STATEMENT OF COMMISSIONER
KEVIN J. MARTIN
Dissenting in Part and Approving in Part  

RE:	Amendment of Parts 2 and 25 of the Commissions Rules to Permit Operation of 
NGSO FSS Systems Co-Frequency with GSO and Terrestrial Systems in the Ku-Band 
Frequency Range (ET Docket No. 98-206; RM-9147 and RM-9245); Amendment of the 
Commissions Rules to Authorize Subsidiary Terrestrial Use of the 12.2-12.7 GHz Band 
by Direct Broadcast Satellite Licensees and Their Affiliates; and Applications of 
Broadwave USA, PDC Broadband Corporation, and Satellite Receivers, Ltd. to Provide A 
Fixed Service in the 12.2-12.7 GHz Band.
   
   After several years and thousands of pages of debate, today the Commission finally acts on 
Northpoints application.  I am glad we are finally moving forward.  I am glad that the majority is 
revealing its technical criteria for introducing MVDDS service into the 12 GHz band.  
   
   I fear, however, that the Commission is placing too much of the burden of MVDDS deployment on 
the backs of DBS licensees and their customers.  The arbitrary nature of the technical requirements in this 
item are both disappointing and troubling.  By law, DBS service is entitled to protection from harmful 
interference.   Even more important, existing DBS customers deserve to be protected from unreasonable 
interference.  This item does neither.  Indeed, today the majority rejects language it adopted only a few 
weeks back proclaiming that all DBS customers, regardless of which satellite(s) they are using, are 
entitled to interference protection.   While I admire their elimination of any such pretense and appreciate 
their candor, I am disturbed by the implications of this viewpoint.      
   
   I believe that all DBS customers are entitled to interference protection.  I support a 10% limit per 
service area for increased interference caused by MVDDS.  A 10% limit strikes a reasonable balance 
among the services sharing this band.  Indeed, in the version of the Order adopted on April 11th, the 
majority seemed to agree.  At that time, they announced at least eight times that the technical 
requirements which they were adopting would limit the outages caused by MVDDS to 10% over the 
baseline.    The majority further concluded in the April 11th version that this 10% criterion was the 
appropriate measure because it would ensure that any interference caused to DBS customers will not 
exceed a level that is considered permissible.   I was encouraged by this language in the Order.  I was 
concerned however, because the complex methodology contained in the Appendix, which was used to 
implement the 10% criterion in the Order, resulted in actual levels of interference higher than 10% - 
even double or triple those levels - to vast numbers of DBS customers.  I distributed a detailed statement 
to my colleagues explaining my support for the 10% limit contained in the Order, but my concerns with 
the implementation of that limit as reflected in the Appendix.  
   
   I was hopeful that in response to my statement, the majority would adjust the implementation 
methodology in the Appendix to comply with the 10% limit they had concluded was appropriate in 
the text of the adopted Order.  Instead, they did the opposite.  They chose, post-adoption, to change the 
language of the adopted Order to coincide with the implementation methodology in the Appendix.  
Frankly, I am a little surprised that my colleagues were more familiar with the complex implementation 
methodology found in the Appendix and that it more accurately reflected their conclusions than the 
simple and straightforward 10% limit contained in the Order.    
   
   Regardless of my surprise, I appreciate their adjustment of the Order to conform to the Appendix.  In 
the post-adoption version of the Order, the former 10% limit is now merely a starting point for an 
analysis.  Indeed, they now proclaim that increased interference as high as 20-30% is acceptable,  and 
that even higher percentage increases in unavailability in the range of 30% or higher would still 
constitute a relatively minor change.   I am surprised by this change in language and in tone.  And I am 
disturbed by their removal and rejection of the basic principle that all DBS customersare entitled to 
interference protection.            
   
   I find the choices made by my colleagues to be curious, at best.  Why would they allow harmful 
interference to some DBS customers and reject any practical limit on interference to existing DBS 
customers?  Why would they claim to implement a percentage-based interference approach without 
actually picking a specific harmful or even permissible interference percentage?  My colleagues now 
express that there is no technical way to achieve a 10% limit.   Why, then, after declaring just weeks 
ago that a 10% limit is the appropriate and correct measure of the burden that should be placed on 
DBS customers, would the majority change their minds post-adoption to reject the once appropriate and 
correct 10% limit and convert it to merely a starting point?  And, if the majority believes that in the 
range of 10%  means 20-30%,  then does in the range of 30% or higher  mean 60-90%?  Why do 
they prefer to keep us guessing?  Why, after originally concluding that a 10% limit strikes a reasonable 
balance, do they now emphasize five times post-adoption that seemingly any amount of MVDDS-related 
interference is balanced by the ability of MVDDS to deploy?    Unfortunately, these questions seem to 
lead to only one conclusion: the majoritys technical requirements are driven by a desire for MVDDS 
deployment, regardless of cost to DBS licensees and their customers.
   
   I have often expressed my belief that we should proactively seize opportunities to encourage, and 
even insist on, more efficient use of current spectrum, particularly through sharing.  But the Commission 
must do so in a manner that protects the rights of existing licensees and their customers.  At the very least, 
we should be clear about the levels of protection we are providing.  As we exploit new technological 
opportunities for sharing, we must carefully weigh the costs, and ensure that the harms do not outweigh 
the benefits.  Unfortunately, todays Order fails to strike an appropriate balance.  It places too much of the 
burden of MVDDS deployment on the backs of DBS licensees and their customers.  It rejects any 
interference limits.  It injects uncertainty into the spectrum market.  Accordingly, I dissent from the 
majority of this decision.   
     
   
The Adopted Technical Parameters are Arbitrary and Capricious
   
   Agencies are required to act in a reasoned fashion  not arbitrarily and capriciously.  The Commission 
must explain its actions  and its explanation must reflect reasoned decision making.    Unfortunately, I 
believe this Order does not reflect sufficiently reasoned decisionmaking.
   
