**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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**ORDER**

**Adopted:** October 12, 2006 **Released:** October 13, 2006

By the Commission: Chairman Martin and Commissioner Copps issuing
separate statements.

# INTRODUCTION

1.  On January 10, 2005, Qualcomm Incorporated (Qualcomm) filed a
    Petition for Declaratory Ruling (Petition) seeking clarification of
    certain rules and the establishment of a streamlined review process
    in order to accelerate the deployment of new services in the 700 MHz
    Band before the end of the digital television (DTV) transition.[^1]
    For the reasons discussed below, we grant in part and deny in part
    Qualcomm's request for declaratory ruling regarding the interference
    protection requirements applicable to the 700 MHz Band. As Qualcomm
    requests, we declare that Office of Engineering and Technology
    Bulletin No. 69 (OET-69), with certain modifications, is an
    acceptable methodology for making alternative showings for
    Qualcomm's MediaFLO system pursuant to the section
    27.60(b)(1)(iii)[^2] provision for demonstrating compliance with
    incumbent broadcaster protection requirements.[^3] We decline to
    establish through declaratory ruling a *de minimis* exception to the
    section 27.60 interference protection criteria. However, we find it
    in the public interest to grant a waiver to Qualcomm providing a
    measured approach towards the requested *de minimis* interference
    exception, whereby the percentage of permissible interference
    incrementally increases each year from the release of this order
    until the end of the DTV transition. Finally, we deny Qualcomm's
    request for a declaratory ruling establishing streamlined processing
    for our review of OET-69 interference protection showings.

# Background

2.  In the Lower 700 MHz Band, the Commission divided the 48 megahertz
    of spectrum into several blocks of both paired and unpaired spectrum
    to accommodate a potential range of new fixed, mobile and broadcast
    services and technologies. Specifically, the spectrum was divided
    into five blocks based on two different architectures: (1) three
    12-megahertz paired blocks consisting of two 6-megahertz segments
    (Blocks A, B, and C); and (2) two 6-megahertz unpaired blocks
    consisting of contiguous spectrum (Blocks D and E).[^4] Unlike the
    commercial spectrum in the Upper 700 MHz Band, the Commission
    established multiple Lower 700 MHz Band blocks based on units of 6
    megahertz given the specific support in the record from, among
    others, broadcast interests.[^5] Furthermore, the Commission
    established the two 6-megahertz unpaired blocks in order to "allow
    for development and deployment of certain services including new
    broadcast services...that do not depend on paired frequencies."[^6]

3.  The Commission determined that the band plan in the Lower 700 MHz
    Band should include a combination of licenses to be assigned over
    small geographic areas and large regional areas. For the two
    6-megahertz unpaired blocks, the Commission adopted large, regional
    Economic Area Groupings (EAGs).[^7] Qualcomm acquired licenses for
    five EAGs in Auction 49 and subsequently acquired the license for
    the sixth EAG by assignment from the original licensee. Accordingly,
    Qualcomm is the licensee of all six EAGs that were auctioned as
    "Block D" in the Lower 700 MHz band. Qualcomm's wholly-owned
    subsidiary, MediaFLO, intends to deploy and operate a nationwide
    mobile multimedia network, delivering video, audio and data content
    to third-generation mobile phones.[^8] MediaFLO uses Qualcomm's FLO
    (Forward-Link Only) technology, and is designed to use Qualcomm's
    spectrum license as a base station transmit block (downlink), while
    MediaFLO subscribers use their mobile devices to transmit back using
    existing CDMA spectrum (uplink).[^9] According to Qualcomm, MediaFLO
    will support between 50 and 100 national and local content channels,
    available via either real-time viewing, or "clip-casting," where
    content streams into each mobile device's storage for later
    viewing.[^10] The MediaFLO signal would be transmitted at up to 50
    kilowatts Effective Radiated Power (ERP).[^11] Since Qualcomm is
    licensed on Channel 55, it must protect TV/DTV broadcasters on
    Channels 54, 55 and 56 in each of its respective markets, pursuant
    to the interference criteria of section 27.60,[^12] which serves to
    protect both incumbent TV and DTV broadcasters before completion of
    the DTV transition.

4.  Section 27.60 of the Commission's rules sets forth the protection
    criteria for base, fixed, control and mobile transmitters operating
    in the 698-764 MHz and 776-794 MHz frequency bands, in order to
    reduce the potential for interference to public reception of
    existing TV/DTV broadcast stations transmitting on Channels 51
    through 68.[^13] Specifically, section 27.60(a) requires a minimum
    desired signal-to-undesired signal ratio (D/U ratio) of 0 dB at the
    hypothetical Grade B contour of an adjacent-channel analog TV
    station, and 40 dB at the hypothetical Grade B contour of a
    co-channel analog TV station.[^14] Additionally, section 27.60(b)
    references specific minimum geographic separations that must be
    maintained between a 700 MHz licensee's transmitter and an incumbent
    broadcast station.[^15] Under section 27.60(b)(1)(iii), 700 MHz band
    licensees may demonstrate compliance with the Commission's TV/DTV
    protection criteria by submitting an engineering study justifying
    geographic separations that are less than the rule otherwise
    requires based upon the authorized or applied for parameters of the
    broadcast station and the actual parameters of the land mobile
    station.[^16]

5.  In its Petition, Qualcomm first seeks clarification that OET-69 is
    an acceptable basis for demonstrating compliance with section 27.60.
    Qualcomm argues that, for use in the engineering demonstration,
    OET-69 is appropriate because: (1) the broadcast community is
    familiar with OET-69; (2) it is the required methodology for
    evaluating digital LPTV and TV translator station applications;
    (3) it is appropriate for analyzing the particular technology
    Qualcomm intends to deploy; and (4) identifying a particular
    acceptable methodology will speed the deployment of 700 MHz
    services.[^17]

6.  Second, Qualcomm requests that the Commission declare that, for
    purposes of making engineering showings pursuant to section
    27.60(b)(1)(iii), predicted interference to not more than two
    percent of the population served by a TV/DTV station is *de minimis*
    and therefore acceptable.[^18] Qualcomm notes that, under section
    73.623 of the Commission's rules, predicted interference from a DTV
    station to not more than two percent of the population served by
    another DTV or TV broadcast station is considered *de minimis*, and
    argues that the same standard should apply to showings made pursuant
    to section 27.60.[^19] Qualcomm also claims that the public will
    benefit from such a determination through increased availability of
    new wireless services, while any interference caused will be minimal
    and temporary.[^20] Further, Qualcomm contends that the actual
    number of viewers affected by even the full allowance of *de
    minimis* interference will be significantly smaller than two
    percent, since most viewers of any affected station receive service
    via cable or satellite.[^21]

7.  Third, Qualcomm requests that the Commission establish streamlined
    processing procedures for OET-69 showings, including a rebuttable
    presumption that such showings are sufficient when no objections are
    filed with the Commission.[^22] Specifically, Qualcomm proposes that
    whenever a 700 MHz licensee shows compliance based on OET-69 in a
    given market, the burden should shift to any objector to show within
    a 14-day comment period that the licensee's proposed operation will
    not comply with the applicable protection requirements.[^23] Absent
    any objection, Qualcomm argues, the next weekly Public Notice should
    indicate acceptance.[^24]

8.  On January 18, 2005, the Wireless Telecommunications Bureau's
    (Bureau) Mobility Division (Division) sought comment on the Qualcomm
    Petition.[^25] Several parties largely representing the interests of
    700 MHz licensees filed supporting comments,[^26] while parties
    largely representing the interests of broadcasters filed opposing
    comments.[^27]

9.  Finally, Congress recently created greater certainty regarding the
    availability of unencumbered 700 MHz spectrum for wireless
    commercial and public safety licensees by establishing a "hard date"
    of February 17, 2009, by which time incumbent analog broadcasters
    must vacate the spectrum.[^28]

# Discussion

## Use of OET-69 as a Methodology to Measure Interference

10. *[Petition]{.underline}*. Qualcomm requests clarification that the
    procedure set forth in OET-69 is an acceptable engineering
    methodology for demonstrating compliance with section
    27.60(b)(1)(iii) of the rules which, as indicated above, permits the
    submission of an engineering study justifying a proposed geographic
    separation based on actual parameters of the proposed Part 27
    station and the actual, or applied for, parameters of the broadcast
    station.[^29] Qualcomm submits that it intends to rely upon such a
    clarification in cases where it is unable to: (1) locate
    transmitters a sufficient geographic distance from the broadcast
    transmitter to satisfy the geographic separation requirements of
    section 27.60; (2) satisfy a calculated geographic separation in
    accordance with the overlapping approach associated with D/U ratios;
    or (3) obtain written concurrence from the incumbent
    broadcaster.[^30]

11. In support of this request, Qualcomm states that the broadcast
    industry has extensive experience in applying OET-69 in
    "short-space" scenarios, and the Commission has indicated that
    OET-69 should be used in evaluating digital LPTV and TV translator
    applications in lieu of the overlapping contour D/U ratio
    approach.[^31] Qualcomm also asserts that the MediaFLO waveform is
    analogous to the DTV waveform in that the two waveforms "look"
    similar from an interference perspective; are digital "noise-like"
    technologies occupying 6 MHz of bandwidth; and are transmit-only
    systems.[^32] Accordingly, Qualcomm argues, since OET-69 is
    appropriate to measure interference between DTV stations, it should
    likewise be deemed generally appropriate for measuring interference
    from MediaFLO to broadcast television stations.[^33] Qualcomm
    acknowledges that certain adjustments are necessary to account for
    application of OET-69 in the Part 27 context. Specifically, Qualcomm
    proposes to: (1) apply the more conservative Part 27 D/U ratios to
    the OET-69 methodology, rather than the Part 73 D/U ratios; and
    (2) include an analysis of the impact of multiple MediaFLO
    transmitters on co-channel and/or adjacent channel stations, noting
    that TV-to-TV station OET-69 studies usually assess the impact of a
    single transmitter on existing stations.[^34]

