new DBS receiver and can be taken
    into account. To further ensure that later‑installed DBS receivers
    can deploy, our rules do not allow the MVDDS licensee to change
    operating parameters without consequence. Our rules require that in
    the event of either an increase in the EPFD contour in any direction
    or a major modification to an MVDDS station, the initial
    requirements begin anew.[^99] That is, prior to an MVDDS station
    making any change to its system, it must ensure that the EPFD limit
    is not exceeded for all DBS customers that exist at that time (this
    includes all DBS customers of record at the time of initial MVDDS
    installation plus all DBS customers added since the initial MVDDS
    installation). Thus, our rules do provide DBS operators with
    certainty and reasonable procedures.

29. Petitioners strenuously object to the imposition of self-mitigation
    responsibilities on DBS providers or subscribers and assert that the
    examples cited in the *Second R&O*, where the Commission crafted
    sharing rules that imposed various interference avoidance
    responsibilities upon existing primary services, are not precisely
    on point with the facts in this proceeding.[^100] As an initial
    matter, we observe that at one level petitioners\' argument
    essentially challenges our determination that MVDDS is allocated on
    a co‑primary rather than secondary basis with respect to DBS.[^101]
    To that extent, the petitions are dismissed as repetitious because
    they raise the same argument about the allocation status of MVDDS
    (and the relative interference protection rights of DBS) that the
    Commission previously addressed and disposed of in the memorandum
    opinion and order portion of the *Second R&O*.[^102] In addition, we
    note that the examples cited in the *Second R&O* were meant to
    illustrate instances in the past where the Commission has imposed
    sharing obligations on various primary services. Whether or not the
    facts are precisely identical to the facts in this proceeding is
    irrelevant to the general proposition that the Commission has broad
    authority under the Communications Act to impose such requirements
    *ab initio*. Having made the threshold determination in the *First
    R&O* that it is technically feasible for MVDDS to ubiquitously share
    the 12 GHz band without causing harmful interference to DBS as
    defined by our rules, it was appropriate for us under the broad
    statutory powers granted by the Communications Act to craft a
    sharing plan through the rule making process that will enable such
    sharing. In that regard, we note that the adoption of any sharing
    rules between services, where none previously existed, inevitably
    results in an adjustment of the relative rights or responsibilities
    that licensees or subscribers of a pre‑existing service must
    accommodate.[^103] As the Commission stated in the *Second R&O*, our
    actions here are consistent with past Commission actions wherein the
    Commission has found that impacting some existing customers of a
    service was outweighed by the benefits of adding new services or
    capabilities to a frequency band.[^104]

30. In this proceeding, through the exercise of this regulatory
    authority, the Commission determined in the *Second R&O* that having
    new DBS subscribers take responsibility for modest self‑mitigation
    measures to account for the presence of MVDDS signals strikes an
    appropriate balance among various spectrum policy goals. We also
    note, in particular, that other mitigation approaches considered in
    this proceeding have been consistently opposed by DBS proponents if
    the approach involved any contact with DBS customers by MVDDS or
    required additional information sharing by DBS. The approach adopted
    does not require such contact. Moreover, the Commission stated its
    belief in the *Second R&O* that any self‑mitigation techniques that
    might be required should be modest and effective. Therefore, we
    believe that our approach is a reasonable compromise that respects
    the desire of DBS proponents to minimize customer contact with MVDDS
    parties. Nonetheless, we recognize that, as SBCA asserts, Section
    101.1440(e) of the adopted rules appears to require a DBS licensee
    to oversee all future DBS receive antenna installations, which they
    currently may not do. Often, DBS receive antenna installations are
    done through retail outlets that sell DBS equipment or by a DBS
    customer. It was not our intent to alter these arrangements. Rather,
    we expect a DBS licensee to provide to these entities information
    they deem necessary so that they may take into account the presence
    of MVDDS operations when they install a DBS receive antenna.
    Typically, this information could be conveyed with installation
    guidelines for DBS equipment. Thus, we will modify Section
    101.1440(e) of the rules to clarify the responsibility of DBS
    licensees in this regard.

31. Petitioners also generally object on statutory grounds to our
    decision to impose any interference avoidance obligations on either
    DBS subscribers or providers. SES Americom, in particular, relies
    upon the *RLBSA* legislative history indicating that the FCC must,
    under Section 2002(b)(2), protect primary satellite system users,
    whether designated now or later, from harmful interference.[^105]
    SES Americom concludes from the cited language that Congress could
    not have intended to protect future primary satellite *services*
    from terrestrial interference, but not later‑deployed *receivers* of
    an existing primary satellite service.[^106] In that light, SES
    Americom argues that the MVDDS/DBS rules the Commission adopted are
    inconsistent with clear legislative mandate because they violate the
    primary status of DBS by requiring later‑in DBS subscribers to take
    steps to avoid potential harmful interference from MVDDS.[^107]

32. We reject SES Americom's reliance upon and interpretation of the
    *RLBSA* legislative history to support their assertion that our
    treatment of new DBS subscribers violates the statute. As an initial
    matter, the statute requires us to ensure that harmful interference
    is not caused to DBS. As discussed above, we find that the technical
    rules adopted by the Commission comply with that directive. We find
    no additional directives in the plain language of the statute to
    indicate that Congress intended to preclude us from adopting
    appropriate licensing or sharing rules among the services that we
    might authorize in the band.

33. Furthermore, we believe that the legislative history of the *RLBSA*
    can be reasonably interpreted differently than suggested by SES
    Americom. Section 2002(b)(2) of the *RLBSA* reads as follows:
    "HARMFUL INTERFERENCE -- The Commission shall ensure that no
    facility licensed or authorized under subsection (a) causes harmful
    interference to the primary users of that spectrum or to public
    safety spectrum use." \[Emphasis in original\]. At the outset, the
    term "primary user" appearing in the legislative history that is
    focused upon by petitioners is not defined in the statute. Upon
    close reading, we conclude that the language cited by petitioners
    regarding "prospective primary users" of the Ku‑band concerns, what
    was at the time, the as‑yet‑undetermined status of future
    non‑geostationary satellite (that is, NGSO FSS) service in the band.
    Specifically, when *SHVIA/RLBSA* was enacted, the Commission had not
    yet released the *First R&O* that first authorized NGSO FSS use of
    the 12.2-12.7 GHz band and accorded it co‑primary status. Therefore,
    contrary to SES Americom's interpretation, it appears that the
    legislative history can more reasonably be read as indicating no
    more than the intent of Congress that NGSO FSS should be designated
    and protected as primary ‑ as, in fact, the Commission subsequently
    decided in the *First R&O*. Indeed, as a further counterpoint to SES
    Americom\'s interpretation, we observe that the *RLBSA* legislative
    history also indicates that Section 2002(a) directs the FCC to
    consider issuing licenses for terrestrial services ‑ possibly in the
    same bands.[^108] Moreover, the legislative history also states that
    "the authors of this bill did not mean to interfere with the expert
    technical and regulatory judgment of the FCC with respect to
    licensing applicants in the \[12 GHz\] band."[^109] Statutes must be
    interpreted to give effect to each of their provisions. In the
    *Second R&O*, the Commission reasonably concluded that MVDDS would
    not be viable with greater interference-sharing burdens than what
    were adopted, and that placing some of the burden on a primary
    service to assist in the sharing of spectrum with another co-primary
    service does not relegate either of those services to secondary
    status. Therefore, what the Commission has done is satisfy both of
    Congress\'s goals by crafting rules that both preserve the primary
    status of the satellite services in the 12.2-12.7 GHz band, and also
    enable another terrestrial service - MVDDS - to enter the band on a
    co-primary basis. In light of the foregoing, we find that
    petitioner\'s resort to the legislative history is of no avail since
    we conclude that we have complied with the explicit directive of the
    statute regarding harmful interference and that, even if considered,
    the legislative history does not support petitioners' assertions.

34. Petitioners also object that our interference avoidance obligations
    effectively render DBS secondary to MVDDS and violate certain
    Commission rules concerning harmful interference by terrestrial
    communication services. In essence, petitioners strive to apply
    rules and relocation policies that were clearly adopted for the
    specific case of dealing with point‑to‑point FS that were in
    operation prior to DBS. MVDDS as authorized in this proceeding was
    not envisioned when the rules cited by petitioners were adopted. As
    observed in the *Second R&O*, the Commission originally adopted the
    non‑harmful interference provision of Section 101.147(p) to deal
    with the specific problem of transitioning the relatively high power
    (up to 316,228 watts EIRP), two‑way, point‑to‑point FS operations
    out of the 12 GHz band.[^110] At that time, our goal was to
    encourage the older point‑to‑point FS operations to vacate the band
    due to their incompatibility with DBS. To that end, the Commission
    imposed the transitional rules and constraints cited by petitioners
    on those older FS operations. In contrast, MVDDS is a low power (up
    to 0.025 watts - or 14 dBm - EIRP) one‑way transmission specifically
    designed to share spectrum with BSS operations. This basic
    distinction was key to our initial threshold determination that
    MVDDS, unlike the older point‑to‑point FS, could share the 12 GHz
    band without causing harmful interference to DBS.[^111]
    Consequently, we find that it would be inconsistent with the clear
    historical purpose of the rule to impose on MVDDS the transitional
    constraints of § 101.147(p) that were intended solely for the older
    point‑to‑point FS operations that we were encouraging to vacate the
    band.[^112] With regard to footnote S5.490 of the U.S. Table of
    Allocations, we note that it states in pertinent part that "... in
    the 12.2‑12.7 GHz band, existing and future terrestrial
    radiocommunication services shall not cause harmful interference to
    satellite services." In view of our determination that MVDDS will
    not cause harmful interference to DBS under the rules adopted in the
    *Second R&O*, we conclude that the Commission has not violated that
    provision.

35. As petitioners' assertions implicitly recognize, application of the
    traditional first‑in‑time principle in this novel situation
    involving sharing among three ubiquitous co‑primary services could
    produce unintended or illogical results. For example, in various
    circumstances, one co‑primary service could entirely preclude
    another from operation in entire geographic areas merely because
    either a transmitter or receiver was first deployed -- even though
    the impact of the later‑in service on the other co‑primary service
    might be generally imperceptible in all but a few isolated
    instances. The Commission found it necessary in the *Second R&O* to
    craft new and unprecedented sharing rules that would achieve the
    desired result of allowing ubiquitous service for all co‑primary
    services authorized in the band while preventing harmful
    interference as defined by our rules. To the extent that SES
    Americom asserts that our treatment of MVDDS is inconsistent with
    our treatment of NGSO FSS with regard to DBS protection we note the
    following. MVDDS is technically a vastly different service than
    either DBS or NGSO FSS. DBS programming emanates from satellites
    that produce coverage footprints on the land having signal strengths
    that are relatively constant over significant geographic areas
    within a particular radiation beam. In comparison, MVDDS programming
    will emanate from low‑power, land‑based transmitters whose signal
    intensity diminishes rapidly over relatively short distances from
    the transmitter site. As a consequence, the potential for
    interference to DBS from MVDDS tends to be highly localized to the
    immediate vicinity of the transmitter. NGSO FSS signals, on the
    other hand, can have a uniformly undesired impact to both DBS and
    MVDDS over extensive areas. Because the mechanism and extent of
    potential interference from each of these services is so different,
    the Commission found it necessary to determine the timing for the
    imposition of MVDDS self‑mitigation duties on DBS subscribers based
    upon whether a DBS receiver predates an MVDDS transmitter. We
    readily acknowledge that this approach may be a departure from past
    practice where the Commission may have focused only on when a
    transmitter (in this case, a DBS satellite) begins operation.
    However, we reiterate the key point - as recognized by the
    petitioners - that this proceeding presents the unprecedented
    situation of ubiquitous, geographic sharing of three co‑primary
    services. Therefore, we find that a traditional first‑in‑time
    approach focused solely on transmitters would be neither workable
    nor beneficial.

36. At the same time, we acknowledge that the DBS self mitigation steps
    envisioned by our sharing rules for DBS subscribers might not be
    effective in what we believe will be very infrequent circumstances
    within the limited extent of the predicted mitigation zone around
    each MVDDS transmitter. However, to put the magnitude and impact of
    this possibility in perspective, we note that both existing and
    prospective DBS customers already experience the inescapable reality
    that a variety of locations are presently, or may become, unsuitable
    for DBS reception due to signal blockage caused by factors such as
    tree growth or building construction and the like.[^113] For
    example, some individuals who live on a particular side of an
    apartment complex cannot receive DBS signals because they have no
    line of sight with any DBS satellite. In addition, the growth of a
    single tree in one's backyard might eventually render a formerly
    optimal DBS receiver installation unsuitable due to signal blockage.
    Nevertheless, in view of the increasing popularity of DBS
    notwithstanding these dynamically changing limitations, we find that
    DBS subscribers appear to accept as a norm of the DBS service that a
    variety of potential receiver sites might not be suitable for DBS
    reception or might require remedial measures. There is nothing in
    the record to suggest that this well‑known fact of such occurrences
    with individual DBS customers has had any noticeable effect on the
    viability, marketability or status of DBS a primary service. Against
    this backdrop, and in view of the conservative EPFD limits imposed
    on MVDDS, we do not believe that the impact of MVDDS on DBS
    subscribers in any given area will rise above a *de minimis* level
    that is any more perceptible than the well‑tolerated current
    status‑quo. Consequently, we fundamentally disagree with SES
    Americom's assertion that future DBS providers will be significantly
    precluded from any geographic area. Moreover, we affirm our
    determination that the possibility that self‑mitigation measures
    might be required by DBS subscribers is balanced by the public
    interest in providing a new service because we expect that the need
    for and impact of such measures on the DBS subscriber base will be
    negligibly small. Therefore, we find that the sharing rules adopted
    by the Commission preserve the primary status of DBS because DBS
    will not be precluded from deploying in any geographic area and will
    be essentially free of harmful interference.

37. In addition, we observe that, absent these carefully crafted sharing
    rules, it would be possible for a single later‑in DBS subscriber who
    does not take simple interference avoidance measures to hold hostage
    or totally pre‑empt MVDDS service to the public ‑ even where
    potential interference could be readily avoided by the DBS
    subscriber. We do not believe that such a draconian outcome would
    serve the public interest when balanced against what we believe will
    be a negligible impact on DBS because it results in inefficient
    spectrum usage that prevents the initiation of a new service.
    Furthermore, as a matter of public policy, we have concluded that -
    as between a few DBS subscribers needing to take modest mitigation
    steps versus no alternative MVPD provider for hundreds or
    thousands - the public interest is better served by affording the
    choice of an alternative MVPD service. We find this to be
    particularly true in view of our judgment that relatively simple
    remedial measures taken by DBS customers should effectively resolve
    any anomalous MVDDS interference issues that might occur
    notwithstanding the very conservative regional EPFD limits imposed
    on MVDDS operation.

38. Finally, we disagree with SES Americom's assertion that the rules
    adopted by the Commission are inconsistent with the International
    Radio Regulations. The flaw in SES Americom' argument is the
    recurring premise urged by petitioners, that we reject, that the
    rules and procedures adopted will cause harmful interference to both
    existing and future DBS subscribers. As we reaffirm herein, we
    believe that the rules and procedures adopted in the *Second R&O*
    will not result in harmful interference to DBS subscribers as
    defined by our rules. We believe that our rules will afford similar
    protection from harmful interference to any DBS customer when
    receiving signals from any satellite in orbital locations within the
    geostationary arc visible to the United States regardless of whether
    any such satellite is part of a domestic or foreign system.
    Accordingly, we find the argument that the Commission violated
    international rules and its own policies that prohibit harmful
    interference to DBS to be without merit.[^114]

39. In conclusion, we find that petitioners cite nothing in *SHIVA*,
    *RLBSA*, or the *LOCAL TV Act* that constrains us from exercising
    our statutory authority under the Communications Act to craft
    appropriate rules for spectrum sharing between existing or future
    satellite services and new terrestrial services. In the *Second
    R&O*, the Commission found that any new sharing burdens imposed on
    incumbent DBS or NGSO FSS to accommodate MVDDS in the 12 GHz band
    are reasonable because they are modest, effective and outweighed by
    the potential benefit to the public of providing for a new potential
    competitor in the multichannel video and data markets.[^115] We thus
    affirm our earlier conclusion that the adopted sharing obligations
    will serve the public interest because we find that those
    requirements will result in more efficient spectrum utilization and
    will facilitate compliance with the non‑harmful interference
    provisions of the statutes while allowing initiation of a new
    service.

#### Other Matters

40. EchoStar and DIRECTV assert that the substance of certain editorial
    changes and the manner in which they were made between the adoption
    and release of the *Second R&O* violate the *Administrative
    Procedure Act* and *Government in the Sunshine Act* (*Sunshine
    Act*).[^116] Petitioners argue that the majority of Commissioners
    agreed upon non‑trivial editorial changes subsequent to the item\'s
    adoption without holding an open meeting.[^117] In that light,
    petitioners assert that the Commission\'s action violated the open
    meeting requirements of the *[Sunshine]{.underline} Act*.[^118]

41. We disagree. The *Sunshine Act* sets forth requirements for open
    meetings that, under 47 U.S.C. 155(d), are held each month by the
    Commission. A meeting subject to the *Act* is one where at least a
    quorum of Commissioners jointly conducts or disposes of agency
    business.[^119] Petitioners state, incorrectly, that the *Second
    R&O* was adopted at an open meeting on April 11, 2002.[^120] In
    fact, however, the item was adopted by circulation ‑ as provided for
    in 47 C.F.R. 0.5(d) of our rules.[^121] When we adopt an item by
    circulation, each Commissioner\'s vote is sequentially noted by an
    internal tracking system. Sequential, notational voting (circulation
    voting) by Commissioners is not prohibited by the *Sunshine Act*
    since the *Act* applies to any meetings that are held ‑ but does not
    require that meetings be held.[^122] Furthermore, we note that
    separate consideration of agency business by individual
    Commissioners is explicitly excluded from the definition of a
    "meeting" by our rules.[^123] Consequently, we find that no
    "meeting" that would be subject to the *Sunshine Act* was held.
    Therefore, the requirements of the *Sunshine Act* are not
    applicable. Accordingly, the EchoStar and DIRECTV joint petition is
    denied to the extent that it asserts that certain edits to the
    *Second R&O* violated the *Administrative Procedure Act* and the
    *Sunshine Act*.

42. Claiming that the adopted interference limits are too permissive,
    EchoStar and DIRECTV express concern that DBS providers might be
    required to increase effective power levels transmitted to DBS
    receivers in order to preserve the reliability of service their
    customers have come to expect.[^124] They further argue that such an
    increase in power levels, if needed, would also require a reduction
    in the number of channels that can be provided by a DBS
    system.[^125] Such a reduction in channel capacity, they contend,
    could have a real and substantial economic cost that would cause
    significant economic harm to DBS providers.[^126] Given the
    substantial reliance interests of DBS providers on the terms under
    which their licenses were originally awarded, EchoStar and DIRECTV
    argue, DBS providers may well be able to show that this substantial
    cost constitutes a "regulatory taking" for which they would be
    entitled to compensation from the U.S. Treasury.[^127]

43. We find that petitioner\'s allegation is not ripe because it is
    contingent upon events that have not yet transpired and, in our
    predictive judgment, will most likely not be required because we
    have adopted conservative EPFD and EIRP limits on MVDDS that should
    ensure negligible impact on DBS subscribers. Therefore, we disagree
    with the fundamental premise that the adopted interference limits
    are insufficient or too permissive to protect DBS from harmful
    interference. Even petitioners themselves do not assert that the
    feared measures they describe will absolutely be necessary ‑ they
    merely argue that DBS carriers "could be forced" to take the
    measures they describe.[^128] Therefore, we conclude that EchoStar
    and DIRECTV\'s suggestion that a "regulatory taking" might be worked
    upon DBS providers at some future time is purely speculative and
    merits no further consideration.

### DBS/MVDDS Sharing Rules

44. *Positions of the Parties.* Petitioners raise objections under the
    *Administrative Procedure Act* (*APA*) that the adopted technical
    rules are arbitrary, capricious, and contrary to law.[^129] Broadly
    speaking, petitioners argue that the Commission, *inter alia*,
    failed to rationally explain our decisions, ignored the findings and
    recommendations of the *MITRE Report*, adopted rules that are
    contrary to other FCC rules and fail to protect DBS. Specifically,
    EchoStar and DIRECTV contend that the rules fail to guarantee that
    DBS carriers and their customers will be protected from harmful
    interference by MVDDS.[^130] In addition, they are critical of
    several aspects of our predictive model, stating that the Commission
    failed to provide adequate notice under the *APA* for the predictive
    computer model relied on to develop EPFD limits.[^131] They further
    argue that the Commission failed to explain how the regional EPFD
    limits, which they claim are based on a flawed model, will prevent
    harmful interference to DBS service and thus protect DBS providers
    and customers.[^132] They assert that the record does not contain
    any assurance of the statistical accuracy of the model[^133] and
    that the model has not been tested in the field.[^134] They also
    assert that DBS subscribers located outside the predictive contour
    are not protected from harmful interference even if they are subject
    to higher power from MVDDS than the model predicts.[^135]

45. EchoStar and DIRECTV claim that our "double average" approach to
    developing the EPFD limits in which multiple satellite locations are
    averaged for each city and then multiple cities are averaged for
    each region fails to provide a meaningful limit on increased
    unavailability. Instead, they believe that the EPFD limits should be
    based on data for each of the specific sub‑markets for which the
    Commission intends to license.[^136] They argue that, even if the
    Commission concludes that an additional 10% unavailability of DBS
    due to MVDDS is permissible, using the 10% criterion as a starting
    point does not provide a meaningful standard.[^137] Specifically,
    they state that: 1) the 10 percent standard is exceeded in 31 of the
    32 markets examined with respect to one or more full‑CONUS
    satellites; 2) the median increase in the 32 markets is more than 10
    percent and the mean increase is almost 12 percent; 3) the predicted
    unavailability increases range as high as 20-30 percent in certain
    markets; and 4) the model fails to consider the "wing" satellites
    such as those located at 61.5 and 148^o^ West Longitude.[^138] To
    remedy these alleged failings, EchoStar and DIRECTV state that the
    model should be calibrated to yield EPFDs that meet a ceiling of 10%
    increased unavailability.[^139]

46. Finally, EchoStar and DIRECTV assert that the adopted safety valve ,
    in which DBS licensees can petition to have the EPFD levels at
    specific locations adjusted due to anomalous situations, is deeply
    flawed.[^140] They cite two reasons. First, they state that the
    existence of such a mechanism cannot save a rule making scheme that
    is otherwise arbitrary and capricious since the safety valve would
    expand to overshadow the rule itself. Second, they state that the
    safety valve is too vague and uncertain to provide any meaningful
    increase in protection for DBS providers and customers.

47. Northpoint, responding to petitions for reconsideration, agrees with
    the Commission's conclusion that small theoretical changes in DBS
    unavailability that might result from MVDDS operation do not rise to
    the level of harmful interference.[^141] They further argue that
    even if one assumes that unavailability might increase by as much as
    20‑30%, it still does not represent harmful interference because
    such a small difference in availability cannot be practically
    detected because rainfall itself typically varies by similar amounts
    year‑to‑year.[^142]

48. Finally, Digital Broadband Applications Corporation (DBAC), in its
    comments on petitions for reconsideration, raises the concern that
    the Commission did not evaluate potential interference to U.S.
    terminals that might at some time in the future receive signals from
    satellites licensed by administrations other than the U.S. when
    establishing the EPFD levels for MVDDS.[^143] DBAC argues that, as a
    result, domestic subscribers of non-U.S. satellites might not be
    afforded sufficient protection from MVDDS operations except,
    perhaps, near the U.S. borders.[^144] DBAC indicates that it shares
    the concerns of EchoStar, DIRECTV, and SES Americom with respect to
    protection of satellite operations deployed after selection of an
    MVDDS site and asks us to amend the rules to protect such satellite
    operations.[^145]

49. *Decision*. Although petitioners clearly disagree with our decisions
    in the *Second R&O*, they provide no new substantive information
    that was not fully considered. Petitions for reconsideration are not
    granted for the purpose of altering our basic findings or debating
    matters that have been fully considered and substantively
    settled.[^146] We find that petitioners' arguments do little more
    than disagree with our analysis, judgments, and policy choices. Bare
    disagreement, absent new facts and arguments, is insufficient
    grounds for granting reconsideration.[^147] The resolution of the
    fundamental issues surrounding the protection of DBS raised by
    petitioners has been a central feature of this rule making from the
    outset. Full opportunity for all affected parties to comment has
    been afforded and we have fully considered all relevant matters in
    the record. In the absence of any new information, and in light of
    our review herein of the analysis, judgments and policy choices made
    by the Commission in the *Second R&O*, we find petitioners'
    arguments to be without merit.

50. As an initial matter, we address the assertions regarding the MITRE
    Report. We observe that petitioners' arguments are largely based
    upon apparent misunderstandings regarding the status and our
    consideration of the MITRE Report. The *LOCAL TV Act* merely
    required us to arrange for independent testing of the potential for
    MVDDS interference to DBS. The Commission complied with that
    requirement when the MITRE Corporation was contracted to conduct
    that testing. Additionally, the *LOCAL TV Act* does not specify that
    the findings and recommendations of the MITRE Report are to be
    conclusively binding upon our determination of what final rules
    would best produce the desired results. Had that been the case, the
    notice and comment rule making procedures followed by the Commission
    to develop the final rules would have been largely superfluous.
    Indeed, SES Americom essentially gets it right to the extent it
    acknowledges that it is ultimately within the Commission\'s
    discretion to resolve policy issues and that various conclusions of
    the MITRE report are characterized even by MITRE as being merely a
    "recommendation."[^148] To inform our exercise of statutory
    discretion under the Communications Act, the Commission placed the
    MITRE Report on public notice on April 23, 2001, and asked for
    responsive comments that were exhaustively reviewed on the merits.
    Consequently, while recognizing that the MITRE Report is a centrally
    important document that provides critical technical insight and
    recommendations based upon a narrow set of testing conditions, we
    find that it was appropriate for the Commission to weigh its
    findings and recommendations in light of the totality of evidence in
    the record. Therefore, we find that neither the *LOCAL TV Act* nor
    the MITRE Report limits our broad statutory authority to exercise
    judgment in crafting rules that we believe will prevent harmful
    interference.

51. We note that our rules provide that any increase in DBS
    unavailability attributable to MVDDS would be in addition to the
    allowance apportioned to NGSO FSS. The petitioners have not
    persuaded us to differ from this conclusion. The Commission stated
    in the *Second R&O* that such a decision does not violate the ITU's
    findings stated in ITU‑R Rec. BO.1444,[^149] as this recommendation
    only pertains to sharing between NGSO FSS and DBS. Moreover, the
    Commission noted that the increased unavailability attributable to
    MVDDS and NGSO FSS would not necessarily be independent events
    (because some outages due to each service would occur
    simultaneously) such that the apparent increases would not be
    directly cumulative (*i.e.,* the total DBS unavailability will
    actually be less than the sum of the individual increases in
    unavailability theoretically caused by the NGSO FSS systems and an
    MVDDS system).[^150]

52. We find as unfounded petitioners' dispute with our methodology and
    their claim that adequate notice was not provided. Our predictive
    model embodies a well‑reasoned and technically sound approach that
    was fully explained in light of all the facts in the record. The
    Commission proposed an analytic model and sought comment in the
    *Further Notice* on, among other matters, the validity of the model
    and asked commenters to suggest modifications or alternative
    models.[^151] Specifically, the Commission provided a methodology
    for converting the percentage of DBS unavailability into a
    carrier-to-interference (C/I) ratio[^152] and a proposed methodology
    for using that C/I ratio to compute the mitigation zone.[^153] The
    model the Commission ultimately used to calculate the EPFD limits
    was based on the proposals, but modified somewhat based on our
    decisions in the proceeding (*e.g.*, our use of an EPFD limit rather
    than a C/I limit), comments of the parties, and the MITRE Report.
    Our ultimate decision as to the particular details of the predictive
    model is clearly a logical outgrowth of the *Further Notice* and
    rationally based upon the comments filed and the facts of
    record.[^154] Indeed, numerous proposals about specific inputs to be
    used in the predictive model were discussed throughout this
    proceeding.[^155] Based on those comments, the Commission conducted
    its analysis as follows. The Commission selected 32 markets for
    analysis which represented climatic and geographic diversity across
    the U.S. It was our judgment, based on our analysis that this sample
    set, which was larger than the sample set analyzed by MITRE[^156] or
    used by the DBS licensees in determining EPFD limits for NGSO
    FSS,[^157] was sufficiently large and diverse to produce data
    representative of the entire country as a whole. This judgment was
    based on our finding the EPFD was most affected by a combination of
    satellite power and rain rate, both of which are fairly constant
    over large areas.[^158] This observation led to our conclusion that
    EPFD limits can be developed for the entire U.S. based on a
    representative set of markets. Because of these dependencies
    (satellite power and rain rate), our analysis revealed that the U.S.
    could be divided into distinct regions in which the same EPFD limits
    would yield fairly constant levels of interference protection. After
    carefully considering the record[^159] and in keeping with our
    policy objectives of providing clarity and as much certainty as
    possible to affected parties, the Commission determined that these
    goals would be satisfied by specifying regional EPFD levels rather
    than requiring the parties to calculate a separate EPFD for each
    market or even for each transmitter, as suggested by EchoStar and
    DIRECTV. Thus, we conclude that the averaging process necessary to
    determine regional EPFD levels applicable to all satellites and, by
    association, the use of a regional approach is reasonable and lawful
    and satisfies the Commission's policy objectives.[^160] The model
    adopted is therefore similar to a model proposed in the NPRM. 
    Commenters knew of the model and commented on it in both the comment
    and reply comment rounds.  In addition, we note that our approach,
    which relied on averages, is no different than similar approaches
    taken by the Commission in other services. For example, separation
    distances to prevent interference between analog television stations
    are based on providing an acceptable level of service to a median TV
    receiver and this acceptable level of service is based on using
    propagation curves that estimate the median field strength present
    at 50% of the locations, 50% of the time. See 47 C.F.R. §§ 73.610,
    73.684, and 73.699. *See also*, "Engineering Aspects of Television
    Allocations," Report of the Television Allocations Study
    Organization (TASO) to The Federal Communications Commission, March
    16, 1959.  Petitioner\'s argument that the Commission violated
    notice requirements ignores these critical facts.  For that reason,
    we reject their argument.