   One of the Commissions most important responsibilities related to spectrum management is to define 
the interference parameters under which licensees may operate. The Commissions rules define harmful 
interference generally as interference which seriously degrades, obstructs, or repeatedly interrupts a 
radiocommunication service.  Both by statute and under the Commissions rules, MVDDS is prohibited 
from creating harmful interference to the DBS service.   And, as the majority states, it is of primary 
importance that these technical requirements do not cause MVDDS-interference to exceed a level that 
is considered permissible.   Yet the majority will not reveal to us what that important permissible 
level actually is.  Instead, the majority asserts, with confidence, that the adopted rules will limit 
interference potential from MVDDS to a level that does not rise to harmful interference.   I am not so 
confident.
   
   The original version of the item, as it was adopted on April 11, emphasized at least eight times that a 
10% limit on such interference is the appropriate measure of the burden that should be placed on 
DBS customers.   Post-adoption, however, the majority has deleted from the item all references to a 
10% limit.  Post-adoption, they decided to change the original 10% limit to a 10% starting point  
for the interference analysis.  And, in their new version of the Order, the possibilities for MVDDS 
interference seem limitless.  Indeed, the majority now concludes that the additional service outage that 
may result here over and above the 10% starting point falls within the permissible level.   Without 
defining permissible level, they now simply characterize the resulting interference - even interference 
that is more than double or triple 10% - as approximately, on average, about, and in the range of 
10%, and therefore permissible.   Such hasty and dramatic changes, and continued refusal to adopt any 
limit on interference, do not, at least to me, seem to reflect careful and reasoned decisionmaking. 
   
   The Order sets certain EPFD  levels that that are no longer keyed to guarantee a specific level of 
interference protection.   Rather than setting an interference limit, the majority announces that these 
EPFD levels are based on 10% as a starting point for an increase in DBS outages caused by 
MVDDS.   However, as reflected in Appendix G, the method used to calculate the EPFD levels is so 
unrelated to actual interference levels experienced by vast numbers of consumers that it appears to be 
arbitrary.  As explained in more detail in my own Appendix, the methodology used to implement the 
10% starting point only exacerbates the majoritys failure to limit interference.  The EPFD levels are 
calculated using a complex, underinclusive, double-averaging approach that further removes the 10% 
starting point from 10%.  The calculations exclude altogether two out of the five orbital slots through 
which DBS service is provided, and they count only the top 32 television markets.  Then the majority 
averages the level of interference across the three selected orbital slots.  On top of this, the majority again 
averages those satellite interference averages within each of four Commission-constructed regions 
(which consist of anywhere from seven to 23 states), based on the results of the 32 selected cities.  
   
   As a result of this complex implementation methodology, increased interference caused by MVDDS 
is usually higher than 10%.  Appendix G reveals that, as a result of the implementation scheme, DBS 
customers in 31 out of the 32 television markets from which the majority basis its interference 
calculations will experience increased interference higher than 10%.  The new additional city analysis 
in Appendix G shows that customers in 11 out of the 12 additional cities will also experience outage 
increases higher than 10%.   And for many customers in the top television markets alone, the actual 
increases in interference will be double and triple the 10% starting point referenced in the order.  For 
example, by the Commissions own estimates, some DBS customers in Seattle will experience more than 
a 30% increase in unavailability, translating to over 45 additional hours of outages annually caused by 
MVDDS.  Other DBS customers in Portland, San Francisco, Washington D.C., Pittsburgh, Philadelphia, 
New York, Boston and Nashville all will experience a 23-30% increase in DBS unavailability caused by 
MVDDS.   
   
   More fundamentally, however, it is not clear to me why any customer should be subject to 
interference greater than the 10% limit originally adopted by the majority.  Indeed, a few weeks ago, 
the majority believed that a 10% outage increase was defensible because such a limited interference 
increase is not perceptible to the DBS customer in most cases.   (Now it seems they believe that 
regardless of the percentage increase, the interference will be imperceptible and insubstantial. )
   
   I support a 10% interference limit per service area.  Indeed, MITRE, the Commissions own expert, 
recommends allowing no more than a 10% increase in MVDDS-related outages per service area.   And, 
instead of averaging the satellite calculations, MITRE recommended using only the DBS satellite at each 
longitude having the largest baseline unavailability.   The majority fails to explain sufficiently why it 
rejected these recommendations and proposals.  
   
   Even the Further Notice asked whether the Commission should allow MVDDS to cause up to 10% 
increased unavailability, which, as was explained, is the same criteria developed by the ITU-R for 
interference from all NGSO FSS systems.   I do not agree with the suggestion of my colleagues that the 
approximately 10% measure as used by the majority either echoes the international approach to 
NGSO/DBS sharing.   The 10% NGSO/DBS sharing criteria is an aggregate measure- a maximum limit - 
quite the opposite of the 10% starting point used here.   Although the majority no longer seems to feel 
constrained by any upper limit, I have outlined in my own Appendix some reasonable measures that could 
have been implemented to at least keep interference much closer to their new 10% starting point, and 
additional arguments and concerns regarding the majoritys Appendix G.
        
   The majority recently implemented a safety valve to address some of my concerns.  The item now 
allows DBS licensees to present evidence that the appropriate EPFD for a given service area should be 
different from the region wide EPFD level.  However, there is no guidance as to how much interference 
would cause the majority to trigger that safety valve.  Apparently, even interference in the 20-30% range, 
or even higher than 30%, would not be enough.  Moreover, the fact that a safety valve is necessary is 
recognition of the fact that the proposed interference scheme will not adequately protect DBS consumers 
in all parts of the country.
   
   I find the majoritys failure to limit MVDDS-related interference to DBS customers troubling.  It is 
arbitrary to allow such varying and unlimited levels of interference to different groups of DBS subscribers 
particularly where, as explained in my Appendix, some more reasonable measures are available.  In a 
separate context, the agency was recently chided for failing to provide clarity as to its choice of the 
appropriate interference threshold.   The court found the omission of an explanation to be 
particularly troubling because the test data relied upon by the Commission did not include a 
representative real-world sampling.   I fear the Commission is repeating those mistakes.  
   