12. *[Comments]{.underline}*. Opposing commenters argue that OET-69 is
    not, by design, an appropriate engineering methodology to
    demonstrate compliance with section 27.60. MSTV/NAB argue that the
    Commission should reject Qualcomm's request for a declaration that
    700 MHz entrants may use OET-69 to demonstrate MediaFLO compliance
    with the D/U requirements of section 27.60, stating that the rule
    does not allow use of OET-69 which, in MSTV/NAB's view, is "solely a
    tool for measuring digital television source interference."[^35]
    MSTV/NAB further argue that, whenever the Commission provides for
    the use of OET-69 to make interference calculations, the
    Commission's rules make explicit reference to OET-69, whereas
    section 27.60 does not.[^36] MSTV/NAB believe that OET-69 would fail
    to measure interference from MediaFLO operations because it: (1) is
    a broadcaster-to-broadcaster standard that is fundamentally designed
    to measure interference between broadcasters when neither is
    operating within the Grade B contour of the other;[^37] (2) does not
    consider aggregate interference from operation of multiple stations
    by a 700 MHz licensee;[^38] (3) assumes vertical elevation patterns
    that likely will differ from the vertical pattern(s) of a 700 MHz
    licensee's antenna(s);[^39] (4) incorporates a propagation model
    that does not "translate well" to dense urban areas and does not
    consider service outside a station's protected service contour;[^40]
    and (5) in areas where the desired signal level is equal or greater
    than the DTV strong signal level, OET-69 should be modified to
    ignore the receive antenna gain adjustment in the interference
    calculation.[^41]

13. Pappas Southern California License, L.L.C. (Pappas) similarly argues
    that OET-69 was not designed to measure interference from several
    transmitters inside a television station's service area, and adds
    that section 27.60 itself establishes D/U ratios for evaluation at
    the boundary, rather than inside, a television station's service
    area.[^42] Cox Broadcasting, Inc. (Cox) and Pappas note that OET-69
    is designed to compute signal loss due to distance and natural
    terrain only, and includes no provision for losses caused by
    man-made structures.[^43] Pappas further argues that OET-69 could
    also fail to predict interference to a cable television system's
    headend, which Pappas finds especially significant because Qualcomm
    is arguing that the effects of MediaFLO would be minimized by the
    fact that most viewers receive their broadcast signals via cable or
    satellite.[^44] According to Pappas, high signal strength (*i.e.*,
    produced by an effective radiated power level up to 50 kW) on
    Qualcomm's Channel 55 could degrade a cable headend's ability to
    receive and discriminate in favor of the broadcaster's signal,
    resulting in degradation when it is retransmitted to cable
    subscribers.[^45]

14. Qualcomm addresses these concerns that OET-69 cannot adequately
    measure interference under strong signal conditions, including
    interference from 700 MHz entrants within the Grade B contour of a
    broadcast station, by noting that the Commission has used OET-69 in
    granting full service and low power TV broadcast applications
    seeking authority to place adjacent-channel transmitters within the
    protected contour of another station.[^46] Those applications,
    Qualcomm notes, have used OET-69 analyses relying on the very D/U
    ratios that MSTV/NAB argue are only applicable along the distant
    Grade B contour of a broadcaster.[^47] Concerning the criticism that
    OET-69 does not account for interference from multiple stations
    inside an analog TV Grade B or a DTV noise-limited service contour,
    Qualcomm argues that its solution of using a Root-Sum-Square (RSS)
    calculation properly accounts for the fact that the overwhelming
    majority of multiple undesired signals will be uncorrelated due to
    path diversity and MediaFLO's "noise-like" quality.[^48] In an *ex
    parte* submission of March 31, 2006, MSTV submits that while a
    straight voltage addition of all the interfering signals is a proper
    technique, it depicts the situation where the signals transmitted
    from the MediaFLO transmitters are correlated and that an RSS value
    could be used if these transmitters' signals are determined to be
    uncorrelated.[^49] As for the vertical antenna patterns that
    Qualcomm will actually use, compared with the default vertical
    antenna patterns inherent in the OET-69 methodology, Qualcomm
    asserts that it re-computed its sample analyses using the actual
    MediaFLO antenna patterns and the results are identical under either
    condition. Qualcomm therefore argues that MSTV/NAB's concern is
    unwarranted.[^50] With regard to the concern that OET-69 was not
    designed to measure interference outside the analog TV Grade B
    contour and DTV noise-limited service contour in distant, often
    rural areas, Qualcomm argues that consideration of such areas is
    irrelevant within the context of an engineering study filed pursuant
    to section 27.60, and that Qualcomm only intends to use OET-69 for
    calculations inside the Grade B contour.[^51] Qualcomm argues that
    the potential for interference to cable headends could be predicted
    using OET-69 if the location of cable headend receive antennas were
    known - acknowledging that OET 69 software does not identify cable
    headend locations - and promises to work with any impacted station
    to resolve any such interference problem.[^52] In a subsequent *ex
    parte* submission, MSTV argues that it is not true that low power TV
    stations have been allowed to use the existing D/U ratios and points
    out that digital low power TV stations must meet a D/U ratio of -12
    dB or better, which is significantly more than the D/U ratios
    specified for TV stations in Part 73 or for 700 MHz licensees in
    Part 27.[^53]

15. Supporting commenters do not advocate the exclusive use of OET-69
    for purposes of complying with section 27.60. Corr Wireless
    Communications, L.L.C. (Corr) views Qualcomm's request as not
    excluding the use of a different methodology.[^54] Aloha and
    Motorola, Inc. (Motorola) argue that the Commission should also
    sanction compliance with the D/U ratios in the Stanks Report as
    being sufficient for demonstrating compliance with
    section 27.60.[^55]

16. *[Discussion]{.underline}*. The Commission adopted section
    27.60(b)(1)(iii) in its 2000 *Upper 700 MHz Report and Order*.[^56]
    This rule section was modeled after rule section
    90.545(c)(1)(ii),[^57] which was adopted in the Commission's 1998
    *Public Safety Service Rules Order*[^58] and also provides for the
    submission of an engineering study based on the actual parameters of
    potentially affected broadcast stations to show compliance with the
    TV/DTV interference protection criteria for 700 MHz public safety
    licensees. In the *Lower 700 MHz Report and Order*, the Commission
    maintained the section 27.60(b)(1)(iii) alternative engineering
    showing option for licensees, and the protection criteria for analog
    broadcast stations, while amending certain of the DTV interference
    protection criteria.[^59]

17. We recognize that section 27.60 does not specify an engineering
    methodology to be used in studies supporting alternative submissions
    pursuant to section 27.60(b)(1)(iii); rather, it allows licensees to
    select the engineering methodology for such studies subject to a
    determination of acceptability by the Commission. In this regard, we
    disagree with MSTV/NAB's argument that section 27.60 does not allow
    use of OET-69 and that any reference to OET-69 must be found in the
    rule. To the contrary, based upon a careful review of the record and
    as discussed below, we take this opportunity to clarify that OET-69,
    with the adjustments proposed by Qualcomm, is an appropriate
    methodology for making an alternative showing for Qualcomm's
    MediaFLO system pursuant to section 27.60(b)(1)(iii) to demonstrate
    compliance with the section 27.60 protection criteria. As Qualcomm
    observes, OET-69 is an established engineering methodology for
    making radio field strength predictions relating to the broadcast
    television service and the Commission and its licensees have
    substantial experience with its implementation, particularly as it
    relates to predicting interference to television service from
    transmitters located both outside and inside of another station's
    service contour. Given the particular characteristics of MediaFLO
    signals, which share many similarities to broadcast digital
    television signals, including a noise-like signature and 6 megahertz
    bandwidth, we find that use of OET-69 is generally appropriate when
    analyzing specific applications in markets where Qualcomm seeks to
    operate during the DTV transition and to demonstrate, pursuant to
    section 27.60(b)(1)(iii), that it will comply with the applicable
    D/U ratios set forth in section 27.60.

18. We find that the modifications Qualcomm suggests making to the
    OET-69 methodology (*e.g.,* reliance on the Part 27 D/U ratios,
    rather than the Part 73 D/U ratios, and analysis of the impact of
    multiple MediaFLO transmitters on co-channel and/or adjacent channel
    stations) will adequately address the differences between MediaFLO
    and DTV operations. We specifically clarify that to be acceptable
    for section 27.60(b)(1)(iii) showings for MediaFLO operations, the
    OET-69 methodology must be modified to incorporate the more
    conservative D/U ratios set forth in section 27.60, rather than
    those specified in the standard OET-69 method (which correspond to
    the D/U ratios for DTV-to-DTV and DTV-to-analog TV protection in
    section 73.623 of the rules) and to take into account the effects of
    deployment of multiple transmitters on the incumbent
    broadcaster.[^60] We agree with Qualcomm that it is appropriate to
    represent the aggregate effect from multiple transmitters (*i.e*.,
    an increased potential for interference due to the stronger combined
    signal level of the individual transmissions) using the RSS method.
    This method is appropriate for combining signals from independent
    sources that exhibit uncorrelated noise-like signal qualities, such
    as the MediaFLO transmissions.[^61] As MSTV/NAB and Pappas observe,
    our existing software implementing the OET-69 methodology does not
    account for the accumulated signals of multiple potential
    interfering sources. However, Qualcomm has demonstrated
    modifications to the OET-69 software that allow signals from
    multiple MediaFLO sources, combined using the RSS method, to be
    included in the analysis.

