*Pages 1--66 from  Microsoft Word - 19831.doc*
 Federal  Communications  Commission  FCC  99-  14 
 Before  the  Federal  Communications  Commission 
 Washington,  D.  C.  20554 
 In  the  Matter  of:  )  ) 
 Satellite  Delivery  of  Network  Signals  )  CS  Docket  No.  98-  201  to  Unserved  Households  for  )  RM  No.  9335 
 Purposes  of  the  Satellite  Home  )  RM  No.  9345  Viewer  Act  ) 
 )  Part  73  Definition  and  Measurement  ) 
 of  Signals  of  Grade  B  Intensity  ) 


 REPORT  AND  ORDER 
 Adopted:  February  1,  1999  Released:  February  2,  1999 
 By  the  Commission:  Chairman  Kennard  and  Commissioner  Ness  issuing  a  joint  statement;  and  Commissioner  Furchtgott-  Roth  dissenting  in  part  and  issuing  a  statement. 


 TABLE  OF  CONTENTS  Paragraph 
 I.  INTRODUCTION  1  A.  The  Satellite  Home  Viewer  Act  9 
 B.  Grade  B  Contours  and  Signal  Intensity  13  C.  The  PrimeTime  24  Lawsuits  16 
 D.  The  NRTC  and  EchoStar  Petitions  22 
 II.  ANALYSIS  23  A.  The  Commission's  Role  and  Responsibility  Under  the  SHVA24 
 B.  Defining  a  Signal  of  Grade  B  Intensity32  C.  Measuring  Television  Signal  Intensity  at  Individual  Locations45 
 D.  Predicting  Television  Signal  Intensity  at  Individual  Locations61  E.  Loser  Pays  89 


 III.  FUTURE  OPTIONS  93 
 IV.  PROCEDURAL  MATTERS  98 
 Appendix  A:  Regulatory  Flexibility  Act  Analysis  Appendix  B:  Measurement  Rule 
 Appendix  C:  List  of  Commenters 
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 I.  INTRODUCTION 
 1.  In  this  proceeding,  we  address  an  issue  involving  the  television  broadcast  industry,  the  direct-  to-  home  satellite  industry,  and  consumers  who  subscribe  to  satellite  carriers  for  their  video 
 programming.  Over  nine  million  households  subscribe  to  satellite  carriers,  and  roughly  one  third  of  these  subscribers  pay  an  additional  subscription  fee  to  receive  broadcast  network  programming  via  satellite.  1 
 Broadcasters  contend  that  many  of  these  broadcast  network  subscribers,  as  well  as  many  potential  subscribers,  are  not  eligible  under  the  1988  Satellite  Home  Viewer  Act  ("  SHVA")  to  receive  such 
 programming  using  their  home  satellite  service. 
 2.  The  broadcast  television  industry  has  the  right,  through  the  Copyright  Act  and  private  contracts,  to  control  the  distribution  of  the  national  and  local  programming  that  it  transmits.  In  1988, 
 Congress  adopted  the  SHVA  as  an  amendment  to  the  Copyright  Act  in  order  to  protect  the  broadcasters'  interests  while  simultaneously  enabling  satellite  carriers  to  provide  broadcast  programming  to  those  satellite 
 subscribers  who  are  unable  to  obtain  broadcast  network  programming  over-  the-  air.  2  Congress  considered  these  subscribers  to  be  "unserved"  by  their  local  stations.  3  A  Miami  federal  district  court  has  recently  acted 
 to  enforce  this  law  by  issuing  two  nationwide  injunctions  requiring  the  satellite  carriers  to  terminate  network  service  to  as  many  as  1  million  subscribers  by  February  28,  1999  and  to  more  than  1  million  additional 
 subscribers  by  April  30,  1999.  4  Many  satellite  subscribers  have  contacted  the  Commission  to  express  concern  over  this  imminent  termination  of  service  and  have  asked  for  the  Commission's  assistance  to  reduce 
 the  impact  of  the  court's  injunctions.  The  broadcast  industry  has  urged  the  Commission  not  to  take  any  action  that  will  undermine  the  court's  decision  or  harm  broadcasters  and,  consequently,  the  viewers  who  rely 
 on  local  broadcast  stations.  Two  satellite  carriers,  the  National  Rural  Telecommunications  Cooperative  ("  NRTC")  and  EchoStar  Communications  Corporation  ("  EchoStar"),  filed  petitions  for  rulemaking  with  the 
 Commission  asking  us  to  amend  our  rules  to  help  those  subscribers  who  face  termination.  5 
 3.  In  response,  the  Commission  issued  a  Notice  of  Proposed  Rule  Making  ("  NPRM")  on  November  17,  1998,  and  announced  that  it  expected  to  complete  this  rulemaking  before  the  first  wave  of 
 satellite  subscribers  have  their  network  programming  via  satellite  terminated  at  the  end  of  February,  1999.  6 


 1  The  other  six  million  satellite  subscribers  obtain  broadcast  network  programming  via  over-  the-  air  antennas  or  via  cable  or 
 do  without  broadcast  network  programming. 


 2  17  U.  S.  C.    119  (1998).  The  SHVA  is  part  of  a  copyright  law. 


 3  To  be  considered  "unserved,"  the  SHVA  also  requires  that  the  household  not  have  subscribed  to  cable  in  the  previous  90  days. 
 See,  infra  ,  n.  12. 


 4  See  discussion  of  PrimeTime  24  lawsuits,  infra. 


 5  The  NRTC  petition  was  filed  July  8,  1998  and  placed  on  public  notice  on  August  5,  1998.  Federal  Communications  Commission 
 Public  Notice,  Report  No.  2290,  RM  98-  9335  (August  5,  1998).  The  EchoStar  petition  was  filed  August  18,  1998  and  placed  on  public  notice  on  August  26,  1998.  Federal  Communications  Commission  Public  Notice,  DA  98-  1710,  RM  98-  9345  (August  26,  1998). 


 6  Satellite  Delivery  of  Network  Signals  to  Unserved  Households  for  Purposes  of  the  Satellite  Home  Viewer  Act  ,  Notice  of 
 Proposed  Rulemaking,  CS  Docket  No.  98-  201,  FCC  98-  302  (November  17,  1998).  Commenters  are  listed  in  Appendix  C.  See  also 
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 As  we  stated  in  the  NPRM,  the  Commission's  statutory  authority  under  the  SHVA  is  limited  so  that,  regardless  of  action  by  the  Commission,  most  of  the  satellite  subscribers  affected  by  the  injunction  are  likely 
 to  have  their  satellite-  delivered  network  programming  discontinued.  The  court  has  determined  that  the  vast  majority  of  subscribers  are  not  within  the  scope  of  Congress'  copyright  authorization  because  they  are  able  to 
 receive  broadcast  network  programming  over-  the-  air. 
 4.  The  Commission's  role  in  this  matter  originates  in  a  provision  in  the  SHVA  that  links  the  definition  of  "unserved  households"  to  a  Commission  definition  of  television  signal  strength  known  as 
 "Grade  B  intensity."  The  critical  question  under  the  SHVA  and  in  this  rulemaking  is  whether  a  household  is  able  to  receive  a  television  signal  of  this  strength. 


 5.  Our  goal  in  this  rulemaking  is  to  identify  more  accurately,  and  consistent  with  the  SHVA,  those  consumers  who  can  and  cannot  receive  their  local  broadcast  network  stations  over-  the-  air.  As  noted 
 above,  we  believe  that  our  actions  advance  this  goal,  but  cannot  satisfy  every  consumer  who  wants  to  receive  broadcast  network  stations  via  satellite.  Congress  has  granted  the  Commission  only  limited  authority  to  act 
 in  this  area.  We  have  also  sought  to  promote  competition  among  multichannel  video  programming  distributors,  to  the  extent  possible  under  the  SHVA,  and  we  have  considered  the  role  that  local  broadcasters 
 play  in  their  communities.  Increasing  competition  among  MVPDs  was  not  an  express  goal  of  Congress  in  enacting  the  SHVA  however.  Several  members  of  Congress,  however,  have  recently  suggested  that  changes 
 to  the  statute  could  help  open  markets  and  provide  consumers  with  more  choices.  7  Through  hundreds  of  e-mails,  letters,  and  phone  calls,  consumers  have  expressed  frustration  at  being  unable  to  choose  a  satellite 
 service  that  provides  broadcast  network  stations,  although  it  is  unclear  how  many  of  these  consumers  do  receive  terrestrially  delivered  broadcast  signals  of  Grade  B  intensity. 