   
The Technical Rules are Contrary to Law 

	The approach taken by the majority is contrary to statute, and contrary to the fundamental 
principle that existing co-primary spectrum users are protected from harmful interference that may be 
caused by later-in-time co-primary users. 

	The Rural Local Broadcast Signal Act requires the Commission to ensure that MVDDS 
licensees do not cause harmful interference to the primary users of the spectrum occupied by DBS 
operations.   Despite this statutory directive, the Order allows MVDDS licensees to cause harmful 
interference to significant numbers of DBS subscribers.  The rule adopted today only prohibits harmful 
interference during the initial deployment to existing customers.  However, the Order allows MVDDS 
licensees to cause harmful interference to new DBS subscribers.   Consumers living in proximity to an 
MVDDS transmitter may be subject to so much interference from MVDDS that as a practical matter, they 
are excluded from having even the choice of DBS service.   Indeed, new DBS customers shall have no 
further rights of complaint against the MVDDS licensee.   The majority has recently added language to 
the Order expressing its belief that new DBS licensees can take modest measures, e.g., siting and 
shielding steps or use of a larger antenna, to account for the presence of an MVDDS signal.   However, 
the majority does not dispute that there still may be exclusion zones where consumers will not be able to 
receive DBS service due to MVDDS interference, despite such measures.  The Order also allows 
MVDDS licensees to cause harmful interference to pre-existing DBS subscribers after one year of 
MVDDS operation, even if the increased interference is caused by a change in the MVDDS operation.   
And, the Order allows MVDDS licensees to cause harmful interference to pre-existing DBS subscribers 
who decide to move to a new location where there is a pre-existing MVDDS transmitter.  Similarly, the 
Order allows MVDDS licensees to cause harmful interference to pre-existing DBS subscribers who may 
not have provided notification of interference in the one-year complaint deadline.  

   In addition, the majoritys decision to protect only existing DBS subscribers for one year is also 
contrary to the MITRE report, which recommends that future DBS customers be protected for as long as 
the MVDDS transmitter operates.   I am disappointed that the majority rejected MITREs 
recommendation to place interference limits on MVDDS operation going forward. 

	The approach is also contrary to the Commissions own rules and precedent.  The definition of 
harmful interference in the Commissions own rules is not limited to blanketing interference.  On its 
face it includes serious degradation, obstruction, or repeated interruption of a radiocommunication 
service.   It does not depend on averages.    

	Moreover, this scheme is a significant departure from the established principle that 
new users of spectrum must not impede or interfere with existing uses that serve the public 
interest.   This first in time, first in right doctrine, which the Commission has described 
as the mainstay of interference protection  has long governed the sharing of frequencies 
by co-primary licensees:

Under our first-in-time rule, the first co-primary licensee is entitled to 
protection from harmful interference by subsequent licensees. . . . [T]he 
subsequent licensees . . . have the option of sharing spectrum . . . , 
provided that they do not cause harmful interference to the incumbents. 
      The majority is violating this fundamental principle by allowing MVDDS, the 
second co-primary licensee, to cause harmful interference to DBS.  Inexplicably, the 
majority narrowly applies the first in time rule only to existing DBS customers, and not to 
the DBS licensees, which obtained their licenses first, and have already expended several 
billion dollars to construct, launch and run satellite systems that operate throughout the 
entire United States.  The majority further departs from the first in time rule by allowing 
protection for even those current customers for only one year.  I find such limited 
protection for existing licensees to be quite troubling.  Indeed, this would be akin to telling 
cell phone service providers that, in order to make room for a new competitor, they are 
suddenly entitled to limited interference protection for only their current customers.  And, 
by the way, those current customers are entitled to protection for only one year.  I cannot 
support such an approach.     
   
   
This Order Unduly Burdens DBS Subscribers

   This order unfairly places the burden of MVDDS deployment on the backs of DBS licensees and their 
customers.  These rules are unfair to DBS customers, who have purchased a dish and have contracted for 
service based on the expectation of a certain level of reliability.  These subscribers are left with no idea 
regarding how much additional interference the majority would be willing to permit.  The rules are unfair 
to consumers who wish to purchase DBS service in the future, but who may now be blocked from having 
that choice as a result of MVDDS deployment.  They are unfair to DBS licensees, who have invested 
tremendous resources to construct and operate a system without the opportunity to build into its costs the 
additional level of interference, and potential exclusion zones, that may now be caused by the MVDDS 
service.

   The asserted justification for this scheme is simplicity, clarity and ease of implementation.   I 
believe it would be much more simple and straightforward to have a hard and fast interference limit than a 
scheme that arbitrarily sanctions varying, and unpredictable, amounts of additional interference to 
different consumers.  Moreover, the safety valve process will undermine the simplicity they advocate.   
Providing a standard EPFD limit, and then allowing case-by-case and service area-by-service challenges 
to those EPFD limits if the limits are not appropriate will create a series of challenges that the 
Commission will still have to resolve.  Such a process is far from simple, clear, or easy.  Simplicity of 
process, clarity of decision making, and achievement of an easy implementation standard that protects 
consumers from unreasonable interference all dictate in favor of establishing a clear, consistent, and 
rational interference limit in each service area up front.
   
   To add insult to injury, the MVDDS licensee may begin operations even in the face of a protest by the 
DBS licensee that the required EPFD levels in the order will not be met.  The complaint procedures set 
forth in the order do not allow for a Commission resolution of a dispute prior to the MVDDS licensee 
turning on its system.  Furthermore, there is no expedited complaint resolution procedure in place to 
quickly resolve such an allegation even after MVDD has turned on its system.
   