19. We are not persuaded by the arguments of MSTV/NAB and Pappas that
    OET-69 does not provide adequate predictions in situations where the
    potential interfering signals are located within a station's analog
    Grade B or digital noise limited contour. It has been known since
    the start of the DTV transition that DTV receivers are more likely
    to be susceptible to adjacent channel interference when receiving
    strong signals then they are when receiving weak signals. This is
    due primarily to the increase in the noise floor of the desired
    channel caused by the nonlinear distortion generated by all adjacent
    channel signals appearing at the receiver. MSTV proposes that we
    evaluate planned MediaFLO operations using adjacent channel D/U
    ratios for DTV protection that are 3 dB and 5 dB higher than the
    current value of -23 dB (lower and upper adjacent channel increases
    in D/U ratio, respectively) at the edge of a station's service
    contour and 11 dB and 13 dB higher in its strong signal areas.[^62]
    In considering this issue, we first observe that use of OET-69
    methodology is an accepted practice for analyses involving
    interference from other TV transmitters within a station's service
    contour. In this regard, OET-69 is used in analyzing the
    interference from adjacent channel full service television
    stations[^63] and from low power television operations.[^64] While
    the adjacent channel D/U ratios used to evaluate potential
    interference from digital low power TV stations are indeed more
    restrictive than those applicable to DTV stations, as MSTV observes,
    those ratios were set by the Commission based on its decision to
    allow digital low power stations to elect to use one of two
    out-of-band emission masks, both of which are less restrictive than
    the mask for full service DTV stations, and to provide additional
    interference protection for the expected widespread use of
    co-located LPTV station operations on adjacent channels.[^65]

20. We also believe there is merit in Qualcomm's position that there is
    a large protective margin in the interference that MediaFLO is
    predicted to cause using the Part 27 D/U ratios and in the
    additional conservative operational restrictions that will apply to
    MediaFLO transmitters.[^66] In this regard, Qualcomm states that:
    (1) MediaFLO will meet the Part 27 D/U ratios, which are up to 17 dB
    more protective of TV and DTV stations than the Part 73 D/U ratios;
    (2) the Part 27 emission mask produces a first adjacent channel
    side-band power level that is 17 dB below that of a comparable full
    service DTV signal (up to 8 dB more protective than the DTV-to-DTV
    requirements); and (3) MediaFLO will use emissions that are even
    more conservative than the Part 27 emission mask; and (4) MediaFLO
    will operate with a signal strength that is 3 dB less than the
    signal assumed in the engineering exhibits to its Petition.[^67] We
    find that the conservative protection margin afforded by the factors
    Qualcomm mentions will offset most, if not all, of any additional
    predicted interference impact that would appear if the variable D/U
    standards suggested by MSTV were used. We similarly find no merit in
    the arguments of Cox, MSTV/NAB, and Pappas that OET-69 is not
    suitable for predicting interference in urban areas because it does
    not include provisions for losses caused by man-made structures.
    While there are limitations to the Longley-Rice model used in the
    OET-69 method, including the fact that it does not specifically
    account for man-made structures and other urban features, it has
    nonetheless proven to be a satisfactory model for predicting TV
    interference in various situations as discussed above. Moreover,
    these parties have not suggested any alternative approach that might
    provide improved estimates for urban areas.

21. While we recognize that analysis based on an antenna with a vertical
    pattern that is different from the standard TV vertical pattern
    could potentially predict different interference levels, Qualcomm
    has demonstrated that the difference in practice between the
    standard assumed vertical pattern in OET-69 and the pattern of the
    antennas Qualcomm intends to use is not significant and, based upon
    Qualcomm's further analyses, it appears that the predicted extent of
    interference using either pattern is virtually identical. We also
    note that the standard TV vertical antenna pattern used in OET-69
    does not represent a specific broadcast TV transmit antenna that
    stations are expected to use. Rather, the OET-69 vertical pattern
    represents the patterns of antennas typically used by TV and DTV
    stations.

22. We find without merit MSTV/NAB's position that the D/U ratios should
    not be effectively reduced by attenuating the undesired signal due
    to receive antenna directivity factor in moderate and strong signal
    conditions.[^68] In this case, OET-69 assumes that the receive
    antenna provides 10 dB of gain to signals in its main beam, *i.e.*,
    in the direction of desired signals, and provides angular
    discrimination that reduces this gain for signals that are not in
    the antenna's main beam, *i.e.*, signals that are to either side or
    behind the main beam.[^69] MSTV/NAB argues that using OET-69 would
    effectively reduce the section 27.60 protection ratios by up to 14
    dB for strong and moderate signal conditions.[^70] In its reply
    comments, Qualcomm observes that a receive signal rejection factor
    is included in the existing OET-69 methodology for reducing the
    strength of television signals not in the main beam of a receive
    antenna. It argues that this assumed receiving antenna
    discrimination factor should be included in any analysis using the
    existing methodology irrespective of the interfering source location
    (either outside or inside of a TV station's service contour) and
    that this feature of the existing methodology should not be modified
    for analyzing Qualcomm transmitters.[^71] In a later submission,
    MSTV argues that in TV strong signal areas, the OET-69 methodology
    should be modified to ignore the receive antenna performance in the
    interference calculation.[^72] It contends that under strong signal
    levels, indoor reception is likely and the use of an outdoor antenna
    to compute interference would most likely underestimate the
    interference caused by Qualcomm transmitters. In a responding *ex
    parte* submission, Qualcomm argues that MSTV is re-stating an old
    issue and that Qualcomm's earlier position on this issue is still
    valid.[^73]

23. We are not persuaded to ignore the discrimination characteristics of
    the assumed standard receive antenna in OET 69 as MSTV suggests.
    Rather, we conclude that the Qualcomm transmitters should be
    analyzed in the same manner as a potentially interfering full
    service DTV station or digital LPTV station for purposes of
    determining the received interfering signal level. While we
    understand that many households in strong signal areas do use an
    indoor antenna, the indoor antennas they use typically provide some
    modest level of gain and angular discrimination and many other
    households in those areas will in fact use an outdoor antenna as
    assumed in the TV service model.[^74] In any case, we believe that
    the conservative operational restrictions of Part 27 and Qualcomm's
    proposed plan for MediaFLO operation will be sufficient to ensure
    that OET-69 does not underestimate the potential for interference to
    DTV service from MediaFLO transmitters resulting from viewer use of
    less directional antennas in strong signal areas. Finally, with
    respect to Pappas' contention that Qualcomm's use of OET-69 to
    predict interference will fail to account for interference to cable
    headends, we note that Qualcomm promises to work with any impacted
    station to resolve any such problem.[^75]

## Creation of a *De Minimis* Interference Threshold

24. *[Petition and Comments]{.underline}*. Qualcomm requests the
    Commission to declare that interference to up to two percent of the
    households within the Grade B contour of a TV broadcast station or
    noise-limited service contour of a DTV station is *de minimis* and
    therefore acceptable. Qualcomm asserts that despite any nominal
    interference its proposal may cause, the disruption is temporary,
    while the effect is to hasten the deployment of 700 MHz services as
    well as the end of the DTV transition.[^76] Qualcomm also maintains,
    together with supporting commenters, that households receiving
    TV/DTV broadcasts via cable and satellite, rather than over-the-air,
    should be viewed as reducing the actual impact of the two percent
    *de minimis* threshold to one-half percent or less of
    households.[^77] Additionally, Aloha contends that similar *de
    minimis* standards have been applied broadly and are more the norm
    than the exception.[^78]

25. Opposing commenters argue that a two percent *de minimis*
    interference threshold should not be available to commercial 700 MHz
    licensees. MSTV/NAB disagree with Qualcomm's reliance on section
    73.623(c) to establish that the rule's two percent threshold for DTV
    source interference should also apply under section 27.60 for
    commercial spectrum in the 700 MHz Band. They argue that the
    existing two percent *de minimis* standard for DTV source
    interference was narrowly tailored to promote the DTV transition,
    and does not apply to other services.[^79] For example, they note,
    the Commission's Media Bureau denied a TV station's request to
    discontinue analog operations even though a mere quarter-percent of
    the station's viewers receive it over-the-air.[^80] Additionally,
    they argue that section 73.623 was promulgated via a
    notice-and-comment rulemaking, whereas Qualcomm seeks relief without
    a rulemaking.[^81]

26. Opposing commenters also disagree with Qualcomm's argument that the
    *de minimis* interference threshold can be reduced in practical
    effect because most viewers subscribe to cable or satellite. They
    argue that, even so, the routine assumptions of 85 and even
    90 percent cable and satellite penetration are often overstated when
    applied to specific markets.[^82] MSTV/NAB note that in some
    markets, homes not connected to cable or satellite services may
    reach as high as 40 percent, and over 10 million households that do
    subscribe to cable have at least one TV set that is not connected to
    cable.[^83] MSTV/NAB additionally argue that whatever cable and
    satellite penetration may exist today, households cannot be deprived
    of the ability to cancel subscription services yet still be counted
    for their interest in over-the-air programming.[^84] Cox adds that
    cable and satellite do not guarantee access to DTV signals because
    the Commission recently refrained from creating must-carry rights
    until the DTV transition ends.[^85]

27. *[Discussion]{.underline}*. Qualcomm seeks a Commission declaratory
    ruling establishing a *de minimis* threshold applicable to all
    commercial 700 MHz licensees subject to section 27.60. After
    reviewing the record, we find it more appropriate to analyze
    Qualcomm's request pursuant to the waiver standard set forth in
    section 1.925(b)(3).[^86] Under this standard, we may grant a waiver
    if it is shown that: "(i) The underlying purpose of the rule(s)
    would not be served or would be frustrated by application to the
    instant case, and that a grant of the requested waiver would be in
    the public interest; or (ii) In view of unique or unusual factual
    circumstances of the instant case, application of the rule(s) would
    be inequitable, unduly burdensome or contrary to the public
    interest, or the applicant has no reasonable alternative."[^87] We
    note that, in the *Public Safety Service Rules Order,* the
    Commission discussed the purpose of permitting the submission of
    engineering studies by rule, rather than waiver, under section
    90.545 (the rule upon which section 27.60 is based), and stated:
    "\[w\]e remain concerned, however, that limiting TV/land mobile
    separation to distances specified in a table may prevent public
    safety entities from fully utilizing this spectrum in a number of
    major metropolitan areas until after the transition period ends. We
    believe that it is necessary to provide alternative methods that
    will give flexibility to public safety entities to locate base
    stations closer that the distance specified in the separation table
    without causing excessive interference to TV/DTV stations.
    Therefore, we conclude that public safety applicants should be
    allowed to submit engineering studies showing how they propose to
    meet the appropriate D/U signal ratio at the existing or applied for
    Grade B service contour... This would permit public safety
    applicants to take into account intervening terrain and engineering
    techniques such as directional and down-tilt antennas in determining
    the necessary separation to provide the required protection."[^88]
    Given the Commission's purpose in permitting the filing of
    alternative engineering studies to demonstrate rule compliance, we
    find that Qualcomm requires a waiver to the extent its engineering
    studies filed pursuant to section 27.60(b)(1)(iii) indicate that its
    proposed operations do not meet the established section 27.60
    distance separations and/or D/U ratios for protecting incumbent
    broadcasters.