 6.  To  give  the  satellite  industry,  broadcast  industry,  and  consumers  a  uniform  method  for  determining  the  signal  strength  a  household  actually  receives,  the  Commission  in  this  Order  adopts  a  method 
 for  measuring  Grade  B  signal  strength  at  individual  households.  The  measurement  rule  will  become 


 Federal  Communications  Commission  News,  Report  No.  98-  16  (November  17,  1998). 
 7  A  number  of  members  of  Congress  have  spoken  of  the  importance  of  competition  in  relation  to  the  SHVA,  and  specifically  in 
 relation  to  this  rulemaking.  Senator  Leahy,  chief  Senate  sponsor  and  floor  manager  of  the  SHVA  in  1988,  comments  in  this  proceeding  that  competition  is  an  important  goal  for  the  FCC.  Leahy  Comments  at  1;  see  also  Pegasus  Reply  at  6.  The  Senator's 


 comments  are  consistent  with  statements  he  made  during  the  floor  debate  over  the  1994  amendments  to  the  SHVA,  in  which  he  voiced  his  goal  of  increasing  "accessibility  for  viewers,"  "development  of  alternative  technologies",  and  creation  of 
 "competitive  situations."  Id.  On  July  8,  1998,  Senator  McCain,  Chairman  of  the  Senate  Commerce  Committee,  and  Representative  Bliley,  Chairman  of  the  House  Commerce  Committee,  wrote  the  Commission,  indicating  that  the  Miami  injunction 
 "threatens  to  undermine  the  progress  the  Congress  has  made  in  promoting  competition."  Letter  to  William  E.  Kennard  from  Senator  John  McCain  and  Representative  Tom  Bliley  (July  8,  1998).  On  August  7,  1998,  Representative  Boucher  and  22  other 
 members  of  Congress  stated  in  a  letter  to  the  Commission  that  the  court's  preliminary  injunction  "raises  serious  consumer  and  competitive  issues  that  require  immediate  review  and  action  by  the  Commission."  Letter  to  William  E.  Kennard  from 
 Representative  Rick  Boucher,  et  al.  (August  7,  1998).  Representative  Boucher  repeated  his  concerns  in  a  January  19,  1999  letter  to  Chairman  Kennard,  mentioning  the  "pro-  consumer  and  pro-  competition  intent  behind  the  SHVA."  Letter  to  William  E. 
 Kennard  from  Representative  Rick  Boucher  (January  19,  1999). 
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 effective  upon  publication  in  the  Federal  Register.  8  We  expect  that  this  rule  will  provide  the  uniformity  and  certainty  needed  to  eliminate  many  of  the  controversies  that  currently  surround  compliance  with  the  SHVA. 
 We  believe,  consistent  with  what  commenters  on  all  sides  of  this  issue  have  requested,  that  the  measurement  methodology  is  practical,  reasonably  accurate,  and  relatively  inexpensive. 


 7.  In  this  Order  the  Commission  also  endorses  a  computer  model  to  predict  whether  a  household  is  likely  to  be  able  to  receive  a  signal  of  the  required  strength.  Although  the  Commission  does  not 
 have  the  authority  to  mandate  use  of  this  model  in  connection  with  the  SHVA,  we  believe  our  recommendation  will  give  the  industries  and  consumers  a  means  of  determining  eligibility  for  satellite-delivered 
 network  service  that  minimizes  the  need  for  on-  site  testing.  The  predictive  model  is  familiar  to  the  broadcast  and  satellite  industries  and  is  publicly  available  for  use  at  this  time.  It  should  provide  a  degree  of 
 dependability  and  assurance  that  will  alleviate  some  of  the  confusion  and  cost  that  has  contributed  to  consumer  dissatisfaction. 


 8.  This  Order,  therefore,  addresses  three  major  issues.  First,  we  consider  whether  we  can  and  should  change  the  definition  of  a  signal  of  Grade  B  intensity.  We  decline  to  do  so  in  this  proceeding. 
 Second,  we  consider  and  adopt  a  standardized  method  for  measuring  the  strength  of  television  signals  at  individual  locations.  Third,  we  consider  endorsing  a  method  for  predicting  the  strength  of  television  signals 
 at  individual  locations  that  could  be  used  in  place  of  actually  taking  measurements.  The  prediction  method  that  we  endorse  could  be  used  to  create  an  accurate  evidentiary  presumption  of  acceptable  television  service 
 or  lack  of  service.  Importantly,  the  effect  of  this  Order  is  not  to  increase  the  number  of  unserved  households  that  already  exist,  nor  to  reduce  the  size  of  local  stations'  markets  by  subtracting  viewers  who  are  able  to 
 receive  their  signal.  Rather,  we  have  developed  measurement  and  prediction  tools  that  more  accurately  identify  those  households  that  are  truly  unserved  within  the  meaning  of  the  SHVA. 


 A.  The  Satellite  Home  Viewer  Act 
 9.  In  the  SHVA,  Congress  created  a  limited  exception  to  the  exclusive  programming  copyrights  enjoyed  by  television  networks  and  their  affiliates  because  it  recognized  that  some  households 
 were  unable  to  receive  network  station  signals  directly  over  the  air.  9  The  exception  is  a  narrow  compulsory  copyright  license  that  direct-  to-  home  (DTH)  satellite  video  carriers  10  may  use  to  provide  certain  television 


 8  The  expedited  effective  date  for  this  rule  is  warranted  in  light  of  the  permanent  injunction  scheduled  to  take  effect  on 
 February  28,  1999,  which  will  affect  700,000-  1,000,000  satellite  subscribers.  To  the  extent  parties  may  seek  the  court's  permission  to  use  the  new  measurement  methodology  promulgated  in  this  Order,  as  well  as  the  prediction  model  endorsed  by 


 the  Commission,  we  believe  the  expedited  effective  date  will  facilitate  the  court's  review  of  such  requests.  The  Commission  has  requested  permission  from  the  Office  of  Management  and  Budget  for  expedited  clearance  for  the  Paperwork  Reduction 
 Act. 
 9  H.  R.  Rep.  No.  103-  703,  at  5  (1994);  S.  Rep.  No.  103-  407,  at  5  n.  2  (1994);  H.  R.  Rep.  No.  100-  187(  I),  at  14-  15,  18,  26,  reprinted  in  1988 
 U.  S.  C.  C.  A.  N.  5638  (1988). 


 10  More  specifically,  the  license  is  available  to  satellite  carriers  defined  as  follows: 
 The  term  "satellite  carrier"  means  an  entity  that  uses  the  facilities  of  a  satellite  or  satellite  service  licensed  by  the  Federal  Communications  Commission  and  operates  in  the  Fixed-  Satellite  Service  under  part  25  of  title  47  of 


 the  Code  of  Federal  Regulations  or  the  Direct  Broadcast  Satellite  Service  under  part  100  of  title  47  of  the 
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 network  stations  11  to  subscribers  who  live  in  "unserved  households."  12  The  SHVA  was  originally  adopted  in  1988  to  cover  satellite  service  via  C-  Band  before  "direct  broadcast  satellite"  ("  DBS")  existed.  13  Congress 
 amended  the  SHVA  in  1994  when  DBS  was  just  reaching  the  market.  After  DBS  was  introduced  in  mid-1994,  it  gained  6.5  million  subscribers  in  the  first  32  months.  14  Currently,  direct-  to-  home  ("  DTH")  satellite 
 services,  which  include  C-  Band,  DBS,  and  medium  power  Ku-  band  services,  have  more  than  nine  million  subscribers.  15  The  success  of  the  DBS  industry  benefits  consumers  by  providing  greater  choice  among 
 multi-  channel  video  programming  distributors  ("  MVPD").  However,  as  the  number  of  satellite  subscribers  has  increased,  so  has  the  tension  that  is  inherent  in  the  SHVA  regarding  those  who  are  eligible  to  receive 
 network  programming  via  satellite  and  those  who  are  not. 
 10.  The  term  "unserved  household,"  as  relevant  here,  is  defined  by  SHVA  as  a  household  that: 


 Code  of  Federal  Regulations,  to  establish  and  operate  a  channel  of  communications  for  point-  to-  multipoint  distribution  of  television  station  signals,  and  that  owns  or  leases  a  capacity  or  service  on  a  satellite  in 
 order  to  provide  such  point-  to-  multipoint  distribution,  except  to  the  extent  that  such  entity  provides  such  distribution  pursuant  to  tariff  under  the  Communications  Act  of  1934,  other  than  for  private  home 
 viewing. 
 11  Under  17  U.  S.  C.    119(  d)(  2),  the  term  "network  station"  means: 
 (A)  a  television  broadcast  station,  including  any  translator  station  or  terrestrial  satellite  station  that  rebroadcasts  all  or  substantially  all  of  the  programming  broadcast  by  a  network  station,  that  is  owned  or  operated  by, 


 or  affiliated  with,  one  or  more  of  the  television  networks  in  the  United  States  which  offer  an  interconnected  program  service  on  a  regular  basis  for  15  or  more  hours  per  week  to  at  least  25  of  its 
 affiliated  television  licensees  in  10  or  more  States;  or 
 (B)  a  noncommercial  educational  broadcast  station  (as  defined  in  section  397  of  the  Communications  Act  of  1934). 
 12  The  SHVA  also  contains  a  "superstation"  compulsory  copyright  license  with  no  geographic  restrictions.  17  U.  S.  C.    119(  a)(  1) 
 and  (d)(  9). 