   I do not believe that such a scheme is in the public interest.  There is always a varying degree of 
commercial risk in any business venture.  The Commissions decisions should strive to minimize the 
amount of regulatory risk faced by the industry, by promoting predictability and regulatory certainty.  I 
fear that this order injects uncertainty into the spectrum market.  Allowing such a significant change to the 
spectrum environment has undermined the commercial decisions made by DBS licensees in purchasing 
their spectrum and building out their systems.  Moreover, as the majority continues to be silent with 
respect to precisely how much interference they will be willing to permit, both DBS and MVDDS 
licensees will waste resources making decisions based on guesswork.  Creating such uncertainty will 
negatively impact the market for spectrum going forward.

Service Areas
   
   The majority attempts to justify the interference caused to DBS with the assertion that such harms are 
outweighed by the potential benefit to the public of providing for a new potential competitor in the 
multichannel video and data markets.   However, it is not clear that the adopted licensing approach will 
promote such competition.  In order to compete effectively with cable and DBS service, MVDDS will 
need to be able to offer local broadcast service.  The majority observes that most MVPD service remains 
local or regional service,  and notes that MVDDS is technologically well suited for fulfilling the local 
signal delivery goals of RLBSA.   The majority spends some time discussing how MVDDS may be 
used to fill a void with respect to local broadcast service.   Yet if the majority had wanted to take 
advantage of this capability and wanted to promote the carriage of local broadcast signals, it should have 
chosen service areas corresponding to local television markets.  The obvious choice would have been the 
211 designated market areas (DMAs), which correlate directly to those local television markets.  Instead, 
the majority has chosen much smaller service areas  354 Component Economic Areas (CEAs).   This 
approach makes it more difficult for MVDDS licensees to carry local broadcasts because it may have to 
acquire multiple CEAs to cover one local television market.  Furthermore, depending on how the CEA 
boundary is drawn, there may be subscribers from more than one local television market in a given CEA, 
adding to the difficulty.  
   
   The reasons offered by the majority against employing DMAs seem odd.  The Order notes that 
Nielsen is the copyright owner of the DMA listing and has not given the Commission a blanket license 
to use its copyrighted DMA listing for MVDDS.     However, a quick check of the Nielsen website 
reflects that Nielsen has granted all members of the public use of their papers and publications (which 
would include their DMA listing and DMA map of local markets) as long as that material is used only for 
non-commercial purposes.   So it seems that the Commission could, in fact, use the copyrighted DMA 
listing for the non-commercial purpose of dividing the country into service areas.  At the very least it 
would seem worthwhile simply to ask Nielsen whether Nielsen would consider such a use of the DMA 
listing to be a copyright violation.
   
   The majority next states that, although some potential MVDDS licensees favor DMA-based service 
areas,  the decision not to employ DMAs is for their own good.   They state that rejecting DMAs will 
protect MVDDS licensees against possible claims of copyright infringement that may be brought by 
Nielsen.   It is not obvious how simply holding a license with specific geographic boundaries based on 
DMAs would subject a licensee to a claim of copyright infringement.  The majority offers no legal 
analysis to support this strange conclusion.  Given the advantages of using service areas based on local 
television markets, it would seem worthwhile to think more carefully about the rationale for rejecting 
DMAs.  
   
   
Competitive Bidding
   
   This item concludes that by statute, we are required to auction mutually exclusive applications 
submitted by potential MVDDS licensees.  Compelling statutory, policy and equitable arguments were 
made both in support of auctions and against them under these circumstances.  The arguments favoring an 
auction rely primarily on Section 309(j) of the Communications Act, which mandates that the 
Commission grant mutually exclusive applications through competitive bidding.   On the other hand, 
Northpoint argues that, consistent with its statutory obligation to avoid mutual exclusivity generally,  the 
Commission should reject applications from any entity other than Northpoint because it is the only 
potential licensee that has complied with the independent testing requirement of the LOCAL TV Act.   
Alternatively, Northpoint argues that the ORBIT Act bars an auction because that same spectrum is used 
for the provision of international or global satellite communications services.   Northpoints most 
recent application to provide satellite service on those frequencies bolsters this argument.  As a general 
policy matter I agree that competitive bidding can be a useful mechanism for distributing licenses, but 
auctions are not a goal in and of themselves.  For me, this was a very close call, and it is with some 
difficulty that I support the recommended decision to support auctions in this case.  I am sensitive, 
however, to the impact that the Commissions lengthy delay has had on all the parties to this proceeding, 
and proceed today to avoid the harms resulting from even further delay.

Conclusion
   
   The Commission should always work hard to promote creative and innovative uses of spectrum.  
Indeed, as I have said before, one of the Commissions objectives should be to create incentives for the 
efficient utilization of spectrum at every given point in time, by both established users and new entrants.  
However, it should exercise particular care in the implementation of schemes that will impact existing 
licensees and their customers.  All DBS licensees and their customers are entitled to interference 
protection.  The Commission should take an approach which specifies rational and defensible interference 
limits, and then clearly and simply implements those limits.  The public deserves no less.  Yet this Order 
sanctions the severe disruption of DBS service for an untold number of consumers when some additional 
reasonable limits could have been adopted.  I am disappointed that the majority has taken this approach.  
Accordingly, I must dissent.   
   

APPENDIX
   
   
   The originally adopted April 11th version of the item contained language in the Order limiting 
MVDDS-related interference to 10%.  While I supported a 10% interference limit, I criticized the 
implementation methodology in Appendix G because it failed to result in an actual 10% limit.  In 
response to my criticism, the majority has, post-adoption, eliminated any interference limit, and is now 
using 10% as a starting point for their interference analysis.  As explained in my statement, I find the 
majoritys dramatic shift in viewpoint and unwillingness to place any limits on MVDDS-related 
interference to be disturbing.  
   
   The methodology used to implement the 10% starting point only exacerbates the majoritys failure 
to limit interference.  The EPFD levels are calculated using a complex, underinclusive, double-
averaging approach that further removes the 10% starting point from 10%.  The calculations are 
underinclusive in two fundamental respects.  First, they exclude altogether two out of the five orbital slots 
through which DBS service provided.  Second, they count only the top 32 television markets.  The 
majority then further distances the results from 10% by averaging the level of interference across the three 
selected orbital slots.  On top of this, the majority averages those interference averages within each of 
four Commission-constructed regions (which consist of anywhere from seven to 23 states), based on 
the results of the 32 selected cities.  The Order concludes that the MVDDS licensee need only meet this 
underinclusive, double-averaged EPFD level when it initially deploys.  As long as it meets this initial 
threshold, there is no cap on the actual amount of interference from MVDDS that DBS customers may 
experience.   
   