28. After reviewing the record, we find that a waiver of section 27.60
    is appropriate for Qualcomm, and we will apply this measured *de
    minimis* exception to the rule's interference protection
    requirements in circumstances where Qualcomm files a modification
    application under a geographic area authorization which provides
    site-specific technical parameters and a supporting engineering
    study consistent with the terms of this order. Under section 1.925,
    we may grant a waiver if it is shown that the standards of either
    section 1.925(b)(3)(i) or (ii) are met. In this case, we find that
    Qualcomm has satisfied the first waiver standard of section 1.925.
    As discussed below, we base this decision on both a public interest
    analysis of the benefits it will provide and an assessment of the
    predictive nature of TV/DTV protection requirements. First, we find
    it in the public interest for this innovative new service offering
    to be available to consumers. MediaFLO promises to enhance the
    traditional provision of over-the-air broadcasting with features
    that include mobility, time-shifting of content, and ubiquitous
    access to sports and news content including storm warnings and
    emergency alerts. The MediaFLO technology itself, including
    broadcast-type transmission of content to multiple receivers
    simultaneously, may be more cost-effective and spectrum efficient
    than existing mobile video technologies that rely on a high-speed
    data stream. Additionally, we recognize that it is in the public
    interest generally to effect forward-looking policy that drives
    toward the end-point of the DTV transition, when the 700 MHz Band is
    cleared of legacy analog TV technology and newer, more efficient and
    robust applications are available as primary services.

29. We also find, under the first waiver standard, that the underlying
    purpose of section 27.60 would be frustrated by a strict application
    of the rule where Qualcomm is able to demonstrate that it would only
    cause *de minimis* interference to broadcast operations as set forth
    below. Section 27.60, by its terms, requires 700 MHz licensees to
    operate in accordance with the rules "to reduce the potential for
    interference to public reception of the signals of existing TV and
    DTV broadcast stations.[^89]" While opposing commenters argue that
    broadcast incumbents are entitled to full protection during the DTV
    transition with certainty that there will be no interference in all
    circumstances, we note that the applicable interference protection
    rule section 27.60 (and rule section 90.545 applicable to 700 MHz
    public safety operation) rely upon required separation distances and
    D/U ratios that in turn are based upon application of *predictive*
    engineering models. We further note that although Part 27 does not
    provide for a specific *de minimis* interference exception,[^90]
    such thresholds have been applied in the broadcast context. For
    example, where DTV applicants seek certain technical changes
    (*e.g*., replication/maximization), section 73.623 allows for
    predicted interference from a DTV station of not more than
    two percent of the population served by another TV/DTV broadcast
    station, so long as the protected station is not, or will not be,
    receiving interference in excess of ten percent of its population
    from all combined interfering stations.[^91] In addition, applicants
    seeking facilities modifications of full-service NTSC (analog TV)
    stations are permitted to cause a 0.5 percent reduction in service
    population to DTV service to account for rounding and calculation
    tolerances. Within the channel allotment process for developing a
    post-transition DTV allotment table, a DTV station may add
    interference by as much as 0.1 percent of the population served by
    another station.[^92] These examples demonstrate that the Commission
    repeatedly has recognized the predictive nature of the interference
    protection requirements resulting in the possibility of *de minimis*
    interference.

30. While we conclude that a waiver is appropriate, we also find that a
    measured approach to granting Qualcomm a waiver of section 27.60 is
    preferable, whereby the percentage of permissible interference
    increases each year from the release of this order until the end of
    the DTV transition. Accordingly, for the first full year after the
    release of this *Order*, we will consider interference from Qualcomm
    stations affecting a protected TV/DTV station of up to 0.5 percent
    of the population within the Grade B contour of a protected TV
    station or DTV noise-limited service contour, without discounting
    for cable and satellite penetration, to be *de minimis* and
    therefore acceptable. For the second year, the *de minimis*
    exception will be increased to 1.0 percent, and it will be further
    increased to 1.5 percent for the remainder of the DTV transition.
    Consistent with the measured approach we have taken in our Part 73
    rules where broadcast licensees petition to modify a channel
    allotment or modify a station assigned to such an allotment,
    Qualcomm will not be permitted under this waiver to cause new
    interference to any broadcast facility entitled to protection that
    already experiences interference to ten percent or more of its
    analog TV Grade B or protected DTV service population or that would
    result in a station receiving interference in excess of ten percent
    of its analog Grade B or DTV service population.[^93]

31. By taking this incremental approach, we balance the public interest
    benefits of an accelerated deployment in the 700 MHz Band against
    the importance of sustaining a minimally disruptive transition to
    DTV for consumers. We note that the DTV transition itself contains
    among its objectives the freeing up of valuable spectrum resources
    for innovative new services like MediaFLO. Furthermore, in another
    context the Commission evinced a forward-looking preference toward
    those services that are the end-points of the DTV transition, when
    granting a two percent threshold to DTV stations, while limiting
    existing legacy analog TV and secondary LPTV stations to a
    0.5 percent threshold.

32. With the enactment of a statutory "hard date" setting the end of the
    DTV transition on February 17, 2009, we find it reasonable to assume
    that *de minimis* interference from Qualcomm's operations to analog
    TV channels 54, 55 and 56 will diminish even further as consumers
    migrate onto the DTV channels in much greater numbers than we see
    today. With regard to any digital broadcasts on channels 54, 55 and
    56, we note that many if not most DTV stations will continue to
    simulcast similar or identical analog content on other channels that
    are not subject to any co-channel or adjacent channel interference
    from Qualcomm. Accordingly, the potential loss to consumers of a DTV
    channel may be mitigated by the continued availability of analog
    programming during the transition. We believe that all of the above
    supports the incremental application of a *de minimis* exception,
    which is sufficient for Qualcomm to deploy MediaFLO in many of its
    target markets prior to the end of the DTV transition.

## Streamlined Processing of Engineering Studies Filed Pursuant to Section 27.60(b)(1)(iii)

33. *[Petition]{.underline}.* Qualcomm and its supporting commenters
    argue that the Commission should adopt streamlined procedures for
    processing OET-69 interference protection showings. Qualcomm argues
    that the opposing concerns are overstated, because streamlined
    procedures would not apply whenever a broadcaster timely opposes the
    700 MHz entrant's request for waiver.[^94]

34. *[Comments]{.underline}.* Corr views the proposal for streamlined
    processing as consistent with the basic virtue and the proven
    success of geographic area licensing, which by default does not
    require site-by-site licensing.[^95] This benefit, Corr argues, is
    effectively lost if the Commission must review and approve each
    proposed operation on a case-by-case basis.[^96] Corr asks the
    Commission to verify that pre-operational approval is not necessary
    when a 700 MHz entrant meets the TV/DTV protection standards in
    section 27.60(b)(1)(i), (ii) or (iv) (*i.e.*, minimum geographic
    separation, compliance with the minimum D/U ratio, or concurrence
    from the broadcaster, respectively). Corr concedes that the
    Commission must assess any showing filed pursuant to
    section 27.60(b)(1)(iii), but even so, believes that the streamlined
    procedure will expedite movement of the application and quickly
    identify valid objections, resulting in a prompt resolution for
    deployment of service. With respect to streamlined procedures as an
    accepted practice, Motorola notes that for the Upper 700 MHz Band,
    the Commission created a presumption that voluntary clearing
    arrangements are in the public interest if new wireless services are
    made available to consumers and local communities, who in turn will
    not lose any broadcast service of some primary or unique
    nature.[^97]

35. Opposing commenters argue that the Commission should not establish
    any streamlined processing procedures for engineering showings from
    commercial 700 MHz licensees. MSTV/NAB note that the Commission
    sought comment on streamlining generally for the Lower 700 MHz Band,
    but declined to adopt forbearance procedures there.[^98] They also
    note that the streamlining sought by Qualcomm would truncate the
    period within which objections to a 700 MHz entrant's application
    could be filed, from 30 to 14 days.[^99] Pappas argues that shifting
    the burden to broadcast stations through a rebuttable presumption of
    *de minimis* interference would be inappropriate, because:
    (1) MediaFLO is a new service; (2) only Qualcomm has full knowledge
    of the details of its technology; and (3) broadcasters would be
    forced to use the flawed OET-69 methodology to meet their
    burden.[^100] Pappas counter-proposes a procedure whereby a 700 MHz
    entrant must, before deploying service, notify any potentially
    affected broadcast station within the same market at least 60 days
    before submitting an application to the Commission.[^101] If ensuing
    good-faith negotiations would not resolve a dispute over potential
    interference, after 30 days the 700 MHz entrant could submit its
    application (and waiver request, if applicable), and the affected
    broadcaster could submit its objection to the Commission.[^102] The
    700 MHz Advancement Coalition, which supports Qualcomm's Petition,
    similarly contends that 700 MHz entrants should be required, at a
    minimum, to serve affected broadcast stations with notice, following
    negotiations that presumably will have occurred well before the
    filing of an engineering study.[^103]

36. *[Discussion]{.underline}.* Because we resolve Qualcomm's request
    for a *de minimis* interference exception to section 27.60 through
    waiver, rather than declaratory ruling, we find adoption of a
    streamlined process applicable to all filers to be unnecessary.
    Accordingly, we deny Qualcomm's request for a declaratory ruling
    regarding streamlined processing of engineering studies filed
    pursuant to section 27.60(b)(1)(iii). Because we are granting a
    waiver to Qualcomm today establishing a *de minimis* interference
    exception for all such applications, subsequent waiver requests
    would be duplicative and unnecessary. However, as indicated above,
    to the extent that Qualcomm seeks to operate within the *de minimis*
    thresholds established in this order, it will be required to file a
    Form 601 modification application and appropriate engineering
    study,[^104] which will be placed on Public Notice for comment. We
    anticipate, however, that any objection to a Qualcomm application
    and engineering study will focus on whether Qualcomm meets the
    interference protection requirements, within the *de minimis*
    thresholds established herein, rather than whether such *de minimis*
    thresholds are appropriate.