 13  There  were  approximately  two  million  C-  Band  units  in  use  in  1988.  See  Commission's  1990  cable  report  to  Congress, 
 Competition,  Rate  Deregulation  and  the  Commission's  Policies  Relating  to  the  Provision  of  Cable  Television  Service  ,  5  FCC  Rcd  5016,  at    103,  n.  148  (1990). 


 14  SkyTRENDS  Annual  Report  1997-  98  at  10. 
 15  Id  .  at  16.  See  also  discussion  of  DTH  in  Annual  Assessment  of  the  Status  of  Competition  in  Markets  for  the  Delivery  of  Video 
 Programming,  Fifth  Annual  Report  ,  ("  Competition  Report")  FCC  98-  335  (Released  December  23,  1997)  at    61-  80;  and  SkyREPORT.  Com  or  http://  www.  skyreport.  com/  dth_  us.  htm. 
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 119(  d)(  10)(  A)  cannot  receive,  through  the  use  of  a  conventional  outdoor  rooftop  receiving  antenna,  an  over-  the-  air  signal  of  grade  B  intensity  (as  defined  by  the  Federal  Communications 
 Commission)  of  a  primary  network  station  affiliated  with  that  network.  16 
 As  the  law  currently  stands,  satellite  carriers  may  not  generally  deliver  broadcast  network  signals  to  their  subscribers  via  satellite.  The  SHVA  is  enforced  through  private  actions  filed  with  the  federal  court  system. 
 In  such  actions,  the  satellite  carrier  has  the  burden  of  proving  "that  its  secondary  transmission  of  a  primary  transmission  by  a  network  station  is  for  private  home  viewing  to  an  unserved  household."  17 


 11.  The  Satellite  Home  Viewer  Act  limits  the  compulsory  copyright  license  to  "unserved"  households,  reflecting  Congress'  intent  to  protect  the  role  of  local  broadcasters  in  providing  free,  over-  the-  air 
 television  to  American  families.  18  Localism  has  been  a  central  principle  of  broadcast  policy  since  the  Radio  Act  of  1927.  Broadcasters  must  serve  their  communities  by  providing  programming  (e.  g.,  news,  weather, 
 and  public  affairs)  to  meet  the  needs  and  interests  of  those  communities.  19  Congress  was  concerned  that  without  some  copyright  protection,  the  economic  viability  of  those  local  stations  affiliated  with  national 
 networks  might  be  jeopardized,  thus  undermining  one  source  of  local  information.  20 
 12.  The  SHVA  has  two  purposes:  (1)  to  make  broadcast  network  programming  via  satellite  available  to  those  households  beyond  the  reach  of  a  local  affiliate,  and  (2)  to  protect  the  integrity  of  the 
 copyrights  that  make  possible  the  existing  free,  over-  the-  air  national  network/  local  affiliate  broadcast  distribution  system.  21  This  Order  addresses,  within  the  boundaries  of  the  Commission's  authority,  the 
 conflicts  that  arise  between  these  dual  purposes. 
 B.  Grade  B  Contours  and  Signal  Intensity 


 16  17  U.  S.  C.    119(  d)(  10)(  A).  A  second  requirement  for  a  household  to  be  regarded  as  "unserved,"  which  is  not  directly  relevant 
 here,  is  that  the  household: 


 has  not,  within  90  days  before  the  date  on  which  that  household  subscribes,  either  initially  or  on  renewal,  to  receive  secondary  transmissions  by  a  satellite  carrier  of  a  network  station  affiliated  with  that  network,  subscribed  to  a 
 cable  system  that  provides  the  signal  of  a  primary  network  station  affiliated  with  that  network.    119(  d)(  10)(  B). 
 17  17  U.  S.  C.    119(  a)(  5)(  D). 


 18  See  H.  R.  Rep.  100-  887(  I)  at  19-  20;  H.  R.  Rep.  100-  887(  II)  at  26-  28  (1988),  reprinted  in  1988  U.  S.  C.  C.  A.  N.  5577. 
 19  See  Radio  Act  of  1927,    9,  Pub.  L.  No.  632,  (current  version  at  47  U.  S.  C.    307(  b)  (1997). 
 20  For  a  comprehensive  discussion  of  issues  raised  by  the  compulsory  copyright  licensing  process  in  general  and  the  Satellite 
 Home  Viewer  Act  in  particular,  see  Report  of  the  Register  of  Copyrights,  "A  Review  of  the  Copyright  Licensing  Regimes  Covering  Retransmission  of  Broadcast  Signals"  (August  1,  1997). 


 21  H.  R.  Rep.  No.  100-  887(  II)  at  20. 
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 13.  The  Grade  B  signal  intensity  standard,  which  is  the  key  to  the  SHVA's  definition  of  "unserved  households"  in  Section  119(  d)(  10)(  A),  is  a  Commission-  defined  measure  of  the  strength  of  a 
 given  television  station's  over-  the-  air  signal.  22  This  standard  was  developed  in  the  early  days  of  television  as  a  key  component  of  the  Commission's  channel  allotment  protocol.  23  Generally,  if  a  household  receives  a 
 television  signal  of  Grade  B  intensity,  it  should  receive  an  acceptable  television  picture  at  least  90%  of  the  time.  24  More  specifically,  Grade  B  represents  a  field  strength  that  is  strong  enough,  in  the  absence  of  man-made 
 noise  or  interference  from  other  stations,  to  provide  a  television  picture  that  the  median  observer  would  classify  as  "acceptable"  using  a  receiving  installation  (antenna,  transmission  line,  and  receiver)  typical  of 
 outlying  or  near-  fringe  areas.  25 
 14.  The  Grade  B  values  (which  represent  the  required  field  strength  in  dB  above  one  micro-  volt  per  meter)  are  defined  for  each  over-  the-  air  television  channel  in  Section  73.683  of  the  Commission's  rules:  26 


 Channels  2-  6  ................  47  dBu  Channels  7-  13  ..............  56  dBu 
 Channels  14-  69  ............  64  dBu 
 22  17  U.  S.  C.    119(  d)(  10)(  A);  47  C.  F.  R.    76.683. 


 23  See  Television  Broadcast  Service,  Third  Notice  of  Further  Proposed  Rule  Making  ,  Appendix  B,  16  FR  3072,  3080  (April  7,  1951) 
 ("  TV  Allocations  Third  Notice  "),  adopted  by  Amendment  of  Section  3.606  of  the  Commission's  Rules  and  Regulations,  Amendment  of  the  Commission's  Rule,  Regulations  and  Engineering  Standards  Concerning  the  Television  Broadcast  Service, 


 Utilization  of  Frequencies  in  the  Band  470  to  890  mcs  for  Television  Broadcasting,  Sixth  Report  and  Order  ,  41  FCC  148,  FCC  52-  294  (1952)  ("  TV  Allocations  Sixth  Report  and  Order  "). 


 24  See  O'Connor,  Robert  A.,  "Understanding  Television's  Grade  A  and  Grade  B  Service  Contours,"  IEEE  Transactions  on 
 Broadcasting  at  139  (December  1968)  ("  O'Connor,  Understanding  Television's  Grade  A  and  Grade  B  Service  Contours  "). 


 25  The  "median  observer"  is  not  the  "average"  observer;  rather,  it  is  the  observer  who  provides  the  middle  value  of  data 
 when  all  values  of  data  from  all  observers  are  ranked  in  order.  In  other  words,  50%  of  the  observers  recorded  values  equal  to  or  higher  in  value  and  50%  of  the  observers  recorded  values  equal  to  or  lower  in  value  than  the  median  observer.  See  TV 


 Allocations  Third  Notice  ,  16  FR  3072,  3080  and  TV  Allocations  Sixth  Report  and  Order  ,  41  FCC  148.  See  also  NAB  Comments  Attachment  C,  Jules  Cohen  Statement,  at  2  and  Network  Affiliate  Associations  Comments  at  3  and  n.  110. 