53. EchoStar and DIRECTV criticize our adopted EPFD rules by stating
    that the adopted 10% standard is exceeded in most markets examined
    with respect to at least one or more CONUS satellites, that the
    median and mean increases are greater than 10%, and predicted
    unavailability increases range as high as 20‑30% with respect to
    certain satellite/city combinations. First, it is important to keep
    in mind that the increases in unavailability at question in this
    proceeding are very small. Given the reliability of DBS service
    today (typically 99.8‑99.9% availability), a 10% increase in
    unavailability of 0.2% (99.8% availability) only increases the
    unavailability to 0.22% (99.78% availability). Similarly, in this
    case, even if unavailability were to increase 50% to 0.3%, DBS would
    still be available 99.7% of the time. In our judgment, increases
    sufficiently close to 10%, are therefore, fairly insignificant in
    the overall provision of DBS service and do not meet the definition
    of harmful interference as defined in our rules.[^161] Moreover,
    these parties err by referring to the 10% benchmark as a standard.
    The Commission has stated several times in this proceeding that the
    10% criterion was used only as a starting point for developing the
    EPFD levels. As we discuss above in addressing legal and regulatory
    issues, it was our goal to come reasonably close to 10%, but it was
    not our goal - nor would it be reasonable given the complexity of
    the calculations and the variability of the factors involved - to
    determine an EPFD that yields exactly an increase of 10%. Because we
    used averages across satellites and regions to specify EPFD levels,
    it is not surprising that at least one satellite in each market
    examined exceeds the mean and median. In fact, by definition, half
    will exceed the median and half will be below. Again, given the
    relatively small increases in unavailability, we do not believe that
    DBS will suffer harmful interference. A further point worth noting
    is illustrated in Table 2 below in which column 2 shows the
    difference in unavailability percentage using our adopted EPFDs or a
    strict 10% limit. As can be seen from the table, these differences
    are very small - less than 5 hundredths of a percent for the cities
    shown.[^162] Thus, we conclude that the result of our averaging
    approach differs from the results that would be obtained by using a
    strict 10% limit by such a small amount as to be insignificant. This
    small difference is acceptable when balanced with the advantages of
    having a specified EPFD limit in the rules rather than a percentage
    criterion.

54. In addition, the petitioners' emphasis on the 20-30% unavailability
    range is somewhat misleading because it ignores the underlying
    significant factors. We observe that such increases only pertain to
    a single satellite, the one located at 110^o^ West Longitude. As
    discussed in more detail below, this particular satellite has been
    replaced with a new satellite having better performance
    characteristics. However, to directly address petitioners' argument
    on its own terms, data based on the former satellite located at
    110^o^ West Longitude are presented below:[^163] Tables 1 and 2 show
    results for cities predicted to experience some of the largest
    percentage increases in unavailability from this satellite (if it
    were still operational). For comparison purposes, Tables 3 and 4
    show similar data for cities predicted to experience the least
    amount of increased unavailability.

Table 1: Satellite Located at 110^o^ West Longitude -- Cities with large
increases in Unavailability (Outage). Comparison of Availability and
Unavailability Attributable to MVDDS for Various Criteria.

(all values are expressed as a percentage over a year)

+------------+--------+--------+--------+--------+--------+--------+
| City       | Ba     |        | Rain   |        | Rain   |        |
|            | seline |        | plus   |        | plus   |        |
|            |        |        | MVDDS  |        | MVDDS  |        |
|            | (rain  |        |        |        |        |        |
|            | only)  |        | (using |        | (as    |        |
|            |        |        | re     |        | suming |        |
|            |        |        | gional |        | 10%    |        |
|            |        |        | EPFD)  |        | limit) |        |
+------------+--------+--------+--------+--------+--------+--------+
|            | Availa | Outage | Availa | Outage | Availa | Outage |
|            | bility |        | bility |        | bility |        |
+------------+--------+--------+--------+--------+--------+--------+
| W          | 9      | 0.2640 | 9      | 0.3356 | 9      | 0.2904 |
| ashington, | 9.7360 |        | 9.6644 |        | 9.7096 |        |
| DC         |        |        |        |        |        |        |
+------------+--------+--------+--------+--------+--------+--------+
| Pittsburgh | 9      | 0.2045 | 9      | 0.2607 | 9      | 0.2250 |
|            | 9.7955 |        | 9.7393 |        | 9.7751 |        |
+------------+--------+--------+--------+--------+--------+--------+
| Ph         | 9      | 0.2717 | 9      | 0.3502 | 9      | 0.2989 |
| iladelphia | 9.7283 |        | 9.6498 |        | 9.7011 |        |
+------------+--------+--------+--------+--------+--------+--------+
| New York   | 9      | 0.2517 | 9      | 0.3217 | 9      | 0.2769 |
|            | 9.7483 |        | 9.6783 |        | 9.7231 |        |
+------------+--------+--------+--------+--------+--------+--------+
| Boston     | 9      | 0.2199 | 9      | 0.2864 | 9      | 0.2419 |
|            | 9.7801 |        | 9.7136 |        | 9.7581 |        |
+------------+--------+--------+--------+--------+--------+--------+
| Nashville  | 9      | 0.2860 | 9      | 0.3518 | 9      | 0.3146 |
|            | 9.7140 |        | 9.6482 |        | 9.6854 |        |
+------------+--------+--------+--------+--------+--------+--------+

Table 2: Satellite Located at 110^o^ West Longitude - Cities with large
increases in Unavailability. Comparison of Changes in Availability and
Unavailability Attributable to MVDDS for Various Criteria

+------------+------------------+------------------+------------------+
| City       | Column 1         | Column 2         | Column 3         |
+------------+------------------+------------------+------------------+
|            | Increase in      | Rain plus MVDDS  | Increase in      |
|            | Outage           |                  | Outage           |
|            |                  | Difference       |                  |
|            | (using regional  | Between          | over Baseline    |
|            | EPFD)            |                  |                  |
|            |                  | Regional EPFD    | (Using regional  |
|            | Difference       | and              | EPFD)            |
|            | Between          |                  |                  |
|            |                  | assumed 10%      | (%)              |
|            | Rain plus MVDDS  | limit            |                  |
|            | and              |                  |                  |
|            |                  |                  |                  |
|            | Baseline (rain   |                  |                  |
|            | only)            |                  |                  |
+------------+------------------+------------------+------------------+
| W          | 0.0716           | 0.0452           | 27.1             |
| ashington, |                  |                  |                  |
| DC         |                  |                  |                  |
+------------+------------------+------------------+------------------+
| Pittsburgh | 0.0562           | 0.0357           | 27.4             |
+------------+------------------+------------------+------------------+
| Ph         | 0.0785           | 0.0513           | 28.9             |
| iladelphia |                  |                  |                  |
+------------+------------------+------------------+------------------+
| New York   | 0.0700           | 0.0448           | 27.8             |
+------------+------------------+------------------+------------------+
| Boston     | 0.0665           | 0.0445           | 30.2             |
+------------+------------------+------------------+------------------+
| Nashville  | 0.0658           | 0.0372           | 23.0             |
+------------+------------------+------------------+------------------+

Note: The absolute value of the difference is the same whether comparing
availability or outage (unavailability).

Table 3: Satellite Located at 101^o^ West Longitude -- Cities with small
increases in Unavailability (Outage). Comparison of Availability and
Unavailability Attributable to MVDDS for Various Criteria.

(all values are expressed as a percentage over a year)

+------------+--------+--------+--------+--------+--------+--------+
| City       | Ba     |        | Rain   |        | Rain   |        |
|            | seline |        | plus   |        | plus   |        |
|            |        |        | MVDDS  |        | MVDDS  |        |
|            | (rain  |        |        |        |        |        |
|            | only)  |        | (using |        | (as    |        |
|            |        |        | re     |        | suming |        |
|            |        |        | gional |        | 10%    |        |
|            |        |        | EPFD)  |        | limit) |        |
+------------+--------+--------+--------+--------+--------+--------+
|            | Availa | Outage | Availa | Outage | Availa | Outage |
|            | bility |        | bility |        | bility |        |
+------------+--------+--------+--------+--------+--------+--------+
| Greenville | 99.926 | 0.074  | 99.922 | 0.078  | 99.919 | 0.081  |
+------------+--------+--------+--------+--------+--------+--------+
| Charlotte  | 99.945 | 0.055  | 99.955 | 0.045  | 99.954 | 0.046  |
+------------+--------+--------+--------+--------+--------+--------+
| W          | 99.958 | 0.042  | 99.956 | 0.044  | 99.954 | 0.046  |
| ashington, |        |        |        |        |        |        |
| DC         |        |        |        |        |        |        |
+------------+--------+--------+--------+--------+--------+--------+
| In         | 99.911 | 0.089  | 99.909 | 0.091  | 99.902 | 0.098  |
| dianapolis |        |        |        |        |        |        |
+------------+--------+--------+--------+--------+--------+--------+
| Pittsburgh | 99.968 | 0.032  | 99.966 | 0.034  | 99.965 | 0.035  |
+------------+--------+--------+--------+--------+--------+--------+
| Columbus   | 99.961 | 0.039  | 99.960 | 0.040  | 99.957 | 0.043  |
+------------+--------+--------+--------+--------+--------+--------+

Table 4: Satellite Located at 101^o^ West Longitude - Cities with large
increases in Unavailability. Comparison of Changes in Availability and
Unavailability Attributable to MVDDS for Various Criteria

+------------+------------------+------------------+------------------+
| City       | Column 1         | Column 2         | Column 3         |
+------------+------------------+------------------+------------------+
|            | Increase in      | Rain plus MVDDS  | Increase in      |
|            | Outage           |                  | Outage           |
|            |                  | Difference       |                  |
|            | (using regional  | Between          | over Baseline    |
|            | EPFD)            |                  |                  |
|            |                  | Regional EPFD    | (Using regional  |
|            | Difference       | and              | EPFD)            |
|            | Between          |                  |                  |
|            |                  | assumed 10%      | (%)              |
|            | Rain plus MVDDS  | limit            |                  |
|            | and              |                  |                  |
|            |                  |                  |                  |
|            | Baseline (rain   |                  |                  |
|            | only)            |                  |                  |
+------------+------------------+------------------+------------------+
| Greenville | 0.004            | (0.003)          | 5.444            |
+------------+------------------+------------------+------------------+
| Charlotte  | 0.003            | (0.002)          | 5.544            |
+------------+------------------+------------------+------------------+
| W          | 0.002            | (0.002)          | 5.762            |
| ashington, |                  |                  |                  |
| DC         |                  |                  |                  |
+------------+------------------+------------------+------------------+
| In         | 0.002            | (0.007)          | 2.249            |
| dianapolis |                  |                  |                  |
+------------+------------------+------------------+------------------+
| Pittsburgh | 0.002            | (0.001)          | 5.865            |
+------------+------------------+------------------+------------------+
| Columbus   | 0.001            | (0.002)          | 3.791            |
+------------+------------------+------------------+------------------+

Notes: The absolute value of the difference is the same whether
comparing availability or outage (unavailability).

Values shown in brackets indicate performance exceeding an assumed 10%
limit.

55. As shown in Table 2, the increase in unavailability (or decrease in
    availability) of DBS service over the baseline unavailability for
    cities with the largest percentage increase in unavailability is
    less than one‑tenth of one percent in all cases for the satellite
    located at 110^o^ West Longitude. For the satellite located at
    101^o^ West Longitude, Table 4 shows even better results for cities
    with the least percentage increase in unavailability -- less than
    one-hundredth of one percent. Thus, for all cities, the increase in
    unavailability is very small.[^164] To illustrate even further that,
    in many cases, seemingly large values for the increase in DBS
    unavailability result in insignificant outage in absolute terms, it
    is instructive to look at a city where the baseline outage is very
    small. In Denver, the increase in outage over the baseline due to
    MVDDS is 14%, but the actual increase in minutes is predicted to be
    a mere 22.5 minutes over an entire year.[^165] These outage
    increases due to MVDDS are significantly less than the seasonal and
    yearly variability in actual rain fall rates, and therefore, the
    variability in outage already experienced by many DBS
    customers.[^166] In any event, we also note that consumers will
    never see outages of the magnitude shown. As alluded to above, in
    August, 2002, EchoStar launched a new satellite into the orbital
    slot at 110^o^ West Longitude and began operation in October,
    2002.[^167] This satellite uses a CONUS beam for national coverage
    and spot beams, which concentrate more power into specific
    geographic areas,[^168] to provide local TV channels. We observe
    that the CONUS beam of the new satellite provides approximately 3 dB
    more power than the old satellite. Because we have specified a hard
    EPFD limit, DBS operators (and consumers) get the performance
    benefits of these new satellites whether they receive their signal
    from the CONUS beam only or a combination of the CONUS beam and a
    spot beam. This is clearly illustrated in the *Second R&O*, where
    the Commission showed how the new spot beam satellite at 119^o^ West
    Longitude would decrease unavailability.[^169] Similar results are
    seen for the new satellite at 110^o^ West Longitude.[^170] As a
    final point, EchoStar disputes our contention that newer satellites
    and technology will improve the DBS situation, claiming that their
    new satellite employs the same output tube as its previous satellite
    (*i.e.*, the one used for our analysis).[^171] Clearly, as shown
    from our examples, even with the same output tube, the power from
    the new satellites is now being concentrated into a stronger CONUS
    beam and spot beams, which has the practical effect of providing
    more power to consumers' receive antennas, thereby making it less
    susceptible to interference from another source such as MVDDS.

56. It is also important to recognize that the unavailability increases
    calculated from our adopted EPFDs are worst case. In most instances,
    consumers will experience increases below these levels. The
    Commission used very conservative assumptions when determining the
    EPFD levels. Among these, the Commission assumed free space path
    loss over a flat earth; natural shielding by terrain, foliage, and
    buildings was not considered. the Commission also assumed a rain
    faded DBS signal, but a full strength MVDDS signal. Because they
    will use the same frequencies, rain affects both DBS and MVDDS in a
    similar fashion causing faded signals. Rain tends to be localized
    events and in many cases the same rain that fades the DBS signal
    would also fade the MVDDS signal. Further, the Commission assumed a
    quasi‑error free (QEF) DBS threshold receiver value.[^172] At the
    threshold for QEF performance, interference from MVDDS would be
    essentially imperceptible to a DBS customer. In fact, customers
    would not be able to perceive any degradation to their picture until
    the DBS signal dropped to a level below this threshold.[^173] We
    also observe that consumers will not necessarily be impacted by the
    full amount of any increase in unavailability as outages do not
    always occur at the precise moment when television is being watched
    -- sometimes they occur when people are sleeping or away from home,
    or at times when they are not watching. In consideration of these
    factors, along with the use of newer satellites (as described
    above), we are confident that DBS consumers will not experience
    outages to the extent that our worst case modeling calculated.

57. Regarding the "wing" satellites -- those with partial CONUS coverage
    located at 61.5^o^ and 148^o^ West Longitude - EchoStar and DIRECTV
    assert that the Commission did not include these satellites in the
    development of EPFDs. They are correct. However, neither EchoStar
    nor DIRECTV provide any data or calculations showing how using these
    "wing" satellites would have changed the EPFD limits. The Commission
    reasoned that because the footprint of the full CONUS satellites
    encompass the footprint of the partial CONUS satellites, and the
    operating characteristics (*i.e*., power) are similar, the
    Commission believed that it could simplify the calculations by
    developing the EPFD limits using only the CONUS satellites. The
    Commission believed that the EPFDs calculated based on the CONUS
    slots would result in comparable increases in unavailability to DBS
    subscribers who receive programming from the other slots. To ensure
    the validity of this approach, sample calculations were performed on
    the satellites at 61.5º and 148º west longitudes to determine the
    increases in unavailability that would result from our EPFD limits.
    These calculations, which were contained in the *Second R&O*,
    confirmed that impact of the adopted EPFD limits is acceptable in
    locations where reliable DBS service could be expected.[^174] Our
    goal throughout this proceeding has been to allow the introduction
    of a new service while still protecting DBS. If our calculations had
    produced results inconsistent with those of the CONUS satellites,
    the Commission would have reconsidered our approach towards these
    satellites. To do otherwise would have been irresponsible and not in
    keeping with our goal of protecting DBS service. As a corollary, the
    same reasoning holds with respect to the concerns of DBAC who is
    proposing to use Canadian-licensed satellites located at 82^o^ and
    91^o^ West Longitude to provide two-way digital data and video
    services to U.S. consumers.[^175] We observe that these satellites
    are located between the U.S. licensed satellites located at 61.5^o^
    and 101^o^ West Longitude. To serve the U.S., the footprint of
    DBAC's proposed satellites must be encompassed by the existing U.S.
    satellites. Thus, assuming that these satellites are similar to the
    U.S. licensed satellites (DBAC provides no technical information
    regarding there proposed satellites), DBAC should be adequately
    protected.

58. With respect to EchoStar and DIRECTV's assertion that the rules are
    deficient because the record does not contain any assurance as to
    the accuracy of the predictive model, we find that argument to be
    without merit. Our model used similar methodology as that used by
    MITRE and DIRECTV in their analyses. While the calculations of DBS
    outage are complex, they generally follow methodology developed and
    recognized internationally by the ITU. For example, the Commission
    developed an excel spreadsheet implementing ITU‑R Recommendation
    P.837 to calculate rainfall rates that are an essential input to
    model.[^176] Similarly, our model incorporated procedures from ITU‑R
    Recommendation P.618‑6,[^177] ITU‑R Recommendation P.838‑1,[^178]
    ITU‑R Recommendation P.841‑1,[^179] and ITU‑R Recommendation
    P.839.[^180] These Recommendations have not been disputed throughout
    this proceeding.[^181] To ensure that the inputs to the model were
    accurate, the Commission used data gathered from MITRE, the DBS
    licensees' applications, and from the information on file with the
    ITU used for the sharing studies of DBS and NGSO FSS. This data has
    been on the record and has never been disputed. Therefore, based on
    the use of these data and the use of accepted modeling techniques,
    we believe that our model is as accurate as possible given the
    inherent variability of rain rates from year to year.

59. Moreover, we find that insistence on ‑ or the absence of ‑ the
    certainty sought by petitioners does not support reconsideration.
    The analysis and discussion in the *Second R&O* clearly demonstrate
    that the Commission has given serious consideration to a wide array
    of complex technical factors in formulating the predictive model and
    related rules in a manner that we believe will be effective. Based
    upon this careful consideration, the Commission concluded that the
    predictive model along with the resulting rules and procedures that
    were adopted should protect DBS from harmful interference and should
    otherwise be workable and beneficial in practice as predicted. At
    the same time, we also note that determinations of this nature may
    be, as the courts have observed in other instances, "at once a
    highly technical and somewhat speculative undertaking" and that such
    determinations "are precisely the sort that Congress intended to
    leave to the broad discretion of the Commission."[^182] Therefore,
    we find that the determinations made by the Commission in the
    *Second R&O* are appropriately dependent upon the exercise of our
    judgment under the broad statutory authority of the Communications
    Act.[^183]

60. In regard to field testing, we point out that it has never been a
    requirement under our rules that field testing be carried out prior
    to allowing a new service to begin operation. All that is required
    is that the Commission consider the facts on the record and create
    rules to protect primary users of the spectrum from harmful
    interference. We believe that our extensive modeling of the
    interactions between MVDDS and DBS demonstrate that this is the case
    here, as has been done for the implementation of many new services
    that the Commission has authorized over the years. Thus, we do not
    believe that field testing is necessary. We do note however that
    some field testing has been done, although not by the Commission.
    MITRE conducted a simulation of the interaction between DBS and
    MVDDS and determined that sharing between these services was
    feasible. In addition, Northpoint, MDS America, DIRECTV and EchoStar
    have field tested MVDDS systems under experimental
    authorizations.[^184] In general, these tests support our analysis
    and show that MVDDS and DBS can coexist.

61. As mentioned earlier, a zone exists around each transmitter where it
    is possible that the EPFD, absent any mitigation, may exceed the
    adopted limit. Our model calculates the contour that defines this
    zone. EchoStar and DIRECTV aver that DBS subscribers located outside
    the predictive contour are not protected from harmful interference
    even if they are subject to higher power from MVDDS than the model
    predicts. We disagree with this assertion as it is contrary to a
    straightforward reading of our rules. Our rules have been designed
    to ensure that all DBS subscribers, no matter where they are
    located, are protected from harmful interference caused by MVDDS.
    Our model provides the parties with essential information regarding
    the area where the EPFD could be exceeded based on power levels,
    antenna pattern, and antenna height. We understand that other
    interactions, such as reflections or multipath, could occur which,
    although unlikely,[^185] could cause a DBS subscriber located
    outside the predicted contour to receive an EPFD above the adopted
    level. We contemplated this possibility and crafted the rules with
    this in mind. Thus, Section 101.1440(g) of our rules states that,
    "\[t\]he MVDDS licensee must satisfy all complaints of interference
    to DBS customers of record which are received during a one year
    period after commencement of operation of the transmitting facility.
    Specifically, the MVDDS licensee must correct interference caused to
    a DBS customer of record or cease operation if it is demonstrated
    that the DBS customer is receiving harmful interference from the
    MVDDS system or that the MVDSS signal exceeds the permitted EPFD
    level at the DBS customer location. MVDDS must satisfy all
    complaints of interference."[^186] Nowhere does this rule stipulate
    that MVDDS must only satisfy complaints of interference from DBS
    customers located within the predicted contour. Thus, we believe the
    complaint of EchoStar and DIRECTV to have no merit.

62. Even after carefully crafting rules that protect DBS, the Commission
    added a provision to provide a remedy in the event that an anomalous
    situation arises for which our model may not correlate with the
    experience of DBS customers. This "safety valve" rule is criticized
    by EchoStar and DIRECTV. Again, we disagree with the petitioners.
    First, we have clearly shown that our decisions in this preceding
    have been reasoned, based on the record, and neither arbitrary nor
    capricious. In practice, we do not believe that parties will have to
    resort to the safety valve; and we find that its use in a few
    limited situations will certainly not overshadow the adopted rules.
    Second, the petitioners other argument centers around an assertion
    that the rule is vague and that the Commission does not lay out
    exactly what they may need to specify in the event that they wish to
    use the safety valve. We are not sympathetic to this argument. In
    many cases, the Commission provides opportunities for licensees to
    petition for adjustments to rules (outside the waiver process)
    without specifying in exacting detail how such a filing should be
    made.[^187] We cannot anticipate every circumstance and,
    consequently, prefer that the affected parties have sufficient
    flexibility to demonstrate the requirements as they see best.
    However, to provide some guidance, our intent is that the safety
    valve be used for situations that are outside of the norm (*i.e*.,
    anomalous). For example, if there is an area within one of our
    defined regions where the rain rate is inconsistent with the rest of
    the region, a DBS licensee can provide proof of this situation and a
    showing that their customers could be adversely affected. In such a
    case, the Commission would consider the facts and, if deemed
    appropriate, adjust the EPFD for this specific location to account
    for the uncharacteristic situation. We believe that the safety valve
    rule as written is a useful tool to ensure that MVDDS operations
    fully protect DBS.

63. After review of our technical findings from the Second R&O, we find
    that the adopted rules were borne out of reasoned decision making -
    they are both reasonable and lawful - and that the Commission
    provided rational explanations for each of our decisions after
    consideration of all the facts of record. The Commission adopted
    these rules fully aware that there would be some minor impact on DBS
    service, but found that such a result was outweighed by the
    potential addition of a competitor to the MVPD market. In crafting
    the rules for this new service, the Commission was careful to insure
    that any such impact to DBS, both existing and future, were
    minimized to ensure a lack of harmful interference (in light of the
    conservative values used, the interference avoidance measures that
    the DBS customer can employ with a minimum of difficulty, and the
    added protections that the safety valve provides). We conclude that
    petitioners' wide range of allegations that the adopted rules and
    procedures are arbitrary and capricious and violate the *APA* are
    without merit in all respects and must be denied.

### Implementation Issues

64. *Petitions overview*. EchoStar and DIRECTV argue that the MVDDS
    entry procedures are arbitrary, capricious and unsupported by the
    record and are not adequate to protect DBS customers from harmful
    interference.[^188] In particular, EchoStar, DIRECTV and SBCA assert
    that the rules do not ensure that the MVDDS entity will conduct an
    accurate or complete site survey. EchoStar and DIRECTV claim that
    the lack of clear direction may cause the MVDDS provider simply to
    sample a number of sites or to go door‑to‑door seeking information,
    and that 45 days is not sufficient time for DBS entities to notify
    an MVDDS provider whether the EPFD contours have been correctly
    calculated and whether the EPFD limits are exceeded at any DBS
    customer location.[^189] EchoStar and DIRECTV also object to the
    requirement that the DBS provider provide a list of new DBS
    installations to the MVDDS provider since this information is
    proprietary and competitively sensitive, thus subject to misuse by
    an MVDDS operator. SBCA suggests that the DBS provider may only have
    billing information for a customer but not know the receiver
    location. SBCA asserts that the rules do not require the MVDDS
    licensee to check EPFD levels at locations that were not included on
    the initial survey, but later identified by the DBS licensee.[^190]
    SBCA also is concerned that the EPFD measurements will not be
    accurate if taken at the property line, not at the actual
    installation site, and EchoStar and DIRECTV argue that the
    Commission has not identified a standard for field measurement of
    EPFD levels. EchoStar and DIRECTV also assert that allowing the
    MVDDS provider attempt to get DBS customers to waive EPFD limits at
    a particular site could lead to mischief (*e.g.,* misrepresentation
    to the customer of its interference rights). [^191]

65. EchoStar and DIRECTV also request that we clarify the dispute
    resolution process. They claim that the rules suggest that disputes
    will be resolved within the remaining 45 days after the DBS
    companies respond to the coordination notification, but the rules
    are silent on how disputes should be resolved and what happens if
    disputes are not resolved within this period (*e.g*., can the MVDDS
    transmitter begin operations).[^192]

66. MDS America asks us to reconsider the MVDDS entry procedures to
    eliminate the site survey, which they argue is cumbersome and
    expensive, and the requirement that DBS entities identify new
    customers for the MVDDS provider. They urge instead that we simplify
    the coordination requirements by requiring DBS providers to
    identify, within 45 days of the receipt of the notice required by
    section 101.1440(d) of the rules, only those locations of a DBS
    customer of record which they believe would receive harmful
    interference from the proposed MVDDS transmitter.[^193] Northpoint
    disagrees with MDS America's request and argues that it can properly
    site its transmitters without having access to DBS customer
    information.[^194]

67. *Decision*. We find petitioners\' argument that the Commission
    failed to provide sufficient detail or specificity about MVDDS entry
    procedures to be without merit. In our view, petitioners have
    strained to take the relatively straightforward rules and procedures
    that were adopted and construe them in a vacuum devoid of any
    assumption of reasonableness or good faith by the parties involved.
    Moreover, as a practical matter, we believe that the excessive level
    of regulatory oversight sought by petitioners, if adopted, would
    result in sharing rules and entry procedures that are so burdensome,
    inflexible and complex that the entire implementation plan would not
    serve the public interest. In contrast, we note the Commission has
    previously taken a more flexible approach in other proceedings that
    involved far more complex interactions among competing licensees.
    For example, in the *Emerging Technologies* proceeding,[^195] and
    the subsequent *18 GHz Relocation* and *2 GHz Relocation*
    proceedings, we declined to adopt excessively detailed negotiation
    requirements between licensees in situations involving the
    obligation of one service to pay for and install replacement
    facilities for licensees of another service on a nationwide basis.
    [^196] Instead, the Commission provided only general guidelines,
    along with the requirement that the parties deal in good faith. In
    this manner, the Commission left it to the parties to determine the
    specific details of negotiating a resolution consistent with our
    general rules, timelines and procedures. We believe that the same
    broad approach should be workable and beneficial here.