   For example, the calculations exclude entire states with high DBS penetration rates and unique 
geographic characteristics, such as Montana (where an estimated 39% of the television households 
subscribe to DBS), Maine (with a 24% penetration rate), Louisiana (with a 19% penetration rate), and 
Alaska (with a 15% penetration rate).   Indeed, half of the Nations population, and most of the Nations 
geography, is not considered in calculating the appropriate interference protection standards.  This is 
particularly troubling because DBS is such an important service to the millions of consumers who live in 
rural areas and do not have access to cable.  Yet those are the very subscribers whose interference levels 
are not directly considered when evaluating whether the new service meets the range of 10% additional 
outage level the majority has now deemed appropriate.  
   
   I find quite perplexing their rejection of even reasonable measures to at least keep MVDDS-related 
interference closer to their new 10% starting point.  For example, the majority rejected the following 
measures:       
   
   1.  The majority rejected consideration of two orbital slots.  	

   The majority could have considered all of the orbital slots used to provide DBS service to consumers 
in the United States, instead of calculating EPFD levels based on the results for only three of those slots.   
Thus, customers receiving service from the excluded satellites (located at 61.5and 148) could 
experience significantly more interference than the 10% starting point.  
   
   Only limited sample data is provided for the satellites at 61.5and 148.  The majority explains that 
the three selected slots provide the majority of service to DBS subscribers today.   Even if this is true, 
this does not explain why it is reasonable or legally defensible to ignore altogether the interference caused 
to the subscribers purchasing service from the excluded satellites.  Echostar has stated on the record that it 
serves over 400,000 thousand subscribers from those two satellites.   Moreover, the majority itself 
acknowledges protection for these other satellites is essential because at least one service provider, 
Dominion, operates solely from the satellite located at 61.5, and also because the other DBS 
licensees could shift programming to make heavier use of [those] satellites  in the future.   
   
   Furthermore, the conclusory opinion that the specified EPFD levels will also protect these 
[excluded] orbital locations  seems contrary to the sample results in Appendix G  which reveal an 
additional 45 hours of additional annual outage to DBS subscribers in Seattle using one of those other 
satellite slots.  MITRE recommended excluding only the locations with more than 100 hours of baseline 
unavailability.   The Order fails to explain why this would not have been a more appropriate standard.  
Indeed, the majority even cites to this MITRE recommendation in attempting to justify its failure to 
consider the 45 additional outage hours in Seattle.   But the majority cant have it both ways.  If the 
majority believes it is justifiable based on MITRE to exclude Seattle from protection, then it is equally 
imperative, based on MITRE, to include all locations with less than 100 hours of baseline availability.  
Considering all of the satellites would cause fewer DBS customers to experience increased interference 
greater than 10%.
   
2.	The majority rejected basing its EPFD calculations on the satellite with the largest 
baseline unavailability.
   
   The majority could have chosen the satellite with the largest baseline unavailability as the basis for its 
EPFD calculations.  Instead, the majority averages the results for the three chosen satellites, further 
distancing the 10% starting point from 10%.  The majority defends this choice with the following non 
sequitur: Averaging ensures that the EPFD for neither the worst case nor the best case satellite 
predominates.   Yes  obviously, averaging ensures such a result.  But this still does not explain why 
it is reasonable to allow even more increases in outage.  MITRE did not recommend averaging, and 
instead recommended using the satellite with the largest baseline unavailability.   Under the MITRE 
approach, fewer DBS customers would experience increased interference greater than 10%.  
   
   3.	The majority rejected utilizing data from more cities and towns.
   
   The majority could have utilized data from more cities and towns.  The EPFD levels are based only 
on 32 cities in the entire nation.  They are the top 32 television markets  no other city or town is 
averaged into the calculation.   Consumers in entire states do not even get counted in the averaging 
process.   Approximately 55% of the nations population lives in those 32 cities.   This means 45% of 
the nations population is left out of the process.  Ironically, consumers in rural areas, who are likely to 
benefit most from both DBS and MVDDS service because they may not have access to cable, are the very 
consumers who are left out of the calculations altogether.  The majority recently added language to 
defend this limited sampling, stating that: choosing a limited number of representative satellite links for 
analysis purposes to determine an appropriate EPFD or similar value is an acceptable engineering and 
scientific approach.   While this may be true for some purposes, it is equally clear that such an approach 
is not acceptable here, where the methodology does not result in EPFD levels that provide any upper limit 
on increased DBS outages.  
   
4.	The majority rejected basing its EPFD calculations on a wider variety of geographic 
areas.
   
   The majority could have taken data from a wider variety of geographic areas.  The majoritys 32-city 
approach excludes enormous geographic areas of the country, including all of Alaska and all of Hawaii, 
from the process.  However, the EPFD levels and interference effects are very sensitive to rain models 
and geography, which vary dramatically from across geographic areas and from city to city.   After 
acknowledging that EPFD levels vary across geographic conditions, I am confused as to why the majority 
picks such a small geographic sample, and ignores states with unique characteristics.  
   
   The majority contends that the additional precision that would be provided by analyzing additional 
or other locations is unnecessary and unlikely to be significant given other factors, such as, the large 
variability that already exists in rainfall patterns from season to season and year to year.   Strangely, the 
majority seems to be defending a less precise methodology for MVDDS interference calculations based 
on the variability of non-MVDDS factors.  
   