 26  There  are  also  Grade  A  and  "city  grade"  field  strength  values,  which  represent  stronger  signals.  Because  they  are 
 stronger,  Grade  A  contour  and  city  grade  service  are  generally  found  closer  to  a  station's 


 transmitter.  See  47  C.  F.  R.    73.683  and  73.685.  Grade  ACity  Grade 
 Channels  2-  6  ................  68  dBu  74  dBu  Channels  7-  13  ..............  71  dBu  77  dBu 
 Channels  14-  69  ............  74  dBu  80  dBu 
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 The  Grade  B  values  assume  that  the  antenna  used  to  receive  the  signal  has  a  6  db  gain  for  channels  2-  13  and  an  antenna  with  a  13  db  gain  for  channels  14-  83.  27  Section  73.684  contains  the  Commission's  "traditional" 
 methodology  for  predicting  station  service  coverage,  and  Section  73.686  describes  a  procedure  for  making  field  strength  measurements  to  determine  the  likelihood  that  a  signal  is  available  in  an  area  or  community. 
 Section  73.622(  e)  describes  different  values  for  evaluating  field  strength  in  connection  with  digital  television  (DTV)  service. 


 15.  The  Commission  developed  the  Grade  B  standard  in  the  1950s  and  has  used  it  in  a  variety  of  contexts,  many  of  which  were  not  envisioned  at  the  time  it  was  created.  28  The  primary  purpose  for 
 creating  the  Grade  B  standard  was  to  estimate  the  extent  of  a  television  station's  coverage  area.  29  Grade  B  service  areas,  or  contours,  are  still  used  for  this  purpose  and  predict  that  the  best  50%  of  locations  along  the 
 outer  edge  of  a  contour  should  get  an  acceptable  television  picture  at  least  90%  of  the  time.  30  The  use  of  the 


 27  See  TV  Allocations  Third  Notice  ,  16  FR  at  3080,  adopted  by  TV  Allocations  Sixth  Report  and  Order  .  See  also  NAB  Comments, 
 Attachment  C,  Jules  Cohen  Statement  at  2;  Network  Affiliate  Assn  Comments  at  3  and  n.  110. 


 28  For  example,  qualified  local  noncommercial  educational  television  stations  are  defined  for  must  carry  purposes  as  those 
 stations  whose  Grade  B  service  contour  encompasses  the  cable  system's  principal  headend,  as  defined  in  Section  73.683(  a),  as  in  effect  on  March  29,  1990  or  any  successor  regulations.  47  U.  S.  C.    535(  l)(  2)(  B).  See  also,  47  U.  S.  C.    522(  11)  (defining  Grade 


 B  contour  in  connection  with  cable  regulations  as  computed  in  accordance  with  regulations  promulgated  by  the  Commission);  15  C.  F.  R.    2301.4(  b)(  3)(  ii)  (in  connection  with  National  Telecommunications  and  Information  Agency,  or  NTIA,  broadcast 
 applications,  source  of  public  telecommunications  signal  is  distant  when  beyond  the  grade  B  contour  of  origination  facility);  47  C.  F.  R.    22.657(  d)-(  g)  (in  connection  with  distance  separation  requirements  for  public  mobile  operations  to  reduce 
 interference  with  television  stations  at  the  grade  B  contour,  which  is  defined  for  this  purpose  as  a  circle  with  a  55  mile  radius,  centered  on  the  protected  television  station  location  and  along  which  the  median  television  field  strength  is  64  dBu). 


 29  See  Television  Broadcast  Service,  Notice  of  Further  Proposed  Rule  Making  ,  Appendix  A,  14  FR  4483,  4485  (1949);  and  Third 
 Notice  of  Further  Proposed  Rule  Making  ,  Appendix  A,  16  FR  3072,  3075  (1951). 


 30  The  "time  variability"  planning  factor  used  in  the  Grade  B  construct  may  create  some  confusion.  This  arises  from  the 
 difference  between  receiving  a  signal  of  Grade  B  intensity  (considered  a  television  signal  that  produces  an  acceptable  picture)  and  receiving  adequate  television  service.  Adequate  television  service  has  been  defined  as  receiving  an  acceptable  television 


 picture  90%  of  the  time.  In  some  cases,  for  example,  50%  of  the  locations  along  a  Grade  B  contour  are  said  to  receive  a  signal  of  Grade  B  intensity  at  least  50%  of  the  time.  In  other  cases,  50%  of  the  locations  along  a  Grade  B  contour  are  said  to  receive 
 an  acceptable  television  picture  90%  of  the  time.  In  fact,  there  is  no  real  difference,  which  is  explainable  in  two  complementary  ways.  First,  when  a  particular  location  receives  a  signal  of  Grade  B  intensity  50%  of  the  time,  it  is,  in  fact, 
 receiving  a  signal  strong  enough  to  provide  an  acceptable  television  picture  90%  of  the  time.  Put  another  way,  a  signal  of  Grade  B  intensity  is  stronger  than  what  is  required  to  provide  an  acceptable  picture  on  an  average  television  receiver.  The 
 apparent  inconsistency  arises  from  an  adjustment  the  Commission  adopted  for  the  Grade  B  signal  strength  values  when  it  originally  established  them.  For  example,  on  channels  2-  6,  a  signal  strength  of  41  dBu  is  needed  for  an  acceptable  picture.  In 
 order  for  this  signal  strength  to  be  available  90%  of  the  time,  the  median  or  F(  50,50)  field  strength  is  raised  by  6  dBu  and  set  at  47  dBu.  Likewise,  for  channels  7-  13,  the  median  field  strength  is  raised  4  dBu  and  set  at  56  dBu,  and  for  channels  14-  69,  the 
 median  field  strength  is  raised  5  dBu  and  set  at  64  dBu.  See,  e.  g.,  O'Connor,  "Understanding  Television's  Grade  A  and  Grade  B 
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 Grade  B  construct  for  determining  whether  an  individual  household  is  unserved  under  the  SHVA  was  not  at  issue  when  the  standard  was  created,  although  it  is  the  primary  issue  in  this  rulemaking  and  related  lawsuits. 
 C.  The  PrimeTime  24  Lawsuits 
 16.  The  most  far-  reaching  lawsuit  between  satellite  carriers  and  broadcasters  over  the  unserved  households  definition  is  in  the  United  States  District  Court  for  the  Southern  District  of  Florida.  31  In  that 
 litigation,  CBS,  Inc.  et  al.  v.  PrimeTime  24  Joint  Venture,  the  plaintiff  television  networks  (CBS  and  Fox)  and  several  affiliates  brought  a  copyright  infringement  action  against  PrimeTime  24,  a  satellite  carrier,  for 
 retransmitting  distant  network  programming  to  satellite  dish  owners  in  violation  of  the  SHVA.  The  plaintiffs  alleged  that  PrimeTime  24  distributed  the  signals  of  distant  network-  affiliated  television  broadcast  stations 
 by  satellite  to  subscribers  that  were  not  "unserved  households"  within  the  meaning  of  the  SHVA. 
 17.  Finding  that  PrimeTime  24  willfully  violated  the  SHVA,  32  the  court  issued  a  preliminary  and,  later,  a  permanent  injunction  ordering  PrimeTime  24  not  to  deliver  CBS  or  Fox  television  network 
 programming  to  any  customer  that  does  not  live  in  an  unserved  household.  The  court  concluded  that  "the  great  majority"  of  PrimeTime  24's  subscribers  are  capable  of  receiving  at  least  a  signal  of  Grade  B  intensity 
 using  a  conventional  outdoor  rooftop  antenna.  33  According  to  the  court,  PrimeTime  24  has  "simply  ignored"  the  objective  Grade  B  signal  standard  in  signing  up  "unserved"  customers  and  had  failed  to  meet  its  statutory 
 burden  of  proving  that  its  subscribers  were  eligible  for  network  service  via  satellite.  34 
 18.  The  court  outlined  methods  for  predicting  and  measuring  signal  intensity  for  identifying  unserved  households  and  required  PrimeTime  24  to  use  them.  35  Specifically,  PrimeTime  24  was  enjoined 
 from  providing  CBS  or  Fox  network  programming 


 Service  Contours,"  at  139,  141;  TV  &  Cable  Factbook,  TV  Stations  Volume  (1998  edition  page  A-  15);  TV  Allocations  Sixth  Report  and  Order  ,  41  FCC  at  177;  see  also  TV  Allocations  Third  Notice  16  Fed.  Reg.  3072  at  Appendices  A  and  B. 