## Procedural Ability for the Commission to Grant the Petition for Declaratory Ruling

37. *[Comments]{.underline}*. Opposing commenters argue that the
    Commission cannot grant the requested relief in a declaratory ruling
    but can only act by notice-and-comment rulemaking. MSTV/NAB argue
    that granting Qualcomm's Petition would violate Section 553(b) of
    the Administrative Procedure Act (APA), which requires a
    notice-and-comment rulemaking to amend an agency's "legislative
    rule."[^105] Section 27.60, they assert, is one such legislative
    rule, as it was promulgated pursuant to the Commission's general
    legislative power in 47 U.S.C. § 303.[^106] As discussed above,
    NAB/MSTV argue that section 27.60 does not allow the use of OET-69
    which, they contend, is "solely a tool for measuring digital
    television source interference" and therefore "\[i\]f the Commission
    were to grant Qualcomm's request to so use OET-69, it would amend
    Section 27.60 without proper notice and comment."[^107] MSTV and NAB
    also argue that the Qualcomm Petition seeks to change section 27.60
    to allow for up to two percent interference when it currently
    disallows any interference,[^108] and that streamlined processing
    procedures would substantively amend the existing procedures set
    forth in section 27.60.[^109] Cox argues that the Petition is
    procedurally flawed and simply amounts to a petition for
    reconsideration of the service rules initially created for the Lower
    700 MHz Band, where Qualcomm had the opportunity to contest the
    details of section 27.60, but did not.[^110]

38. Qualcomm argues that the Commission can grant the requested relief
    in a declaratory ruling, without a notice-and-comment rulemaking.
    Qualcomm argues that it is merely seeking clarification that the
    engineering methodology of OET-69 satisfies the rule, rather than
    seeking a substantive change to the rule.[^111] Qualcomm argues that
    it is only seeking an interpretation of section 27.60(b)(1)(iii)'s
    provision for an engineering study to justify any proposed
    separations that otherwise do not comply with the rule's explicit
    geographic spacing requirements.[^112] According to Qualcomm, if the
    Commission merely were to declare that an interference threshold of
    two percent is *de minimis* for the purpose of evaluating such an
    engineering study, the APA does not require a notice-and-comment
    rulemaking.[^113] Qualcomm argues that streamlined processing would
    merely amount to a change in "agency organization, procedure or
    practice" that does not require a rulemaking under section
    553(b)(3)(A) of the APA.[^114]

39. *[Discussion]{.underline}*. We reject opposing commenters' arguments
    that section 27.60 prohibits use of any particular engineering
    methodology to demonstrate rule compliance, or that the Commission
    is without authority to declare that a particular engineering model
    is acceptable to demonstrate such compliance. We note that section
    27.60(b)(1)(iii) provides that 700 MHz band licensees may
    demonstrate compliance with the Commission's TV/DTV protection
    criteria by submitting [an engineering study]{.underline} justifying
    geographic separations that are less than the rule otherwise
    requires based upon the authorized or applied for parameters of the
    broadcast station and the actual parameters of the land mobile
    station (emphasis added). Applying NAB/MSTV's reasoning, the
    submission of any engineering study to demonstrate compliance would
    be violative because the rule does not identify a specific model as
    appropriate. Rather than amending section 27.60, we merely interpret
    the rule to clarify that Qualcomm may use an engineering study based
    on OET-69 for its MediaFLO system, with the modifications discussed
    above, to fulfill the engineering study requirement in section 27.60
    (b)(1)(iii).

40. Additionally, we need not address the parties' arguments that any
    Commission issuance of a declaratory ruling establishing a *de
    minimis* interference exception is in violation of the APA, as we
    address Qualcomm's request for relief in the waiver context.
    Similarly, we need not address opposing commenters' procedural
    arguments regarding streamlined processing because we are denying
    Qualcomm's request for a declaratory ruling establishing such
    procedures.

# ORDERING CLAUSES

41. Accordingly, IT IS ORDERED that, pursuant to the authority in
    sections 1, 2, 4(i) and 4(j) of the Communications Act of 1934, as
    amended, 47 U.S.C. §§ 151, 152, 154(i) and 154(j), and section 1.2
    of the Commission's rules, 47 C.F.R. § 1.2, the request for
    declaratory ruling by Qualcomm Incorporated IS GRANTED IN PART AND
    DENIED IN PART, subject to the conditions set forth herein.

42. IT IS FURTHER ORDERED that, pursuant to the authority in sections 1,
    2, 4(i) and 4(j) of the Communications Act of 1934, as amended,
    47 U.S.C. §§ 151, 152, 154(i) and 154(j), and section 1.925(b)(3)(i)
    of the Commission's rules, 47 C.F.R. § 1.925(b)(3)(i), Qualcomm
    Incorporated IS GRANTED a waiver of section 27.60, 47 C.F.R. §
    27.60, subject to the conditions set forth herein.

FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

**STATEMENT OF**

**CHAIRMAN KEVIN J. MARTIN**

*Re: Qualcomm Incorporated Petition for Declaratory Ruling* (WT Docket
No. 05-7)

This item carefully balances the Commission's goal of furthering
wireless broadband deployment and minimizing disruption to broadcasters
during the transition to digital television. It allows for the broader
deployment of a network that promises to deliver next-generation, live
video streams to mobile phones in a nationwide network, and will provide
consumers with the potential to experience live video whenever, wherever
and however they want it. Our action also promotes efficient and
effective use of our valuable spectrum resources that would otherwise
lay fallow during the digital transition. At the same time, we limit the
potential for interference to incumbent broadcast stations using a
measured approach to relief. I am pleased we are able to provide
appropriate regulatory relief to encourage the growth of this wireless
broadband network and the deployment of an enhanced video service for
consumers.

**STATEMENT OF**

**COMMISSIONER MICHAEL J. COPPS**

*Re: Qualcomm Incorporated Petition for Declaratory Ruling* (WT Docket
No. 05-7)

Let me begin by saying I agree with the Bureau's conclusion that OET-69,
with certain modifications, is an acceptable methodology for
demonstrating compliance with incumbent broadcaster protection
requirements. The modifications strike me as reasonable and appropriate.

The proceeding raised another difficult issue that troubled me. It is
the level of permissible predicted interference with broadcasters
currently operating in the 700 MHz band. Certainly, I want to take all
appropriate steps to enable the petitioner in the above-captioned item
to provide its innovative subscription-based mobile video service in
advance of the DTV transition. At the same time, we must ensure that
this new service does not materially interfere with the ability of
broadcasters to provide free, over-the-air programming to their
customers (including Spanish language programming in at least one large
market). Though I would have preferred stronger protections for
broadcasters currently operating in the 700 MHz band, I believe today's
decision represents a reasonable compromise that reflects the unique
importance of free, over-the-air broadcasting in American life. I
especially appreciate the willingness of the Chairman and my colleagues
to work with me to reach this result. Thanks to the Bureau and also to
OET for helping us sort through this complex issue.

[^1]: Qualcomm Incorporated Petition for Declaratory Ruling (filed Jan.
    10, 2005).

[^2]: 47 C.F.R. § 27.60(b)(1)(iii).

[^3]: *See* "OET Bulletin No. 69, Longley-Rice Methodology for
    Evaluating TV Coverage and Interference," Office of Engineering and
    Technology, Federal Communications Commission (Feb. 6, 2004)
    (OET-69). OET-69 is an engineering methodology developed to evaluate
    TV coverage and interference, using predictions of radio field
    strength at specific geographic points while accounting for the
    terrain between the transmitter and each specific reception point.

[^4]: *See* Reallocation and Service Rules for the 698-746 MHz Spectrum
    Band (Television Channels 52-59), *Report and Order*, 17 FCC Rcd
    1022, 1053-54 ¶ 76 (2002) (*Lower 700 MHz Report and Order*).

[^5]: *Id.* at 1055 ¶ 80. At that time, the designation of 6 megahertz
    blocks was compatible with the interests of incumbent broadcasters,
    which also operate on 6 megahertz channel blocks, and was intended
    to minimize incumbency problems, though such problems will become
    moot at the end of the digital television (DTV) transition when the
    spectrum is cleared of TV/DTV broadcast stations.

[^6]: *Id.* at 1056-57 ¶ 84.

[^7]: *Id.* at 1059-60 ¶¶ 91, 93.

[^8]: Petition at 4.

[^9]: Petition, Att. B at 1.

[^10]: Petition at 5.

[^11]: *See* Letter from Dean R. Brenner, Senior Director, Government
    Affairs, Qualcomm Incorporated to Marlene Dortch, Secretary, FCC,
    *Ex Parte* in WT Docket No. 05-7 (filed June 29, 2005). Qualcomm's
    Petition assumed that, consistent with the Commission's Part 73
    rules, MediaFLO could operate at 50 kilowatts ERP in both the
    horizontal and vertical polarizations. However, in this subsequent
    *ex parte*, Qualcomm amended its methodology, consistent with Part
    27, to reflect operation at 25 kilowatts ERP in *each* polarization
    (horizontal and vertical), so that the sum of each polarization
    equals 50 kilowatts ERP. According to Qualcomm, this change means
    that the signal strength of MediaFLO's transmitters will be 3 dB
    less at any point than was assumed in the initial Petition. *Id.*

[^12]: *See* 47 C.F.R. § 27.60.

[^13]: *Id.*

[^14]: 47 C.F.R. § 27.60(a). The hypothetical Grade B contour encircles
    the incumbent broadcast station at a distance of 88.5 km (55 miles).
    *Id.* Section 27.60(a) also requires a minimum D/U ratio of -23 dB
    at the equivalent hypothetical Grade B contour (41 dBu) of an
    adjacent-channel DTV station, and 23 dB at the equivalent
    hypothetical Grade B contour of a co-channel DTV station. *Id.*

[^15]: 47 C.F.R. § 27.60(b).

[^16]: 47 C.F.R. § 27.60(b)(1)(iii).

[^17]: Petition at 13-15.

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

[^19]: *Id.*

[^20]: *Id.* at 19.

[^21]: *Id.*

[^22]: *Id.* at 23.