   The majority further contends that the results of those 32 cities in fact apply to much larger 
areasbecause satellite signal strength and rainfall patterns tend to change only gradually over great 
distances.    Therefore, the majority continues, the results for New York and Philadelphia reasonably 
apply for the areas between those cities [as they do] for Chicago and Cincinnati, Los Angeles and San 
Diego,  Seattle and Portland, etc.   Yet even this rough gradual change rationale does not explain why 
huge swaths of the Nation are excluded from the analysis.  For example, even assuming there is only a 
gradual change in the areas between Portland, Seattle, Sacramento and San Francisco, this still does not 
explain why it is rational to apply the results of those four cities to all of Alaska, Hawaii, Idaho, Montana 
and North Dakota, states from which no data is collected.  Indeed, the limited sample results recently 
added to Appendix G reflect the folly of this rationale.  The majoritys methodology of applying the data 
from those four cities actually results in DBS outages greater than 10% in four out of the five excluded 
states - Hawaii, Idaho, Montana and North Dakota,  and 11 out of the 12 additional cities sampled.      

   5.	The majority rejected using smaller regions.
   
   The majority could have picked smaller areas for application of their EPFD levels, such as states or 
smaller regions.  The majority divides the entire United States into four enormous regions (ranging 
anywhere from seven to 23 states), and then picks an EPFD level for that entire region based on the 
results of only a few cities in the entire region.  For example, the limit for the 7-state southwestern 
region only includes data from 3 cities, and excludes any data from 5 of the states in the region - Nevada, 
New Mexico, Utah, Arizona and Wyoming.   Similarly, the limit for the 8-state northwestern region is 
based on only 4 cities, and excludes altogether any data from Hawaii, Alaska, Montana, North Dakota and 
Idaho.  
   
   6.  	The majority rejected using the most stringent EPFD level per region.
   
   Given the majoritys determination to section the entire nation into four large regions and the very 
limited number of data points within each region, the majority could have used the most stringent EPFD 
limit for the region.  Instead, the majority averages the level of interference within that region based on 
those few cities within the multi-state region.  Their averaging approach further distances the 10% 
starting point from 10%.  
   
   7.	The majority rejected using weighted averages for its EPFD calculations.
   
   Given the majoritys determination to base interference levels on data from a few major cities in each 
large region, they could have used weighted averages to reflect the population in a given city.  For 
example, the EPFD limit for the 7-state southwestern region is based on the levels for three cities, 
including Los Angeles and Denver.  Although Los Angeles has a population four times larger than 
Denver, they are given equal weight in the averaging process.  I do not understand my colleagues 
contention that weighted averaging would only further diminish the weight given to the rural areas.   
Given that no weight at all is given to rural areas, and data is only taken from the top 32 television 
markets, I am not sure how it is possible for the majority to even further diminish their consideration of 
rural areas.  If the majority had included data from any rural area, as opposed to only data from the top 32 
television markets, then I might agree to not include weighted averages. 

	As a result of this complex underinclusive, double-averaging approach, many DBS customers 
will, by the majoritys own estimates, experience increased interference double and triple the 10% starting 
point.  The majority attempts to justify the 20-30% interference increases on various grounds.  First they 
state that the corresponding decrease in service unavailability is only 0.05-0.08%.   If the majority 
believes that corresponding decrease in service availability is a relevant test, then why not pick a strict 
number for an interference limit, instead of the loose  about in the range of 10% average approximate 
guideline?  Ironically, the majority has emphasized in the latest version of the item that it is important 
to bear in mind that DBS is, on the whole, extremely reliable with typical service availabilities on the 
order of 99.8 to 99.9 percent.   That being the case, then even a 0.05-0.08% decrease in service 
availability significantly impacts the extreme levels of reliability that DBS licensees have invested 
billions of dollars to achieve.  Indeed, as a practical matter, additional interference in the 20-30% range 
can mean increases in outages ranging from 300 to almost 3,000 minutes.   The majority next contends 
that additional interference in the range of 20-30% is not significant because there are other factors, 
both in the control of DBS licensees and out of their control, which could result in similar or greater 
increases in unavailability.   It seems strange to justify sanctioning varying and high levels of MVDDS-
induced interference simply because other factors may also be variable.  The opposite should be true -- if 
other factors really do cause such large variability, then it is even more imperative to be as precise as 
possible when sanctioning additional interference caused by MVDDS.  Finally, the majority states that 
increased unavailability in the 20-30% range is justifiable because such increases are only in the case of 
the satellite at 110.  This is incorrect as a factual matter.  The limited additional city sampling in 
Appendix G reflects that some customers in Hawaii obtaining service from the satellite at 101 will 
experience a 23.3% increase in outages.   Customers obtaining service from the satellites at 61.5and 
148 also will experience increased outages in the 20-30% range.   Furthermore, there is simply not 
enough analysis to determine whether customers in other locations will experience similar increases in 
outages.

	I am forced to conclude that the majoritys approach and implementation is not rationally related 
to actual interference levels, and thus the resulting EPFD limits are arbitrary and capricious.  At the very 
least, the public deserves more precision.  The Commission could have calculated interference based on 
service areas rather than multi-state regions.  The Commission could have measured the effect of the 
worst performing satellite, rather than averaging the impact of three orbital slots.  Indeed, neither the 
Further Notice nor the MITRE report proposed the rough approach reflected in todays Order.   The 
Further Notice asked whether the Commission should allow MVDDS to cause up to 10% increased 
unavailability.   The Further Notice then applied the protection criteria to each MVDDS transmitter and 
did not discuss averaging.   Similarly, MITRE recommended a 10% increase in relative unavailability for 
each service area, and did not recommend averaging.   The majority fails to explain sufficiently why it 
rejected these recommendations and proposals.  
   
   

  See Rural Local Broadcast Signal Act (RLBSA)  2002(b)(2).  See also Order at  8 and 18-20, discussing the 
non-interference provisions of RLBSA and SHVIA; and 47 C.F.R.  2.106, Footnote S5.490 (prohibiting harmful 
interference by terrestrial radiocommunications services to DBS services).
  Order as adopted on April 11 at  78.
  We used a prescribed methodology and a predictive model to calculate EPFD values, based on a criterion that 
would limit the amount of increased BSS unavailability to ten percent over a baseline level of BSS unavailability 
due to the presence of MVDDS. (emphasis supplied).  Order as adopted on April 11 at  67.