68. For additional perspective on our decision, we also make the
    following observations. As an initial matter, we believe that
    petitioners' arguments greatly distort the rules and procedures that
    were adopted by consistently exaggerating the rare exception and
    making it the norm. For example, whereas petitioners paint a picture
    of pervasive harmful interference to DBS, we believe that the
    chances of harmful interference occurring are negligibly small.
    Regarding the petitioners' fear that MVDDS will not conduct an
    accurate or complete survey that is required by Section 101.1440(b),
    we believe that MVDDS licensees acting in good faith can readily
    conduct fully adequate surveys in light of our related discussions
    in the *Second R&O*. Indeed it is in their best interest to perform
    a survey as accurate as possible, since they assume all of the risk
    in the first year of MVDDS operation, *i.e*., they must correct
    interference or cease operation if they cause harmful interference
    to or exceed the permitted EPFD limits to a DBS customer of
    record.[^197] We do not eliminate the site survey requirement, as
    MDS America requests, because we conclude that the proper site
    selection and design of the MVDDS transmitter depends in large part
    on conducting a site survey of DBS receive locations. It is thus
    proper to require the MVDDS operator to perform such a survey and
    share its results with the DBS provider, rather than shift the
    burden to the DBS provider to analyze the proposed MVDDS transmitter
    characteristics and the impacts on DBS customers. We thus affirm our
    decision and conclude that a site survey, in conjunction with other
    adopted procedures, will protect DBS customers.

69. Concerning the petitioners' criticism that the 45 day response time
    of Section 101.1440(d)(2) provided to the DBS provider is
    arbitrarily short, we note that the Commission decided upon the
    adopted time frame based upon all the information of record and in
    light of our best judgment of what would, on balance, be equitable
    to all parties and would be in the public interest. In particular,
    the Commission concluded that the time frame provides a reasonable
    balance between the needs of DBS licensees to ensure protection of
    their customers before MVDDS begins operation while affording MVDDS
    licensees the ability to initiate service on a reasonably
    expeditious basis. Further, DBS customers are protected once MVDDS
    begins operation because, as noted above, the MVDDS provider must
    correct interference or cease operation if they cause harmful
    interference to or exceed the permitted EPFD limits to a DBS
    customer of record. We thus affirm our decision and conclude that
    the 45 day response period provides adequate protection for DBS
    customers.

70. Some petitioners also express concern regarding the requirement of
    Section 101.1440(d)(2) to provide a list of DBS customers that began
    service within 30 days after the MVDDS notice is provided and the
    possible uses to which such information could be put. MDS America
    has proposed an alternative procedure whereby the DBS entity only
    identifies those locations of DBS customers of record that they
    believe would receive harmful interference from the proposed MVDDS
    transmitter. We believe that this alternative approach has some
    merit in this case. Consequently, we will modify Section
    101.1440(d)(2) to allow DBS providers to identify only those new DBS
    customers of record which they believe would receive harmful
    interference from the proposed MVDDS transmitter, rather than
    identify all new customers during the 30 day period. This approach
    addresses the desire of the DBS licensees to protect information
    that they believe is competitively sensitive while ensuring that the
    MVDDS operator has an opportunity to protect DBS customers from
    interference. We note that this approach is consistent with other
    provisions in our rules which allow DBS providers to identify those
    DBS receive locations that they believe may have been missed in the
    site survey or where the prescribed EPFD limits could be
    exceeded.[^198]

71. Concerning a methodology for measuring EPFD values, we believe that
    any measurement techniques we might describe would artificially
    limit the flexibility of the licensees to perform these
    measurements, and may seemingly prohibit the use of a technique that
    is satisfactory for this purpose. It is up to the licensees to
    perform these measurements in accordance with good engineering
    practices, and we decline to provide a detailed measurement
    procedure for this case.

72. Concerning dispute resolution procedures, we clarify that the MVDDS
    transmitter can be turned on after expiration of the 90-day period
    specified in Section 101.1440. We believe that our EPFD contour
    methodology will reduce disputes to a minimum, and this time frame
    will ensure that licensees participate in conflict resolution in
    good faith. We do not believe that it would be in the public
    interest to hold hostage the implementation of a new service due to
    what we believe will be a negligible number of disputes in practice.
    We believe that the risk to DBS customers of record is minimal since
    our rules also provide that the MVDDS provider must correct
    interference or cease operation if they cause harmful interference
    to or exceed the permitted EPFD limits to a DBS customer of
    record.[^199]

## Multichannel Video Distribution and Data Service Rules

### Dismissal of Pending Applications 

73. On January 8, 1999, April 18, 2000, and August 25, 2000, Northpoint,
    Pegasus, and SRL, respectively, filed applications and waiver
    requests for terrestrial use of the 12 GHz band with the
    Commission.[^200] On December 8, 2000, the Commission requested
    comment on the disposition of these waiver requests and
    applications.[^201] The Commission asked, among other things,
    whether the *Ku‑Band Cut‑Off Notice*[^202] and the November 24, 1998
    *NPRM*[^203] gave adequate notice to all parties interested in
    filing applications for terrestrial use of the 12 GHz band.[^204]

74. Subsequent to the release of the *First R&O and Further Notice,*
    Congress passed the *LOCAL TV Act*, requiring the Commission to
    provide for independent testing of technology proposed by applicants
    seeking to provide terrestrial service in the 12 GHz band.[^205] The
    Commission selected the MITRE Corp. (MITRE) to conduct this testing.
    MITRE filed its report detailing its testing on April 18,
    2001.[^206]

75. On May 23, 2002, the Commission dismissed the Northpoint, Pegasus
    and SRL applications and waiver requests as prematurely filed
    because there was inadequate notice to all entities interested in
    filing applications for licenses to provide terrestrial services in
    the 12 GHz band.[^207] In addition, the Commission determined that
    Section 1012 of the *LOCAL TV Act* does not limit the field of
    applicants for 12 GHz band terrestrial licenses only to those
    entities that filed an application with the Commission on or before
    enactment of the statute.[^208] In this connection, the Commission
    concluded that the underlying purpose of the *LOCAL TV Act* is to
    provide assurance that terrestrial operations in the 12.2‑12.7 GHz
    band will not disrupt DBS service, and determined that this purpose
    is served by requiring MVDDS entities to comport with the rules
    established in this proceeding.[^209]

76. *Discussion*. For the reasons set forth below, we affirm the
    Commission's disposition of the applications and waiver requests of
    Northpoint, Pegasus, and SRL. The Commission dismissed the
    applications because the *Ku-band Cut-Off Notice* did not provide
    adequate notice for all entities interested in filing applications
    for licenses to provide terrestrial services in the 12 GHz
    band.[^210] Additionally, the Commission denied the associated
    waiver requests finding that no applicant satisfied the waiver
    standard.[^211] However, Pegasus maintains that the Commission
    should interpret Section 1012 of the *LOCAL TV Act* to limit MVDDS
    licensing to those then-pending applicants that successfully
    participated in the independent testing.

77. Pegasus argues that it submitted a timely-filed application and
    successfully subjected its technology to testing. Consequently, it
    asserts that it was qualified to be an MVDDS licensee and the
    Commission should not have dismissed its application. Northpoint
    similarly argues that the Commission erred by dismissing its
    application.

78. We disagree with these assertions because the Commission did not
    dismiss their applications and deny their waiver requests because
    they did not satisfy the testing requirement. Rather, the Commission
    dismissed their applications because the Commission found that
    notice to file applications for terrestrial services was not
    "reasonably comprehensible" to interested parties and could not be
    made by implication.[^212]

79. In fact, the Commission determined that the *Ku-Band Cut-Off Notice*
    was completely silent concerning terrestrial use of the
    Ku-band.[^213] Accordingly, the Commission found that Pegasus,
    Northpoint, and SRL did not properly file their applications. As a
    result, the Commission dismissed the applications without prejudice
    to refile when the Commission announces that it is accepting
    applications to provide terrestrial services in the 12 GHz
    band.[^214] Section 1012 of the *LOCAL TV Act* does not require the
    Commission to grant any applications. It requires the Commission to
    provide for independent testing of any technology proposed "by an
    entity that has filed an application" when the Commission has
    entities before it that seek to provide terrestrial service in the
    12 GHz band.[^215] Section 1012 of the *LOCAL TV Act* also specifies
    certain parameters for the testing of technology proposed by "any
    pending application."[^216] At no point does the *LOCAL TV Act*
    mandate the grant of an application (especially an application filed
    in a defective manner without adequate notice), although Pegasus and
    Northpoint seek this interpretation of the *LOCAL TV Act*. We find
    this interpretation is counter to the public interest because it
    would encourage the filing of applications without adequate notice
    to all interested parties.

80. Instead of challenging the application dismissal and waiver denial,
    Pegasus and Northpoint maintain that the testing requirement of
    Section 1012 of the *LOCAL TV Act* limits the scope of potential
    applicants for the spectrum. Pegasus argues that the *LOCAL TV Act*
    requires the Commission to limit MVDDS licensing to the two
    qualified entities -- Pegasus and Northpoint -- that successfully
    participated in independent testing required by the Act.[^217]
    Specifically, Pegasus asserts that because Section 1012(a) of the
    *LOCAL TV Act* expressly states that testing is required and is
    applicable to "any entity that has filed an application to provide
    terrestrial service," and Congress did not address what future
    applicants would need to do, Congress clearly intended to limit
    MVDDS licensing to those then-pending applicants that successfully
    participated in the independent testing.[^218] However, as noted
    previously, neither application was acceptable because interested
    parties did not receive notice and no technical rules existed to
    protect DBS. Consequently, the applications were defective as
    prematurely filed.

81. We further note that first, and foremost, on Congress' mind when it
    adopted Section 1012 of the *LOCAL TV Act* was to avoid harmful
    interference. If Congress had intended the Commission to grant the
    applications, it would have mandated that result. Because Congress
    did not mandate grant of the applications, we believe that our
    interpretation complies with the intent of Section 1012 of the
    *LOCAL TV Act*.

82. Northpoint and SRL agree with Pegasus that we should not accept an
    MVDDS application from entities that did not have applications on
    file at the time of the enactment of the statute. However,
    Northpoint limits the field of applicants to one (itself), because
    it argues that the MITRE report based its conclusions solely on
    Northpoint's technology as no one else submitted any equipment for
    testing.[^219] On the other hand, SRL believes that the Commission
    should reinstate all three applications.[^220] SRL avers that
    Section 1012 of the *LOCAL TV Act* simply requires the Commission to
    ensure that any applicant proposing to deploy terrestrial operations
    do so without causing harmful interference to DBS operations.[^221]
    In addition, SRL avers that the Act does not require then-pending
    applicants to propose any technology or limit the field of
    applicants to those that participated in the independent
    testing.[^222]

83. Pegasus does not contest the Commission's conclusion in the
    memorandum opinion and order portion of the *Second R&O* that the
    underlying purpose of Section 1012 *LOCAL TV Act* is to require a
    determination of whether any proposed terrestrial service would
    cause harmful interference to any DBS service.[^223] This purpose
    comports with the Commission's determination that Congress did not
    intend for the statute to limit the scope of applicants for the
    spectrum to those on file at the time, because we do not believe,
    and Pegasus does not argue, that this goal requires a limitation on
    prospective MVDDS providers.

84. Pegasus argues that if Congress had intended the Commission to
    continue to accept later-filed applications, it could have been more
    explicit.[^224] In reviewing the statute, the Commission found that
    Section 1012(a)'s requirement that it provide for independent
    testing of any technology proposed by "any entity that has filed an
    application" covers points in time (present or future) when the
    Commission has before it applications filed by entities that seek to
    provide terrestrial service in the 12.2 -- 12.7 GHz band.[^225] In
    contrast, the Commission determined that Section 1012(b) of the
    *LOCAL TV Act*, which provides the parameters for the testing of
    technology proposed by "any pending application," is limited to
    applications pending as of the enactment of the *LOCAL TV
    Act*.[^226] As the Commission stated,

    Had Congress intended Section 1012(a) to apply only to applications
    on file with the Commission at the time of enactment, it would have
    used terms such as "pending" and "date of enactment," which it did
    in Section 1012(b). Moreover, if the entities covered by Section
    1012(a) were limited to applications pending at the time of
    enactment, then the inclusion in Section 1012(b) of the phrase
    "pending application" would be superfluous.[^227]

    Pegasus' proffered interpretation focuses solely on Section 1012(a)
    of the *LOCAL TV Act*, and ignores the rest of the statute.

85. We find that Pegasus' argument is not persuasive. We agree with the
    DBS operators (EchoStar Satellite Corporation and DIRECTV, Inc.) and
    SRL that Pegasus has no basis in concluding that Congress explicitly
    ordered the Commission to limit terrestrial applications in this
    band to those already on file and validated by independent
    testing.[^228] Further, we agree that Congress did not intend to
    override the Commission's normal license assignment procedures or to
    effectively grant a particular applicant or set of applicants a
    "pioneer's preference" for licenses granted outside the Commission's
    usual license assignment process.[^229] We believe that the
    Commission's previous determination is supported by a reasonable
    interpretation of the statutory provision and is in the public
    interest.

### Operational Limits

86. *EIRP and EPFD limits*. MDS America seeks reconsideration of the
    EIRP and EPFD operational limits on MVDDS set forth in Sections
    101.105 and 101.113 of the rules adopted in the *Second R&O*. MDS
    America argues that we should adopt a two‑tiered scheme that
    maintains the 14 dBm EIRP limit for urban areas but would allow a
    higher EIRP of 39 dBm in rural areas.[^230] Similarly, MDS America
    argues that the regional EPFDs should also be increased in rural
    areas.[^231] MDS America contends that the higher EIRP and EPFDs are
    appropriate in rural areas because they will simultaneously allow
    for larger MVDDS service areas while making it possible to increase
    DBS interference protection through control of the radiation beam
    (or vector) from the MVDDS transmitter.[^232] In addition, MDS
    America argues that this higher power limit will allow MVDDS
    operators to avoid potential multipath problems that can occur with
    transmitters located in urban areas by making it feasible to locate
    transmitters farther outside an urban area while still providing
    service within the urban area due to the larger coverage contours
    achieved.[^233] Finally, MDS America also argues that these higher
    limits will permit service areas of sufficient size for economic
    viability, thereby making it more likely that MVDDS will be deployed
    in rural areas. Finally, MDS America argues that the EIRP limits
    adopted in the *Second R&O* have the effect of favoring MVDDS
    systems configured in a manner similar to the original Northpoint
    proposal.

87. We decline to modify the EIRP and EPFD limits imposed on MVDDS. Two
    key benefits of the adopted limits are that they are not susceptible
    to dispute because of their simplicity, and they effectively limit
    the potential for harmful interference to DBS when applied to all
    MVDDS transmission systems, no matter how configured. As the
    Commission found in the *Second R&O* and affirm herein, these limits
    are sufficiently conservative to ensure that any potential
    interference to DBS should be held below any level that can be
    considered harmful under our rules. As noted in the preceding
    paragraph, however, MDS America relies upon certain assumptions
    about the MVDDS transmitting antenna characteristics --
    particularly, the vector angle of the transmitted beam ‑ to achieve
    the asserted benefits of their approach[^234] In other words, the
    level of DBS protection claimed by MDS America will not result at
    the higher EIRP unless various antenna characteristics assumed by
    MDS America are met. In that light, we conclude that adopting rules
    that specify an EIRP higher than 14 dBm would inherently necessitate
    the adoption of additional constraints on MVDDS transmitting antenna
    characteristics that could unduly limit the flexibility and options
    of MVDDS providers to use alternative antenna configurations. By
    comparison, the adopted limits do not preclude the use of the MDS
    America approach to MVDDS transmission, although we recognize MDS
    America's argument that those limits could make some approaches more
    or less attractive for various financial and technical reasons.
    However, on balance, we believe it is prudent to craft a
    conservative criterion that protects DBS in all instances and
    preserves the flexibility for each MVDDS provider to make its own
    business decision about what type of transmission system better
    suits its needs. Finally, we note that the relief sought by MDS
    America would require the formulation of some across‑the‑board
    definition of what constitutes a "rural" area for the purpose
    determining when the EIRP and EPFD exceptions would apply. We
    conclude that making such an exception would negate the benefit of
    the simplicity and general applicability of the adopted rules.
    Accordingly, the MDS America petition for higher EIRP and EPFD
    limits on MVDDS is denied.

88. On the other hand, we do not prejudge herein whether the MDS America
    rationale for higher EIRP and EPFD limits in rural areas might have
    some technical merit in certain very specific circumstances.
    Consequently, MVDDS providers may file petitions for waiver of the
    general MVDDS limits adopted in the *Second R&O*.[^235] After we
    gain experience with MVDDS operations, we will entertain requests to
    modify the general EPFD and EIRP limits, if such experience provides
    sufficient justification for such action.

89. *24 megahertz bandwidth*. MDS America requests that we clarify the
    bandwidth restriction specified in the MVDDS emission mask
    rule.[^236] Specifically, MDS America argues that the footnote added
    immediately after the definition of "B" in Section 101.111(a)(2)(i)
    appears to restrict the channelization plan of MVDDS providers
    within their band. MDS America notes that while the Commission
    stated that the 500 megahertz MVDDS allocation could be divided into
    any size channels, it also adopted an emission mask equation with a
    maximum authorized bandwidth of 24 megahertz. That emission mask,
    MDS America argues, could be interpreted as a limit on in‑band
    channelization. In that light, MDS America requests clarification of
    the apparent inconsistency.

90. We agree that some clarification of our rules is appropriate. The
    emission requirement should be applied only at the band edge to
    limit undesired MVDDS signals outside of the 12.2‑12.7 GHz band.
    This out‑of‑band emission limit was not intended to limit
    channelization within the 12.2‑12.7 GHz band, but is necessary to
    set the authorized bandwidth value "B" to 24 megahertz to ensure the
    equation effectively protects operations in adjacent bands (*i.e*.,
    if B was set to 500 megahertz, the energy permitted by Section
    101.111(a)(2)(i) into adjacent bands would have been much higher).
    We amend the footnote to add the proviso that the emission mask only
    applies at the 12.2 ‑12.7 GHz band edges and does not restrict MVDDS
    channelization bandwidths within the band.

91. *MVDDS antenna pointing*. EchoStar and DIRECTV argue that the
    Commission ignored the findings of the *MITRE Report* concerning
    orientation of MVDDS transmitters.[^237] Specifically, they assert
    that our rules compound the potential for harmful interference to
    DBS by failing to specify any directional orientation for MVDDS
    transmitting antennas.[^238]

92. *Decision.* We disagree. Petitioners do correctly point out that
    Northpoint\'s proposal involves south‑pointing transmitters based
    upon their contention that such an orientation would avoid
    interference with DBS in the same spectrum.[^239] However, the
    *MITRE Report* stated that MVDDS antenna orientations, other than
    southward as envisioned by the original MVDDS applicants, could have
    beneficial effects.[^240] In other words, the *MITRE Report* found
    that it was not essential that MVDDS transmitters point south. The
    Commission stated its agreement with *MITRE* in our decision in the
    *Second R&O*.[^241] The Commission also noted that *MITRE* found
    that MVDDS antenna orientations other than south, including north,
    created no more interference, but that care must be taken not to
    place the antenna too close to the line of sight between a satellite
    and a DBS receiver.[^242] In other words, different antenna
    orientations present varying interference protection geometries that
    should be considered to avoid locating an MVDDS transmitter too
    close to the line of sight between a satellite and a DBS receiver.
    Taking these matters into consideration, the Commission found that
    of all these variables "\[i\]nterference protection is what is
    important ..."[^243] Therefore, the Commission concluded that
    itshould shift the focus from proposals that specify particular
    antenna orientations to the objective of protecting DBS while
    allowing flexibility for MVDDS technical innovation ‑ particularly
    in regard to antenna configurations.[^244] Since the EPFD accounts
    for antenna orientation, all parties are protected no matter what
    their relative directions are. Based upon these findings, and in
    light of the other interference protection criteria adopted, the
    Commission concluded in the *Second R&O* that the direction of MVDDS
    antennas depends on the total circumstances.[^245] Our decision
    reflects the judgment that any potential for harmful DBS
    interference ‑ regardless of the MVDDS antenna orientation ‑ can be
    resolved through careful MVDDS selection of the antenna site and
    modest self‑mitigation measures by DBS subscribers. Furthermore, by
    placing EPFD and EIRP limits on the MVDDS we have placed very
    conservative constraints on the amount of power that can be seen by
    the DBS antenna, and consequently limited the potential that
    interference could occur.

## NGSO FSS Issues 

93. In the *First Report and Order*, the Commission authorized MVDDS
    fixed operations and NGSO FSS service downlinks in the 12 GHz band
    on a co-primary basis.[^246] In the *Second R&O*, the Commission
    adopted technical rules to govern spectrum sharing between NGSO FSS
    and MVDDS in the 12 GHz band. In order to protect NGSO FSS
    operations, the Commission decided that the MVDDS signal must meet a
    power flux density (PFD)[^247] limit of --135 dBW/m^2^/4kHz measured
    or calculated at the surface of the earth at distances greater than
    3 km from the MVDDS transmitting site.[^248] The Commission adopted
    a minimum MVDDS transmitting antenna spacing of 10 km from
    pre‑existing NGSO FSS receive antennas.[^249] The Commission also
    adopted an MVDDS emission mask for protecting NGSO FSS operations in
    the adjacent 11.7‑12.2 GHz band and Cable Television Relay Service
    (CARS) and Broadcast Auxiliary Service (BAS) operations in the
    adjacent 12.7‑13.25 GHz band from out‑of‑band MVDDS emissions.[^250]
    In order to protect MVDDS receivers from NGSO FSS interference for
    the portion of the non‑geostationary orbital path near the horizon,
    the Commission adopted low elevation angle PFD radiation limits on
    NGSO FSS satellites.[^251] Specifically, the Commission decided that
    NGSO FSS downlinks at angles of 0‑2 degrees above the horizon shall
    not exceed a PFD of --158 dBW/m^2^/4kHz, and at angles of 2‑5
    degrees above the horizon shall not exceed a PFD limit of
    ‑158+3.33 (δ‑2) dBW/m^2^/4kHz.[^252] The Commission decided that an
    NGSO FSS applicant must demonstrate, prior to becoming operational,
    that it meets the adopted low angle PFD limits to protect MVDDS.
    Finally, the Commission also adopted rules requiring NGSO FSS
    operators to maintain and share a database of existing NGSO FSS
    receiver locations. Similarly, MVDDS operators are required to
    maintain and share with NGSO FSS operators a database of existing
    and proposed MVDDS transmitting locations, EIRP, tower height and
    related technical information.[^253]

### MVDDS Limits. 

94. *Positions of the Parties*. SkyBridge argues that the PFD limit
    imposed on MVDDS operations fails to provide any meaningful
    protection to later-in NGSO FSS systems[^254] because, they assert,
    it is the percentage of affected NGSO FSS user terminals within an
    MVDDS service area that is the critical parameter for assessing the
    burden on NGSO FSS systems. To remedy this, SkyBridge urges the
    Commission to adopt rules that reflect its originally proposed
    sharing scheme that focuses upon multiple PFD and EPFD limits in
    prescribed percentages of MVDDS service area.[^255] SkyBridge argues
    that the Commission failed to demonstrate that the SkyBridge
    proposal is overly complex or burdensome and failed to show any
    relationship between the adopted rules and the protection
    requirements of NGSO FSS systems.[^256] Additionally, SkyBridge
    objects to the Commission's conclusion that NGSO FSS systems can
    employ frequency diversity[^257] and can prevent saturation when
    doing so via sufficient signal discrimination characteristics and/or
    narrower receiver front ends.[^258] SkyBridge argues that the cost
    of such modifications on system design together with other
    engineering constraints of supporting frequency diversity would
    effectively result in a bar on economically viable NGSO FSS
    operations in the 12.2‑12.7 GHz band, and relinquishment of the band
    to the unrestricted use of MVDDS operations.[^259] This, they
    contend, would effectively relegate NGSO FSS to *de facto* secondary
    status because MVDDS is likely to deploy before NGSO FSS in most
    areas.[^260] In that connection, SkyBridge contends that its sharing
    scheme would allow both NGSO FSS and MVDDS operators to co-exist, no
    matter which service deployed first in a given area. Finally,
    SkyBridge argues that the Commission adopted the ‑135 dBW/m^2^/4kHz
    PFD limit at 3 km merely to accommodate the EIRP of 14 dBm
    recommended in the MITRE Report regarding DBS protection rather than
    for the purpose of protecting NGSO FSS. It asserts that the adopted
    limits only protect NGSO FSS receivers from saturation, but do not
    protect against unacceptable interference.[^261]

95. Arguing against the requests of SkyBridge, MDS America asserts that
    SkyBridge's petition merely repeats arguments that were fully
    considered and rejected by the Commission in the *Second R&O*. It
    also argues that mere disagreement with Commission decisions does
    not support reconsideration and that the Commission's decisions
    demonstrate a careful consideration of the record and a reasonable
    policy decision that should be accorded a substantial degree of
    deference.[^262] Similarly, Northpoint argues that the Commission
    properly considered and rejected Sky Bridge's proposed MVDDS
    protection scheme as being needlessly complex.[^263]

96. Northpoint states that SkyBridge never placed its receiver
    specifications in the record and, consequently, there is
    insufficient evidence of the claimed receiver characteristics relied
    upon by SkyBridge to support its approach. As to the limits that
    were adopted, Northpoint and MDS America argue that the PFD limit at
    3 km is too restrictive and should be repealed. [^264] Northpoint
    adds that the PFD limits were adopted without adequate support in
    the record and are unnecessarily restrictive on MVDDS given that
    NGSO FSS receivers will have unfettered access to the sub-adjacent
    11.7-12.2 GHz band.[^265] MDS America argues that the potentially
    preclusive effect of the PFD limit on MVDDS operations could be
    considerable -- especially in rural areas, yet may be of little
    benefit for NGSO FSS given that the limit applies regardless of
    whether an NGSO FSS receiver is ever deployed near the MVDDS
    transmitter. As an alternative, MDS America asks that the PFD limit
    be modified for rural areas to -109 dBW/m^2^/4kHz at a distance
    greater than 3 km from the MVDDS transmitter to accommodate its
    request for higher MVDDS transmitter EIRP limits.[^266]

97. *Decision*. We decline to reconsider the MVDDS limits adopted in the
    *Second R&O* and find SkyBridge\'s assertion that the
    --135 dBW/m^2^/4kHz PFD limit at 3 km fails to provide later-in NGSO
    FSS systems with meaningful protection to be without merit. While
    SkyBridge might disagree with the PFD limits that were adopted, mere
    disagreement in the absence of new information does not merit
    reconsideration in light of our balanced consideration of the
    interests of both NGSO FSS and MVDDS. The Commission found in the
    *Second R&O* that the PFD limit was a sensible compromise between
    NGSO FSS and MVDDS proposals that would provide reasonable
    protection to NGSO FSS systems without limiting the service area of
    each MVDDS transmitter. We find that SkyBridge presents no new
    information in its petition that was not previously considered in
    the *Second R&*O. Nevertheless, we note that in the *Second R&O*,
    the PFD limit was analyzed in terms of SkyBridge\'s multi-limit
    scheme and found to provide qualitatively similar protection to that
    sought by SkyBridge.[^267] Concerning SkyBridge's questioning of the
    relationship between the PFD limit and the 14 dBm EIRP limit, we
    find that it was reasonable for the Commission to analyze whether
    MVDDS operating at the EIRP limit originally conceived and
    ultimately adopted for DBS protection would similarly provide
    adequate protection for NGSO FSS. The Commission concluded that such
    MVDDS operation was both compatible with the PFD limit and
    consistent with a reasonable level of NGSO FSS protection.