[^23]: *Id.*

[^24]: *Id.*

[^25]: Pleading Cycle Established for Qualcomm Incorporated Petition for
    Declaratory Ruling, WT Docket No. 05-7, *Public Notice*, 20 FCC Rcd
    1293 (2005). Pursuant to a request from the Association for Maximum
    Service Television (MSTV) and the National Association of
    Broadcasters (NAB), the Bureau extended the deadlines for comments
    and reply comments in order to afford more time for interested
    parties to develop complex legal analyses and engineering studies.
    *See* Qualcomm Incorporated Petition for Declaratory Ruling, WT
    Docket No. 05-7, *Order*, 20 FCC Rcd 3594 (2005). Accordingly,
    comments were due March 10, 2005, and reply comments were due
    March 25, 2005. We also note that on November 1, 2005, the State of
    New York (New York) filed a request for waiver of section 90.545 of
    the Commission's rules, an analogous provision to section 27.60,
    that requires 700 MHz public safety licensees to protect incumbent
    TV/DTV broadcasters. On January 26, 2006, the Bureau sought comment
    on the New York request for waiver and specifically asked commenters
    whether the waiver was "an appropriate vehicle for considering
    approval of a system that is allowed to cause some amount of
    predicted interference to TV and DTV service, or whether this issue
    should be considered first in another context, such as the broader
    Qualcomm request that is pending before the Commission." *See*
    Wireless Telecommunications Bureau Seeks Comment on Request for
    Waiver of Television Interference Rules by the State of New York to
    Implement a 700 MHz Public Safety Communications System, WT Docket
    No. 06-18, *Public Notice*, 21 FCC Rcd. 336 (2006). While generally
    similar to Qualcomm's request in that relief from broadcaster
    protection criteria is sought, New York's request differs from
    Qualcomm's in certain key procedural and technical respects as
    follows: (1) New York seeks a waiver to implement 99 specific sites
    that in the aggregate it contends will cause "*de minimis*"
    interference to not more than one percent of the population served
    by each co-channel or adjacent channel TV/DTV station in the New
    York City area; (2) New York's estimates incorporate a reduction in
    population figures for cable/satellite penetration rates and viewer
    ratings; and (3) New York proposes to deploy a relatively low power,
    narrowband two-way mobile system. Because we are acting on
    Qualcomm's request as a waiver rather than a declaratory ruling
    establishing a *de minimis* interference exception, we do not find
    it appropriate to incorporate New York's Request for Waiver into
    this proceeding.

[^26]: Comments of Access Spectrum, LLC in WT Docket No. 05-7 (filed
    Mar. 10, 2005) (Access Spectrum Comments); Aloha Partners, L.P.,
    Comments in Support of the Qualcomm Petition for Declaratory Ruling
    in WT Docket No. 05-7 (filed Feb. 17, 2005) (Aloha Comments); Corr
    Wireless Communications, L.L.C.'s Comments in Support of Declaratory
    Ruling in WT Docket No. 05-7 (filed Mar. 8, 2005) (Corr Comments);
    Comments of Harbor Wireless, L.L.C. in WT Docket No. 05-7 (filed
    Mar. 10, 2005) (Harbor Wireless Comments); Comments of Motorola,
    Inc. in WT Docket No. 05-7 (filed Mar. 10, 2005) (Motorola
    Comments); Comments of the 700 MHz Advancement Coalition in WT
    Docket No. 05-7 (filed Mar. 10, 2005) (700 MHz Coalition Comments);
    Aloha Partners, L.P., Reply Comments in WT Docket No. 05-7 (filed
    Mar. 25, 2005) (Aloha Reply Comments); Reply Comments of the
    Association of Public Safety Communications Officials-International,
    Inc. (APCO) in WT Docket No. 05-7 (filed Mar. 25, 2005) (APCO Reply
    Comments); Reply Comments of the National Public Safety
    Telecommunications Council (NPSTC) in WT Docket No. 05-7 (filed Mar.
    25, 2005) (NPSTC Reply Comments); Qualcomm Incorporated, Reply
    Comments in WT Docket No. 05-7 (filed Mar. 25, 2005) (Qualcomm
    Reply).

[^27]: Joint Comments and Informal Objection of the Association for
    Maximum Service Television, Inc. and the National Association of
    Broadcasters to the Petition for Declaratory Ruling of Qualcomm
    Incorporated in WT Docket No. 05-7 (filed Mar. 10, 2005) (MSTV/NAB
    Comments); Comments of Cox Broadcasting, Inc. in WT Docket No. 05-7
    (filed Mar. 10, 2005) (Cox Comments); Comments of Flarion
    Technologies, Inc. in WT Docket No. 05-7 (filed Mar. 10, 2005);
    Comments of Pappas Southern California License, L.L.C. in WT Docket
    No. 05-7 (filed Mar. 10, 2005) (Pappas Comments). Joint Reply
    Comments of the Association for Maximum Service Television, Inc. and
    the National Association of Broadcasters to the Petition for
    Declaratory Ruling of Qualcomm Incorporated in WT Docket No. 05-7
    (filed Mar. 25, 2005) (MSTV/NAB Reply Comments); Reply Comments of
    the Association of Public Television Stations (APTS) in WT Docket
    No. 05-7 (filed Mar. 23, 2005) (APTS Reply Comments); Reply Comments
    of Media General, Inc. in WT Docket No. 05-7 (filed Mar. 25, 2005)
    (Media General Reply Comments); Reply Comments of Pappas Southern
    California License, L.L.C.. in WT Docket No. 05-7 (filed Mar. 25,
    2005) (Pappas Reply Comments); Reply Comments of WWWB-TV, Inc. to
    the Petition for Declaratory Ruling of Qualcomm Incorporated in WT
    Docket No. 05-7 (filed Mar. 25, 2005) (WWWB-TV Reply Comments). We
    note that on January 24, 2006, Flarion Technologies, Inc. withdrew
    its comments on the Petition, which had focused on the application
    of OET-69 to services outside the scope of relief sought by
    Qualcomm. Letter from Henry Goldberg, Counsel for Flarion
    Technologies, Inc. to Marlene H. Dortch, Secretary, FCC, *Ex Parte*
    in WT Docket No. 05-7 (filed Jan. 24, 2006).

[^28]: *See* Deficit Reduction Act of 2005, Pub. L. No. 109-171, 120
    Stat. 4 (2006) (DTV Act). Title III of the DTV Act establishes the
    DTV transition dates.

[^29]: *See* 47 C.F.R. § 27.60(b)(1)(iii).

[^30]: Qualcomm Petition at 12.

[^31]: *Id.* at 13.

[^32]: Qualcomm Reply at 9. Aloha Partners, L.P. (Aloha) argues that the
    MediaFLO technology is similar to LPTV, noting that the broadcast
    community uses OET-69 to evaluate interference *vis-à-vis* digital
    LPTV and TV translator station applications. Aloha Comments at 3.
    Qualcomm notes that the engineering methodologies used by Access
    Spectrum and Aloha in their respective requests for waiver are based
    on the 1986 Stanks Report for analysis of substantially narrower
    channel bandwidths than Qualcomm's proposed wider bandwidth MediaFLO
    technology. Qualcomm Petition at 14 n.26.

[^33]: Qualcomm Reply at 9.

[^34]: Qualcomm Petition at 16. The Part 27 D/U ratios for protection of
    broadcast television service are set forth in section 27.60(a) of
    the rules, 47 C.F.R. § 26.60(a). The minimum co-channel D/U ratios
    for Part 27 operation at the edge of a TV station's service contour
    are 40 dB for analog stations, 23 dB for DTV stations in channels in
    the range 52-59, and 17 dB for DTV stations on channels in the range
    60-68. The minimum adjacent channel D/U ratios for Part 27 operation
    at the edge of a TV station's service contour are 0 dB for analog
    stations and -23 dB for DTV stations. The Part 73 D/U ratios for
    DTV-to-other TV interference are set forth in section 73.623(c) of
    the rules, 47 C.F.R. § 73.623(c). The minimum co-channel ratios for
    modified DTV operations at the edge of a TV station's service area
    are 34 dB for protection of analog stations and 15 dB for protection
    of DTV stations. The minimum adjacent channel ratios for modified
    DTV operations at the edge of a TV station's service area are -14 dB
    (lower adjacent channel) and -17 dB (upper adjacent channel) for
    protection of analog stations and -28 dB (lower adjacent channel)
    and -26 dB (upper adjacent channel) for protection of DTV stations.

[^35]: MSTV/NAB Comments at 13.

[^36]: *Id.*, citing 47 C.F.R. §§ 73.613, 73.622, 73.623, 73.683,
    74.703, 74.705, 74.707 and 74.710.

[^37]: *Id.* at 14. In an Engineering Statement attached to MSTV/NAB's
    comments, Cohen, Dippell and Everist (CD&E) (CD&E Engineering
    Statement) asserts that "OET-69 was designed to predict interference
    resulting from the introduction of digital television service into
    the existing analog \[television\] environment." MSTV/NAB Comments,
    CD&E Engineering Statement at 4.

[^38]: MSTV/NAB Comments at 16.

[^39]: *Id.* MSTV/NAB also predict that Qualcomm's proposal would
    effectively reduce the protection ratios in section 27.60 by up to
    14 dB through the inappropriate use of a receive antenna factor
    built into OET-69. In its engineering statement submitted with
    MSTV/NAB's comments, CD&E notes that the vertical antenna pattern
    employed by Qualcomm's transmitters could be significantly different
    from the standard vertical antenna pattern used by TV stations. CD&E
    claims that using a vertical pattern different from the TV station
    pattern would significantly underestimate interference levels to the
    public's television service from Qualcomm's service. MSTV/NAB
    Comments, CD&E Engineering Statement at 9.

[^40]: MSTV/NAB Comments at 16-17. In particular, they contend that
    Qualcomm "would have free reign in interfering with viewers outside
    the contour, thus harming rural viewers who often reside in such
    areas." *Id.* at 17. CD&E asserts that "OET-69 was not designed to
    compute interference under strong signal conditions and lacks the
    appropriate parameters (D/U ratios) to correctly predict
    interference from co-located or nearby interferers." CD&E contends
    that the D/U ratios employed in OET-69 are applicable to computing
    interference at the outer edge of a TV station's service area (the
    Grade B contour for analog TV, the noise-limited contour for DTV)
    where weak signal conditions exist, and that those ratios are not
    adequate to predict interference within the service contour where
    strong signal conditions predominate. It further argues that using
    the section 27.60 D/U ratios, which are also based on weak signal
    conditions at the service area periphery, will lead to erroneous
    results. MSTV/NAB Comments, CD&E Engineering Statement at 4-6.