 31  CBS,  Inc.  et  al.  v.  PrimeTime  24  Joint  Venture,  Order  Affirming  in  Part  and  Reversing  in  Part  Magistrate  Judge 
 Johnson's  Report  and  Recommendations,  9  F.  Supp.  2d  1333  (S.  D.  FL.,  May  13,  1998)  ("  CBS  v.  PrimeTime  24,  Order");  CBS,  Inc.  et  al.  v.  PrimeTime  24  Joint  Venture,  Supplemental  Order  Granting  Plaintiffs'  Motion  for 


 Preliminary  Injunction,  Case  No.  96-  3650-  CIV  (S.  D.  FL.,  July  10,  1998)  ("  CBS  v.  PrimeTime  24,  Supplemental  Order");  CBS,  Inc.  et  al.  v.  PrimeTime  24  Joint  Venture,  Findings  of  Fact  and  Conclusions  of  Law,  Case  No.  96- 
 3650-  CIV-  NESBITT  (S.  D.  FL.,  December  23,  1998)  ("  CBS  v.  PrimeTime  24,  Final  Ruling");  CBS,  Inc.  et  al.  v.  PrimeTime  24  Joint  Venture,  Final  Judgment  and  Permanent  Injunction,  Case  No.  96-  3650-  CIV-  NESBITT  (S.  D. 
 FL.,  December  30,  1998)  ("  CBS  v.  PrimeTime  24,  Permanent  Injunction"). 


 32  CBS  v.  PrimeTime  24  ,  Final  Ruling  at  34,  37. 


 33  Id.  at  28. 
 34  Id.  at  13-  14,  19. 
 35  Id.  at  48-  50. 
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 to  any  customer  within  an  area  shown  on  Longley-  Rice  propagation  maps,  created  using  Longley-Rice  Version  1.2.2  in  the  manner  specified  by  the  Federal  Communications  Commission 
 ("  FCC")  in  OET  Bulletin  No.  69,  as  receiving  a  signal  of  at  least  grade  B  intensity  of  a  CBS  or  Fox  primary  network  station,  without  first  either  (i)  obtaining  the  written  consent  of  the 
 affected  station(  s)  ...  or  (ii)  providing  the  affected  station(  s)  with  copies  of  signal  intensity  tests  showing  that  the  household  cannot  receive  an  over-  the-  air  signal  of  grade  B  intensity 
 as  defined  by  the  FCC  from  any  station  of  the  relevant  network.  36 
 The  court  ruled  that  the  signal  intensity  test  requires  at  least  15  days  advance  notice  to  each  affected  station  and  outlined  a  specific  procedure  that  the  tester  must  follow  at  each  household  within  a  station's  area,  as 
 predicted  by  the  Longley-  Rice  map.  37  The  court  also  imposed  the  SHVA's  "loser  pays"  regime  on  the  testing  procedure,  whereby  the  loser  to  a  challenge  of  a  subscriber's  eligibility  pays  the  costs  of  the  test.  38 


 19.  The  preliminary  injunction  is  scheduled  to  take  effect  on  February  28,  1999,  and  the  permanent  injunction  is  scheduled  for  April  30,  1999.  The  preliminary  injunction  could  result  in  the 
 termination  of  network  signals  to  the  estimated  700,000  to  one  million  subscribers  nationwide  who  subscribed  to  PrimeTime  24  after  the  networks  filed  their  lawsuit  on  March  11,  1997.  39  The  permanent 
 injunction,  which  applies  to  the  PrimeTime  24  customers  who  subscribed  before  March  11,  1997,  could  affect  an  additional  1.5  million  subscribers  nationwide.  40  The  total  number  of  PrimeTime  24  subscribers 
 affected  could  therefore  reach  2.2  -  2.5  million. 
 20.  In  a  similar  lawsuit,  a  Raleigh,  North  Carolina,  federal  district  court  ruled  against  PrimeTime  24  and  in  favor  of  a  local  ABC  affiliate.  41  The  court  issued  a  permanent  injunction  on 
 August  19,  1998  that  applies  to  all  subscribers  living  within  the  affiliate's  predicted  Grade  B  contour  of  the  affiliate's  transmitting  tower.  42  The  court  found  that  the  SHVA  defines  unserved  households  and  Grade  B 
 using  objective  standards,  and  stated, 


 36  CBS  v.  PrimeTime  24  ,  Permanent  Injunction  at  2.  See  also  CBS  v.  PrimeTime  24  ,  Preliminary  Injunction  at  2-  3. 
 37  CBS  v.  PrimeTime  24  ,  Permanent  Injunction  at  3-  4.  The  test  should  be  "conducted  in  accordance  with  the  procedures  outlined 
 in  the  Expert  Report  of  Jules  Cohen  and  the  Supplemental  Expert  Report  of  Jules  Cohen." 


 38  CBS  v.  PrimeTime  24  ,  Permanent  Injunction  at  4. 


 39  Letter  from  William  E.  Kennard,  Chairman,  Federal  Communications  Commission,  to  Senator  John  McCain  and  Representative 
 Tom  Bliley,  September  4,  1998  (figures  based  on  publicly  available  information). 


 40  Id.  As  noted,  the  court  chose  the  preliminary  injunction's  March  11,  1997  date  because  that  is  when  CBS  and  Fox  filed  their 
 lawsuit  against  PrimeTime  24. 


 41  ABC,  Inc.  v.  PrimeTime  24,  Joint  Venture  ,  17  F.  Supp.  2d  467  (M.  D.  N.  C.,  July  16,  1998)  ("  ABC  v.  PrimeTime  24  ,  Court  Opinion"). 


 42  ABC,  Inc.  v.  PrimeTime  24,  Joint  Venture  ,  17  F.  Supp.  2d  478,  490  (M.  D.  N.  C.,  Aug.  19,  1998)  ("  ABC  v.  PrimeTime  24  ,  Permanent 
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 PrimeTime's  screening  procedures  have  systematically  substituted  a  subjective  inquiry  into  the  quality  of  the  picture  on  a  potential  subscriber's  television  set  for  any  signal  strength 
 showing.  PrimeTime  has  ignored  or  turned  a  blind  eye  to  the  necessity  of  objective  signal  strength  testing  and  thus  willfully  or  repeatedly  provides  network  programming  to 
 subscribers  under  SHVA.  43 
 The  court  found  a  "pattern  and  practice  of  willful  or  repeated  copyright  infringement"  and  therefore  enjoined  transmission  within  the  "locality  or  region"  as  is  provided  for  in  the  enforcement  provisions  of  the  statute. 
 PrimeTime  24  has  provided  network  services  to  as  many  as  35,000  households  in  the  ABC  affiliate's  Raleigh/  Durham  market.  44  At  the  time  of  the  court's  decision,  PrimeTime  24  continued  to  serve  more  than 
 9,000  subscribers  within  the  affiliate's  Grade  B  contour.  45 
 21.  Several  other  lawsuits  have  been  filed  by  both  broadcasters  and  satellite  carriers.  In  Amarillo,  Texas,  an  NBC  affiliate  has  sued  PrimeTime  24  in  federal  district  court  in  a  case  that  still  awaits 
 judgment.  46  In  Denver,  Colorado,  EchoStar  has  filed  suit  against  CBS,  Fox,  NBC,  and  ABC  on  October  19,  1998  in  federal  district  court.  47  EchoStar  has  asked  the  court  to  find  that  the  Commission  has  never  endorsed 
 a  particular  model  for  predicting  or  measuring  Grade  B  intensity  for  the  purposes  of  the  SHVA.  Echostar  wants  the  court  to  declare  that  a  viewer's  own  opinion  of  the  quality  of  his  or  her  signal  is  adequate  for 
 determining  whether  that  home  is  unserved  under  the  SHVA,  and  asks  the  court  to  endorse  a  predictive  model  for  identifying  served  households  such  that  95%  of  households  receive  a  Grade  B  signal  95%  of  the 
 time  with  a  50%  degree  of  confidence.  48  The  networks  followed  EchoStar's  action  by  countersuing  in  Miami.  49  No  decisions  have  been  issued  in  either  EchoStar  case. 


 D.  The  NRTC  and  EchoStar  Petitions 
 Injunction"). 
 43  1998  WL  544297,  *2. 


 44  ABC  v.  PrimeTime  24  ,  Permanent  Injunction,  1998  WL  544297,  *2;  ABC  v.  PrimeTime  24  ,  Court  Opinion,  1998  WL  544286,  *9. 
 45  1998  WL  544297,  *2,  *6;  1998  WL  544286,  *9. 
 46  Kannan  Communications,  Inc.  v.  Primetime  24  Joint  Venture  ,  No.  2-  96-  CV-  086  (N.  D.  Tex.). 
 47  Echostar  Communications  Corp.  et  al.  v.  CBS,  Inc.,  et  al.  ,  Civil  Action  No.  98-  B-  2285  (D.  Colo.  filed  October,  1998). 
 48  Id.  EchoStar's  95  /  95  /  50  court  request  contrasts  with  the  request  in  its  petition  before  the  Commission,  in  which  it  asks 
 for  a  99  /  99  /  99  model. 