98. Concerning the relative merits of SkyBridge\'s proposed scheme and
    why it was not adopted, the Commission concluded in the *Second R&O*
    that the SkyBridge scheme was technically unsound and needlessly
    complex. First, as a practical matter, we continue to find that
    basing PFD limits on a percentage of MVDDS service area would be
    inordinately burdensome and could be susceptible to litigation
    dispute and manipulations among competing licensees with respect to
    parameters such as MVDDS service area size.[^268] In this regard,
    SkyBridge has provided little plausible guidance about how their
    approach could be effectively implemented and enforced. Second, we
    are not persuaded by SkyBridge\'s assumptions that imply a direct
    correlation between the percentage of MVDDS service area and a
    numerical percentage of NGSO FSS terminals that either may
    experience interference or be required to make use of frequency
    diversity. SkyBridge appears to base its arguments either on an
    assumption of uniform NGSO FSS deployment across an MVDDS service
    area or on the assumption that both NGSO FSS and MVDDS will be
    uniformly distributed across the Nation. We believe that neither
    assumption is realistic. Finally, as SkyBridge itself implicitly
    confirmed, the percentage limits for the various PFDs sought are not
    physically realizable over a wide range of MVDDS operating
    parameters unless MVDDS transmissions are restricted to
    cross-polarized transmission modes with respect to NGSO FSS.[^269]
    The Commission rejected polarization constraints on MVDDS as being
    too burdensome and likely to hinder evolution of that service.[^270]
    Moreover, the Commission determined that defining NGSO FSS
    protection in terms of MVDDS service area percentages was illusory
    as a technical sharing rule because virtually any reasonable
    combination of EIRP and tower height limits would result in a nearly
    constant percentage of affected MVDDS service area.[^271] In other
    words, no matter how large or small the MVDDS EIRP or antenna
    height, the result in terms of affected service area percentages
    would be nearly unchanged. Furthermore, as demonstrated in the
    *Second R&O*,[^272] the actual physical extent of *[all
    three]{.underline}* of the complex protection contours described by
    SkyBridge could be just as completely characterized, and more
    effectively regulated, by specifying a single, easily controllable,
    PFD limit on an MVDDS transmitter.

99. In essence, we find that SkyBridge\'s complaint regarding the
    adopted PFD limit reduces to little more than dissatisfaction that
    it will not have unfettered use of the 12 GHz band in locations
    where it is deployed after MVDDS and that this renders NGSO FSS
    secondary to MVDDS. We find that the fact that NGSO FSS interests
    might not be ready to deploy before MVDDS due to marketplace,
    financial or other concerns is insufficient basis for
    reconsideration of our balanced approach. SkyBridge cites no
    authority to support such preferential treatment under such
    circumstances. We similarly reject SkyBridge\'s complaint that
    additional expense for equipment design might be required to take
    full advantage of frequency diversity under these circumstances. As
    the Commission stated in the *Second R&O*, "\[i\]n these
    circumstances, each NGSO FSS operator can make its own business
    decision whether to employ receivers with sufficient signal
    discrimination characteristics and/or narrower bandwidth front-ends
    to enable operation in close proximity to pre-existing MVDDS
    transmitting antennas."[^273] Furthermore, we find that it is
    unrealistic for later-in NGSO FSS systems to expect total technical
    flexibility and to also have unfettered access to the 12.2 GHz band
    without consideration of existing co-primary MVDDS transmitters. As
    stated in the *Second R&O*, it was our intention to afford more and
    easier use of spectrum to the first-in service in any particular
    area.[^274] We find that adopting the level of NGSO FSS protection
    desired by SkyBridge would undermine that goal and would place
    severe restrictions on MVDDS operations that could preclude viable
    MVDDS operations. As Northpoint aptly observes, in the few instances
    where interference might pose a problem to NGSO FSS/MVDDS sharing of
    the 12 GHz band, the NGSO FSS systems can operate in adjacent
    spectrum - just as they might be required to do whenever an NGSO FSS
    receiving antenna might be pointed at another NGSO FSS system\'s
    transmitter.[^275] In short, we conclude that the adopted limits
    strike a balance between the interests of enabling the widespread
    deployment of these two new services while affording a reasonable
    degree of protection to whichever service is later to enter a
    particular market. We find that the adopted limits are consistent
    with the co-primary status of MVDDS and NGSO FSS in the
    12.2-12.7 GHz band and reject SkyBridge's argument to the contrary.

100. Therefore, we affirm the conclusion reached in the *Second R&O*
     that the approach which limits the MVDDS PFD at a specified
     distance affords NGSO FSS adequate interference protection from
     MVDDS. Moreover, it is relatively simple to determine and easy to
     apply because it will not be susceptible to arbitrary assumptions
     by licensees.[^276] Finally, the Commission found that the adopted
     approach fixes the potential worst‑case NGSO FSS interference
     regardless of MVDDS transmitter or antenna design.[^277]
     Consequently, the Commission concluded that both MVDDS and NGSO FSS
     licensees would benefit from the predictability of being able to
     anticipate and plan around the potential sharing issues that might
     arise.[^278] We recognize that the adopted PFD limit is not as
     favorable for NGSO FSS as SkyBridge desired, however we affirm our
     conclusion that the adopted PFD limit at 3 km for MVDDS represents
     a reasonable compromise that will allow NGSO FSS access to a large
     percentage of any area where a MVDDS transmitter is deployed. At
     the same time, this limit should allow each MVDDS transmitter to
     viably serve a reasonably adequate geographic area without
     resorting to an excessive number of transmitters. In light of the
     discussion and findings in the preceding paragraphs, we find no
     merit in SkyBridge's contention that its percentage based approach
     failed to receive sufficient consideration or that it is superior
     to the method adopted in the *Second R&O*.

101. With respect to MDS America's petition to relax or repeal the MVDDS
     PFD limit, we find that the preceding discussion about why the PFD
     limit of --135 dBW/m^2^/4kHz at 3 km should not be tightened as
     requested by NGSO FSS petitioners simultaneously militates against
     relaxing the PFD limit as requested.[^279] In short, we conclude
     that relaxing the PFD limit could have a sufficiently deleterious
     effect on the ability of future NGSO FSS systems to provide service
     within significant portions of an MVDDS transmitter's service area.
     Therefore, for the same reasons discussed above, we affirm the
     conclusion that the adopted PFD limit ultimately reflects our best
     judgment of what standards would, on balance, be both workable and
     beneficial for both services. Moreover, given that neither MVDDS
     nor NGSO FSS are currently operational, we find that it was
     prudent, based upon the best information of record, to craft the
     technical rules in a conservative manner that strikes what we judge
     to be a reasonable compromise between the competing interests of
     each service. Therefore, we deny MDS America's request to relax the
     PFD requirements in rural areas.

102. Finally, we note that Northpoint's consolidated response included a
     request that we repeal the rule requiring later installed MVDDS
     transmitters to maintain a 10 km separation from established NGSO
     FSS receive sites. Because this request was first raised in
     Northpoint's response to SkyBridge's petition for reconsideration,
     it cannot be considered as a timely filed request for
     reconsideration. Therefore, we dismiss this request as untimely.
     Nevertheless, for the purpose of clarity, we note that the adopted
     rules are designed to provide the first-deployed service with
     interference protection from the later-deployed service. In this
     instance, if NGSO FSS is first deployed, it will likely make use of
     the full 12.2-12.7 GHz band available to it. The nearby presence of
     later deployed MVDDS transmitters in an area already served by NGSO
     FSS could require both existing and future NGSO FSS receivers
     within that area to tune out of the 12.2-12.7 GHz band then being
     used and into the lower 11.7-12.2 sub-band available to NGSO FSS in
     order to avoid interference from MVDDS. We also note that Section
     101.129(b) of the adopted rules allow for NGSO FSS and MVDDS
     licensees to agree to separations less than 10 km without limit.
     Moreover, since MVDDS is co-primary with NGSO FSS, MVDDS will be
     able to deploy in any location wherever they are the first entrant.

### NGSO FSS Limits.

103. *Positions of the Parties*. SkyBridge argues that the low angle PFD
     limits of Section 25.208(k) imposed on NGSO FSS downlink
     transmissions in the 12 GHz band to protect MVDDS receivers are
     unnecessarily burdensome because they based on worst case
     assumptions and would apply at all times (*i.e*. "hard
     limit").[^280] SkyBridge explains that it previously accepted
     Northpoint's proposed PFD limits,[^281] which are 10 dB tighter
     than those specified in Article 21 of the International Radio
     Regulations for protecting fixed service receivers in the
     12.2-12.7 GHz band, in an effort to meet a mutual sharing
     agreement, provided that the method adopted for implementing the
     tighter limits would not impose unnecessary constraints on NGSO FSS
     systems. While acknowledging that its system would meet the more
     restrictive limits in most cases, SkyBridge argues that adopting
     the PFD limit as a "hard limit" requires that the NGSO FSS system
     be designed to meet the limit under worst-case conditions.
     SkyBridge contends that such a constraint means that NGSO FSS
     systems must operate at power levels lower than the PFD limit
     needed to protect the majority of MVDDS receivers.[^282] SkyBridge
     states that it would not oppose rules that would require an NGSO
     FSS licensee to provide the Commission with an assurance of an NGSO
     FSS system's ability to comply with limits prior to the start of
     service. However, SkyBridge urges that an NGSO FSS licensee should
     only have to demonstrate compliance with adopted limits on an
     "operational" basis; that is, upon a credible claim of harmful
     interference into identified operational MVDDS receivers.[^283]
     SkyBridge recommends that instead of requiring a demonstration of
     compliance with the tighter limits prior to commencement of
     operation, the Commission should require only the information it
     needs to insure that an NGSO FSS operator has taken into account
     the need to comply with the limits and has equipped its system with
     the means to do so.[^284] Finally, SkyBridge argues that the
     Commission provides no guidance on how a licensee would demonstrate
     compliance with the PFD limit. In the absence of an agreed to
     methodology for demonstrating compliance, SkyBridge asserts that
     any showing would be susceptible to considerable dispute.

104. Northpoint opposes SkyBridge's request that PFD limits be applied
     as "operational limits" rather than "hard limits" because doing so
     would give free reign to NGSO FSS to cause harmful interference to
     MVDDS receivers until the MVDDS licensee can prove that NGSO FSS is
     the source of the problem.[^285] Northpoint supports the
     Commission's finding that making PFD limits dependent upon
     complaints or demonstration of violation would not provide adequate
     or uniform protection and states that SkyBridge provides no sound
     reason to reverse the decision.

105. SkyBridge replies that designating limits as "operational" is a
     recognized tool in instances where the likelihood of a system
     exceeding the limits is low and demonstrating compliance introduces
     artificial constraints.[^286] SkyBridge clarifies that designating
     limits as "operational" will not require MVDDS entities to "prove"
     that an NGSO FSS system is exceeding the limits. The NGSO FSS bears
     the burden to demonstrate compliance with respect to a particular
     MVDDS receiver in response to a credible claim of interference.
     SkyBridge argues that this is how other PFD limits in Section
     25.208 of the Commission's rules are enforced in that FSS operators
     are not required to demonstrate in advance that the limits will not
     be exceeded.[^287]

106. *Decision*. Upon review of the *Second R&O*, we find that
     clarification of our low angle PFD compliance requirement of
     Section 25.208(k) is appropriate. We agree with SkyBridge that the
     adopted requirement does not necessarily apply in all cases. We
     believe that it would be better to treat the adopted low angle PFD
     in a manner consistent with the rules for NGSO FSS and BSS sharing
     where validation (*i.e*., "hard limit") and operational (*i.e*.,
     can be exceeded so long as they are not exceeded into an
     operational receiver) EPFD limits were adopted.[^288] The PFD hard
     limit that NGSO FSS can never exceed is specified in Article 21 of
     the Radio Regulations.[^289] The limit we adopted in the *Second
     R&O*, is an operational limit which means that it does not need to
     be met in all cases so long as it is not be exceeded into an
     operational MVDDS receiver. Thus, the NGSO FSS system needs to be
     designed so that it can adjust its power to meet the operational
     limit to protect MVDDS in the worst case circumstance.

107. We disagree, however, with SkyBridge's argument that demonstrating
     compliance with operational limits is necessary only upon a
     credible claim of harmful interference into identified operational
     MVDDS receivers. As the Commission recently stated, in rejecting a
     similar argument from SkyBridge regarding NGSO FSS/BSS sharing,
     demonstration of compliance prior to operation provides assurance
     to the Commission and other operators that the system will be built
     to operate in accordance with the PFD limits.[^290] Therefore, we
     will require NGSO FSS licensees to demonstrate prior to operation,
     as SkyBridge suggests, that their system is capable of meeting the
     adopted limits. Licensees should provide any information they deem
     necessary to meet this showing. As the Commission recently stated
     regarding NGSO FSS/BSS sharing, the demonstration can rely on
     anticipated or actual operational parameters.[^291] As SkyBridge
     further suggests, if an MVDDS station experiences interference, we
     will require NGSO FSS operators to expeditiously either
     demonstrate, using its actual operating parameters, that it is not
     violating the limits into that receiver, or take steps to reduce
     its PFD into that receiver. If it cannot do so, the alternative is
     that its system must remain within the operational limit at all
     times.[^292]

108. The PFD limits were codified in Section 25.208 of our rules,
     however, the Commission neglected to codify the demonstration
     requirement in Section 25.146 as discussed in the text of the
     *Second Report and Order*.[^293] Therefore, we are modifying
     Sections 25.146 and 25.208 to clarify the points discussed above.

### MVDDS and NGSO FSS Information Sharing 

109. *Positions of the Parties*. In its petition, SkyBridge states that
     Section 25.139 of the rules requiring information exchange is not
     sufficiently clear regarding the amount and timing of the
     information that should be given to an MVDDS operator.[^294]
     Because subscriber information could be proprietary, SkyBridge
     requests that the Commission clarify that the information not be
     construed as public information and that NGSO FSS operators may
     require MVDDS operators to execute an appropriate non-disclosure
     agreement prior to releasing any data. Further, it asserts that
     NGSO FSS operators should not be required to disclose more
     information than is required to meet Section 25.139(b) (*i.e*.,
     sufficient information for the MVDDS licensee to determine whether
     a new transmitter will meet the separation requirement). Finally,
     SkyBridge requests that MVDDS operators be prohibited from using
     the information for any purposes other than the technical
     coordination required by the Commission.

110. Northpoint does not oppose SkyBridge's request to clarify the
     information exchange needed to meet the separation
     requirement.[^295] Northpoint contends that a bare minimum of
     information needed would be the latitude, longitude (within 100
     feet) and frequency of NGSO FSS receivers.[^296] Provided that such
     information is readily available, Northpoint does not object to
     nondisclosure agreements and limiting the use of the information
     only to compliance with the separation requirements.

111. *Decision.* We find that the concerns of SkyBridge regarding our
     required information exchange for coordination between MVDDS and
     NGSO FSS operations have merit.[^297] Because certain NGSO FSS
     subscriber information could be considered proprietary information
     (*e.g*., for competitive reasons), we clarify that the information
     exchange requirement should be construed narrowly and that only
     information necessary to achieve the required separation under
     Section 25.139(b) (*i.e*., "sufficient information from the
     database to enable the MVDDS licensee to determine whether the
     proposed MVDDS transmitting site meets the minimum spacing
     requirement") needs to be provided. The information provided should
     include, as a minimum, the NGSO FSS latitude, longitude (within
     30.5 m (100 ft)) and frequency of operation.[^298] We also find
     that the MVDDS operators shall be prohibited from using this
     information for any purposes other than for the technical
     coordination required by our Rules. Further, the NGSO FSS database
     information should be made readily accessible to the designers of
     the MVDDS system so that restrictions can be considered in the
     design of the system. Therefore, we are modifying Section
     25.139(a). We believe that this action is adequate to address
     SkyBridge's concerns. As far as parties executing non-disclosure
     agreements, we observe that that parties are free to use such
     agreements to facilitate the coordination process.

# Procedural Matters

## Final Regulatory Flexibility Certification 

112. The Final Regulatory Flexibility Certification is contained in
     Appendix C.

## Paperwork Reduction Analysis

113. The Fourth Memorandum Opinion and Order contains new or modified
     information collection(s) subject to the Paperwork Reduction Act of
     1995 (PRA) Public Law 104-13. The information will be submitted to
     the Office of Management and Budget (OMB) for review under Section
     3507(d) of the PRA. OMB, the general public, and other Federal
     agencies are invited to comment on the new or modified information
     collections contained in this proceeding.

## Further Information

114. For further information concerning this Fourth Memorandum Opinion
     and Order, contact the Office of Engineering and Technology, Gary
     Thayer, (202) 418-2290, TTY (202) 418-2989, email
     <gthayer@fcc.gov>, or Jennifer Burton, (202) 418-7581, TTY (202)
     418-2989, email <jburton@fcc.gov>.

# Ordering Clauses

115. Accordingly, IT IS ORDERED that pursuant to Sections 4(i), 302,
     303(e) 303(f), 303(g), 303(r) and 405 of the Communications Act of
     1934, as amended, 47 U.S.C. §§ 154(i), 302, 303(e), 303(f), 303(g)
     and 405, the petitions for reconsideration filed by Pegasus
     Broadband Corporation, MDS America, Inc., EchoStar Satellite
     Corporation and DIRECTV, Inc., SkyBridge L.L.C., SES Americom,
     Inc., and Satellite Broadcasting and Communications Association ARE
     DENIED.

116. IT IS FURTHER ODERED that Parts 25 and 101 of the Commission's
     Rules ARE AMENDED as specified in Appendix D. Parts 25 and 101
     contain information collection requirements which have not been
     approved by the Office of Management and Budget ("OMB"). The
     Commission will publish a document in the Federal Register
     announcing the effective date of these rule parts.. This action is
     taken pursuant to Sections 4(i), 303(c), 303(f), 303(g) 303(r) and
     309(j) of the Communications Act of 1934, as amended, 47 U.S.C. §§
     154(i), 303(c), 303(f), 303(g), 303(r) and 309(j).

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

118. IT IS FURTHER ORDERED that the proceeding in ET Docket No. 98-206
     IS TERMINATED.

     FEDERAL COMMUNICATIONS COMMISSION

     Marlene H. Dortch

     Secretary

# APPENDIX A: Petitions for Reconsideration, Oppositions and Replies {#appendix-a-petitions-for-reconsideration-oppositions-and-replies .unnumbered}

Petitions for Reconsideration

(Filed June 24, 2002)

Pegasus Broadband Corporation (Pegasus)

MDS America, Inc. (MDS America)

(Filed July 26, 2002)

EchoStar Satellite Corporation and DIRECTV, Inc. ‑ joint petition
(EchoStar and DIRECTV)

SkyBridge L.L.C. (SkyBridge)

SES Americom, Inc. (SES Americom)

Satellite Broadcasting and Communications Association (SBCA)

Oppositions to Petitions for Reconsideration

(Filed July 12, 2002)

Satellite Receivers, Ltd. (Satellite Receivers)

(Filed September 3, 2002)

EchoStar Satellite Corporation and DIRECTV, Inc. ‑ joint opposition
(EchoStar and DIRECTV)

MDS America, Inc. (MDS America)

> (MDS America filed four separate oppositions on this date, one each as
> to the reconsideration petitions filed by: 1) EchoStar, DIRECTV and
> SBCA 2) SkyBridge; 3) Pegasus and 4) SES Americom)

Replies and Comments to Petitions to for Reconsideration

(Filed September 3, 2002)

Northpoint Technology, Ltd., and Broadwave USA, Inc. ‑ joint response
(Northpoint and Broadwave)

Digital Broadband Applications Corp. (DBAC)

(Filed September 13, 2002)

MDS America, Inc. (MDS America)

> (MDS America filed three separate replies on this date, one each as to
> the oppositions/comments filed by: 1) EchoStar and DIRECTV;
> 2)Northpoint; and 3) Digital Broadband Applications Corp.)

(Filed September 18, 2002)

EchoStar Satellite Corporation and DIRECTV, Inc. ‑ joint reply (EchoStar
and DIRECTV)

SkyBridge L.L.C. (SkyBridge)

SES Americom, Inc. (SES Americom)

Satellite Broadcasting and Communications Association (SBCA)

# APPENDIX B: Final Rules {#appendix-b-final-rules .unnumbered}

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

**PART 25 ‑ Satellite Communications**

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

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

2\. Section 25.139 is amended by revising paragraph (a) to read as
follows.

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

\(a\) NGSO FSS licensees shall maintain a subscriber database in a
format that can be readily shared with MVDDS licensees for the purpose
of determining compliance with the MVDDS transmitting antenna spacing
requirement relating to qualifying existing NGSO FSS subscriber
receivers set forth in §101.129 of this chapter. This information shall
not be used for purposes other than set forth in §101.129 of this
chapter. Only sufficient information to determine compliance with
§101.129 of this chapter is required.

\* \* \* \* \*

3\. Section 25.146 is amended by adding a new paragraph (g) and
redesignating paragraphs (g) through (m) as paragraphs (h) through (n)
to read as follows.

**§ 25.146 Licensing and operating authorization provisions for the
non-geostationary satellite orbit fixed-satellite service (NGSO FSS) in
the bands 10.7 GHz to 4.5 GHz.**

\* \* \* \* \*

\(g\) *Operational power flux density, space-to-Earth direction,
limits*. Ninety days prior to the initiation of service to the public,
the NGSO FSS system licensee shall submit a technical showing for the
NGSO FSS system in the band 12.2-12.7 GHz. The technical information
shall demonstrate that the NGSO FSS system is capable of meeting the
limits as specified in §25.205(o). Licensees may not provide service to
the public if they fail to demonstrate that they are capable of
complying with the PFD limits.

\* \* \* \* \*

4\. Section 25.208 is amended by amended by revising the first sentence
of paragraph (o) to read as follows:

**§ 25.208 Power flux density limits.**

\* \* \* \* \*

\(o\) In the band 12.2-12.7 GHz, for NGSO FSS space stations, the
specified low-angle power flux-density at the Earth's surface produced
by emissions from a space station shall not be exceeded into an
operational MVDDS receiver: \* \* \*

\* \* \* \* \*

**PART 101 ‑ Fixed Microwave Services**

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

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

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

**§ 101.111 Emission limitations.**

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

\(a\) \* \* \*

\(2\) \* \* \*

\(i\) \* \* \*

MVDDS operations in the 12.2‑12.7 GHz bands shall use 24 megahertz for
the value of B in the emission mask equation set forth in this section.
The emission mask limitation shall only apply at the 12.2‑‑12.7 GHz band
edges and does not restrict MVDDS channelization bandwidth within the
band.

8\. Section 101.1440 is amended by revising paragraph (d) (2) and (e) to
read as follows.

**§ 101.1440 MVDDS protection of DBS.**

\* \* \* \* \*

\(d\) \* \* \*

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

\* \* \* \* \*

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

\*\*\*\*\*

# Appendix C --Final Regulatory Flexibility Certification {#appendix-c-final-regulatory-flexibility-certification .unnumbered}

The Regulatory Flexibility Act of 1980, as amended (RFA),[^299] requires
that a regulatory flexibility analysis be prepared for
notice-and-comment rule making proceedings, unless the agency certifies
that "the rule will not, if promulgated, have a significant economic
impact on a substantial number of small entities."[^300] The RFA
generally defines the term "small entity" as having the same meaning as
the terms "small business," "small organization," and "small
governmental jurisdiction."[^301] In addition, the term "small business"
has the same meaning as the term "small business concern" under the
Small Business Act.[^302] A "small business concern" is one which: (1)
is independently owned and operated; (2) is not dominant in its field of
operation; and (3) satisfies any additional criteria established by the
Small Business Administration (SBA).[^303]

Under the amended rules adopted in the Fourth Memorandum Opinion and
Order, as discussed above, DBS licensees are required to provide the
MVDDS licensee with a list of only those new DBS customer locations that
have been installed in the 30-day period following the MVDDS
notification and that the DBS licensee believes may receive harmful
interference or where the prescribed equivalent power flux density
(EPFD) limits may be exceeded. This requirement is less burdensome than
the rule adopted in the *Second Report and Order*[^304] that required
disclosure of all DBS customer locations under similar circumstances.
Furthermore, under the amended rules, DBS licensees are required to
provide merely the information deemed necessary by DBS licensees to
enable others to take into account the presence of MVDDS transmitters.
This requirement is less burdensome than the rule adopted in the *Second
Report and Order* that imposed direct responsibility on DBS licensees
for proper siting of future DBS receivers to take into account the
presence of MVDDS.

Licensees of NGSO FSS systems are required to submit, ninety days prior
to the initiation of service to the public, a technical showing that
demonstrates that they are capable of meeting low-angle radiation limits
specified in §25.205(o) of the Commission\'s rules for the 12.2-12.7 GHz
band. Finally, licensees of NGSO FSS systems are required under the
amended rules to ensure that the PFD limit is not exceeded into an
operational MVDDS receiver. Taken together, these requirements are less
burdensome than those adopted in the *Second Report and Order* because
they merely require a showing that the NGSO FSS system is *capable* of
meeting (instead of demonstrating the system has factually met) the
specified technical limits, and because the PFD limit need only be met
into *operational*, rather than *all*, MVDDS receivers.

These changes are deregulatory because they lessen compliance
requirements. Therefore, we certify that the requirements of the Fourth
Memorandum Opinion and Order will not have a significant economic impact
on a substantial number of small entities.

The Commission will send a copy of the Fourth Memorandum Opinion and
Order, including a copy of this Final Regulatory Flexibility
Certification, in a report to Congress pursuant to the Congressional
Review Act.[^305] In addition, the Fourth Memorandum Opinion and Order
and this final certification will be sent to the Chief Counsel for
Advocacy of the SBA, and will be published in the Federal
Register.[^306]

#   {#section .unnumbered}

# APPENDIX D -- Summary of Numerical Results {#appendix-d-summary-of-numerical-results .unnumbered}

Tables 1‑5 compare the baseline availability and unavailability (outage)
due to rain only with calculated availability and outage due to rain
plus MVDDS. These values are shown as a percentage over an average
one-year period. For the rain plus MVDDS, we calculate the availability
and outage percentages using the adopted regional EPFD values and for
comparison purposes using an assumed 10% increase in minutes of
unavailability over the baseline. The tables also compare the
differences between the availability and unavailability percentages
calculated using the regional EPFD values and the baseline. The same
differences are also compared for the values calculated using the
regional EPFD values and the assumed 10% increase in outage. The tables
show that for the CONUS satellites the increase in outage as a
percentage over an average year is less than one-tenth of one percent in
all cases (except for Honolulu). Similar results are shown for the
"wing" satellites.

Table 6 compares the unavailability between the old satellite at 110^o^
West Longitude (the one used to develop the regional EPFD values) and
the new spot beam satellite currently operating from that
location.[^307] In all cases, the results show that the potential
outages that a DBS customer may experience are less for the new
satellite as compared to the old satellite.