[^41]: MSTV/NAB Comments, CD&E Engineering Statement at 3; Letter from
    David L. Donovan, President, Association for Maximum Service
    Television, Inc. to Marlene H. Dortch, Secretary, FCC, *Ex Parte* in
    WT Docket No. 05-7, Presentation at 3 (filed Mar. 31, 2006)
    (MSTV/NAB Mar. 31 *Ex Parte*).

[^42]: Pappas Reply Comments, attached Engineering Statement prepared by
    Khanna and Guill, Inc. (K&H Engineering Statement) at 2-3. *See
    also* MSTV/NAB Comments at 17. Pappas also notes that the Commission
    recently applied a different engineering methodology (including the
    "Stanks Report") to a similar case involving a 700 MHz licensee,
    such that a straight application of OET-69 there would have yielded
    significantly different results. Pappas Reply Comments, K&G
    Engineering Statement at 3-4, citing, *e.g.,* Aloha Partners, L.P.
    Request for Waiver of Section 27.60, *Memorandum Opinion and Order*,
    20 FCC Rcd 3744 (2005) (*Aloha Order*) (Application for Review
    pending).

[^43]: Cox Comments, CD&E Engineering Statement at 3; Pappas Comments,
    Khanna and Guill, Inc. (K&G) Engineering Statement at 4.

[^44]: Pappas Comments at 12-13.

[^45]: *Id.* at 13.

[^46]: Qualcomm Reply at 10. Qualcomm observes that in the Notice of
    Proposed Rulemaking in the digital low power TV proceeding, the
    Commission stated that "\[o\]ur DTV prediction methods and computer
    model have been used for several years in the processing of
    applications for DTV and NTSC facilities." *See* Amendment of Parts
    73 and 74 of the Commission\'s Rules to Establish Rules for Digital
    Low Power Television, Television Translator, and Television Booster
    Stations and to Amend Rules for Digital Class A Television Stations,
    MB Docket No. 03-185, *Notice of Proposed Rulemaking*, 18 FCC Rcd
    18365, 18386 ¶ 45 (2003). Qualcomm points to several examples where
    the Commission evaluated LPTV applications for facilities located
    within the Grade B contour of an adjacent channel full service TV
    station, but not co-located with the adjacent channel stations,
    relying on OET-69 analyses. *See* *Mediacasting, LLC*, Application
    File No. BPTTL -- 20030307 ABS (Mar. 8, 2004); *MS Communications,
    LLC*, Application File No. BNPTTL -- 20000831 CD1 (Apr. 24, 2003);
    and *Cayo Hueso Networks, LLC*, Application File No. BMPTTL --
    20030627 ABN (Sept. 15, 2003). Qualcomm further cites several
    instances where the Commission evaluated applications for full
    service stations located within the Grade B contour of an adjacent
    channel full service station relying on OET-69 analyses. *See* KNTV
    License, Inc*.*, *Letter*, 19 FCC Rcd 15479 (2004); Amendment of
    Section 73.622(b), Green Bay, Wisconsin, *Report and Order*, 19 FCC
    Rcd 19719 (2004); Amendment of Section 73.622(b), Las Vegas, Nevada,
    *Notice of Proposed Rulemaking,* 14 FCC Rcd 11579 (1999).

[^47]: Qualcomm Reply at 10.

[^48]: *Id.* at 11-12. The RSS method first squares the signal strength
    levels of the individual signals to be aggregated, adds those
    values, and takes the square root of the sum. Correlation describes
    the case where the waveform patterns of two or more signals are the
    same, or essentially the same, and at the instant when they appear
    at the receive antenna are synchronized or very closely synchronized
    such that they add together algebraically.

[^49]: MSTV/NAB Mar. 31 *Ex Parte*, Presentation at 6 n.9. When signals
    are correlated, the peaks, lows, and intermediate levels of the
    individual signals will always coincide and so will add together to
    be a higher value on a continuous basis. The higher resultant signal
    level in this case is described by the simple linear addition
    method.

[^50]: Qualcomm Reply at 12-13. In these re-computations, Qualcomm used
    a Dielectric model TLP12A antenna system with one degree of
    electrical beam tilt. The results of this re-computation are
    described in the Qualcomm Reply, Attachment A.

[^51]: *Id.* at 13-14.

[^52]: *Id.* at 15-16.

[^53]: Letter from David L. Donovan, President, Association for Maximum
    Service Television, Inc. to Marlene H. Dortch, Secretary, FCC, *Ex
    Parte* in WT Docket No. 05-7 (filed June 13, 2006).

[^54]: Corr Comments at 2.

[^55]: Aloha Comments at 3; Motorola Comments at 4. MSTV/NAB criticize
    the applicability of the Stanks Report in that it is only designed
    to measure interference from a narrowband signal simulated from a
    land mobile station to an analog TV receiver. MSTV/NAB Reply
    Comments at 13. Additionally, they argue that the Stanks Report is
    outdated as it was based on pre-DTV-era equipment standards. *Id.*

[^56]: *See* Service Rules for the 746-764 and 776-794 MHz Bands, and
    Revisions to Part 27 of the Commission's Rules, *First Report and
    Order*, 15 FCC Rcd 476 (2000) (*Upper 700 MHz Report and Order*).

[^57]: 47 C.F.R. § 90.545(c)(1)(ii).

[^58]: *See* Development of Operational, Technical and Spectrum
    Requirements for Meeting Federal, State and Local Public Safety
    Agency Communications Requirements Through the Year 2010, *First
    Report and Order and Third Notice of Proposed Rulemaking*, 14 FCC
    Rcd 152, 224 ¶ 158 (1998) (*Public Safety Service Rules Order*).

[^59]: *See* *Lower 700 MHz Report and Order*, 17 FCC Rcd at 1046-48
    ¶¶ 54-57.

[^60]: *See* 47 C.F.R. § 73.623.

[^61]: Given that the MediaFLO transmitters will generally be located at
    different distances from receive TV antennas and the fact that there
    will be differences in the transmitters' operations such that their
    signals will not be fully synchronized, there should be no
    correlation of their signals. With uncorrelated signals, the
    instantaneous power in the signals is not synchronized. In such
    cases, the peaks, lows, and intermediate levels of the individual
    signals will add together to be a higher value when both signals are
    at high levels and cancel each other when one is at a high level and
    the other is at a low level. The RSS method is appropriate for
    determining the combined signal level in such cases.

[^62]: *See* MSTV/NAB Mar. 31 *Ex Parte*. The D/U values that MSTV
    suggests are based on the guidelines in the Advanced Television
    System Committee's (ATSC) "ATSC Recommenced Practice: Receiver
    Guidelines," Doc. A/74, 18 (June 18, 2004) (ATSC Receiver
    Guidelines), with an additional 5 dB added to adjust for the
    differences between the MediaFLO and ATSC transmission technologies
    and a sliding scale of adjustment from weak to strong levels. We
    note that the ATSC Receiver Guidelines specify D/U values for weak,
    moderate, and strong signal levels, and use the same D/U value for
    the weak and moderate levels (-33 dBm) and a higher value for the
    strong level (-20 dBm).

[^63]: *See* 47 C.F.R. § 73.623.

[^64]: *See* Amendment of Parts 73 and 74 of the Commission's Rules to
    Establish Rules for Digital Low Power Television, Television
    Translator, and Television Booster Stations and to Amend Rules for
    Digital Class A Television Stations, MB Docket No. 03-185, *Report
    and Order*, 19 FCC Rcd 19331, 19367-68 ¶¶ 102-105 (2004); *see also*
    47 C.F.R. §§ 74.703, 74.705, 74.707.

[^65]: In this regard, the Commission specified use of the section
    73.623(c) D/U ratios for protection of digital low power stations
    from analog low power stations.

[^66]: Qualcomm Petition at 16; Letter from Dean R. Brenner, Vice
    President, Government Affairs, Qualcomm Incorporated to Marlene H.
    Dortch, Secretary, FCC, *Ex Parte* in WT Docket No. 05-7 at 3 (filed
    June 20, 2006).

[^67]: Qualcomm also claims that MediaFLO will use an emission mask that
    is even more conservative than the Part 27 emission mask. However,
    it did not provide any specific technical information about the
    MediaFLO mask.

[^68]: MSTV/NAB Comments, CD&E Engineering Statement at 7.

[^69]: OET-69 at 9.

[^70]: MSTV/NAB Comments, CD&E Engineering Statement at 7.

[^71]: Qualcomm Reply at 14.

[^72]: MSTV/NAB Mar. 31 *Ex Parte* at 3.

[^73]: Letter from Dean R. Brenner, Vice President, Government Affairs,
    Qualcomm Incorporated to Marlene H. Dortch, Secretary, FCC, *Ex
    Parte* in WT Docket No. 05-7 at 3, 4 (filed Apr. 3, 2006).

[^74]: For example, the typical "rabbit-ear" tunable set-top TV antenna
    provides gain of 1 to 5 dB. *See* R.G. Fitzgerrell, "Indoor
    Television Antenna Performance," NTIA Rep. 79/28, NBS-9104386 Rep.,
    1979; *see also* 47 C.F.R. § 73.686.

[^75]: *See supra* ¶ 14, ¶ 14 n.52.

[^76]: Qualcomm Reply at 21. Qualcomm asserts that its proposal is
    consistent with the goals stated in a recent report from the
    Wireless Broadband Access Task Force. *Id.* at 21-22.

[^77]: Aloha Comments at 4; Corr Comments at 3; 700 MHz Coalition
    Comments at 8; Qualcomm Reply at 20. Corr further contends that
    households receiving a protected station via cable or satellite
    should be removed from interference consideration *vis-à-vis* the
    protected station, though the burden should be upon the 700 MHz
    entrant to show that the discounted households do not receive the
    station over-the-air. Corr Comments at 3.