"At the outset, we conclude that the appropriate criterion on which to base the EPFD level is DBS 
unavailability of an additional ten percent over the baseline unavailability, and that this increase in 
unavailability would be in addition to the unavailability allowance relied upon for developing 
NGSO FSS limits."   Order as adopted on April 11 at  73 (emphasis supplied).

"We also conclude that our decision to use a ten percent increase in unavailability as a criteria for developing EPFD 
limits for MVDDS, in addition to the unavailability allowance relied upon for developing NGSO FSS limits, strikes 
an appropriate balance among the three services that will share this frequency band."  Order as adopted on April 11 
at  74  (emphasis supplied).

"We now conclude, based on further analysis of these issues by Commission staff and independent 
analysis performed by MITRE, that calculating MVDDS EPFD limits based on a criterion on ten percent 
strikes a reasonable balance between protecting DBS from interference and deploying MVDDS."  Order 
as adopted on April 11 at  75 (emphasis supplied).

"In addition, a criterion of ten percent unavailability for developing MVDDS EPFD limits is the same used by 
NGSO FSS for the aggregate interference level from all of the NGSO FSS systems."  Order as adopted on April 11 
at  75 (emphasis supplied).

"We believe that in this band, under these circumstances, a ten percent increase in unavailability is the correct basis 
on which to calculate EPFD limits for MVDDS.  On a going forward basis, the DBS operators should take this into 
account in designing future satellites."  Order as adopted on April 11 at  75 (emphasis supplied). 

We modeled the satellites at 61.5 degrees and 148 degrees west longitude to ensure that the effect of our adopted 
EPFD limits on outage time is consistent with the protection criterion from which we started (i.e., allow additional 
outage of ten percent over baseline).  Order as adopted on April 11 at  80, note 198 (emphasis supplied).

"Using the parameters and assumptions described above, we analyzed the top 32 television  markets to 
determine an EPFD value for each market consistent with limiting additional DBS outages to ten percent 
over the baseline." Order as adopted on April 11 at  80 (emphasis supplied).

  Order as adopted on April 11, at  67.
  Order at  84, note 210.
  Appendix G at 151, note 668.
  Order as adopted on April 11 at  78.

  Joint Statement of Chairman Michael Powell and Commissioner Kathleen Abernathy at 5.
  Order at  78.
  Order at  84, note 210.
  Appendix G at 151.
  Order at  68.  See also Order at  53, 72, 76 and 85.
  I approve only the auctions, eligibility and broadcast carriage sections of the Order at  V.B.5, V.B.2.b and 
V.B.1.d respectively.
  Fox Television Stations v. FCC, 280 F.3d 1027, 1042 (D.C. Cir. 2002); United States Telephone Association v. 
FCC, 188 F.3d 521 (D.C. Cir. 1999). 
  47 C.F.R.  2.1.

  See note 1, supra. 
  Order at  68.
  Order at 19.
  See note 3, above. 
  Order at  72:  In adopting these EPFD limits, we find that an increase of 10% over current DBS unavailability is 
the appropriate starting point for our analysis but need not be a strict limit.  (emphasis supplied).  See also  79 
and 84, note 210, and Appendix G at 150.
  Order at  72.
   See, e.g., Order at  72 and 78, And Appendix G at 150, 151 and 156.
Order at  72:  Our EPFD limits result in increased unavailability of approximately 10% -- in some instances it is 
greater than 10% of current unavailability, while in others it is less than 10%.  (emphasis supplied).
Order at  78: We now conclude, based on further analysis of these issues by Commission staff and the 
independent analysis performed by MITRE, that calculating MVDDS EPFD limits that allow additional increased 
unavailability in the range of 10% ensures DBS of protection from harmful interference while creating an 
opportunity to deploy MVDDS.  (emphasis supplied).
Appendix G at 150:
-	It should be noted that this 10% criterion is not used as a strict limit but rather as a guideline in developing 
the actual regional EPFD requirements, described below.  (emphasis supplied).
-	In specific cases, calculated outages may be above or below this 10% value.  (emphasis supplied).
-	In light of the conservative nature of this overall approach, sound engineering judgment suggests that using the 
10% average unavailability criterion as a strict limit is unnecessary and inappropriate especially given the wide 
variability in the provision of DBS services noted above.  (emphasis supplied).

Appendix G at 151:
-	Based on the wide deviation already present in the provision of DBS service, an increase in unavailability of 
about 10% is a relatively minor change and should not be perceptible to DBS customers.  (emphasis supplied).
-	even higher percentage increases in unavailability in the range of 30% or higher would still constitute a 
relatively minor change.  (emphasis supplied).

Appendix G at 156:
-	 That is, the EPFD for the region would generally ensure that for locations within the region any increase in 
DBS outage would be consistent with our 10% approximate increase in unavailability guideline.  (emphasis 
supplied).
-	Further, the data for all locations show outage increases for locations throughout the U.S. are consistent with 
our 10% approximate increase in unavailability guideline.  (emphasis supplied).
-	
  EPFD represents the MVDDS signal power detected by the DBS transmitter.
  See Order at  68.
  See Order at  72, 79, 84, note 210, and at Appendix G at 150. 

  These 11 cities include Baton Rouge, Louisiana; New Orleans, Louisiana; Shreveport, Louisiana; Billings, 
Montana; Fargo, North Dakota; Salt Lake City, Utah; Omaha, Nebraska; Oklahoma City, Oklahoma; Boise, Idaho; 
Jackson, Mississippi; and Honolulu, Hawaii. 
  See Appendix G.