**Table 1: Satellite Located at 101^o^ West Longitude -- Comparison of
Availability and Unavailability (Outage) Attributable to MVDDS for
various criteria**

(all values are expressed as a percentage over a year)

<table>
<colgroup>
<col style="width: 10%" />
<col style="width: 8%" />
<col style="width: 6%" />
<col style="width: 8%" />
<col style="width: 6%" />
<col style="width: 8%" />
<col style="width: 6%" />
<col style="width: 14%" />
<col style="width: 13%" />
<col style="width: 14%" />
</colgroup>
<thead>
<tr class="header">
<th rowspan="2">City</th>
<th colspan="2"><p>Baseline</p>
<p>(Rain Only)</p></th>
<th colspan="2"><p>Rain plus MVDDS</p>
<p>(using regional EPFD)</p></th>
<th colspan="2"><p>Rain plus MVDDS</p>
<p>(assuming 10% limit)</p></th>
<th><p>Increase in Outage (using regional EPFD)</p>
<p>Difference Between Rain plus MVDDS and Baseline (rain only)</p></th>
<th><p>Rain plus MVDDS</p>
<p>Difference between Regional EPFD and assumed 10% limit</p></th>
<th><p>Increase in Outage Over Baseline</p>
<p>(using regional EPFD)</p></th>
</tr>
<tr class="odd">
<th>Availability</th>
<th>Outage</th>
<th>Availability</th>
<th>Outage</th>
<th>Availability</th>
<th>Outage</th>
<th> </th>
<th> </th>
<th>(%)</th>
</tr>
</thead>
<tbody>
<tr class="odd">
<td>Miami</td>
<td>99.673</td>
<td>0.327</td>
<td>99.644</td>
<td>0.356</td>
<td>99.640</td>
<td>0.360</td>
<td>0.029</td>
<td>(0.004)</td>
<td>8.876</td>
</tr>
<tr class="even">
<td>Orlando</td>
<td>99.718</td>
<td>0.282</td>
<td>99.691</td>
<td>0.309</td>
<td>99.690</td>
<td>0.310</td>
<td>0.028</td>
<td>0.000</td>
<td>9.835</td>
</tr>
<tr class="odd">
<td>Tampa</td>
<td>99.729</td>
<td>0.271</td>
<td>99.702</td>
<td>0.298</td>
<td>99.701</td>
<td>0.299</td>
<td>0.027</td>
<td>(0.001)</td>
<td>9.811</td>
</tr>
<tr class="even">
<td>Atlanta</td>
<td>99.835</td>
<td>0.165</td>
<td>99.819</td>
<td>0.181</td>
<td>99.819</td>
<td>0.181</td>
<td>0.016</td>
<td>0.000</td>
<td>9.931</td>
</tr>
<tr class="odd">
<td>Phoenix</td>
<td>99.874</td>
<td>0.126</td>
<td>99.859</td>
<td>0.141</td>
<td>99.862</td>
<td>0.138</td>
<td>0.016</td>
<td>0.003</td>
<td>12.351</td>
</tr>
<tr class="even">
<td>Houston</td>
<td>99.802</td>
<td>0.198</td>
<td>99.788</td>
<td>0.212</td>
<td>99.782</td>
<td>0.218</td>
<td>0.014</td>
<td>(0.006)</td>
<td>7.023</td>
</tr>
<tr class="odd">
<td>Seattle</td>
<td>99.859</td>
<td>0.141</td>
<td>99.845</td>
<td>0.155</td>
<td>99.845</td>
<td>0.155</td>
<td>0.014</td>
<td>0.000</td>
<td>9.838</td>
</tr>
<tr class="even">
<td>Sacramento</td>
<td>99.854</td>
<td>0.146</td>
<td>99.841</td>
<td>0.159</td>
<td>99.839</td>
<td>0.161</td>
<td>0.014</td>
<td>(0.001)</td>
<td>9.310</td>
</tr>
<tr class="odd">
<td>San Francisco</td>
<td>99.876</td>
<td>0.124</td>
<td>99.863</td>
<td>0.137</td>
<td>99.863</td>
<td>0.137</td>
<td>0.013</td>
<td>0.001</td>
<td>10.476</td>
</tr>
<tr class="even">
<td>Dallas</td>
<td>99.844</td>
<td>0.156</td>
<td>99.833</td>
<td>0.167</td>
<td>99.828</td>
<td>0.172</td>
<td>0.011</td>
<td>(0.004)</td>
<td>7.253</td>
</tr>
<tr class="odd">
<td>Nashville</td>
<td>99.895</td>
<td>0.105</td>
<td>99.884</td>
<td>0.116</td>
<td>99.884</td>
<td>0.116</td>
<td>0.011</td>
<td>0.000</td>
<td>10.293</td>
</tr>
<tr class="even">
<td>Portland</td>
<td>99.891</td>
<td>0.109</td>
<td>99.881</td>
<td>0.119</td>
<td>99.880</td>
<td>0.120</td>
<td>0.011</td>
<td>0.000</td>
<td>9.911</td>
</tr>
<tr class="odd">
<td>St. Louis</td>
<td>99.908</td>
<td>0.092</td>
<td>99.901</td>
<td>0.099</td>
<td>99.899</td>
<td>0.101</td>
<td>0.007</td>
<td>(0.002)</td>
<td>7.739</td>
</tr>
<tr class="even">
<td>Cincinnati</td>
<td>99.911</td>
<td>0.089</td>
<td>99.904</td>
<td>0.096</td>
<td>99.902</td>
<td>0.098</td>
<td>0.007</td>
<td>(0.002)</td>
<td>7.823</td>
</tr>
<tr class="odd">
<td>Kansas City</td>
<td>99.919</td>
<td>0.081</td>
<td>99.913</td>
<td>0.087</td>
<td>99.911</td>
<td>0.089</td>
<td>0.006</td>
<td>(0.002)</td>
<td>7.786</td>
</tr>
<tr class="even">
<td>Cleveland</td>
<td>99.930</td>
<td>0.070</td>
<td>99.923</td>
<td>0.077</td>
<td>99.923</td>
<td>0.077</td>
<td>0.006</td>
<td>(0.001)</td>
<td>8.759</td>
</tr>
<tr class="odd">
<td>Chicago</td>
<td>99.938</td>
<td>0.062</td>
<td>99.933</td>
<td>0.067</td>
<td>99.932</td>
<td>0.068</td>
<td>0.005</td>
<td>(0.001)</td>
<td>8.106</td>
</tr>
<tr class="even">
<td>Milwaukee</td>
<td>99.941</td>
<td>0.059</td>
<td>99.936</td>
<td>0.064</td>
<td>99.935</td>
<td>0.065</td>
<td>0.005</td>
<td>(0.001)</td>
<td>8.159</td>
</tr>
<tr class="odd">
<td>Detroit</td>
<td>99.942</td>
<td>0.058</td>
<td>99.938</td>
<td>0.062</td>
<td>99.937</td>
<td>0.063</td>
<td>0.005</td>
<td>(0.001)</td>
<td>8.231</td>
</tr>
<tr class="even">
<td>Minneapolis</td>
<td>99.942</td>
<td>0.058</td>
<td>99.938</td>
<td>0.062</td>
<td>99.937</td>
<td>0.063</td>
<td>0.005</td>
<td>(0.001)</td>
<td>8.210</td>
</tr>
<tr class="odd">
<td>Denver</td>
<td>99.972</td>
<td>0.028</td>
<td>99.967</td>
<td>0.033</td>
<td>99.969</td>
<td>0.031</td>
<td>0.004</td>
<td>0.002</td>
<td>15.478</td>
</tr>
<tr class="even">
<td>Greenville</td>
<td>99.926</td>
<td>0.074</td>
<td>99.922</td>
<td>0.078</td>
<td>99.919</td>
<td>0.081</td>
<td>0.004</td>
<td>(0.003)</td>
<td>5.444</td>
</tr>
<tr class="odd">
<td>Philadelphia</td>
<td>99.958</td>
<td>0.042</td>
<td>99.955</td>
<td>0.045</td>
<td>99.954</td>
<td>0.046</td>
<td>0.003</td>
<td>(0.001)</td>
<td>7.724</td>
</tr>
<tr class="even">
<td>Charlotte</td>
<td>99.945</td>
<td>0.055</td>
<td>99.942</td>
<td>0.058</td>
<td>99.940</td>
<td>0.060</td>
<td>0.003</td>
<td>(0.002)</td>
<td>5.544</td>
</tr>
<tr class="odd">
<td>Washington DC</td>
<td>99.958</td>
<td>0.042</td>
<td>99.956</td>
<td>0.044</td>
<td>99.954</td>
<td>0.046</td>
<td>0.002</td>
<td>(0.002)</td>
<td>5.762</td>
</tr>
<tr class="even">
<td>New York</td>
<td>99.962</td>
<td>0.038</td>
<td>99.960</td>
<td>0.040</td>
<td>99.958</td>
<td>0.042</td>
<td>0.002</td>
<td>(0.002)</td>
<td>5.897</td>
</tr>
<tr class="odd">
<td>Boston</td>
<td>99.969</td>
<td>0.031</td>
<td>99.967</td>
<td>0.033</td>
<td>99.966</td>
<td>0.034</td>
<td>0.002</td>
<td>(0.001)</td>
<td>6.597</td>
</tr>
<tr class="even">
<td>Indianapolis</td>
<td>99.911</td>
<td>0.089</td>
<td>99.909</td>
<td>0.091</td>
<td>99.902</td>
<td>0.098</td>
<td>0.002</td>
<td>(0.007)</td>
<td>2.249</td>
</tr>
<tr class="odd">
<td>Pittsburgh</td>
<td>99.968</td>
<td>0.032</td>
<td>99.966</td>
<td>0.034</td>
<td>99.965</td>
<td>0.035</td>
<td>0.002</td>
<td>(0.001)</td>
<td>5.865</td>
</tr>
<tr class="even">
<td>San Diego</td>
<td>99.975</td>
<td>0.025</td>
<td>99.973</td>
<td>0.027</td>
<td>99.972</td>
<td>0.028</td>
<td>0.002</td>
<td>(0.001)</td>
<td>6.364</td>
</tr>
<tr class="odd">
<td>Columbus</td>
<td>99.961</td>
<td>0.039</td>
<td>99.960</td>
<td>0.040</td>
<td>99.957</td>
<td>0.043</td>
<td>0.001</td>
<td>(0.002)</td>
<td>3.791</td>
</tr>
<tr class="even">
<td>Los Angeles</td>
<td>99.984</td>
<td>0.016</td>
<td>99.983</td>
<td>0.017</td>
<td>99.983</td>
<td>0.017</td>
<td>0.001</td>
<td>(0.001)</td>
<td>6.691</td>
</tr>
<tr class="odd">
<td>Baton Rouge</td>
<td>99.769</td>
<td>0.231</td>
<td>99.747</td>
<td>0.253</td>
<td>99.746</td>
<td>0.254</td>
<td>0.022</td>
<td>(0.001)</td>
<td>9.473</td>
</tr>
<tr class="even">
<td>New Orleans</td>
<td>99.759</td>
<td>0.241</td>
<td>99.736</td>
<td>0.264</td>
<td>99.735</td>
<td>0.265</td>
<td>0.023</td>
<td>(0.001)</td>
<td>9.385</td>
</tr>
<tr class="odd">
<td>Shreveport</td>
<td>99.819</td>
<td>0.181</td>
<td>99.800</td>
<td>0.200</td>
<td>99.801</td>
<td>0.199</td>
<td>0.019</td>
<td>0.001</td>
<td>10.340</td>
</tr>
<tr class="even">
<td>Billings</td>
<td>99.978</td>
<td>0.022</td>
<td>99.975</td>
<td>0.025</td>
<td>99.975</td>
<td>0.025</td>
<td>0.003</td>
<td>0.001</td>
<td>12.297</td>
</tr>
<tr class="odd">
<td>Fargo</td>
<td>99.906</td>
<td>0.094</td>
<td>99.896</td>
<td>0.104</td>
<td>99.896</td>
<td>0.104</td>
<td>0.009</td>
<td>0.000</td>
<td>9.891</td>
</tr>
<tr class="even">
<td>Salt Lake City</td>
<td>99.988</td>
<td>0.012</td>
<td>99.986</td>
<td>0.014</td>
<td>99.986</td>
<td>0.014</td>
<td>0.002</td>
<td>0.001</td>
<td>15.420</td>
</tr>
<tr class="odd">
<td>Omaha</td>
<td>99.931</td>
<td>0.069</td>
<td>99.926</td>
<td>0.074</td>
<td>99.925</td>
<td>0.075</td>
<td>0.005</td>
<td>(0.001)</td>
<td>7.966</td>
</tr>
<tr class="even">
<td>Oklahoma City</td>
<td>99.914</td>
<td>0.086</td>
<td>99.907</td>
<td>0.093</td>
<td>99.905</td>
<td>0.095</td>
<td>0.007</td>
<td>(0.002)</td>
<td>7.662</td>
</tr>
<tr class="odd">
<td>Boise</td>
<td>99.988</td>
<td>0.012</td>
<td>99.986</td>
<td>0.014</td>
<td>99.986</td>
<td>0.014</td>
<td>0.001</td>
<td>0.000</td>
<td>11.674</td>
</tr>
<tr class="even">
<td>Jackson</td>
<td>99.802</td>
<td>0.198</td>
<td>99.782</td>
<td>0.218</td>
<td>99.782</td>
<td>0.218</td>
<td>0.020</td>
<td>0.001</td>
<td>10.279</td>
</tr>
<tr class="odd">
<td>Anchorage*</td>
<td>99.972</td>
<td>0.028</td>
<td>99.971</td>
<td>0.029</td>
<td>99.969</td>
<td>0.031</td>
<td>0.001</td>
<td>(0.002)</td>
<td>3.564</td>
</tr>
<tr class="even">
<td>Honolulu**</td>
<td>98.334</td>
<td>1.666</td>
<td>97.946</td>
<td>2.054</td>
<td>98.167</td>
<td>1.833</td>
<td>0.388</td>
<td>0.221</td>
<td>23.270</td>
</tr>
</tbody>
</table>

\* Based on 240 CM DBS receive antenna (*See*
[www.directv.com/DTVAPP/learn/FAQ_DTVBasics.jsp](http://www.directv.com/DTVAPP/learn/FAQ_DTVBasics.jsp))

\*\*Based on 90 cm DBS receive antenna

Notes:

1\. The absolute value of the difference is the same whether comparing
availability or outage (unavailability).

2\. Cities shown in gray are additional cities analyzed *in Second
Report and Order* to validate results of original 32 city sample.

3\. Values shown in brackets indicate better DBS performance with
regional EPFD than with an assumed 10% limit on unavailability.

**Table 2: Satellite Located at 110^o^ West Longitude -- Comparison of
Availability and Unavailability (Outage) Attributable to MVDDS for
various criteria**

(all values are expressed as a percentage over a year)

<table>
<colgroup>
<col style="width: 10%" />
<col style="width: 8%" />
<col style="width: 6%" />
<col style="width: 8%" />
<col style="width: 6%" />
<col style="width: 8%" />
<col style="width: 6%" />
<col style="width: 14%" />
<col style="width: 13%" />
<col style="width: 14%" />
</colgroup>
<thead>
<tr class="header">
<th rowspan="2">City</th>
<th colspan="2"><p>Baseline</p>
<p>(Rain Only)</p></th>
<th colspan="2"><p>Rain plus MVDDS</p>
<p>(using regional EPFD)</p></th>
<th colspan="2"><p>Rain plus MVDDS</p>
<p>(assuming 10% limit)</p></th>
<th><p>Increase in Outage (using regional EPFD)</p>
<p>Difference Between Rain plus MVDDS and Baseline (rain only)</p></th>
<th><p>Rain plus MVDDS</p>
<p>Difference between Regional EPFD and assumed 10% limit</p></th>
<th><p>Increase in Outage Over Baseline</p>
<p>(using regional EPFD)</p></th>
</tr>
<tr class="odd">
<th>Availability</th>
<th>Outage</th>
<th>Availability</th>
<th>Outage</th>
<th>Availability</th>
<th>Outage</th>
<th> </th>
<th> </th>
<th>(%)</th>
</tr>
</thead>
<tbody>
<tr class="odd">
<td>Philadelphia</td>
<td>99.728</td>
<td>0.272</td>
<td>99.650</td>
<td>0.350</td>
<td>99.701</td>
<td>0.299</td>
<td>0.079</td>
<td>0.051</td>
<td>28.892</td>
</tr>
<tr class="even">
<td>Washington DC</td>
<td>99.736</td>
<td>0.264</td>
<td>99.664</td>
<td>0.336</td>
<td>99.709</td>
<td>0.291</td>
<td>0.072</td>
<td>0.045</td>
<td>27.121</td>
</tr>
<tr class="odd">
<td>New York</td>
<td>99.748</td>
<td>0.252</td>
<td>99.678</td>
<td>0.322</td>
<td>99.723</td>
<td>0.277</td>
<td>0.070</td>
<td>0.045</td>
<td>27.811</td>
</tr>
<tr class="even">
<td>Houston</td>
<td>99.529</td>
<td>0.471</td>
<td>99.462</td>
<td>0.538</td>
<td>99.482</td>
<td>0.518</td>
<td>0.068</td>
<td>0.020</td>
<td>14.380</td>
</tr>
<tr class="odd">
<td>Boston</td>
<td>99.780</td>
<td>0.220</td>
<td>99.714</td>
<td>0.286</td>
<td>99.758</td>
<td>0.242</td>
<td>0.067</td>
<td>0.044</td>
<td>30.241</td>
</tr>
<tr class="even">
<td>Nashville</td>
<td>99.714</td>
<td>0.286</td>
<td>99.648</td>
<td>0.352</td>
<td>99.685</td>
<td>0.315</td>
<td>0.066</td>
<td>0.037</td>
<td>23.007</td>
</tr>
<tr class="odd">
<td>Dallas</td>
<td>99.617</td>
<td>0.383</td>
<td>99.557</td>
<td>0.443</td>
<td>99.578</td>
<td>0.422</td>
<td>0.059</td>
<td>0.021</td>
<td>15.493</td>
</tr>
<tr class="even">
<td>Pittsburgh</td>
<td>99.796</td>
<td>0.204</td>
<td>99.739</td>
<td>0.261</td>
<td>99.775</td>
<td>0.225</td>
<td>0.056</td>
<td>0.036</td>
<td>27.482</td>
</tr>
<tr class="odd">
<td>Columbus</td>
<td>99.767</td>
<td>0.233</td>
<td>99.723</td>
<td>0.277</td>
<td>99.743</td>
<td>0.257</td>
<td>0.044</td>
<td>0.021</td>
<td>18.852</td>
</tr>
<tr class="even">
<td>Cincinnati</td>
<td>99.748</td>
<td>0.252</td>
<td>99.705</td>
<td>0.296</td>
<td>99.723</td>
<td>0.277</td>
<td>0.044</td>
<td>0.018</td>
<td>17.402</td>
</tr>
<tr class="odd">
<td>Cleveland</td>
<td>99.792</td>
<td>0.208</td>
<td>99.752</td>
<td>0.248</td>
<td>99.771</td>
<td>0.229</td>
<td>0.040</td>
<td>0.019</td>
<td>19.260</td>
</tr>
<tr class="even">
<td>Kansas City</td>
<td>99.784</td>
<td>0.216</td>
<td>99.747</td>
<td>0.253</td>
<td>99.763</td>
<td>0.237</td>
<td>0.037</td>
<td>0.015</td>
<td>17.146</td>
</tr>
<tr class="odd">
<td>Miami</td>
<td>99.633</td>
<td>0.367</td>
<td>99.598</td>
<td>0.403</td>
<td>99.596</td>
<td>0.404</td>
<td>0.035</td>
<td>(0.001)</td>
<td>9.673</td>
</tr>
<tr class="even">
<td>Detroit</td>
<td>99.829</td>
<td>0.171</td>
<td>99.796</td>
<td>0.204</td>
<td>99.812</td>
<td>0.188</td>
<td>0.033</td>
<td>0.016</td>
<td>19.532</td>
</tr>
<tr class="odd">
<td>Chicago</td>
<td>99.822</td>
<td>0.178</td>
<td>99.790</td>
<td>0.210</td>
<td>99.804</td>
<td>0.196</td>
<td>0.032</td>
<td>0.014</td>
<td>18.034</td>
</tr>
<tr class="even">
<td>Orlando</td>
<td>99.683</td>
<td>0.317</td>
<td>99.651</td>
<td>0.349</td>
<td>99.651</td>
<td>0.349</td>
<td>0.032</td>
<td>0.000</td>
<td>10.057</td>
</tr>
<tr class="odd">
<td>Milwaukee</td>
<td>99.829</td>
<td>0.171</td>
<td>99.798</td>
<td>0.202</td>
<td>99.812</td>
<td>0.188</td>
<td>0.031</td>
<td>0.014</td>
<td>18.139</td>
</tr>
<tr class="even">
<td>Minneapolis</td>
<td>99.838</td>
<td>0.162</td>
<td>99.808</td>
<td>0.192</td>
<td>99.821</td>
<td>0.179</td>
<td>0.029</td>
<td>0.013</td>
<td>18.176</td>
</tr>
<tr class="odd">
<td>Indianapolis</td>
<td>99.751</td>
<td>0.249</td>
<td>99.722</td>
<td>0.278</td>
<td>99.726</td>
<td>0.274</td>
<td>0.029</td>
<td>0.004</td>
<td>11.807</td>
</tr>
<tr class="even">
<td>Tampa</td>
<td>99.696</td>
<td>0.304</td>
<td>99.668</td>
<td>0.332</td>
<td>99.666</td>
<td>0.334</td>
<td>0.029</td>
<td>(0.002)</td>
<td>9.414</td>
</tr>
<tr class="odd">
<td>St. Louis</td>
<td>99.751</td>
<td>0.249</td>
<td>99.729</td>
<td>0.271</td>
<td>99.726</td>
<td>0.274</td>
<td>0.022</td>
<td>(0.003)</td>
<td>8.963</td>
</tr>
<tr class="even">
<td>Atlanta</td>
<td>99.814</td>
<td>0.186</td>
<td>99.794</td>
<td>0.206</td>
<td>99.796</td>
<td>0.204</td>
<td>0.020</td>
<td>0.001</td>
<td>10.830</td>
</tr>
<tr class="odd">
<td>Greenville</td>
<td>99.829</td>
<td>0.171</td>
<td>99.810</td>
<td>0.190</td>
<td>99.812</td>
<td>0.188</td>
<td>0.019</td>
<td>0.002</td>
<td>11.040</td>
</tr>
<tr class="even">
<td>Charlotte</td>
<td>99.868</td>
<td>0.132</td>
<td>99.852</td>
<td>0.148</td>
<td>99.855</td>
<td>0.145</td>
<td>0.017</td>
<td>0.003</td>
<td>12.614</td>
</tr>
<tr class="odd">
<td>Phoenix</td>
<td>99.874</td>
<td>0.126</td>
<td>99.858</td>
<td>0.142</td>
<td>99.861</td>
<td>0.139</td>
<td>0.016</td>
<td>0.003</td>
<td>12.560</td>
</tr>
<tr class="even">
<td>Seattle</td>
<td>99.869</td>
<td>0.131</td>
<td>99.855</td>
<td>0.145</td>
<td>99.856</td>
<td>0.144</td>
<td>0.014</td>
<td>0.001</td>
<td>11.069</td>
</tr>
<tr class="odd">
<td>Sacramento</td>
<td>99.863</td>
<td>0.138</td>
<td>99.848</td>
<td>0.152</td>
<td>99.849</td>
<td>0.151</td>
<td>0.014</td>
<td>0.001</td>
<td>10.473</td>
</tr>
<tr class="even">
<td>Portland</td>
<td>99.899</td>
<td>0.101</td>
<td>99.888</td>
<td>0.112</td>
<td>99.889</td>
<td>0.111</td>
<td>0.011</td>
<td>0.001</td>
<td>11.100</td>
</tr>
<tr class="odd">
<td>San Francisco</td>
<td>99.882</td>
<td>0.118</td>
<td>99.871</td>
<td>0.129</td>
<td>99.870</td>
<td>0.130</td>
<td>0.011</td>
<td>(0.001)</td>
<td>9.500</td>
</tr>
<tr class="even">
<td>San Diego</td>
<td>99.936</td>
<td>0.064</td>
<td>99.928</td>
<td>0.072</td>
<td>99.930</td>
<td>0.070</td>
<td>0.008</td>
<td>0.002</td>
<td>13.208</td>
</tr>
<tr class="odd">
<td>Los Angeles</td>
<td>99.959</td>
<td>0.041</td>
<td>99.953</td>
<td>0.047</td>
<td>99.955</td>
<td>0.045</td>
<td>0.006</td>
<td>0.002</td>
<td>13.902</td>
</tr>
<tr class="even">
<td>Denver</td>
<td>99.970</td>
<td>0.030</td>
<td>99.966</td>
<td>0.034</td>
<td>99.967</td>
<td>0.033</td>
<td>0.004</td>
<td>0.001</td>
<td>14.527</td>
</tr>
<tr class="odd">
<td>Baton Rouge</td>
<td>99.752</td>
<td>0.248</td>
<td>99.726</td>
<td>0.274</td>
<td>99.727</td>
<td>0.273</td>
<td>0.025</td>
<td>0.001</td>
<td>10.260</td>
</tr>
<tr class="even">
<td>New Orleans</td>
<td>99.740</td>
<td>0.260</td>
<td>99.714</td>
<td>0.286</td>
<td>99.714</td>
<td>0.286</td>
<td>0.026</td>
<td>0.000</td>
<td>10.176</td>
</tr>
<tr class="odd">
<td>Shreveport</td>
<td>99.805</td>
<td>0.195</td>
<td>99.786</td>
<td>0.214</td>
<td>99.786</td>
<td>0.214</td>
<td>0.019</td>
<td>0.000</td>
<td>9.873</td>
</tr>
<tr class="even">
<td>Billings</td>
<td>99.977</td>
<td>0.023</td>
<td>99.975</td>
<td>0.025</td>
<td>99.975</td>
<td>0.025</td>
<td>0.003</td>
<td>0.001</td>
<td>12.532</td>
</tr>
<tr class="odd">
<td>Fargo</td>
<td>99.893</td>
<td>0.107</td>
<td>99.882</td>
<td>0.118</td>
<td>99.882</td>
<td>0.118</td>
<td>0.011</td>
<td>0.000</td>
<td>10.173</td>
</tr>
<tr class="even">
<td>Salt Lake City</td>
<td>99.988</td>
<td>0.012</td>
<td>99.986</td>
<td>0.014</td>
<td>99.987</td>
<td>0.013</td>
<td>0.002</td>
<td>0.001</td>
<td>15.683</td>
</tr>
<tr class="odd">
<td>Omaha</td>
<td>99.816</td>
<td>0.184</td>
<td>99.781</td>
<td>0.219</td>
<td>99.797</td>
<td>0.203</td>
<td>0.035</td>
<td>0.016</td>
<td>18.740</td>
</tr>
<tr class="even">
<td>Oklahoma City</td>
<td>99.775</td>
<td>0.225</td>
<td>99.738</td>
<td>0.262</td>
<td>99.753</td>
<td>0.247</td>
<td>0.037</td>
<td>0.015</td>
<td>16.667</td>
</tr>
<tr class="odd">
<td>Boise</td>
<td>99.988</td>
<td>0.012</td>
<td>99.987</td>
<td>0.013</td>
<td>99.987</td>
<td>0.013</td>
<td>0.002</td>
<td>0.000</td>
<td>13.149</td>
</tr>
<tr class="even">
<td>Jackson</td>
<td>99.785</td>
<td>0.215</td>
<td>99.762</td>
<td>0.238</td>
<td>99.763</td>
<td>0.237</td>
<td>0.023</td>
<td>0.001</td>
<td>10.522</td>
</tr>
<tr class="odd">
<td>Anchorage*</td>
<td>99.942</td>
<td>0.058</td>
<td>99.937</td>
<td>0.063</td>
<td>99.937</td>
<td>0.063</td>
<td>0.005</td>
<td>(0.001)</td>
<td>8.929</td>
</tr>
<tr class="even">
<td>Honolulu**</td>
<td>99.911</td>
<td>0.089</td>
<td>99.909</td>
<td>0.091</td>
<td>99.902</td>
<td>0.098</td>
<td>0.002</td>
<td>(0.007)</td>
<td>2.198</td>
</tr>
</tbody>
</table>

\*Based on 180 cm DBS receive Antenna

\*\*Based on 90 cm DBS receive Antenna

Notes:

1\. The absolute value of the difference is the same whether comparing
availability or outage (unavailability).

2\. Cities shown in gray are additional cities analyzed *in Second
Report and Order* to validate results of original 32 city sample.

3\. Values shown in brackets indicate better DBS performance with
regional EPFD than with an assumed 10% limit on unavailability.