[^78]: Aloha Reply Comments at 3, citing An Inquiry Into the Use of the
    Bands 825-845 MHz and 870-890 MHz for Cellular Communications
    Systems, and Amendment of Parts 2 and 22 of the Commission's Rules
    Relative to Cellular Communications Systems, CC Docket No. 79-318,
    *Memorandum Opinion and Order on Reconsideration*, 89 FCC.2d 58
    (1982).

[^79]: MSTV/NAB Comments at 10-11. *See also* Pappas Comments at 7.

[^80]: Pappas Comments at 8-9, citing Letter from W. Kenneth Ferree,
    Chief, Media Bureau to Barry A. Friedman, Counsel for KJLA(TV),
    Ventura, CA, 20 FCC Rcd 2389 (rel. Feb. 9, 2005). *See also* Media
    General Reply Comments at 4.

[^81]: MSTV/NAB Comments at 9.

[^82]: For example, according to APTS, the often-cited statistic that 15
    percent of U.S. households rely on over-the-air TV reception is
    actually closer to 19 percent nationwide. APTS Reply Comments at 3,
    citing *Federal Communications Commission Media Bureau Staff Report
    Concerning Over-the-Air Broadcast Television Viewers*, 2005 FCC
    LEXIS 1332, ¶ 7 (2005); Statement of Mark L. Goldstein, United
    States Government Accountability Office, Testimony Before the
    Subcommittee on Telecommunications and the Internet, Committee on
    Energy and Commerce, House of Representatives at 7 (Feb. 17, 2005).
    For its part, APTS contends that "broadcast-dependent households are
    more likely than not to be frequent public television viewers." APTS
    Reply Comments at 4.

[^83]: MSTV/NAB Comments at 20. *See also* MSTV/NAB Reply Comments at 7
    n.19.

[^84]: MSTV/NAB Reply Comments at 9.

[^85]: Cox Comments at 8, citing Carriage of Digital Television
    Broadcast Signals: Amendments to Part 76 of the Commission's Rules,
    CS Docket No. 98-120, *Second Report and Order and First Order on
    Reconsideration*, 20 FCC Rcd 4516 (2005). As a specific example, Cox
    notes that its affiliate in Oakland, CA, KTVU-DT, cannot rely on the
    fact that its full digital signal will be carried on cable. Cox
    Comments, Engineering Statement at 5. *See also* MSTV/NAB Comments
    at 20 n.56, and accompanying text.

[^86]: 47 C.F.R. § 1.925(b)(3).

[^87]: *Id.*

[^88]: *Public Safety Service Rules Order*, 14 FCC Rcd at 224 ¶ 158.

[^89]: 47 C.F.R. § 27.60.

[^90]: The Bureau has on two occasions, however, waived section 27.60 to
    allow for *de minimis* predicted interference to specific television
    stations by 700 MHz commercial licensees, because there would be
    either no loss of service, or very little loss of service coupled
    with a condition that the licensee must cure any actual
    interference. *See* Access Spectrum, LLC Request for Waiver of
    Section 27.60, *Memorandum Opinion and Order*, 19 FCC Rcd 15545
    (2004) ("*Access Spectrum Waiver Order*"); *Aloha Order,* 20 FCC Rcd
    3744*.* We also note that a 700 MHz licensee may obtain the written
    concurrence from a broadcaster accepting increased levels of
    interference, subject to Commission approval. *See* 47 C.F.R.
    § 27.60(b)(1)(iv). Qualcomm received such approval for service in
    Chicago, Illinois. *See* Letter from Barbara A. Kreisman, Chief,
    Video Division, Media Bureau, FCC and Roger S. Noel, Chief, Mobility
    Division, Wireless Telecommunications Bureau, FCC to Jennifer M.
    McCarthy, Vice President, Regulatory and Market Development,
    Qualcomm Incorporated (WPZA238, Chicago, IL, ULS File
    No. 0002395142), 21 FCC Rcd 4093 (rel. April 18, 2006).

[^91]: 47 C.F.R. § 73.623(c)(2); Advanced Television Systems and Their
    Impact Upon the Existing Television Broadcast Service, MM Docket No.
    87-268, *Memorandum Opinion and Order on Reconsideration of the
    Sixth Report and Order*, 13 FCC Rcd 7418, 7450 ¶ 79 (1998).
    Similarly, DTV stations can cause up to a 0.5 percent reduction in
    service population to a Class A TV station. *See* Establishment of a
    Class A Television Service, MM Docket No. 00-10, *Report and Order*,
    15 FCC Rcd 6355, 6387-88 ¶ 78 (2000).

[^92]: Second Periodic Review of the Commission's Rules and Policies
    Affecting the Conversion to Digital Television, MB Docket No. 03-15,
    *Report and Order*, 19 FCC Rcd 18279, 18298-99 ¶ 46 n.97 (2004).
    Recently, the Commission indicated that digital LPTV stations could
    provide predicted interference to full-power TV stations up to a
    predicted threshold of 0.5 percent (for rounding and calculation
    tolerance), while noting that digital LPTV stations are secondary to
    TV/DTV stations and must cure any actual interference. *See*
    Amendment of Parts 73 and 74 of the Commission's Rules to Establish
    Rules for Digital Low Power Television, Television Translator, and
    Television Booster Stations and to Amend Rules for Digital Class A
    Television Stations, MB Docket No. 03-185, *Report and Order*, 19
    FCC Rcd 19331, 19367 ¶ 103 (2004).

[^93]: We note that Qualcomm acknowledges that any Part 27 proposal
    would be further evaluated to determine that the cumulative
    interference caused to a full service TV or DTV station could not
    increase if it already receives more than 10% calculated
    interference. Engineering Exhibit in Support of Petition at 4.

[^94]: Qualcomm Reply at 23-24.

[^95]: Corr Comments at 4.

[^96]: *Id.* at 4-5.

[^97]: Motorola Comments at 5.

[^98]: MSTV/NAB Comments at 18, citing Reallocation and Service Rules
    for the 698-746 MHz Spectrum Band (Television Channels 52-59), GN
    Docket 01-74, *Report and Order*, 17 FCC Rcd 1022, 1081-1082
    ¶¶ 158-160. MSTV/NAB note that no party petitioned the Commission
    for reconsideration of that decision. MSTV/NAB Comments at 18.

[^99]: MSTV/NAB Reply Comments at 14, citing 47 C.F.R. § 1.939 (petition
    to deny may be filed "no later than 30 days after the date of the
    Public Notice listing the application or major amendment to the
    application as accepted for filing").

[^100]: Pappas Comments at 14-17. Pappas also argues that Qualcomm's
    reliance on forbearance precedent is inapposite to the streamlining
    that Qualcomm requests. *Id.* at 15-16, citing Federal
    Communications Bar Association's Petition for Forbearance from
    Section 310(d) of the Communications Act Regarding Non-Substantial
    Assignments of Wireless Licenses and Transfers of Control Involving
    Telecommunications Carriers, and Personal Communications Industry
    Association's Broadband Personal Communications Services Alliance's
    Petition for Forbearance for Broadband Personal Communications
    Services, *Memorandum Opinion and Order*, 13 FCC Rcd 6293 (1998)
    (*Forbearance Order*). According to Pappas, the streamlining
    affirmed by the *Forbearance Order* applied to *pro forma*
    assignments of licenses and transfers of control of licenses, which
    have no correlation to reviewing complex engineering submissions and
    assessing real harm to quality of service for broadcasters that are
    not undergoing assignments or transfers of control. *Id.*

[^101]: Pappas Comments at 16. Qualcomm disagrees with Pappas's
    counter-proposal requiring good-faith negotiations before the filing
    of an application, arguing that such discussions are inevitable and
    a requirement would be unnecessarily dilatory. Qualcomm Reply at 24.

[^102]: Pappas Comments at 16-17.

[^103]: 700 MHz Coalition Comments at 7.

[^104]: In its pleadings, Qualcomm anticipated that, consistent with
    Commission precedent, a waiver would be necessary anytime the
    proposed operation would fail to meet the D/U ratios in section
    27.60, independent of its engineering showing. *See* Qualcomm Reply
    at 22-23.

[^105]: MSTV/NAB Comments at 5-6, citing 5 U.S.C. § 553(b). MSTV/NAB
    also note that the Public Notice seeking comment on Qualcomm's
    Petition was not published in the Federal Register. MSTV/NAB
    Comments at 7; MSTV/NAB Reply Comments at 20. They point to a recent
    judicial decision where the D.C. Circuit affirmed the principle that
    a change to a legislative rule is valid only if it satisfies the
    notice-and-comment requirements of the Administrative Procedure Act
    (APA), including publication of notice in the Federal Register.
    MSTV/NAB Reply Comments at 16, citing *USTA v. FCC*, 400 F.3d 29
    (D.C. Cir. 2005).

[^106]: MSTV/NAB Comments at 6.

[^107]: *Id.* at 13.

[^108]: *Id.* at 7. According to MSTV/NAB, this would create a "new
    right" for Qualcomm and other 700 MHz entrants just as a legislative
    rule "creates new law or imposes new rights or duties," as explained
    in *Hobbs v. U.S.*, 947 F.2d 941 (1991). *Id.* at 7 n.17.

[^109]: *Id.* at 7.

[^110]: Cox Comments at 5. Cox asserts that no party opposed the
    provision of full protection to Lower 700 MHz Band television
    stations during the creation of service rules. *Id.*, citing
    Reallocation and Service Rules for the 698-746 MHz Spectrum Band
    (Television Channels 52-59), GN Docket No. 01-74, *Notice of
    Proposed Rulemaking*, 16 FCC Rcd 7278, 7303 ¶ 52 (2001). APTS and
    Media General, Inc. also argue that Qualcomm's Petition is
    procedurally flawed, on the general principle that the Petition
    seeks a legislative rule change, where a notice-and-comment
    rulemaking would be the proper avenue for relief. APTS Reply
    Comments at 2; Media General Reply Comments at 2.

[^111]: Qualcomm Reply at 4.

[^112]: *Id.* at 19.

[^113]: *Id.*

[^114]: *Id.* at 22, citing 5 U.S.C. § 553(b)(3)(A). Aloha also contends
    that there would be no procedural flaw in granting the Petition.
    *See* Aloha Reply Comments at 2-3, citing *Radio Athens, Inc. (WATH)
    v. FCC*, 401 F.2d 398, 404 (D.C. Cir. 1968).