  April 11th version of item. 
  See Order at  71, 72, 79 and 85.
  MITRE report at 6-5.  MITRE is the independent expert selected by the Commission to analyze the potential for 
harmful interference between DBS and an entity applying to provide terrestrial service in the 12 GHz band.
  See MITRE report at 6-5 - 6-7.
  Further Notice, 16 FCC Rcd. at 4197,  269.  The majority characterizes the Further Notice as seeking comment 
on percentage-based increases in unavailability such as 2.86%, ten percent, or any other percentage.  Order at  
78.  If they actually picked some other percentage, that may have been helpful.  However, the majority seems to 
have interpreted any other percentage to mean either every other percentage, or no particular percentage.
  Joint Statement of Chairman Powell and Commissioner Abernathy at 4.
  See Order at  40, 42-44.   See also Further Notice, 16 FCC Rcd. at 4197,  269.
  AT&T Wireless Services, Inc. v. FCC, 270 F.3d 959, 968 (D.C. Cir. 2001).
  Id.

  Preparation for International Telecommunication Union World Radiocommunication Conferences, IC Docket 94-
31, Report, 10 F.C.C.R. 12,783, 12,803 (1995).
  RLBSA 2002(b)(2); See also Order at  8, 18-20.
  See Order at Appendix D,  101.1440(e).
  See Order at  55 (there will likely be an area surrounding the MVDDS transmitting antenna where the 
interference criteria may not be met without some form of mitigation being performed).  However, the Order 
allows continued operation even if there are no techniques that would mitigate such interference to new DBS 
customers.
  Order at Appendix D,  101.1440(e).
  Order at  92.
  See Order at Appendix D,  101.1440(g).  The rules require the MVDDS licensee to provide the technical 
parameters of its operation at a particular transmitting site to the DBS licensee prior to deployment.  However, the 
MVDDS licensee may later change those parameters without notice as long as the change does not qualify as a 
major modification or cause an increase in the EPFD contour in any direction pursuant to 47 C.F.R. 1.929.  
See Order at Appendix D,  101.1440(f).  The Order does not protect existing DBS subscribers in such situations.   

  MITRE Report at 6-6.
  47 C.F.R.  2.1(c).  
   See, e.g., Midnight Sun Broadcasting Co., 11 F.C.C. 1119 (1947); Sudbrink Broadcasting of Georgia, 65 
F.C.C.2d 691 (1977).
  Deployment of Wireline Services Offering Advanced Telecommunications Capability, CC Dockets 98-147, 96-98, 
Third Report and Order in CC Docket 98-147 and Fourth Report and Order in CC Docket 96-98, 14 FCC Rcd. 
20,912,  211 (1999).
  Amendment of Section 2.106 of the Commissions Rules to Allocate Spectrum at 2 GHz for Use by the Mobile-
Satellite Service, ET Docket 95-18, Second Report and Order and Second Memorandum Opinion and Order, 15 
FCC Rcd. 12,315,  133 (2000). 

  Joint Press Statement of Chairman Michael Powell and Commissioner Kathleen Abernathy (April 23, 2002).
  See Order at  83 and 85.
  Order at  53.  
  Order at  132.
  Order at  24.
  Order at  23-24.
  Order at  4, note 10.
  See Order at  132.
  See www.nielsenmedia.com/copyright.html.
  See Northpoint comments at 32; see also SRL comments at 3.
  See Order at  132.
  Order at  132.

  See Order at  239.
  See 47 U.S.C.  309(j)(6)(E).
  See 47 U.S.C.  1110.
  See 47 U.S.C.  647.  See also National Public Radio, 254 F.3d 226 (D.C. Cir. 2001).

  Penetration rate statistics taken from www.echostarmerger.com.  See also state-by-state penetration rate statistics 
provided by SBCA in CS Docket No. 01-129, Matter of the Annual Assessment of the State of Competition in the 
Market for Delivery of Video Programming (Aug. 3, 2001).

  DBS service is provided from the satellites located at the following five orbital slots:  61.5, 101.0, 110.0, 
119.0, and 148.0.  Order at  82, and note 205.  The Order considers only the satellites providing service to the 
contiguous United States - 101.0, 110.0, and 119.0, and excludes the satellites at 61.5 and 148.0.  
  Order at  82.
  Letter from Pantelis Michalopoulos and Steven Reed, counsel for Echostar Satellite Corporation, to William F. 
Canton, Acting Secretary, Federal Communications Commission, (February 12, 2002), ex parte comment in CS 
Docket No. 00-96, In the Matter of Implementation of the Satellite Home Viewer Improvement Act of 1999; 
Broadcast Signal Carriage Issues.
  Order at  82 (emphasis added).
  Order at  82.
  MITRE report at 6-5  6-7; see also Appendix G at 152, note 672.  
  Appendix G at 152, note 672.
  Appendix G at 154.

  MITRE report at 6-5  6-7.
  See Appendix G at 152.  
  The following 28 states are not included in the sampling:  Alabama, Alaska, Arkansas, Connecticut, Delaware, 
Hawaii, Idaho, Iowa, Kentucky, Louisiana, Maine, Mississippi, Montana, Nebraska, Nevada, New Hampshire, New 
Jersey, New Mexico, North Dakota, Maryland, Oklahoma, Rhode Island, South Dakota, Utah, Vermont, Virginia, 
West Virginia, Wyoming.
  January 1, 2002 Nielsen Media Research Estimates.
  Appendix G at 152.
  See Order at  79, note 179.  
  Appendix G at 152.

  Appendix G at 152.
  Appendix G at 153.
  Appendix G at 158-160.
  Appendix G at 157-160.
  See Appendix G.
  Joint Statement of Chairman Powell and Commissioner Abernathy at 5, note 7.

  Order at  84, note 210.
  Order at  67.
  See Appendix G.
  Order at  84, note 210.
  Order at  84, note 210.  The majority states that this satellite will be replaced with a newer, higher-powered 
satellite.
  Appendix G at 160.
  Appendix G at 167.
  See Further Note, 16 FCC Rcd 4096,  266-276; MITRE Report at 6-5  6-7.

  Further Notice at  269.
  Id. at  270.
  MITRE Report at 6-5 - 6-7.