**Table 3: Satellite Located at 119^o^ West Longitude -- Comparison of
Availability and Unavailability (Outage) Attributable to MVDDS for
various criteria**

(all values are expressed as a percentage over a year)

<table>
<colgroup>
<col style="width: 10%" />
<col style="width: 8%" />
<col style="width: 6%" />
<col style="width: 8%" />
<col style="width: 6%" />
<col style="width: 8%" />
<col style="width: 6%" />
<col style="width: 14%" />
<col style="width: 13%" />
<col style="width: 14%" />
</colgroup>
<thead>
<tr class="header">
<th rowspan="2">City</th>
<th colspan="2"><p>Baseline</p>
<p>(Rain Only)</p></th>
<th colspan="2"><p>Rain plus MVDDS</p>
<p>(using regional EPFD)</p></th>
<th colspan="2"><p>Rain plus MVDDS</p>
<p>(assuming 10% limit)</p></th>
<th><p>Increase in Outage (using regional EPFD)</p>
<p>Difference Between Rain plus MVDDS and Baseline (rain only)</p></th>
<th><p>Rain plus MVDDS</p>
<p>Difference between Regional EPFD and assumed 10% limit</p></th>
<th><p>Increase in Outage Over Baseline</p>
<p>(using regional EPFD)</p></th>
</tr>
<tr class="odd">
<th>Availability</th>
<th>Outage</th>
<th>Availability</th>
<th>Outage</th>
<th>Availability</th>
<th>Outage</th>
<th> </th>
<th> </th>
<th>(%)</th>
</tr>
</thead>
<tbody>
<tr class="odd">
<td>Miami</td>
<td>99.503</td>
<td>0.497</td>
<td>99.449</td>
<td>0.551</td>
<td>99.453</td>
<td>0.547</td>
<td>0.054</td>
<td>0.004</td>
<td>10.905</td>
</tr>
<tr class="even">
<td>Orlando</td>
<td>99.571</td>
<td>0.429</td>
<td>99.522</td>
<td>0.478</td>
<td>99.528</td>
<td>0.472</td>
<td>0.050</td>
<td>0.006</td>
<td>11.567</td>
</tr>
<tr class="odd">
<td>Tampa</td>
<td>99.593</td>
<td>0.407</td>
<td>99.546</td>
<td>0.454</td>
<td>99.552</td>
<td>0.448</td>
<td>0.047</td>
<td>0.006</td>
<td>11.564</td>
</tr>
<tr class="even">
<td>Atlanta</td>
<td>99.747</td>
<td>0.253</td>
<td>99.713</td>
<td>0.287</td>
<td>99.721</td>
<td>0.279</td>
<td>0.034</td>
<td>0.008</td>
<td>13.389</td>
</tr>
<tr class="odd">
<td>Greenville</td>
<td>99.761</td>
<td>0.239</td>
<td>99.731</td>
<td>0.269</td>
<td>99.737</td>
<td>0.263</td>
<td>0.031</td>
<td>0.007</td>
<td>12.825</td>
</tr>
<tr class="even">
<td>Philadelphia</td>
<td>99.834</td>
<td>0.166</td>
<td>99.807</td>
<td>0.193</td>
<td>99.817</td>
<td>0.183</td>
<td>0.027</td>
<td>0.010</td>
<td>15.986</td>
</tr>
<tr class="odd">
<td>Charlotte</td>
<td>99.811</td>
<td>0.189</td>
<td>99.784</td>
<td>0.216</td>
<td>99.792</td>
<td>0.208</td>
<td>0.026</td>
<td>0.007</td>
<td>13.893</td>
</tr>
<tr class="even">
<td>New York</td>
<td>99.844</td>
<td>0.156</td>
<td>99.821</td>
<td>0.179</td>
<td>99.828</td>
<td>0.172</td>
<td>0.023</td>
<td>0.007</td>
<td>14.779</td>
</tr>
<tr class="odd">
<td>Houston</td>
<td>99.738</td>
<td>0.262</td>
<td>99.716</td>
<td>0.284</td>
<td>99.711</td>
<td>0.289</td>
<td>0.022</td>
<td>(0.004)</td>
<td>8.384</td>
</tr>
<tr class="even">
<td>Washington DC</td>
<td>99.840</td>
<td>0.160</td>
<td>99.819</td>
<td>0.181</td>
<td>99.824</td>
<td>0.176</td>
<td>0.022</td>
<td>0.006</td>
<td>13.659</td>
</tr>
<tr class="odd">
<td>Boston</td>
<td>99.861</td>
<td>0.139</td>
<td>99.839</td>
<td>0.161</td>
<td>99.846</td>
<td>0.154</td>
<td>0.021</td>
<td>0.007</td>
<td>15.125</td>
</tr>
<tr class="even">
<td>Nashville</td>
<td>99.838</td>
<td>0.162</td>
<td>99.819</td>
<td>0.182</td>
<td>99.822</td>
<td>0.178</td>
<td>0.020</td>
<td>0.004</td>
<td>12.245</td>
</tr>
<tr class="odd">
<td>Seattle</td>
<td>99.843</td>
<td>0.157</td>
<td>99.823</td>
<td>0.177</td>
<td>99.827</td>
<td>0.173</td>
<td>0.020</td>
<td>0.004</td>
<td>12.516</td>
</tr>
<tr class="even">
<td>Indianapolis</td>
<td>99.874</td>
<td>0.126</td>
<td>99.855</td>
<td>0.145</td>
<td>99.862</td>
<td>0.138</td>
<td>0.019</td>
<td>0.007</td>
<td>15.421</td>
</tr>
<tr class="odd">
<td>Sacramento</td>
<td>99.835</td>
<td>0.165</td>
<td>99.816</td>
<td>0.184</td>
<td>99.819</td>
<td>0.181</td>
<td>0.019</td>
<td>0.003</td>
<td>11.658</td>
</tr>
<tr class="even">
<td>Dallas</td>
<td>99.791</td>
<td>0.209</td>
<td>99.773</td>
<td>0.227</td>
<td>99.770</td>
<td>0.230</td>
<td>0.018</td>
<td>(0.003)</td>
<td>8.708</td>
</tr>
<tr class="odd">
<td>Pittsburgh</td>
<td>99.881</td>
<td>0.120</td>
<td>99.863</td>
<td>0.137</td>
<td>99.869</td>
<td>0.131</td>
<td>0.018</td>
<td>0.006</td>
<td>14.728</td>
</tr>
<tr class="even">
<td>San Francisco</td>
<td>99.860</td>
<td>0.140</td>
<td>99.844</td>
<td>0.156</td>
<td>99.846</td>
<td>0.154</td>
<td>0.016</td>
<td>0.002</td>
<td>11.748</td>
</tr>
<tr class="odd">
<td>Portland</td>
<td>99.879</td>
<td>0.121</td>
<td>99.864</td>
<td>0.136</td>
<td>99.867</td>
<td>0.133</td>
<td>0.015</td>
<td>0.003</td>
<td>12.541</td>
</tr>
<tr class="even">
<td>Cincinnati</td>
<td>99.857</td>
<td>0.144</td>
<td>99.843</td>
<td>0.157</td>
<td>99.842</td>
<td>0.158</td>
<td>0.014</td>
<td>(0.001)</td>
<td>9.477</td>
</tr>
<tr class="odd">
<td>Columbus</td>
<td>99.865</td>
<td>0.135</td>
<td>99.852</td>
<td>0.148</td>
<td>99.852</td>
<td>0.148</td>
<td>0.013</td>
<td>(0.001)</td>
<td>9.651</td>
</tr>
<tr class="even">
<td>Cleveland</td>
<td>99.880</td>
<td>0.120</td>
<td>99.868</td>
<td>0.132</td>
<td>99.868</td>
<td>0.132</td>
<td>0.012</td>
<td>0.000</td>
<td>9.718</td>
</tr>
<tr class="odd">
<td>Los Angeles</td>
<td>99.922</td>
<td>0.078</td>
<td>99.911</td>
<td>0.089</td>
<td>99.914</td>
<td>0.086</td>
<td>0.011</td>
<td>0.004</td>
<td>14.781</td>
</tr>
<tr class="even">
<td>Kansas City</td>
<td>99.885</td>
<td>0.115</td>
<td>99.875</td>
<td>0.125</td>
<td>99.874</td>
<td>0.126</td>
<td>0.011</td>
<td>(0.001)</td>
<td>9.329</td>
</tr>
<tr class="odd">
<td>San Diego</td>
<td>99.920</td>
<td>0.080</td>
<td>99.911</td>
<td>0.089</td>
<td>99.912</td>
<td>0.088</td>
<td>0.010</td>
<td>0.002</td>
<td>12.186</td>
</tr>
<tr class="even">
<td>Detroit</td>
<td>99.903</td>
<td>0.097</td>
<td>99.893</td>
<td>0.107</td>
<td>99.893</td>
<td>0.107</td>
<td>0.010</td>
<td>0.000</td>
<td>9.866</td>
</tr>
<tr class="odd">
<td>Chicago</td>
<td>99.902</td>
<td>0.098</td>
<td>99.893</td>
<td>0.107</td>
<td>99.893</td>
<td>0.107</td>
<td>0.010</td>
<td>0.000</td>
<td>9.734</td>
</tr>
<tr class="even">
<td>Milwaukee</td>
<td>99.907</td>
<td>0.093</td>
<td>99.898</td>
<td>0.102</td>
<td>99.897</td>
<td>0.103</td>
<td>0.009</td>
<td>0.000</td>
<td>9.871</td>
</tr>
<tr class="odd">
<td>Minneapolis</td>
<td>99.915</td>
<td>0.085</td>
<td>99.906</td>
<td>0.094</td>
<td>99.906</td>
<td>0.094</td>
<td>0.008</td>
<td>0.000</td>
<td>9.848</td>
</tr>
<tr class="even">
<td>Phoenix</td>
<td>99.941</td>
<td>0.059</td>
<td>99.936</td>
<td>0.064</td>
<td>99.935</td>
<td>0.065</td>
<td>0.004</td>
<td>(0.002)</td>
<td>7.227</td>
</tr>
<tr class="odd">
<td>St. Louis</td>
<td>99.864</td>
<td>0.136</td>
<td>99.862</td>
<td>0.138</td>
<td>99.850</td>
<td>0.150</td>
<td>0.002</td>
<td>(0.012)</td>
<td>1.393</td>
</tr>
<tr class="even">
<td>Denver</td>
<td>99.987</td>
<td>0.013</td>
<td>99.985</td>
<td>0.015</td>
<td>99.985</td>
<td>0.015</td>
<td>0.001</td>
<td>0.000</td>
<td>8.889</td>
</tr>
<tr class="odd">
<td>Baton Rouge</td>
<td>99.683</td>
<td>0.317</td>
<td>99.646</td>
<td>0.354</td>
<td>99.652</td>
<td>0.348</td>
<td>0.037</td>
<td>0.006</td>
<td>11.772</td>
</tr>
<tr class="even">
<td>New Orleans</td>
<td>99.666</td>
<td>0.334</td>
<td>99.627</td>
<td>0.373</td>
<td>99.632</td>
<td>0.368</td>
<td>0.039</td>
<td>0.006</td>
<td>11.731</td>
</tr>
<tr class="odd">
<td>Shreveport</td>
<td>99.753</td>
<td>0.247</td>
<td>99.722</td>
<td>0.278</td>
<td>99.728</td>
<td>0.272</td>
<td>0.030</td>
<td>0.006</td>
<td>12.231</td>
</tr>
<tr class="even">
<td>Billings</td>
<td>99.969</td>
<td>0.031</td>
<td>99.965</td>
<td>0.035</td>
<td>99.966</td>
<td>0.034</td>
<td>0.004</td>
<td>0.001</td>
<td>14.020</td>
</tr>
<tr class="odd">
<td>Fargo</td>
<td>99.846</td>
<td>0.154</td>
<td>99.824</td>
<td>0.176</td>
<td>99.830</td>
<td>0.170</td>
<td>0.022</td>
<td>0.007</td>
<td>14.365</td>
</tr>
<tr class="even">
<td>Salt Lake City</td>
<td>99.984</td>
<td>0.016</td>
<td>99.981</td>
<td>0.019</td>
<td>99.982</td>
<td>0.018</td>
<td>0.003</td>
<td>0.001</td>
<td>19.199</td>
</tr>
<tr class="odd">
<td>Omaha</td>
<td>99.903</td>
<td>0.097</td>
<td>99.893</td>
<td>0.107</td>
<td>99.893</td>
<td>0.107</td>
<td>0.009</td>
<td>0.000</td>
<td>9.566</td>
</tr>
<tr class="even">
<td>Oklahoma City</td>
<td>99.882</td>
<td>0.118</td>
<td>99.871</td>
<td>0.129</td>
<td>99.870</td>
<td>0.130</td>
<td>0.011</td>
<td>(0.001)</td>
<td>9.185</td>
</tr>
<tr class="odd">
<td>Boise</td>
<td>99.996</td>
<td>0.004</td>
<td>99.995</td>
<td>0.005</td>
<td>99.995</td>
<td>0.005</td>
<td>0.000</td>
<td>0.000</td>
<td>7.725</td>
</tr>
<tr class="even">
<td>Jackson</td>
<td>99.719</td>
<td>0.281</td>
<td>99.685</td>
<td>0.315</td>
<td>99.691</td>
<td>0.309</td>
<td>0.034</td>
<td>0.006</td>
<td>12.195</td>
</tr>
<tr class="odd">
<td>Anchorage*</td>
<td>99.987</td>
<td>0.013</td>
<td>99.987</td>
<td>0.013</td>
<td>99.986</td>
<td>0.014</td>
<td>0.000</td>
<td>(0.001)</td>
<td>3.720</td>
</tr>
<tr class="even">
<td>Honolulu**</td>
<td>99.635</td>
<td>0.365</td>
<td>99.602</td>
<td>0.398</td>
<td>99.599</td>
<td>0.401</td>
<td>0.033</td>
<td>(0.003)</td>
<td>9.072</td>
</tr>
</tbody>
</table>

\*Based on 180 cm DBS receive Antenna

\*\*Based on 90 cm DBS receive Antenna

Notes:

1\. The absolute value of the difference is the same whether comparing
availability or outage (unavailability).

2\. Cities shown in gray are additional cities analyzed *in Second
Report and Order* to validate results of original 32 city sample.

3\. Values shown in brackets indicate better DBS performance with
regional EPFD than with an assumed 10% limit on unavailability.

**Table 4: Satellite Located at 61.5^o^ West Longitude -- Comparison of
Availability and Unavailability (Outage) Attributable to MVDDS for
various criteria**

(all values are expressed as a percentage over a year)

<table>
<colgroup>
<col style="width: 10%" />
<col style="width: 8%" />
<col style="width: 6%" />
<col style="width: 8%" />
<col style="width: 6%" />
<col style="width: 8%" />
<col style="width: 6%" />
<col style="width: 14%" />
<col style="width: 13%" />
<col style="width: 14%" />
</colgroup>
<thead>
<tr class="header">
<th rowspan="2">City</th>
<th colspan="2"><p>Baseline</p>
<p>(Rain Only)</p></th>
<th colspan="2"><p>Rain plus MVDDS</p>
<p>(using regional EPFD)</p></th>
<th colspan="2"><p>Rain plus MVDDS</p>
<p>(assuming 10% limit)</p></th>
<th><p>Increase in Outage (using regional EPFD)</p>
<p>Difference Between Rain plus MVDDS and Baseline (rain only)</p></th>
<th><p>Rain plus MVDDS</p>
<p>Difference between Regional EPFD and assumed 10% limit</p></th>
<th><p>Increase in Outage Over Baseline</p>
<p>(using regional EPFD)</p></th>
</tr>
<tr class="odd">
<th>Availability</th>
<th>Outage</th>
<th>Availability</th>
<th>Outage</th>
<th>Availability</th>
<th>Outage</th>
<th> </th>
<th> </th>
<th>(%)</th>
</tr>
</thead>
<tbody>
<tr class="odd">
<td>Seattle*</td>
<td>98.282</td>
<td>1.718</td>
<td>98.108</td>
<td>1.892</td>
<td>97.756</td>
<td>2.244</td>
<td>0.525</td>
<td>0.352</td>
<td>30.563</td>
</tr>
<tr class="even">
<td>Los Angeles</td>
<td>99.693</td>
<td>0.307</td>
<td>99.662</td>
<td>0.338</td>
<td>99.659</td>
<td>0.341</td>
<td>0.033</td>
<td>0.002</td>
<td>10.869</td>
</tr>
<tr class="odd">
<td>Miami</td>
<td>99.847</td>
<td>0.153</td>
<td>99.832</td>
<td>0.168</td>
<td>99.840</td>
<td>0.160</td>
<td>0.007</td>
<td>(0.009)</td>
<td>4.447</td>
</tr>
<tr class="even">
<td>Kansas City</td>
<td>99.902</td>
<td>0.098</td>
<td>99.893</td>
<td>0.107</td>
<td>99.896</td>
<td>0.104</td>
<td>0.007</td>
<td>(0.003)</td>
<td>6.752</td>
</tr>
<tr class="odd">
<td>Detroit</td>
<td>99.948</td>
<td>0.052</td>
<td>99.942</td>
<td>0.058</td>
<td>99.944</td>
<td>0.056</td>
<td>0.004</td>
<td>(0.002)</td>
<td>7.048</td>
</tr>
<tr class="even">
<td>Washington</td>
<td>99.966</td>
<td>0.034</td>
<td>99.963</td>
<td>0.037</td>
<td>99.965</td>
<td>0.035</td>
<td>0.002</td>
<td>(0.002)</td>
<td>5.030</td>
</tr>
<tr class="odd">
<td>New York</td>
<td>99.972</td>
<td>0.028</td>
<td>99.969</td>
<td>0.031</td>
<td>99.970</td>
<td>0.030</td>
<td>0.002</td>
<td>(0.001)</td>
<td>5.654</td>
</tr>
</tbody>
</table>

\* The availability for this city is less than the desired 99.8%.

Notes:

1\. The absolute value of the difference is the same whether comparing
availability or outage (unavailability).

2\. Values shown in brackets indicate better DBS performance with
regional EPFD than with an assumed 10% limit on unavailability.

**Table 5: Satellite Located at 148^o^ West Longitude -- Comparison of
Availability and Unavailability (Outage) Attributable to MVDDS for
various criteria**

(all values are expressed as a percentage over a year)

<table>
<colgroup>
<col style="width: 10%" />
<col style="width: 8%" />
<col style="width: 6%" />
<col style="width: 8%" />
<col style="width: 6%" />
<col style="width: 8%" />
<col style="width: 6%" />
<col style="width: 14%" />
<col style="width: 13%" />
<col style="width: 14%" />
</colgroup>
<thead>
<tr class="header">
<th rowspan="2">City</th>
<th colspan="2"><p>Baseline</p>
<p>(Rain Only)</p></th>
<th colspan="2"><p>Rain plus MVDDS</p>
<p>(using regional EPFD)</p></th>
<th colspan="2"><p>Rain plus MVDDS</p>
<p>(assuming 10% limit)</p></th>
<th><p>Increase in Outage (using regional EPFD)</p>
<p>Difference Between Rain plus MVDDS and Baseline (rain only)</p></th>
<th><p>Rain plus MVDDS</p>
<p>Difference between Regional EPFD and assumed 10% limit</p></th>
<th><p>Increase in Outage Over Baseline</p>
<p>(using regional EPFD)</p></th>
</tr>
<tr class="odd">
<th>Availability</th>
<th>Outage</th>
<th>Availability</th>
<th>Outage</th>
<th>Availability</th>
<th>Outage</th>
<th> </th>
<th> </th>
<th>(%)</th>
</tr>
</thead>
<tbody>
<tr class="odd">
<td>Seattle*</td>
<td>98.470</td>
<td>1.530</td>
<td>98.145</td>
<td>1.855</td>
<td>98.316</td>
<td>1.684</td>
<td>0.325</td>
<td>0.170</td>
<td>21.216</td>
</tr>
<tr class="even">
<td>San Francisco</td>
<td>99.502</td>
<td>0.498</td>
<td>99.374</td>
<td>0.626</td>
<td>99.452</td>
<td>0.548</td>
<td>0.128</td>
<td>0.078</td>
<td>25.763</td>
</tr>
<tr class="odd">
<td>Portland</td>
<td>99.610</td>
<td>0.391</td>
<td>99.498</td>
<td>0.502</td>
<td>99.570</td>
<td>0.430</td>
<td>0.111</td>
<td>0.072</td>
<td>28.553</td>
</tr>
<tr class="even">
<td>Dallas</td>
<td>99.627</td>
<td>0.373</td>
<td>99.599</td>
<td>0.401</td>
<td>99.589</td>
<td>0.411</td>
<td>0.028</td>
<td>(0.009)</td>
<td>7.560</td>
</tr>
<tr class="odd">
<td>Detroit</td>
<td>99.681</td>
<td>0.319</td>
<td>99.653</td>
<td>0.347</td>
<td>99.649</td>
<td>0.351</td>
<td>0.028</td>
<td>(0.004)</td>
<td>8.709</td>
</tr>
<tr class="even">
<td>Los Angeles</td>
<td>99.925</td>
<td>0.075</td>
<td>99.915</td>
<td>0.085</td>
<td>99.917</td>
<td>0.083</td>
<td>0.010</td>
<td>0.002</td>
<td>12.882</td>
</tr>
<tr class="odd">
<td>Phoenix</td>
<td>99.933</td>
<td>0.067</td>
<td>99.929</td>
<td>0.072</td>
<td>99.926</td>
<td>0.074</td>
<td>0.004</td>
<td>(0.003)</td>
<td>5.926</td>
</tr>
</tbody>
</table>

\* The availability for this city is less than the desired 99.8%.

Notes:

1\. The absolute value of the difference is the same whether comparing
availability or outage (unavailability).

2\. Values shown in brackets indicate better DBS performance with
regional EPFD than with an assumed 10% limit on unavailability.

**Table 6: Comparison of Old and New (Spot Beam) Satellite at 110^o^**
West Longitude for Selected Cities

+------------+------+-------+------+------+------+-----+-----+------+
|            | Base |       | Rain |      | Incr |     |     |      |
|            | line |       | plus |      | ease |     |     |      |
|            | Ou   |       | M    |      | in   |     |     |      |
|            | tage |       | VDDS |      | Ou   |     |     |      |
|            |      |       | Ou   |      | tage |     |     |      |
|            | (    |       | tage |      |      |     |     |      |
|            | Rain |       |      |      |      |     |     |      |
|            | O    |       | (u   |      |      |     |     |      |
|            | nly) |       | sing |      |      |     |     |      |
|            |      |       | regi |      |      |     |     |      |
|            |      |       | onal |      |      |     |     |      |
|            |      |       | E    |      |      |     |     |      |
|            |      |       | PFD) |      |      |     |     |      |
+------------+------+-------+------+------+------+-----+-----+------+
|            |      |       |      |      |      |     |     |      |
+------------+------+-------+------+------+------+-----+-----+------+
|            |      |       |      |      |      |     |     |      |
+------------+------+-------+------+------+------+-----+-----+------+
|            | Min  |       | Min  |      | Min  |     | P   |      |
|            | utes |       | utes |      | utes |     | erc |      |
|            |      |       |      |      |      |     | ent |      |
+------------+------+-------+------+------+------+-----+-----+------+
|            | Old  | New   | Old  | New  | Old  | New | Old | New  |
+------------+------+-------+------+------+------+-----+-----+------+
| Ph         | 1429 | 20    | 1842 | 215  | 413  | 11. | 28. | 5    |
| iladelphia | .000 | 4.040 | .000 | .323 | .000 | 283 | 901 | .530 |
+------------+------+-------+------+------+------+-----+-----+------+
| Washington | 1388 | 20    | 1765 | 212  | 376  | 9.  | 27. | 4    |
| DC         | .300 | 3.230 | .000 | .977 | .700 | 747 | 134 | .796 |
+------------+------+-------+------+------+------+-----+-----+------+
| New York   | 1323 | 5     | 1692 | 59   | 368  | 0.  | 27. | 1    |
|            | .600 | 8.249 | .000 | .127 | .400 | 878 | 833 | .507 |
+------------+------+-------+------+------+------+-----+-----+------+
| Boston     | 1156 | 11    | 1506 | 119  | 349  | 4.  | 30. | 3    |
|            | .800 | 5.091 | .500 | .273 | .700 | 182 | 230 | .634 |
+------------+------+-------+------+------+------+-----+-----+------+
| Nashville  | 1504 | 12    | 1850 | 131  | 345  | 3.  | 22. | 2    |
|            | .400 | 7.989 | .100 | .459 | .700 | 470 | 979 | .711 |
+------------+------+-------+------+------+------+-----+-----+------+
| Kansas     | 1134 | 9     | 1329 | 92   | 194  | 1.  | 17. | 1    |
| City       | .800 | 0.464 | .700 | .041 | .900 | 577 | 175 | .743 |
+------------+------+-------+------+------+------+-----+-----+------+
| Oklahoma   | 1182 | 92    | 1379 | 1051 | 197  | 1   | 16. | 13   |
| City\*     | .000 | 5.122 | .000 | .000 | .000 | 25. | 667 | .607 |
|            |      |       |      |      |      | 878 |     |      |
+------------+------+-------+------+------+------+-----+-----+------+
| Charlotte  | 692  | 15    | 779  | 160  | 87   | 4.  | 12. | 2    |
|            | .100 | 6.056 | .300 | .409 | .200 | 353 | 599 | .789 |
+------------+------+-------+------+------+------+-----+-----+------+
| Phoenix\*  | 661  | 51    | 744  | 565  | 82   | 51. | 12. | 10   |
|            | .900 | 4.250 | .600 | .918 | .700 | 668 | 494 | .047 |
+------------+------+-------+------+------+------+-----+-----+------+
| Seattle    | 689  | 23    | 765  | 244  | 76   | 10. | 11. | 4    |
|            | .000 | 3.658 | .300 | .440 | .300 | 782 | 074 | .614 |
+------------+------+-------+------+------+------+-----+-----+------+
| Los        | 215  | 17    | 245  | 186  | 29   | 14. | 13. | 8    |
| Angeles    | .800 | 2.765 | .600 | .908 | .800 | 143 | 809 | .186 |
+------------+------+-------+------+------+------+-----+-----+------+
| Denver     | 155  | 3     | 178  | 35   | 22   | 1.  | 14. | 5    |
|            | .600 | 3.717 | .100 | .540 | .500 | 823 | 460 | .407 |
+------------+------+-------+------+------+------+-----+-----+------+

Note: All calculations done using spot beam except those indicated by
\*. In these cases, a spot beam is not available for this city and the
CONUS beam was used.

**SEPARATE STATEMENT OF**

**COMMISSIONER KEVIN J. MARTIN**

**APPROVING IN PART AND DISSENTING IN PART**

*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*; *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*,
Fourth Memorandum Opinion and Order and Order, ET Docket No. 98-206,
RM-9147, and RM-9245.

I approve in part and dissent in part for the reasons explained in my
earlier separate statement on this matter. *See* Separate Statement of
Commissioner Kevin J. Martin, Approving in Part and Dissenting in Part,
*Amendment of Parts 2 and 25 of the Commission's Rules to Permit
Operation of NGSO FSS Systems Co-Frequency with GSO and Terrestrial
Systems in the Ku-Band Frequency Range*; *Amendment of the Commission's
Rules to Authorize Subsidiary Terrestrial Use of the 12.2-12.7 GHz Band
by Direct Broadcast Satellite Licensees and Their Affiliates*; *and
Applications of Broadwave USA, PDC Broadband Corporation, and Satellite
Receivers, Ltd. to Provide a Fixed Service in the 12.2-12.7 GHz Band*,
Memorandum Opinion and Order and Second Report and Order, ET Docket No.
98-206, RM-9147, and RM-9245 (rel. May 23, 2002).

[^1]: *Memorandum Opinion and Order and Second Report and Order*, FCC
    02‑116, ET Docket No. 98‑206, 17 FCC Rcd 9614 (2002). (*Second
    R&O*).

[^2]: Amendment of Parts 2 and 25 of the Commission's Rules to Permit
    Operation of NGSO FSS Systems Co‑Frequency with GSO and Terrestrial
    Systems in the Ku‑Band Frequency Range; Amendment of the
    Commission's Rules to authorize subsidiary Terrestrial Use of
    the12.2‑12.7 GHz Band by Direct Broadcast Satellite Licensees and
    Their Affiliates, *Notice of Proposed Rulemaking* (*November 24,
    1998 NPRM*), ET Docket No. 98‑206, 14 FCC Rcd 1131 (1998). The
    Ku‑band is generally defined as frequencies in the 12-18 GHz range.

[^3]: Except for the 12.2‑12.7 GHz band, all of the bands proposed for
    NGSO FSS were already allocated to the FSS on a primary or
    co‑primary basis. The *November 24, 1998 NPRM* proposed a co‑primary
    allocation for NGSO FSS in the 12.2‑12.7 GHz band.

[^4]: Northpoint Petition, RM‑9245, filed March 6, 1998.

[^5]: In the U.S. the BSS is synonymous with DBS. In this proceeding we
    use these terms interchangeably.

[^6]: *See SHVIA,* Title I of the Intellectual Property and
    Communications Omnibus Reform Act of 1999 (IPACORA), relating to
    copyright licensing and carriage of broadcast signals by satellite
    carriers, codified in scattered sections of 17 and 47 U.S.C.). *See
    generally,* Implementation of the *Satellite Home Viewer Improvement
    Act of 1999*: Application of Network Nonduplication, Syndicated
    Exclusivity, and Sports Blackout Rules to Satellite Retransmissions,
    CS Docket No. 00-2, *Report and Order*, 15 FCC Rcd 21688 (2000),
    *Order on Reconsideration,*17 FCC Rcd 20,693 (2002); Implementation
    of the Satellite Home Viewer Improvement Act of 1999, CS Docket No.
    99-363, *First Report and Order,* 15 FCC Rcd 5445 (2000), *Order on
    Reconsideration,* 16 FCC Rcd 15599 (2001).

[^7]: *See 1999 SHVIA Implementation NPRM,* 14 FCC Rcd at 21736 ¶ 1. The
    MVPD definition includes cable operators, multichannel multipoint
    distribution service, DBS service, television receive‑only satellite
    program distributors, video dialtone service providers, and
    satellite master antenna television service providers that make
    available for purchase, by subscribers or customers, multiple
    channels of video programming. *See* 47 C.F.R. § 76.905(d).

[^8]: Act of Nov. 29, 1999, Pub. L. 106‑113, 113 Stat. 1501, 1501A‑544
    to 1501A‑545 (enacting S. 1948, Title II of the IPACORA.

[^9]: *Id*. While this provision does not identify the 12 GHz band
    specifically, MVDDS is one alternative to satisfy this demand in
    rural and underserved local television markets. *See also,* Letter
    from Senator Ted Stevens, *et al.*, Committee on Commerce, Science,
    and Transportation to Chairman, William E. Kennard, Federal
    Communications Commission, dated July 27, 2000.

[^10]: Act of Nov. 29, 1999, Pub. L. 106‑113, 113 Stat. 1501, 1501A‑544
    to 1501A‑545.

[^11]: 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, *First Report and Order and
    Further Notice of Proposed Rule Making*, FCC 00‑418, ET Docket No.
    98‑206, 16 FCC Rcd 4096 (2000) (*First R&O* and *Further Notice*).

[^12]: *Id*.

[^13]: *Id*. A service downlink is a data link from a satellite to an
    earth station which carries radio communications other than
    tracking, telecommand and control signals.

[^14]: Launching Our Communities\' Access to Local Television Act of
    2000 (\"LOCAL TV Act\"), Pub. L. No. 106-553, § 1012 (entitled
    \"Prevention of Interference to Direct Broadcast Satellite
    Services\"), 114 Stat. 2762, 2762A-344 (2000).

[^15]: The MITRE Corporation, "Analysis of Potential MVDDS Interference
    to DBS in the 12.2‑12.7 GHz Band" (filed April 18, 2001) (MITRE
    Report). The Commission placed the MITRE Report on public notice on
    April 23, 2001. Comments responsive to the study were due on May 15,
    2001 and replies were due on May 23, 2001.