 49  CBS  Broadcasting,  Inc.,  et  al.  v.  Echostar  Communications  Corp.,  et  al.  ,  Case  No.  98-  2651-  CIV-  Middlebrooks  (S.  D.  Fla.  filed 
 November,  1998). 
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 22.  In  its  petition  for  rulemaking,  the  NRTC,  a  distributor  of  DirecTV  DBS  service,  has  asked  the  Commission  to  adopt,  exclusively  for  purposes  of  interpreting  the  SHVA,  a  new  definition  of  "unserved" 
 that  includes  all  households  located  outside  a  Grade  B  contour  encompassing  a  geographic  area  in  which  100  percent  of  the  population  receives  over-  the-  air  coverage  by  network  affiliates  100  percent  of  the  time  using 
 readily  available,  affordable  receiving  equipment.  EchoStar,  which  is  a  provider  of  DBS  service,  urges  the  Commission  in  its  petition  to  adopt  a  prediction  model  to  locate  unserved  households.  EchoStar  endorses  a 
 model  that  predicts  an  area  where  99  percent  of  households  receive  a  Grade  B  signal  99  percent  of  the  time  with  a  99  percent  confidence  level.  EchoStar  also  urges  adoption  of  a  methodology  for  measuring  signal 
 strength  that  more  closely  reflects  the  signal  that  a  viewer's  television  set  actually  receives.  It  argues  that  a  number  of  flaws  exist  in  the  current  measurement  and  prediction  processes  when  they  are  used  for  purposes 
 of  the  SHVA.  After  receiving  comment  on  these  Petitions,  the  Commission  issued  the  NPRM  in  this  proceeding. 


 II.  ANALYSIS 
 23.  The  SHVA's  concern  with  adequate  television  signal  intensity  at  individual  households,  rather  than  across  broad  areas,  is  central  to  this  rulemaking.  50  This  important  distinction  leads  us  to  consider 
 measurement  and  prediction  methodologies  that  have  a  different  purpose  from  the  methodologies  for  determining  Grade  B  service  areas.  51  The  definition  of  an  unserved  household  as  "a  household  that  cannot 
 receive  ...  a  signal  of  Grade  B  intensity"  most  logically  refers  to  television  signal  reception  at  an  individual  household  and  reflects  a  concern  for  individual  viewers  that  is  not  at  issue  in  most  applications  of  the  Grade 
 B  standard.  Moreover,  when  Congress  created  the  limited  compulsory  license,  it  clearly  intended  to  help  individual  consumers  who  are  unable  to  receive  an  acceptable,  over-  the-  air  television  picture.  52  In  a  report 
 accompanying  the  1994  reauthorization  of  the  SHVA,  the  House  stated  that  "households  that  cannot  receive  over-  the-  air  broadcasts  or  cable  can  be  supplied  with  television  programming  via  home  satellite  dishes."  53 


 50  See  H.  R.  Rep.  100-  887(  I),  at  1  ("  The  purpose  of  the  proposed  legislation  is  to  create  an  interim  statutory  license  in  the 
 Copyright  Act  for  satellite  carriers  to  retransmit  television  broadcast  signals  of  superstations  and  network  stations  to  earth  station  owners  for  private  home  viewing");  17  U.  S.  C.    119(  d)(  1)  (definition  of  distributor  refers  to  secondary 


 transmission  of  network  signals  to  "individual  subscribers");    119(  d)(  8)  (definition  of  subscriber  refers  to  an  "individual"  who  receives  satellite  service);  H.  R.  Rep.  100-  887(  I),  at  5-  6  (1998),  reprinted  in  1988  U.  S.  C.  C.  A.  N.  5577  (before  the  1988  SHVA, 
 "[  v]  ery  little  attention  was  paid  to  copyright  issues  posed  by  satellite  transmissions  directly  to  individuals  for  private  home  viewing  .  .  .  it  is  appropriate  for  Congress  to  intercede  and  delineate  this  Nation's  intellectual  property  laws"). 


 51  See  47  C.  F.  R.    73.683,  73.684,  and  73.686. 
 52  The  Copyright  Office  describes  the  intent  of  the  House  Subcommittee  on  Courts,  Civil  Liberties  and  the  Administration  of 
 Justice  in  drafting  the  SHVA  as  "defining  an  `unserved  household'  as  one  that  received  a  signal  at  the  household  (not  street)  antenna  location  that  was  so  weak  that,  assuming  receiving  equipment  of  decent  quality  and  maintenance,  the  household 


 would  not  receive  an  acceptable  picture  most,  if  not  all,  of  the  time."  U.  S.  Copyright  Office  Reply  at  5. 
 53  H.  R.  Rep.  No.  103-  703,  at  5  (1994).  Representative  Boucher,  in  a  January  19,  1999  letter  to  Chairman  Kennard,  stated  that 
 Congress  intended  to  help  "the  millions  of  people  across  the  United  States  who  want  to  receive  network  programming  but  because  of  terrain  and  other  obstacles  cannot  receive  that  programming  from  local  stations." 
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 The  Senate,  in  its  1994  report,  stated  that  the  restriction  on  satellite  delivery  of  network  signals  refers  to  "subscribers  [who]  are  unable  to  receive  the  signal  of  a  particular  network."  54  And  when  originally  adopted 
 in  1988,  the  House  stated,  "The  distribution  of  network  signals  is  restricted  to  unserved  households;  that  is,  those  that  are  unable  to  receive  an  adequate  over-  the-  air  signal."  55 


 A.  The  Commission's  Role  and  Responsibility  Under  the  SHVA 
 24.  The  NPRM  raised  issues  regarding  the  scope  of  the  Commission's  authority  to  conduct  this  rulemaking  and  involve  itself  in  matters  related  to  the  SHVA.  The  comments  reflect  a  wide  range  of  opinion 
 regarding  our  authority  to  act. 
 25.  Commenters  representing  broadcasters,  network  affiliates,  and  state  or  national  television  associations  argue  that  SHVA  is  a  copyright  statute,  not  a  telecommunications  statute  and  that,  as  a  result, 
 the  Commission  has  no  authority  to  either  administer  or  enforce  it.  56  Moreover,  they  assert,  Congress  did  not  delegate  to  the  Commission  any  authority  to  rewrite  SHVA.  57  Some  commenters  argue  that  Congress 
 intended  "unserved  household"  to  be  defined  using  the  Commission's  Grade  B  standard  that  existed  at  the  time  SHVA  was  adopted  in  1988,  and  that  if  Congress  had  intended  or  wished  to  create  a  larger  geographical 
 "white  area"  58  for  satellite  providers  it  could  have  done  so  at  its  own  discretion.  59  In  any  event,  many  of  these  commenters  point  out  that  the  "white  area"  problem  has  diminished  due  to  an  increase  in  television 
 stations  and  improvement  in  transmitters,  receivers,  and  antennas.  60  Some  of  these  commenters  also  assert  that  using  the  SHVA  to  nurture  competition  would  be  irreconcilable  with  the  fundamental  purpose  of  the 
 Copyright  Act,  whose  intent  is  to  preserve  local  broadcast  services,  and  any  attempt  by  the  Commission  to  circumvent  the  legislation  would  encroach  on  Congress'  prerogatives.  61 