[^16]: A list of the parties filing petitions, oppositions, replies and
    comments is provided in Appendix A.

[^17]: Northpoint and Pegasus, among others, have filed appeals
    challenging our decisions in the *Second R&O* that are currently
    pending with the D.C. Circuit Court of Appeals (D.C. Court Docket
    No. 02-1194). The Court has consolidated these cases and, pursuant
    to a motion filed by the Commission, is holding the cases in
    abeyance pending our action herein on the Pegasus petition for
    reconsideration.

[^18]: *Second R&O* at ¶¶ 14-16.

[^19]: *Id*. at ¶¶ 17-24.

[^20]: *Id*. at ¶¶ 25-36.

[^21]: *Id*. at ¶¶ 26 and 28.

[^22]: *Id*. at ¶ 19. 47 C.F.R. Section 2.1 defines *harmful
    interference* as " ... interference which ... seriously degrades,
    obstructs, or repeatedly interrupts a radiocommunication service
    ..."

[^23]: *Second R&O* at ¶ 26.

[^24]: *Id*. at ¶ 39.

[^25]: *Id*. at ¶ 41.

[^26]: *Id*. at ¶ 48.

[^27]: *Id*. at ¶ 48.

[^28]: *Id*. at Appendix G

[^29]: *Id*. at ¶ 68.

[^30]: *Id*. at ¶ 68.

[^31]: *Id*. at ¶¶ 68, 83.

[^32]: *Second R&O* at ¶ 68.

[^33]: *Id*. at ¶¶ 68, 83.

[^34]: *Id*. at ¶ 83.

[^35]: *Id*. at ¶ 77.

[^36]: *Id*. at ¶ 83.

[^37]: *Id*. at¶ 88. DBS customers of record are those who had their DBS
    receive antennas installed prior to or within the 30 day period
    after notification to the DBS operator by the MVDDS licensee of the
    proposed MVDDS transmitting antenna site. *See* 47 CFR §
    101.1440(a).

[^38]: *Id*. at¶ 89‑90. See also rule section 101.1440 ("MVDDS
    protection of DBS") which outlines the procedures an MVDDS entity is
    to follow to protect DBS customers prior to operating a transmitter.

[^39]: *Second R&O* at ¶92.

[^40]: *Second R&O* at ¶92.

[^41]: To minimize the potential for false claim reporting against
    MVDDS, we adopted a one‑year cut off period for such complaints.
    *Second R&O at* ¶93.

[^42]: *Second R&O at* ¶93.

[^43]: *Id*. at ¶ 92.

[^44]: *Id*. at ¶ 92.

[^45]: *See* footnotes 6 and 8, *Supra. Satellite Home Viewer
    Improvement Act Of 1999* (*SHVIA*)/*Rural Local Broadcast Signal
    Act* (*RLBSA*). *See* Pub. L 106‑113, 113 STAT. 1501, 1501A‑544 TO
    101A‑545, Act of Nov. 29, 1999 (enacting S.1948, including the SHVIA
    and RLBSA. Titles I and II of the Intellectual Property and
    Communications Omnibus Reform Act of 1999).

[^46]: EchoStar, DIRECTV joint petition at 2; SBCA petition at 7; SES
    Americom petition at 13.

[^47]: *E.g.,* EchoStar, DIRECTV joint petition at 5. EchoStar and
    DIRECTV state that they have consistently argued that the aggregate
    maximum increase in unavailability from all other competing uses of
    the 12 GHz band should be no more than 10 percent, with a limit of
    2.86 percent from any one provider. They assert that even if the
    Commission concludes that it is permissible for an additional 10
    percent increase in unavailability to be attributed to MVDDS, the
    Commission's decision to use 10 percent as a starting point for
    identifying technical limits does not provide a meaningful standard.
    *Id*. at 6.

[^48]: SBCA petition at 12-13.

[^49]: EchoStar, DIRECTV joint petition at 3; SBCA petition at 3; SES
    Americom petition at 6.

[^50]: Footnote S5.490 states: "... in the band 12.2‑12.7 GHz, existing
    and future terrestrial radiocommunication services shall not cause
    harmful interference to space services in conformity with the
    broadcasting‑satellite Plan for Region 2 contained in Appendix S30."

[^51]: EchoStar, DIRECTV joint petition at 3, citing 47 C.F.R. §
    101.147(p) that states: "The Commission has allocated the
    12.2‑12.7 GHz band for use by the broadcasting‑satellite service.
    Private operational fixed *[point‑to‑point]{.underline}* microwave
    stations authorized after September 9, 1983, will be licensed on a
    non‑interference basis and are required to make any and all
    adjustments necessary to prevent interference to operating domestic
    broadcasting‑satellite systems." \[Our emphasis herein\].

[^52]: SBCA cites to 47 C.F.R. § 101.1440(e) which states in pertinent
    part: "Beginning thirty days after the DBS licensees are notified of
    a potential MVDDS site under (d)(1), the DBS licensees have the
    responsibility of ensuring that all future installed DBS receive
    antennas on its system are located in such a way to as to avoid the
    MVDDS signal. These later installed receive antennas shall have no
    further rights of complaint against the notified MVDDS transmitting
    antenna(s)."

[^53]: SBCA petition at 4.

[^54]: SBCA petition at 7. SBCA particularly objects to our finding in
    the *Second R&O* that application of footnote S5.490 may be limited
    to DBS systems implemented in accordance with Appendix S30 of the
    ITU's radio regulations. Id. at 7‑8 (citing *Second R&O* at footnote
    216). SBCA contends that the Commission has never before in this
    proceeding made the non‑interference obligations placed on fixed
    service operations in the 12 GHz band contingent upon DBS operators'
    strict conformance with Appendix S30. Citing a 1986 *Declaratory
    Ruling* (Petition of United States Satellite Broadcasting Co, Inc.,
    *Memorandum Opinion and Order*, 1 FCC Rcd, 977, 979 ¶15) on
    non‑conforming use by DBS operators along with the planned
    transitioning of point‑to‑point FS out of the 12 GHz band, SBCA
    further argues that this approach taken in the *Second R&O* is
    inconsistent with the interpretations and policies the Commission
    has issued on this subject for the past 15 years and represents a
    *post hoc* rationalization for the decision to authorize MVDDS in
    the 12 GHz band. We find that SBCA's reliance on the 1986
    *Declaratory Ruling* and related cases regarding protection
    priorities for non‑conforming DBS use to be misplaced. The
    "non‑conforming use" at issue in that case was not related to the
    technical sufficiency of DBS systems, but related instead to whether
    DBS providers in the early days of the service could provide non‑DBS
    type programming to facilitate acceptance of the service.

[^55]: *Id*. at 7.

[^56]: SES Americom petition at 7.

[^57]: *Id*. at 7-8.

[^58]: *Id*. at 8.

[^59]: *Id*. at 8.

[^60]: *Id*. at 4-5.

[^61]: *Id*. at 8.

[^62]: *Id*. at10. In the *First R&O* in this docket, we adopted EPFD
    limits for NGSO FSS systems to protect any DBS system or subscriber
    from interference.

[^63]: SES Americom petition at 11.

[^64]: See footnote 50 *supra*.

[^65]: SES Americom petition at 11. In this regard, we note that SES
    Americom has pending before the Commission a petition for
    declaratory ruling to allow it to offer DBS service to customers in
    the U.S. from a planned satellite to be licensed by Gibraltar, which
    will operate at 105.5 degrees W.L. MDS America and Northpoint, in
    response, assert that SES Americom would not be entitled to
    interference protection because the orbital slot is not included in
    the Region 2 Plan. *See* MDS America opposition at 3; Northpoint
    consolidated response at 26. We do not address here the merits of
    SES Americom's argument vis‑à‑vis their pending petition but,
    rather, address their concerns more generally insofar as they raise
    questions about interference protection afforded any new DBS
    provider that is authorized to provide service in the U.S.

[^66]: SES Americom petition at 11.

[^67]: MDS America opposition to DBS petitions at 6.

[^68]: *Id*. at 7.

[^69]: *Id*. at 7.

[^70]: *Id*. at 7.

[^71]: *Id*. at 8 and at footnote 18.

[^72]: *Id*. at 8 and at footnote 18.

[^73]: MDS America opposition to DBS petitions for reconsideration at
    10.

[^74]: MDS America opposition at 6.

[^75]: MDS America opposition at 4.

[^76]: *Id*. at 4.

[^77]: *Id*. at 4.

[^78]: MDS America opposition to SES Americom petition for
    reconsideration at 3.

[^79]: MDS America opposition to DBS petitions for reconsideration at 8.

[^80]: *Id*. at 4.

[^81]: *Id*. at 5.

[^82]: *Id*. at 5.

[^83]: Northpoint consolidated response to petitions for reconsideration
    at 21.

[^84]: Northpoint consolidated response at 27‑28.

[^85]: *Id*.

[^86]: *Id*.

[^87]: EchoStar, DIRECTV joint petition at 9, 10.

[^88]: *Second R&O* at ¶¶ 33‑36 and¶¶ 51‑52.

[^89]: *E.g.,* 47 U.S.C. § 303. ("General Powers of Commission").

[^90]: In this regard, we note that the Commission's rules, in addition
    to defining *harmful* interference, also recognize *permissible*
    interference ("Observed or predicted interference which complies
    with quantitative interference and sharing criteria contained in
    these \[international Radio\] Regulations or in CCIR Recommendations
    or in special agreements as provided for in these Regulations.").
    *See* 47 C.F.R. § 2.1.

[^91]: *Second R&O*, Appendix G.

[^92]: MDS America opposition to DBS petitions for reconsideration at 7.
    *See also*, 47 C.F.R. § 2.1.

[^93]: MDS America opposition to DBS petitions for reconsideration at
    note 18. MDS America observes that for broadcast stations, the
    Commission has used mileage separation to limit harmful interference
    between co‑channel FM radio stations, but uses signal strength
    contours for AM radio stations.

[^94]: *Second R&O* at ¶ 70.

[^95]: *Second R&O* at note 165.

[^96]: In fact, it was for this reason that we rejected a separate
    calculation of EPFD at each MVDDS site. *See* *Second R&O* at note
    84.

[^97]: As described in the *Second R&O*, there is a zone around each
    transmitter where the EPFD has the potential to be exceeded. Within
    this zone, we require the MVDDS licensee to ensure that all existing
    DBS customers' receivers do not receive EPFDs in excess of our
    adopted limits. This can generally be accomplished by judicious
    choice of MVDDS transmitter site and antenna, but can also be
    accomplished through various mitigation techniques. *See Second R&O*
    at ¶ 55.

[^98]: For example, if the EPFD level is met for a customer, it is not
    unreasonable to assume that at a later date that customer's
    neighbors will also be able to install DBS receivers where the
    received EPFD level is below the limit specified in our rules.

[^99]: *See* 47 C.F.R. §§ 1.929 and 101.1440.

[^100]: *Second R&O* at ¶ 32, Footnote 77, ¶ 92, Footnote 226.

[^101]: EchoStar, DIRECTV joint petition at 4, and 19 at footnote 30;
    SBCA petition at 3 -- 10.

[^102]: *Second R&O* at ¶ 28.

[^103]: When making these determinations, our regulatory role may be
    characterized "in both prophetic and managerial terms: \[we\] must
    predict the effect and growth rate of technological newcomers in the
    spectrum, while striking a balance between protecting valuable
    existing \[services\] and making room for new advanced
    technologies." (*Teledesic v FCC*, 275 F.3d 75, 84 (D.C. Cir. 2001).
    ("The Commission correctly conceives of its role in prophetic and
    managerial terms: it must predict the effect and growth rate of
    technological newcomers in the spectrum, while striking a balance
    between protecting valuable existing uses and making room for
    sweeping new advanced technologies." Citing *Report and Order*, 15
    FCCR at 13,431‑33, pp1‑2, 4‑5.) In crafting these decisions, we are
    inevitably "making predictions within \[our\] area of special
    expertise at the frontiers of science." *Baltimore Gas and
    Electric*, 462 U.S. 87, 103 (1983). *See also Aeronautical Radio,
    Inc. v. FCC*, 928 F.2d 428, 443‑445 (D.C. Cir. 1991) (upholding a
    FCC allocation decision ‑ that was based upon the agency\'s belief
    that the allocation scheme would not result in harmful interference
    ‑ because it was a "*predictive judgment*" of the type historically
    left to agency discretion).

[^104]: This was done, for example, in the case of DTV where we balanced
    new interference to existing TV service against new digital TV
    capabilities. *See* Advanced Television Systems and Their Impact
    Upon The Existing Television Broadcast Service, MM Docket No.
    87‑268, *Sixth Report and Order*, 12 FCC Rcd 14,588 (1997).
    Similarly, for the Location and Monitoring Service (LMS) in the
    902‑928 MHz band, we conditioned operation of certain stations upon
    the licensee's ability to demonstrate that their systems do not
    cause unacceptable levels of interference to 47 C.F.R. Part 15
    devices. *See* 47 C.F.R. § 90.353(d). Also, we have allowed
    automated maritime telecommunication systems (AMTS) on frequencies
    near TV channels 10 and 13 and required the licensee to make such
    adjustments as may be necessary to fix any interference to household
    TV receivers. *See* 47 C.F.R. § 80.215(h).

[^105]: SES Americom petition at 13. Citing *RLBSA* legislative
    history*,* Cong. Rec. 106^th^ Cong., 1^st^ Sess. At S15014. The
    relevant language follows:

    "[*Mr. Gorton*:]{.underline} \[I\] would like briefly to address
    Section 2002 of the Intellectual Property and Communications Omnibus
    Reform Act of 1999, which is an amendment to the Omnibus package, to
    clarify its meaning with my colleague who drafted the provision.

    > There are a number of United States companies that have applied to
    > the FCC for licenses to operate non‑geostationary satellite
    > systems in the so‑called "Ku‑band." These firms are spending
    > substantial amounts of private capital to develop satellite
    > systems that will provide a host of telecommunications services to
    > benefit the public. The satellite systems that have applied for
    > licenses in the Ku‑band are designed to operate globally on a
    > primary basis, and already are treated as primary users of the
    > Ku‑band in the International Table of Frequency Allocations.
    >
    > Mr. President, I bring this up because section 2002(a) directs the
    > FCC to consider issuing licenses, possibly in the same bands, for
    > new terrestrial communications services that provide local
    > television to rural areas. Section 2002(b)(2) provides that the
    > FCC must ensure that any new licensees for local television in
    > rural areas do not cause harmful interference to primary users of
    > the spectrum, presumably the Ku‑band spectrum.
    >
    > I want to clarify that Section 2002(b)(2) requires the FCC to
    > prevent harmful interference not only with those who have been
    > designated as primary users on the date of enactment of this Act,
    > but also with prospective primary users of the Ku‑band. If the FCC
    > were to misinterpret this section, that is, if the FCC prevented
    > only harmful interference with those who are primary users on the
    > date of enactment, the public could be denied the substantial
    > benefits of emerging satellite technologies.

    [*Mr. McCain*:]{.underline} I agree with my colleague that the
    authors of this bill did not mean to interfere with the expert
    technical and regulatory judgment of the FCC with respect to
    licensing applicants in the Ku‑band. The term "primary user" in
    Section 2002 is intended to include primary users, regardless of
    whether these users are primary on the date of enactment or are
    later designated as primary. The provision in no way seeks to grant
    preferential regulatory treatment to terrestrial license applicants
    over satellite system applicants. While there appears to be an error
    in the report accompanying this legislation, which incorrectly
    states that the statute says that "existing" primary users must be
    protected, clearly the statute does not contain this qualifier, and
    it is our intent that the FCC protect primary users, whether
    designated now, or later."

[^106]: SES Americom petition at 14.

[^107]: *Id*.

[^108]: *RLBSA Legis. history* (Senator Gorton) *‑ S15014*.

[^109]: *RLBSA Legis. history* (Senator McCain) *‑ S15014.*

[^110]: As we explained in the memorandum opinion and order section of
    the *Second R&O*, "... in the early 1980's, the Commission adopted a
    non‑harmful interference requirement on incumbent fixed
    point‑to‑point operations in the 12 GHz band and encouraged them to
    relocate to other spectrum because these operations were generally
    incompatible with the BSS allocation that was made. Specifically,
    the point‑to‑point operations were high powered (up to 316,228 watts
    EIRP), two‑way links that could transmit in any direction. These
    characteristics require that such fixed links coordinate with other
    uses on a case‑by‑case basis, which is not possible with ubiquitous
    BSS operations. In comparison, in this proceeding we would permit
    fixed service operations that are low‑power (up to 0.025 watts EIRP)
    one‑way transmissions specifically designed to share spectrum with
    BSS operations." *Second R&O* at ¶ 28.

[^111]: *Id*.

[^112]: *See, also,* 47 C.F.R. § 101.1409, as adopted in the *Second
    R&O*, wherein we distinguish between the relative protection
    treatment of the older point‑to‑point licensees versus MVDDS
    licensees.

[^113]: Either tree growth or building construction, for example, that
    encroach within the DBS receiver\\satellite line of sight would tend
    to have the similar effect of reducing (or possibly even totally
    blocking) the desired DBS signal and thereby increasing the chances
    of outages experienced by subscribers. Under these circumstances,
    DBS subscribers would likely use the same self‑mitigation measures
    described herein, namely re‑siting the antenna or possibly using a
    larger antenna to recover the diminished DBS signal.

[^114]: We note that we discussed the applicability ITU recommendations
    in the memorandum opinion and order portion of the *Second R&O*.
    *Second R&O* at ¶ 41.

[^115]: *Second R&O* at ¶53.

[^116]: EchoStar, DIRECTV joint petition at 23. Citing 5 U.S.C. Chapter
    5, Section 552b.

[^117]: EchoStar, DIRECTV joint petition at 23, citing Statement of
    Commissioner Kevin J. Martin ‑ Dissenting in Part and Approving in
    Part, *Second R&O.*

[^118]: *Id*.

[^119]: 5 U.S.C. Chapter 5, Section 552b (a) (2). *See, also, FCC v. ITT
    World Communications, Inc.*, 466 U.S. 463, 470 (1984), quoting S.
    Rep. No. 94‑354, at 2.

[^120]: EchoStar, DIRECTV joint petition at 23.

[^121]: Section 0.5(d) states "Matters requiring *Commission* action, or
    warranting its consideration are dealt with by the *Commission* at
    regular monthly meetings, or at special meetings called to consider
    a particular matter. \[. . . \] In appropriate circumstances,
    Commission action may be taken between meetings "by circulation",
    which involves the submission of a document to each of the
    Commissioners for his approval."

[^122]: *Railroad Comm\'n of Texas v. U.S.*, 765 f.2d 221 230 (D.C. Cir.
    1985); *Communications Systems, Inc. v. FCC*, 595 F.2d 797 (D.C.
    Cir. 1978).

[^123]: 47 C.F.R. § 0.601(b).

[^124]: EchoStar, DIRECTV joint petition at 17.

[^125]: *Id*. at 17.

[^126]: *Id*. at 17.

[^127]: *Id*. at 17.

[^128]: *Id*. at 17.

[^129]: See, *e.g*., EchoStar, DIRECTV joint petition at 13.

[^130]: See, *e.g*., EchoStar, DIRECTV joint petition at 5.

[^131]: *Id*. at 9 and 15, footnote 26.

[^132]: *Id*. at 9.

[^133]: EchoStar, DIRECTV joint petition at 8.

[^134]: *Id*. at 15.

[^135]: *Id*. at 8.

[^136]: *Id*. at 8.

[^137]: *Id*. at 5. *See also*, note Error: Reference source not found,
    *supra*.

[^138]: EchoStar, DIRECTV joint petition at 6‑8.

[^139]: *Id*. at 7‑8.

[^140]: *Id*. at 18.

[^141]: Northpoint consolidated response to petitions for
    reconsideration at 21 (citing Second R&O at ¶ 32).

[^142]: Northpoint consolidated response to petitions for
    reconsideration at 23.

[^143]: DBAC indicates that it has applied for authorization to provide
    U.S. consumers with interactive video service and high speed
    Internet access through a system that includes Canadian-licensed
    satellites in the 12.2-12.7 GHz band. *See* DBAC comments on
    petitions for reconsideration at 2.

[^144]: *Id*. at 3. 47 C.F.R. § 101.1423 requires that MVDDS
    transmitters within 35 miles of the Canadian and Mexican borders not
    cause harmful interference to stations in Canada or Mexico. *See*
    *Second R&O* at ¶ 195.

[^145]: *Id*. at 3-4.

[^146]: *See, e.g.*, Regulatory Policy Regarding the Direct Broadcast
    Satellite Service, *Memorandum Opinion and Order*, 94 FCC 2d 741,
    747‑748 (¶¶ 10--12) (1983)(citing, e.g., *WWIZ, Inc*., 37 F.C.C.
    685, 686 (1964), aff\'d sub nom., *Lorain Journal Co. v. FCC*, 351
    F.2d 824 (D.C. Cir. 1965), cert. denied, 383 U.S. 967 (1966);
    *Florida Gulfcoast Broadcasters, Inc*., 37 F.C.C. 833 (1964);
    *Employment Practices of Stations‑‑Charlotte, N.C. Market*, 77
    F.C.C. 2d 1 (1980); *WEOK Broadcasting*, 4 Rad. Reg. 2d 503 (1965)).

[^147]: *Id*.

[^148]: SES Americom petition at 16, footnote 41.

[^149]: *See* Recommendation ITU‑R BO.1444, "Protection of The BSS In
    The 12 GHz Band And Associated Feeder Links In The 17 GHz Band from
    Interference Caused by Non‑GSO FSS Systems."

[^150]: *Second R&O* at ¶ 79. We base this finding on our analysis,
    which (for computational simplicity) evaluated the effects of NGSO
    FSS and MVDDS independently. However, in some cases, the
    interference events caused by MVDDS and NGSO FSS signals will
    coincide.

[^151]: *First R&O and Further Notice* at ¶¶ 266‑276. See, in
    particular, ¶ 272 stating in part, "We propose to define an
    analytical model for calculating mitigation zones \[...\]. We
    request comment on the appropriateness of the model and parameters
    we have used in our analysis. Commenting parties proposing
    alternative calculation methods and parameters should provide
    sufficient technical analysis to support their proposals." The
    models were made available on the Commission's web site at
    http://www.fcc.gov/oet/dockets/et98-206/.

[^152]: *See* *Further Notice* at Appendix H. Using this methodology, we
    conducted a study to determine the DBS outage statistics for top
    television markets. A summary of this analysis was included in the
    *Further Notice* as Appendix J. The full analysis was placed in the
    docket file of the proceeding. *See* Staff Analysis of DBS Outage
    Statistics for Top 32 Television Markets, February 13, 2001.

[^153]: *Id*. at Appendix I.

[^154]: The model follows the methodology laid out in the relevant ITU
    recommendations, and our results are consistent with those of the
    parties. *See* para. 58, *infra*. *See also*, *Second R&O*, Appendix
    G for analysis results. Our model differs slightly with those of the
    parties. Footnote 173 of the *Second R&O* noted that Northpoint and
    DIRECTV used a spreadsheet for their computations. However, inputs
    to that spreadsheet come from the computational methods of ITU‑R
    Recommendation P.618 (this is the same ITU-R Recommendation used by
    the Commission's model). *See, e.g.*, DIRECTV Comments to the
    *Further Notice* at Appendix I, Table A, Lines 42 and 47. Under
    DIRECTV's approach, separate calculations are needed to determine
    the necessary inputs. The Commission's Mathcad model combines all
    the calculations into one self‑contained module, which incorporates
    the same methodology as DIRECTV and Northpoint, but also
    incorporates the computations of the ITU Recommendation.

[^155]: *Id*. See *also*, e.g., *Second R&O* at ¶¶ 73‑79.

[^156]: MITRE made policy recommendations after analyzing only ten
    locations across the U.S. *See* MITRE Report at 5-5

[^157]: Our 32 city sample was more than double the sample size used
    when the ITU analyzed the potential for NGSO FSS interference to
    DBS, which used an analysis of only 14 U.S. cities. *See Second
    R&O*, Appendix G, at footnote 679 citing Recommendation ITU‑R
    BO.1444.

[^158]: Footnote 577 of the *Second R&O* stated that EchoStar submitted
    an application that shows an EIRP of 53 dBW for the entire eastern
    half of the United States. Similarly, this application generally
    shows an EIRP of 51 dBW for the rest of the continental United
    States. *See* Application for Minor Modifications of DBS
    Authorizations, Launch and Operation Authority, File No.
    DBS‑88‑01/68‑SAT‑ML‑96/70, File No. DBS‑88‑02/6‑SAT‑ML‑97/71, File
    No. DBS‑74‑SAT‑P/L‑96/72, Filed Dec. 30, 1997. Long term climatology
    data show the mean annual precipitation in inches does not fluctuate
    significantly over large areas throughout the United States. *See*
    climatography of the U.S. No. 81 ‑ Supplement \# 3, Maps of Annual
    1961‑1990 Normal Temperature, Precipitation and Degree Days at
    http://lwf.ncdc.noaa.gov/oa/documentlibrary/clim81supp3/clim81.html.

[^159]: The record generally contained two proposals for implementing
    the EPFD values. The first, advocated by EchoStar and DIRECTV, would
    have required a separate calculation of EPFD at each MVDDS
    transmitter. *See*, e.g., DIRECTV Comments to *Further Notice* at
    20‑21. The second, advocated by Northpoint, sought to implement four
    regional EPFD values. *See* Northpoint Comments to *Further Notice*
    Technical Appendix, at 5, 15‑16.

[^160]: In addition, to verify that our EPFD levels did indeed provide
    comparable protection across our adopted regions, we analyzed an
    additional ten markets. The results of these sample computations
    showed outage increases consistent with our guidelines and the
    results from the original 32 city sample. *See Second R&O* Appendix
    G.

[^161]: *See* para. 23, *supra*.

[^162]: A complete set of data for all cities we examined is contained
    in Appendix D. With limited exception, the difference between the
    percentage of DBS unavailability using our regional EPFDs and a
    strict 10% limit is less than 5.2 hundredths of a percent. The only
    exception to this is Seattle with respect to the "wing" satellites
    at 61.5^o^ and 148^o^ West Longitude, where the differences are 35.2
    and 17.0 hundredths of a percent, respectively. We note that the
    baseline outages for Seattle with respect to these satellites are
    several times higher than for any other city/satellite combination.
    In this regard, we note that the MITRE Report suggested that it does
    not make sense to tailor the MVDDS interference criterion to protect
    DBS operations where reliable service is not now expected. *See*
    MITRE Report at 6-7 (suggesting that locations with more than 100
    hours of baseline outage should not be protected). We effectively
    concur with the MITRE Report on this issue.

[^163]: Data is taken from *Second R&O*, Appendix G.

[^164]: *See* Appendix D for results from all satellites and all cities.

[^165]: *See* Appendix D for complete data. In Denver, the baseline
    unavailability for a year is 0.0296%. The unavailability rises to
    0.0339% per year with MVDDS operating under our regional EPFD
    limits. This represents an increase in unavailability of 14%, but
    the absolute increase in outage percentage is only 0.0043 (*i.e.*,
    0.0339 -- 0.0296 = 0.0043). The corresponding increased
    unavailability per year in terms of minutes is calculated by
    multiplying the increase in unavailability percentage by the number
    of minutes in a year: 0.0043/100 \* 8766 hours/year \* 60
    minutes/hour = 22.6 minutes/year. Note: the increase in
    unavailability percentage is divided by 100 because it is expressed
    as a percentage. Also the result of 22.6 minutes/year differs from
    the previously stated 22.5 minutes/year. This difference can be
    attributed to rounding as various calculations have been made.

[^166]: Footnote 179 of the Second *R&O* noted that there are seasonal
    and yearly variations in the amount of rain in any given area. For
    example, we showed the variation in amount of rain for January and
    August for Reno, NV and Allentown, PA over a twelve year period.
    (Source: National Climatic Data Center
    <http://lwf.ncdc.noaa.gov/oa/climate/research/cag3/city.html>).

    Rain (inches/month)Reno, NVAllentown,
    PAYearJanuaryAugustJanuaryAugust20010.180.002.372.5020002.140.791.995.2219990.760.825.443.8119981.100.003.423.1219973.320.003.385.1219961.330.167.320.9119953.310.003.490.7619940.060.005.696.1819932.420.001.985.3919920.130.281.734.0819910.010.242.772.5419900.620.214.576.47

[^167]: EchoStar VIII was launched on August 21, 2002 and began
    operation in October 2002. *See*
    <http://www.dishnetwork.com/content/aboutus/satellites/echo8/index.shtml>
    and <http://biz.yahoo.com/e/021114/>dish10‑q.html for more details.
    For technical details of the new satellite s*ee also* *Application
    of EchoStar Satellite Corporation for Authority to Launch and
    Operate EchoStar VIII*, File No. SAT-LOA-20020329-00042;
    *Application of EchoStar Satellite Corporation for Minor
    Modification of DBS Authorization, Launch and Operating Authority
    EchoStar VIII*, SAT-MOD-20020329-00041; and the *Revised Technical
    Appendix,* SAT-AMD-20020430-00086.