 54  S.  Rep.  No.  103-  407,  at  5  n.  2  (1994). 
 55  H.  R.  Rep.  No.  100-  187(  I)  at  14-  15,  18,  26,  reprinted  in  1988  U.  S.  C.  C.  A.  N.  5638  (1988). 
 56  NAB  Comments  at  10-  11;  Network  Affiliate  Comments  at  2;  Hearst-  Argyle  Comments  at  3. 
 57  Waterman  Broadcasting  Comments  at  6;  Media  Venture  Comments  at  3. 
 58  The  term  "white  area"  is  generally  used  to  indicate  areas  that  cannot  receive  adequate  signal  strength. 
 59  Network  Affiliate  Comments  at  6;  Walt  Disney  Co.  Comments  at  16. 
 60  Network  Affiliate  Comments  at  11;  MSTV  Comments  at  22. 
 61  NAB  Comments  at  63;  MSTV  Comments  at  5;  Entravision  Comments  at  10;  CBS  Corp.  Comments  at  5. 
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 26.  The  majority  of  broadcasting  commenters  disagree  with  the  satellite  carriers'  characterization  of  the  underlying  disputes  as  a  "crisis."  62  The  conflict  over  who  is  unserved  is  self-  inflicted, 
 they  argue,  because  satellite  carriers  have  been  exceeding  the  limits  of  their  compulsory  licenses  since  the  SHVA  became  law  in  1988.  63  They  state  that  the  Commission  should  not  use  this  proceeding  as  a  means  to 
 rescue  satellite  carriers  from  the  consequences  of  their  illegal  activities.  64  They  contend  that  the  core  of  satellite  network  subscribers  are  not  in  rural  areas,  as  the  Congress  envisioned  in  1988,  but  includes 
 households  located  in  more  populous  areas.  65  Several  commenters  assert  that  the  number  of  households  watching  distant  network  stations  via  satellite  bears  no  relation  to  the  number  of  households  that  truly  cannot 
 receive  their  local  affiliates  over-  the-  air.  66  Indeed,  they  argue  that  most  of  their  challenges  to  allegedly  served  subscribers  have  proven,  through  actual  signal  tests,  that  the  subscribers  were  receiving  signals  of 
 Grade  B  intensity.  67  The  NAB  asserts  that  the  majority  of  dish  owners  who  are  served  but  still  sign  up  for  network  service  do  so  because  they  want  to  watch  the  same  programming  at  different  times  (time-  shifting), 
 obtain  sports  or  other  programs  not  broadcast  by  their  local  stations,  or  avoid  placing  an  antenna  on  their  roofs.  68 


 27.  In  contrast,  commenters  representing  satellite  carriers  state  that  the  Commission  has  broad  authority  to  address  issues  surrounding  the  SHVA  and  specific  authority  to  address  the  definition, 
 measurement,  and  prediction  of  signals  of  Grade  B  intensity.  Most  satellite  commenters  strongly  urge  the  Commission  to  define  "signals  of  Grade  B  intensity"  expressly  for  SHVA  purposes.  69  They  argue  that 
 agencies  have  broad  discretion  to  make  policy  either  through  rulemaking  or  adjudication,  and  if  the  Commission  can  redefine  Grade  B  intensity  in  general,  it  certainly  has  the  authority  to  create  a  new 
 definition  in  a  SHVA-  specific  rulemaking.  70  They  maintain  that  nothing  in  the  statute  or  the  pertinent  legislative  history  contradicts  this  conclusion.  The  commenters  also  argue  that  Congress  did  not  "freeze"  the 


 62  A.  H.  Belo  Comments  at  8;  NBC  Comments  at  8. 
 63  NAB  Comments  at  56-  61;  Network  Affiliates  Comments  at  12. 
 64  MSTV  Comments  at  4;  NBC  Comments  at  2. 
 65  Network  Affiliates  Comments  at  10;  NBC  Comments  at  8. 
 66  KKCO-  TV  Comments  at  5;  Network  Affiliates  at  10. 
 67  See,  e.  g.,  KEYC-  TV  Comments  at  3;  WWNY-  TV  Comments  at  3;  KKCO-  TV  Comments  at  5. 
 68  NAB  Comments  at  3. 
 69  PrimeTime  24  Comments  at  7;  Superstar/  Netlink  Comments  at  13;  SBCA  Comments  at  5. 
 70  Echostar  Comments  at  4;  SBCA  Comments  at  5. 
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 definition  of  Grade  B  signal  intensity  when  it  adopted  the  SHVA  in  1988.  71  Commenters  assert  that  the  SHVA  does  not  incorporate  the  language  of  any  rule  into  the  statute  and  refers  to  Grade  B  "as  defined  by  the 
 Federal  Communications  Commission,"  so  the  law  clearly  grants  the  Commission  the  authority  to  define  and  redefine  a  signal  of  Grade  B  intensity.  72  Indeed,  several  satellite  commenters  point  out  that  the  Commission 
 has  never  defined  an  "over-  the-  air  signal  of  Grade  B  intensity"  as  received  "through  the  use  of  a  conventional  outdoor  rooftop  receiving  antenna"  and  it  should  adopt  such  a  definition  now.  73  They  contend 
 that  Congress,  in  Section  119(  d)(  1)  of  the  SHVA,  recognized  and  deferred  to  the  Commission's  expertise  in  this  area  and  that  it  clearly  intended  the  "unserved  household"  restriction  to  fall  under  the  Commission's 
 expertise.  In  addition,  satellite  carriers  state  that  Congress  has  utilized  the  Commission's  Grade  B  prediction  and  measurement  standards  in  the  past,  so  the  Commission's  authority  to  define  Grade  B  signal  intensity 
 must  naturally  include  the  ancillary  authority  to  adopt  methods  for  predicting  and  measuring  signal  intensity.  74  Although  the  parties  agree  that  a  prediction  methodology  should  not  preclude  a  party  from 
 conducting  actual  tests,  they  assert  that  requiring  an  individual  measurement  at  each  household  is  unworkable  due  to  the  high  cost  and  time  commitment  involved.  75 


 28.  Questions  concerning  the  Commission's  role  and  responsibility  with  respect  to  this  matter  arise  on  two  levels.  Several  commenters  assert  the  Commission  should  elaborate  on  the  objectives  of  the 
 SHVA  or  change  its  administration  to  help  satellite  carriers  become  more  competitive  with  cable  television  systems.  These  commenters  argue  that  home  satellite  companies  provide  the  strongest  challenge  to 
 entrenched  cable  monopolies,  but  are  hindered  by  their  inability  to  deliver  network  signals  via  satellite  to  consumers  who  want  them.  While  increased  competition  among  service  providers  is  an  important  and 
 longstanding  goal  of  the  Commission,  we  cannot  make  it  a  primary  goal  of  this  proceeding.  The  SHVA  is  a  copyright  law  designed  to  balance  owners'  and  users'  rights.  It  is  not  a  communications  law  with  an  express 
 purpose  of  increasing  competition  among  MVPDs.  The  SHVA  is  primarily  administered  by  the  Copyright  Office  and  enforced  by  the  federal  courts,  and  contains  the  basic  Congressional  decisions  regarding  how  and 
 to  whom  satellite  distributed  network  broadcast  signals  are  made  available.  76  We  may  not  change  the  policy  behind  the  law,  nor  may  we  go  beyond  two  terms  Congress  used  in  defining  "unserved  households."  First, 


 71  SBCA  Comments  at  5;  Pegasus  Communications  Comments  at  9;  DirecTV  Comments  at  7. 
 72  DirecTV  Comments  at  8;  PrimeTime  24  Comments  at  7;  Pegasus  Communications  Comments  at  10. 
 73  Pegasus  Communications  Comments  at  5;  PrimeTime  24  Comments  at  6. 
 74  Superstar/  Netlink  Comments  at  14;  SBCA  Comments  at  6. 
 75  SBCA  Comments  at  9;  Primestar  Partners  Comments  at  6. 
 76  Senator  Leahy  states  that  no  subscriber  to  distant  network  signals  via  satellite  should  be  disconnected  "if  the  customer  is 
 unable  to  receive  local  TV  broadcasts  over-  the-  air."  Leahy  Comments  at  1.  The  Copyright  Office  describes  the  intent  of  the  House  in  drafting  the  SHVA  as  "defining  an  `unserved  household'  as  one  that  received  a  signal  at  the  household  (not  street) 


 antenna  location  that  was  so  weak  that,  assuming  receiving  equipment  of  decent  quality  and  maintenance,  the  household  would  not  receive  an  acceptable  picture  most,  if  not  all,  of  the  time."  U.  S.  Copyright  Office  Reply  at  5." 
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 Congress  explicitly  incorporated  the  Grade  B  standard  into  the  definition,  so  only  Congress  may  consider  the  use  of  another  measure.  Second,  the  law  demands  that  a  consumer  be  unable  to  receive  a  television  signal 
 "using  a  conventional  outdoor  rooftop  antenna"  before  qualifying  as  unserved.  We  may  not  change  that  requirement,  nor  may  consumers  ignore  it.  77 