[^168]: Older DBS satellites tried to cover the whole of the U.S. with
    one continental antenna beam. Newer satellites use multiple antennas
    or beams which focus the signal onto smaller locations or spots, and
    have the effect of increasing the signal level in those areas.
    *See*, also, footnote 164, *supra.*

[^169]: Footnote 211 of the *Second R&O* provided an example. We
    calculated a baseline outage of 1331.7 minutes per year in Atlanta
    when viewing the satellite at 119^o^ west longitude. On February 21,
    2002, EchoStar launched a new satellite, EchoStar 7, to this orbital
    location. This satellite is more powerful than the previous
    satellite at 119^o^ west longitude and will also use spot beams to
    many markets. In Atlanta, this translates to a reduction in baseline
    outage to 645.9 minutes per year for the general DBS signal and to
    156.5 minutes per year for those channels that are transmitted using
    the spot beam. *See* Application of EchoStar Satellite Corporation
    for Minor Modification of DBS Authorization, Launch and Operating
    Authority for EchoStar 7, File Nos. SAT‑MOD‑20010810‑00071 &
    SAT‑A/O‑20010810‑00073, (August 10, 2001). As shown in the table
    below, a corresponding decrease in the outages caused by MVDDS would
    also be seen:

    Atlanta, GASatelliteBaseline

    OutageBaseline

    Outage

    plus 10%

    IncreaseEPFD

    For

    10%

    IncreaseFCC

    Adopted

    EPFDOutage

    With

    FCC

    EPFDOutage IncreaseDifference

    Between

    Calculated

    And FCC

    EPFDs(minutes)(minutes)(dBW/m^2^/4
    kHz)(minutes)%(minutes)dBPrevious1331.71464.87‑169.4‑168.4151013.4178.30.96Echo7
    (General)645.9710.49‑166.5‑168.4686.46.340.5‑1.9Echo 7
    (Spot)156.5172.15‑160.3‑168.4158.71.42.2‑8.1

[^170]: *See* Appendix D, Table 6 for data showing the decrease in
    outage using the new spot beam satellite compared to the previous
    satellite.

[^171]: EchoStar, DIRECTV joint petition at Verified Statement of Edmund
    F. Petruzzelli, p. 5.

[^172]: Quasi‑error free (QEF) performance equates to 1 uncorrectable
    error per hour. The QEF value represents an audio/video signal that
    appears essentially error‑free to the DBS customer; almost all
    errors that occur in transmission can be corrected using forward
    error correction at the DBS customer's decoder.

[^173]: Other performance levels also exist. For example, if a DBS
    signal drops below the operating threshold, the subscriber may
    experience a pixilated picture (*i.e*., portions of the picture may
    be represented as a blank square). There is also a freeze‑frame
    threshold below which viewing becomes difficult. When the bit error
    rate of the demodulated MPEG video bit stream is sufficiently high
    to cause the associated video MPEG decoder to cease to provide one
    or more pictures, the video decoder initiates error concealment
    techniques, such as the presentation of the last available MPEG
    picture (freeze frame). By using the QEF threshold (*i.e.*, the
    highest threshold value) in the predictive model, the Commission
    evaluated the worst case impact on DBS signal quality. Finally, we
    note that the DBS licensees used the less stringent operating
    threshold in developing the EFPD levels associated with NGSO FSS
    operation. In that case EchoStar and DIRECTV assumed an operating
    threshold of 6.1 dB and 5 dB, respectively. *See* ITU‑R
    Recommendation BO.1444, Annex 1. The database of representative
    links is available on the ITU's website at
    [http://www.itu.int//itudoc/itu‑r/sg11/docs/sg11/1998‑00/contrib/138e2.html](http://www.itu.int//itudoc/itu-r/sg11/docs/sg11/1998-00/contrib/138e2.html).
    The QEF thresholds as specified by MITRE are 8.1 dB and 8.4 dB for
    EchoStar and DIRECTV, respectively. *See* MITRE Report at 3‑18. Thus
    our use of QEF is 2 dB more conservative than EchoStar and 3.4 dB
    more conservative than DIRECTV with respect to the values they
    supplied for the NGSO FSS analysis.

[^174]: *See* *Second R&O*, Appendix G. Additionally, we note that MITRE
    suggested that it does not make sense to tailor the MVDDS
    interference criterion to protect DBS operations where reliable
    service is not now expected. *See* MITRE Report at 6‑7 (suggesting
    that locations with more than 100 hours of baseline outage should
    not be protected). In this regard, the two sample calculations for
    Seattle from both the satellite at 61.5º and at 148º had baseline
    outages in excess of 100 hours indicating that calculations should
    take into account the use of larger DBS receive antennas. Excluding
    the values for Seattle, the data for the satellites at 61.5^o^ and
    148^o^ show "outage increases" from 4.4% to 28.5% with a median
    value of 7.3% and a mean of 10.8%. These values compare favorably
    with the values for the CONUS satellites in our 32‑city sample.

[^175]: Unlike the pending petition from SES Americom, DBAC proposes to
    use satellites that are part of the Region 2 BSS plan. We also note
    that DBAC did not file a petition for reconsideration in this
    proceeding. However, for completeness we address their specific
    concern herein.

[^176]: *See* ITU-R Recommendation P.837, "Characteristics of
    precipitation for propagation modeling." We provided the Excel
    spreadsheet that calculates the rain rate exceeded 0.01% of an
    average year to the public through our web site. *See*
    http://www.fcc.gov/oet/dockets/et98-206/.

[^177]: *See* ITU-R Recommendation P.618, "Propagation Data and
    Prediction Methods Required for the Design of Earth‑Space
    Telecommunication Systems."

[^178]: *See* ITU-R Recommendation P.838-1, "Specific attenuation model
    for rain for use in prediction methods."

[^179]: *See* ITU-R Recommendation P.841-1, "Conversion of annual
    statistics to worst-months statistics."

[^180]: *See* ITU-R Recommendation P.839, "Rain height model for
    prediction methods."

[^181]: We note however, that DIRECTV, in making its original comments
    used an earlier version of ITU Recommendation P.618. They assumed
    version 5. Northpoint, in making their calculations used version 6.
    After careful consideration, we decided to use version 6 in our mode
    after determining that it provided better accuracy than version 5.
    *See Second R&O* at ¶ 81.

[^182]: *C.f. National Association of Regulatory Utility Commissioners
    v. FCC*, 525, F.2d 630, 636 (1976) ("The orders under review reveal
    that the Commission has given serious consideration to the arguments
    raised as to the extent of the allocation. They reveal also that the
    determination of how much bandwidth to allocate to cellular systems
    is at once a highly technical and somewhat speculative undertaking.
    The amount of spectrum that is appropriate depends upon an estimate
    of the nature and capabilities of technology that is now only
    partially developed, and upon projected demands \[...\]" "\[...\] We
    conclude that such determinations are precisely the sort that
    Congress intended to leave to the broad discretion of the Commission
    by imposing a broad public convenience, interest or necessity
    standard.")

[^183]: As the courts have found, "To insist upon concrete proof that a
    proposed innovation will succeed without undesirable side effects
    would be effectively to relegate the Commission to preserving the
    status quo. *All that is required is that the Commission set forth
    generally the bases for its informed prediction that the plan should
    be workable and beneficial.*" \[Emphasis added\]. *See Telocator
    Network of America*, 691 F.2d 525 (D.C. Cir. 1982).

[^184]: *See, e.g.,* Northpoint's December 1998, Progress Report WA2XMY;
    Northpoint's October 1999 Progress Report WA2XMY. *See also*, MDS
    America Experimental License Callsign WC2XPU. *See also*, MDSA
    Clewiston Phase I Test Report, (Oct. 16, 2001). On February 9, 2000,
    the Commission granted DIRECTV and EchoStar experimental
    authorizations in Washington, D.C. and Denver, CO to test DBS
    sensitivity to fixed service transmissions, such as those proposed
    by Northpoint. On July 25, 2000, DIRECTV and EchoStar filed a
    "Report of the Interference Impact on DBS Systems from Northpoint
    Transmitter Operating at Oxon Hill, MD, May 22 to June 7, 2000" for
    the Commission's consideration.

[^185]: Each time a RF wave reflects it loses some energy. To protect
    DBS, our rules limit MVDDS to a fairly weak signal (14 dBm EIRP). By
    the time the signal propagates past a DBS receive antenna located
    outside of the predicted contour, reflects off a surface, and
    propagates back to that DBS receive antenna, the signal, which we
    have already predicted to be below the adopted EPFD level, will be
    at such a low level that there should be no effect on DBS service.

[^186]: *See* 47 C.F.R. § 101.1440.

[^187]: For example, private land mobile licensees operating in the
    450‑470 MHz band are limited to specific ERP/antenna height
    combinations and service areas with radii no greater than 32
    kilometers. However, the rules also provide: (1) that
    "\[a\]pplications ... where special circumstances exist that make it
    necessary to deviate from the ERP and antenna heights ... will be
    ... accompanied by a technical analysis base upon generally accepted
    engineering practices and standards, that demonstrates that the ...
    parameters will not produce a signal strength in excess of 39 dBu
    ..."; and (2) "\[a\]n applicant for a ...service area radius greater
    than 32 km (20 mi) must justify the requested service area radius,
    ...". *See* 47 C.F.R. §§ 90.205(g)(2) and 90.205(g)(3).

[^188]: *See* EchoStar, DIRECTV joint petition at 5.

[^189]: *See* EchoStar, DIRECTV joint petition at 19.

[^190]: *See* SBCA petition at 17. SBCA also points out that DBS
    companies generally do not know the location of the DBS antenna on
    the subscriber's property, and therefore it is inappropriate to rely
    on the DBS licensee to oversee the MVDDS survey process.

[^191]: *See* EchoStar, DIRECTV joint petition at 21.

[^192]: *Id*. at 22‑23.

[^193]: MDS America petition at 24.

[^194]: Northpoint consolidated response at 14.

[^195]: *See* ET Docket No. 92‑9, specifically, the *First Report and
    Order and Third Notice of Proposed Rulemaking*, 7 FCC Rcd 6886
    (1993), at Appendix A, pages 6896‑6897.

[^196]: For the *18 GHz Relocation* proceeding *see Report and Order,*
    IB Docket No. 98‑172, 15 FCC Rcd 13430 (2000) at ¶76 et seq*;* and
    for the *2 GHz Relocation* proceeding *see* *Second Report and Order
    and Second Memorandum Opinion and Order*, ET 95‑18, 15 FCC Rcd 12315
    (2000), at ¶¶70‑74.

[^197]: 47 C.F.R. § 101.1440(g).

[^198]: 47 C.F.R. § 101.1440(d)(2).

[^199]: 47 C.F.R. § 101.1440(g).

[^200]: Broadwave Albany L.L.C., *et al.*, Applications for Licenses to
    Provide a New Terrestrial Transport Service in the 12 GHz band,
    Various DMAs (filed Jan. 8, 1999); PDC Broadband Corporation
    Applications for Licenses to Provide Terrestrial Service in the
    12.2-12.7 GHz Band in all DMAs (filed Apr. 18, 2000); Satellite
    Receivers, Ltd. Application for Licenses to provide Terrestrial
    Broadcast and Data Services in the 12.2-12.7 GHz Band in Illinois,
    Indiana, Iowa, Michigan, Minnesota and Wisconsin (filed Aug. 25,
    2000).

[^201]: . *First R&O and Further Notice,*16 FCC Rcd 4096, 4217 ¶¶
    325-330

[^202]: *See Public Notice*, International Bureau Satellite Policy
    Branch Information: Cut‑off Established for Additional Applications
    and Letters of Intent in the 12.75‑13.25 GHz, 13.75‑14.5 GHz,
    17.3‑17.8 GHz and 10.7‑12.7 GHz Frequency Bands, Report No. SPB‑141,
    1998 WL 758449 (rel. Nov. 2, 1998) (*Ku‑Band Cut‑Off Notice*).

[^203]: *November 24, 1998 NPRM*, 14 FCC Rcd 1131, 1138 ¶¶ 8-9.

[^204]: *See First R&O and Further Notice,* 16 FCC Rcd at 4217-4219 ¶¶
    323-328.

[^205]: *See* Prevention of Interference to Direct Broadcast Satellite
    Services, Pub. L. No. 106‑553, 114 Stat. 2762 § 1012 (2000)
    (codified at 47 U.S.C. § 1110) (*LOCAL TV Act*). Congress passed the
    LOCAL TV Act on December 21, 2000. This legislation reads as
    follows:

    \(a\) Testing for Harmful Interference.‑The Federal Communications
    Commission shall provide for an independent technical demonstration
    of any terrestrial service technology proposed by any entity that
    has filed an application to provide terrestrial service in the
    direct broadcast satellite frequency band to determine whether the
    terrestrial service technology proposed to be provided by that
    entity will cause harmful interference to any direct broadcast
    satellite service.

    \(b\) Technical Demonstration.‑In order to satisfy the requirement
    of subsection (a) for any pending application, the Commission shall
    select an engineering firm or other qualified entity independent of
    any interested party based on a recommendation made by the Institute
    of Electrical and Electronics Engineers (IEEE), or a similar
    independent professional organization, to perform the technical
    demonstration or analysis. The demonstration shall be concluded
    within 60 days after the date of enactment of this Act and shall be
    subject to public notice and comment for not more than 30 days
    thereafter.

    \(c\) Definitions.‑As used in this section:

    \(1\) Direct broadcast satellite frequency band.‑The term "direct
    broadcast satellite frequency band" means the band of frequencies at
    12.2 to 12.7 gigahertz.

    \(2\) Direct broadcast satellite service.‑The term "direct broadcast
    satellite service" means any direct broadcast satellite system
    operating in the direct broadcast satellite frequency band.

[^206]: The MITRE Corporation, "Analysis of Potential MVDDS Interference
    to DBS in the 12.2-12.7 GHz Band" (filed Apr. 18, 2001).

[^207]: (*Second R&O* 17 FCC Rcd 9614, 9696-97 ¶¶ 211-14).

[^208]: *Id.* at 9702-03 ¶¶ 229-31.

[^209]: *Id.* at 9703-04 ¶¶ 232-35. The Commission noted that those who
    propose operations that do not comport with the Commission's
    technical rules will be required to file a waiver petition, on which
    public comment will be sought. As part of the waiver process, the
    Commission determined that such entity must submit an independent
    technical demonstration of its equipment and technology, in
    compliance with the Act. *Id*. at 9704 ¶ 236.

[^210]: *Id*. at 9697 ¶ 213.

[^211]: *Id*. at 9701-9702 ¶ 228.

[^212]: *Id*. at 9697 ¶ 214.

[^213]: *Id*. at 9697 ¶ 213 *citing* *McElroy Electronics Corp. v. FCC*,
    86 F.3d 248, 257 (D.C. Cir. 1996); *Ridge Radio Corp. v. FCC*, 292
    F.2d 770, 773 (D.C. Cir. 1961); *Maxcell Telecom Plus, Inc. v. FCC*,
    815 F.2d 1551 (D.C. Cir. 1987).

[^214]: *Id*. at 9697 ¶ 214.

[^215]: *Id*. at 9702 ¶ 230.

[^216]: *Id*.

[^217]: Pegasus Broadband Corporation Petition for Reconsideration at 4,
    n.12 (filed June 24, 2002) (Pegasus Petition). Pegasus submits that
    SRL did not participate in the MITRE testing, and thus is not
    eligible to participate in the licensing process.

[^218]: *Id.*

[^219]: *See* Consolidated Response of Northpoint Technology, LTD., and
    Broadwave USA, Inc., to Petitions for Reconsideration of Second
    Report and Order at 3-4 (Northpoint Consolidated Response) (filed
    Sept. 3, 2002).

[^220]: Satellite Receivers Ltd. Opposition to Petition for
    Reconsideration at 3 (filed July 12, 2002) (SRL Opposition).

[^221]: *Id.*

[^222]: *Id.*

[^223]: *See Second R&O,* 17 FCC Rcd at 9702-04 ¶¶ 229-36; *see also*
    Joint Opposition of DIRECTV, INC. and EchoStar Satellite Corporation
    at 20 (filed Sept. 3, 2002) (DBS Opposition); MDS America,
    Incorporated Opposition to Petition for Reconsideration of Pegasus
    Broadband Corporation at 5 (filed Sept. 3, 2002) (MDS America
    Opposition).

[^224]: *See* Pegasus Petition at 7.

[^225]: *See Second R&O,* 17 FCC Rcd at 9702 ¶ 230.

[^226]: *See Second R&O,* 17 FCC Rcd at 9702-04 ¶¶ 229-36; *see also
    DBS* Opposition at 13; MDS America Opposition at 5-6*.*

[^227]: *Second R&O,* 17 FCC Rcd at 9702-03 ¶ 231 (footnotes omitted).

[^228]: *See* DBS Opposition at 14; SRL Opposition at 3. We note that
    Congress rescinded our authority to issue "pioneer's preference"
    awards in 1997, under a provision of the Balanced Budget Act of
    1997. Pub. L. 105-33, 111 Stat. 251 (1997); 47 U.S.C. § 309(j)(13).

[^229]: *See* DBS Opposition at 15-16.

[^230]: MDS America petition at i -- ii, and generally at 2, 6 and 22.

[^231]: The four EPFD values specified by MDS America for rural areas
    are ‑155.7, ‑157.7, ‑158.6 and ‑160 dBW/m^2^/4kHz. *Id*. at 23

[^232]: MDS America contends that the MVDDS transmitter could be placed
    at a relatively high altitude above the surrounding terrain and the
    antenna beam could be shaped and pointed so that the MVDDS signal
    does not illuminate the ground within a significant "exclusion zone"
    around each MVDDS transmitter. In theory, as a result, any nearby
    DBS receive dishes within the "exclusion zone" would not see the
    MVDDS signal because it is essentially directed to travel overhead
    and out of the propagation line of sight for nearby DBS receivers.
    MDS America contends that "Exclusion zones, therefore, are not areas
    of higher interference, but rather areas of NO interference to DBS
    customers, because they are areas with the weakest MVDDS signal."
    Thus MDS asserts that higher EIRPs can be utilized without causing
    harmful interference to nearby DBS receive dishes because the
    radiated MVDDS signal is not directed toward their line of sight.
    MDS America petition at 14.

[^233]: MDS America petition at i.

[^234]: *Id.* at 12 -- 22. See also footnote 330 *supra.*

[^235]: In these situations, we encourage MVDDS providers to consult
    with and hopefully secure support from each potentially affected DBS
    provider.

[^236]: *Id*. at 23.

[^237]: *Id*. at 11‑12. \[EchoStar, DIRECTV petition\] The *MITRE
    Report* states that "pointing the MVDDS transmitting antennas away
    from the satellites, rather than toward them as generally
    envisioned, could have beneficial effects in many situations ..."
    *See also MITRE Report* at 6‑2.

[^238]: EchoStar, DIRECTV petition at 12.

[^239]: *Id*. at 12. Citing Northpoint Petition for Rulemaking (filed
    March 6, 1998) at 4.

[^240]: *Id*. at 12. Citing *MITRE Report* at xviii, 6‑2.

[^241]: *Second R&O* at ¶ 202.

[^242]: *Second R&O* at ¶ 202. Citing *MITRE Report* at 6‑2 to 6‑4.

[^243]: *Second R&O* at ¶ 202.

[^244]: *Second R&O* at ¶ 202.

[^245]: *Second R&O* at ¶ 202.

[^246]: *First R&O,* 16 FCC Rcd 4160 at ¶¶ 166‑167.

[^247]: PFD is a measure of the amount of energy emitted by a
    transmitter that is present over a unit area at the Earth's surface
    or at the satellite, and is a critical factor in determining whether
    satellite systems can successfully share spectrum with other
    services or satellite systems.

[^248]: *Second R&O* at ¶ 112. 47 C.F.R. §101.105(a)(4)(i).

[^249]: *Id*. at ¶ 123. 47 C.F.R. §101.129(b).

[^250]: *Id*. at ¶ 120. 47 C.F.R. §101.111(a)(2)(i).

[^251]: *Id*. at ¶ 120. 47 C.F.R. §25.208(k). \[*Second R&O*\]
    Satellites in non-geostationary orbit are in constant motion around
    the Earth. When they are near the horizon, their elevation angles
    are sufficiently low that it is possible for the satellite
    transmitter to be pointed at a terrestrial MVDDS receiving antenna.

[^252]: Where δ is defined as the angle of arrival above the horizontal
    plane.

[^253]: *Second R&O* at ¶ 124. 47 C.F.R. §§ 25.139 and 101.103

[^254]: SkyBridge petition at 4.

[^255]: SkyBridge proposed a scheme involving multiple in‑band PFD
    contours and EPFD defined zones and out‑of‑band emission
    limitations. The three in‑band limits SkyBridge proposed were: 1) a
    PFD limit of ‑120 dBw/m^2^/MHz (which equates to -144 dBW/m^2^/4kHz)
    corresponding to an NGSO FSS frequency diversity zone that SkyBridge
    suggests should not be exceeded over ten percent of the MVDDS
    service area; 2) an EPFD limit of --135 dBW/m^2^/4kHz corresponding
    to a NGSO FSS receiver saturation buffer zone that should not be
    exceeded over 0.2% of the MVDDS service area; and 3) an EPFD limit
    of --132 dBW/m^2^/4kHz corresponding to a NGSO FSS receiver
    saturation threshold limit not to be exceeded into any operational
    NGSO FSS receiver. *See* SkyBridge comments at 33‑47. *See*, *also*,
    SkyBridge *ex parte* letter from Jeffrey H. Olson to Magalie Roman
    Salas, Secretary, FCC (filed Jul 10, 2000).

[^256]: SkyBridge petition at 10.

[^257]: NGSO FSS is allocated the entire 11.7-12.7 GHz band for downlink
    operation. Frequency diversity techniques would enable dynamic
    switching to the lower 11.7‑12.2 GHz band for downlink service to
    avoid potential MVDDS interference in the 12.2‑12.7 GHz band.

[^258]: SkyBridge petition at 12.

[^259]: *Id*. at 13.

[^260]: *Id*. at 13.

[^261]: *Id*. at 8.

[^262]: MDS America opposition at 3.

[^263]: Northpoint consolidated response at 15-17.

[^264]: *See generally*, MDS America's June 24, 2002 Petition for
    Reconsideration at 12 and the September 3, 2002 Consolidated
    Response of Northpoint Technology, LTD., and Broadwave USA, Inc., to
    Petitions for Reconsideration of the Second Report and Order at 8,
    13, and 15-17.

[^265]: Northpoint consolidated response at 13.

[^266]: MDS America petition at 26.

[^267]: Based upon worst case assumptions without frequency polarization
    constraints on MVDDS, the adopted technical limits should allow NGSO
    FSS deployment across 80% of the MVDDS service area in the entire
    11.7‑12.7 GHz band and up to 97.5% of the MVDDS service area if the
    NGSO FSS terminal uses frequency diversity to operate in the
    adjacent 11.7-12.2 GHz band. *See Second R&O* at ¶116. SkyBridge has
    argued that it was desirable to avoid use of frequency diversity
    "over a large proportion" of the MVDDS service area, and that the
    NGSO FSS "saturation zone" should be "small." SkyBridge comments to
    *FNRPM* at 33-34. As shown, under worst case assumptions the
    saturation zone corresponding to our adopted rules is approximately
    2.5% of the MVDDS service area. Although not as small as the 0.2% of
    the MVDDS service area that SkyBridge proposed, it is sufficiently
    small as to not substantially hinder NGSO FSS deployment.

[^268]: *Second R&O* at ¶ 118.

[^269]: *Id*. at ¶ 115, footnote 256, citing SkyBridge *ex parte*,
    Letter from Jeffrey H. Olson, Paul, Weiss, Rifkind, *et al*. to
    Magalie Roman Salas, Secretary, FCC (filed Nov. 15, 2001). In
    particular, SkyBridge assumed that MVDDS would use a single
    polarization mode of transmission dissimilar to that used for NGSO
    FSS. We find this assumption unrealistic because, among other
    reasons, there are no guarantees regarding which polarization
    different NGSO FSS licensees may use to share the band and it does
    not consider polarization effects on sharing with DBS. Moreover, for
    example, such constraints on MVDDS transmissions could seriously
    impede a provider's flexibility to utilize lower power spreading
    modulation techniques that may use both polarizations to achieve
    greater capacity needs.

[^270]: *Second R&O* at ¶115. In addition, For example, Northpoint
    argues that to meet SkyBridge's ‑120 dB W/m^2^/MHz) limit over 90%
    of its service area, it would have to reduce its overall maximum PFD
    on the ground to the -120 dB W/m^2^/MHz level with a corresponding
    EIRP of -33.5 dBW, which would reduce its predicted service area
    radius to 1.5 miles, greatly increasing the number of transmit sites
    needed. Northpoint January 14, 2002 *ex parte* at 5.

[^271]: *Second R&O* at ¶ 117.

[^272]: *Id*. at ¶¶ 115-117.

[^273]: *Id.* at ¶ 109.

[^274]: *Id.* at ¶ 111.

[^275]: Northpoint consolidate response at 18. *See also*, *Second R&O*
    at ¶ 108.

[^276]: *Second R&O* at ¶ 113.

[^277]: *Id*. The Commission also found that the PFD limit is technology
    neutral for MVDDS because it allows for the use of any antenna type,
    tower height and EIRP combination (up to the maximum 14 dBm) so long
    as the PFD limit is not exceeded at the specified distance.

[^278]: *Id.* at ¶ 113.

[^279]: *See* para. 86, *supra* for a discussion of MDS America's
    request for higher MVDDS EIRP limits.

[^280]: SkyBridge petition at 14. SkyBridge asserts that the worst case
    for sharing between MVDDS and NGSO FSS would occur when the MVDDS
    receive site is at the edge of the coverage area (*i.e*., receiving
    a weak signal), and the NGOS FSS satellite is operating at maximum
    power and the NGSO satellite transmit antenna is aligned with the
    MVDDS receive antenna. SkyBridge contends that this scenario rarely
    occur.

[^281]: The Commission adopted the PFD limits proposed by Northpoint and
    agreed to by SkyBridge.

[^282]: SkyBridge Petition at 15-16.

[^283]: *Id*. at 19.

[^284]: *Id*. at 20.

[^285]: Northpoint consolidated response at 19.

[^286]: SkyBridge reply at 4.

[^287]: *See* 47 C.F.R. § 25.208.

[^288]: *See* Third Memorandum Opinion and Order, ET Docket No. 98-206,
    FCC 03-25 (rel. Feb. 6, 2003) at ¶¶ 19-22 (*Third MO&O*).

[^289]: In Region 2, the limit for the 12.2-12.7 GHz band is -148
    dBW/m^2^/4 kHz at angles between 0 and 5 degrees above the horizon.
    *See* ITU Radio Regulations, Article 21.

[^290]: *See* *Third MO&O* at ¶ 26.

[^291]: *Id.*

[^292]: *Id.* at ¶ 27

[^293]: *Second R&O* at ¶ 121.

[^294]: SkyBridge Petition at 20.

[^295]: Northpoint Response at 20.

[^296]: *Id*.

[^297]: SkyBridge Petition at 20. Specifically, our rules required that
    the NGSO FSS licensee maintain a database of its deployed receivers
    that can be readily shared with MVDDS licensees for the purpose of
    determining compliance with the MVDDS transmitter spacing
    requirements.

[^298]: Northpoint Response at 20.

[^299]: The RFA, *see* 5 U.S.C. § 601 -- 612, has been amended by the
    Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA),
    Pub. L. No. 104-121, Title II, 110 Stat. 857 (1996).

[^300]: 5 U.S.C. § 605(b).

[^301]: 5 U.S.C. § 601(6).

[^302]: 5 U.S.C. § 601(3) (incorporating by reference the definition of
    "small-business concern" in the Small Business Act, 15 U.S.C. §
    632). Pursuant to 5 U.S.C. § 601(3), the statutory definition of a
    small business applies "unless an agency, after consultation with
    the Office of Advocacy of the Small Business Administration and
    after opportunity for public comment, establishes one or more
    definitions of such term which are appropriate to the activities of
    the agency and publishes such definition(s) in the Federal
    Register."

[^303]: 15 U.S.C. § 632.

[^304]: *Second R&O,* 17 FCC Rcd 9614 (2002).

[^305]: *See* 5 U.S.C. § 801(a)(1)(A).

[^306]: *See* 5 U.S.C. § 605(b).

[^307]: This new satellite was launched in August 2002. For technical
    detail of the new satellite s*ee Application of EchoStar Satellite
    Corporation for Authority to Launch and Operate EchoStar VIII*, File
    No. SAT-LOA-20020329-00042; *Application of EchoStar Satellite
    Corporation for Minor Modification of DBS Authorization, Launch and
    Operating Authority EchoStar VIII*, SAT-MOD-20020329-00041; and the
    *Revised Technical Appendix,* SAT-AMD-20020430-00086.