 29.  In  addition,  there  are  questions  about  the  Commission's  specific  authority  to  interpret  and  amend  the  Grade  B  standard,  whether  for  all  purposes  or  only  for  the  SHVA.  We  continue  to  believe,  as  the 
 NPRM  preliminarily  concluded,  that  we  have  the  authority  to  change  the  definition  of  a  signal  of  Grade  B  intensity  as  a  general  matter.  78  Broadcasters  concur  with  our  general  authority  to  make  changes  for  non-SHVA 
 purposes,  but  argue  that  such  a  change  would  have  no  effect  on  the  interpretation  of  the  SHVA  because  the  definition  of  Grade  B  is  frozen  in  time  by  the  language  and  intent  of  the  SHVA.  79  Satellite 
 carriers  and  other  commenters  disagree.  80  The  U.  S.  Copyright  Office,  for  example,  reviewed  the  legislative  history  and  found  nothing  to  support  the  conclusion  that  Congress  intended  to  freeze  particular  values  for 
 Grade  B  signal  intensity  in  the  SHVA.  81 
 30.  We  conclude  that  Congress  did  not  freeze  the  Grade  B  rules  in  place  when  it  enacted  the  SHVA.  Congress  gave  the  Commission  a  continuing  role  when  it  defined  "unserved  households"  as  those 
 that  cannot  receive  "an  over-  the-  air  signal  of  Grade  B  intensity  (as  defined  by  the  Commission)."  82  When  it  incorporated  Grade  B  into  the  definition  of  "unserved  households,"  Congress  did  not  incorporate  specific 
 values,  such  as  the  dBu  levels  the  Commission  uses  in  Section  73.683.  Moreover,  nothing  in  the  SHVA  itself  or  its  legislative  history  indicates  that  Congress  intended  to  freeze  the  value  of  Grade  B  when  it  passed 
 the  law  in  1988  or  when  it  renewed  it  in  1994.  When  Congress  has  chosen  to  freeze  Commission  regulations  for  other  purposes,  it  has  explicitly  done  so.  For  example,  Congress  expressly  referenced  rules  "in  effect  on 
 April  15,  1976"  when  it  froze  in  place  regulations  relating  to  copyright  compulsory  licensing.  No  such  reference  exists  here.  Case  law  also  supports  the  proposition  that  the  meaning  of  "signal  of  Grade  B 
 intensity"  was  not  frozen  when  the  SHVA  was  enacted.  83  For  example,  the  Supreme  Court  has  held  that  "[  i]  t 
 77  Commenters  in  this  proceeding  have  offered  contradictory  views  on  the  meaning  of  "conventional  outdoor  rooftop  antenna." 
 Congress  did  not  define  this  term  in  the  SHVA.  See  Copyright  Office  Reply  at  8-  9;  CBS  v.  PrimeTime  24  ,  Permanent  Injunction,  slip  op.  at  16-  17  (complying  with  the  SHVA  requires  a  rooftop  antenna,  properly  oriented  and  in  good  working  order). 


 78  NPRM  at    22. 
 79  See  NAB  Comments  at  27-  33. 
 80  See,  e.  g.,  DirecTV  Comments  at  7;  SBCA  Comments  at  5;  and  Echostar  Reply  at  2(  Had  Congress  intended  a  term  frozen  in  time 
 it  would  have  picked  a  dBu  number  from  the  then-  Commission's  rules  and  frozen  it  by  inclusion  in  the  statutory  text.).  See  also  Electronics  Technicians  Association,  International,  Inc.  (ETAI)  Comments  at  10  and  U.  S.  Copyright  Office  Reply  at  2-  5. 


 81  U.  S.  Copyright  Office  Reply  at  5. 
 82  17  U.  S.  C.    119(  d)(  10)(  A)  (emphasis  added). 
 83  See  Lukhard  v.  Reed  ,  481  U.  S.  368  (1989);  and  Helvering  v.  Wilshire  ,  308  U.  S.  90  (1939). 
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 is  of  course  not  true  that  whenever  Congress  enacts  legislation  using  a  word  that  has  a  given  administrative  interpretation  it  means  to  freeze  that  interpretation  in  place."  84  The  Supreme  Court  reasoned  that  if 
 legislation  so  constrained  an  agency's  ability  to  conduct  rulemaking  under  its  enabling  legislation,  then  "the  result  would  be  to  read  into  the  grant  of  express  administrative  powers  an  implied  condition  that  they  were 
 not  to  be  exercised  unless,  in  effect,  the  Congress  had  consented.  We  do  not  believe  that  such  impairment  of  the  administrative  process  is  consistent  with  the  statutory  scheme  which  the  Congress  has  designed."  85 


 31.  Although  we  conclude  that  the  Commission  has  the  authority  to  modify  Grade  B  intensity  values  for  all  purposes,  we  believe  that  it  is  significant  that  Congress  tied  the  SHVA  compulsory  license  to 
 the  Commission's  Grade  B  standard,  which  was  and  is  used  for  a  multiplicity  of  purposes.  We  think  Congress'  use  of  the  widely  used  Grade  B  standard  in  SHVA  indicates  that  we  should  not  adopt  a  separate 
 Grade  B  intensity  standard  for  purposes  of  SHVA  alone.  Moreover,  additional  considerations  also  lead  us  to  conclude  that  it  would  be  inadvisable  to  adopt  a  separate  Grade  B  standard  for  SHVA  purposes.  As 
 discussed  below,  a  second  set  of  signal  strength  values,  also  called  "Grade  B  signal  intensity,"  is  likely  to  create  confusion  for  the  broadcast  industry  and  others  affected  by  Commission  regulations.  86 


 B.  Defining  a  Signal  of  Grade  B  Intensity 
 32.  The  SHVA  uses  an  objective  standard  to  determine  whether  a  household  is  "unserved"  and  thus  permitted  to  receive  network  signal  via  satellite.  SHVA's  criterion  is  whether  the  household  can  receive 
 "through  the  use  of  a  conventional  outdoor  rooftop  receiving  antenna,  an  over-  the-  air  signal  [of  a  particular  network  station]  of  grade  B  intensity  (as  defined  by  the  Federal  Communications  Commission)."  By 
 incorporating  the  objective  Grade  B  signal  intensity  standard  into  the  SHVA,  Congress  declined  to  account  for  viewers'  individual  subjective  opinions  about  the  quality  of  their  television  reception,  as  well  as  the 
 adequacy  of  the  household's  existing  antenna.  87  Use  of  the  Grade  B  signal  intensity  standard  in  the  SHVA  both  invites  and  limits  the  Commission's  involvement  with  this  statute.  The  reference  to  Grade  B  signal 
 intensity  "as  defined  by  the  Federal  Communications  Commission"  brings  the  Commission's  rules  and  our  interpretations  of  our  rules  into  play.  But,  by  using  Grade  B  signal  intensity  to  define  unserved,  the  SHVA 
 also  limits  what  the  Commission  can  do  to  address  any  drawbacks  to  this  standard.  The  Grade  B  signal  intensity  values  were  used  in  the  SHVA  as  an  available  objective  benchmark  for  determining  whether  a 
 household  is  "served."  While  those  values  may  have  proven  difficult  to  apply  in  practice  as  the  sole  standard  for  determining  whether  a  household  is  unserved,  this  is  the  standard  in  the  statute  and  must  be  employed 
 here  when  distinguishing  served  and  unserved  households. 


 84  Lukhard  v.  Reed  ,  481  U.  S.  at  379. 
 85  Helvering  v.  Wilshire  ,  308  U.  S.  at  101. 
 86  See  discussion,  infra  at    43. 
 87  See  Miami  Decision  ,  slip  op.  at  31  ("  strictly  objective  standard"). 
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 33.  The  Commission's  rules  define  values  for  Grade  B  signal  intensity  in  connection  with  authorizing  television  stations  and  the  stations'  service  areas  or  "contours."  88  It  was  not,  however,  created  for 
 evaluating  picture  quality  in  individual  households.  Rather,  the  system  was  developed  to  address  the  very  different  and  difficult  problem  of  creating  station  service  areas  and  to  determine  the  proper  allocation  of 
 television  channels  in  the  early  days  of  television.  The  Commission  created  two  "grades  of  service."  89  The  specifications  for  "Grade  A"  and  "Grade  B"  service  were  established  so  that  "a  quality  acceptable  to  the 
 median  observer  is  expected  to  be  available  for  at  least  90  percent  of  the  time  at  the  best  70  percent  of  receiver  locations  at  the  outer  limits  of  [Grade  A]  service.  In  the  case  of  Grade  B  service  the  figures  are  90 
 percent  of  the  time  and  50  percent  of  the  locations."  90  The  service  areas  were  established  to  effectuate  the  Commission's  stated  twofold  purpose  "to  provide  television  service,  as  far  as  possible,  to  all  people  of  the 
 United  States  and  to  provide  a  fair,  efficient  and  equitable  distribution  of  television  broadcast  stations  to  the  several  states  and  communities."  91  The  signal  intensity  values  (also  referred  to  as  "field  strengths")  were 
 determined  based  on  certain  assumptions,  which  differ  for  the  Grade  A  service  area,  which  is  urban  and  suburban,  and  the  Grade  B  service  area,  which  is  rural.  For  example,  the  type  of  receiving  antenna  assumed 
 for  Grade  A  service  is  smaller  than  the  receiving  antenna  assumed  for  Grade  B,  and  the  terrain  assumed  for  Grade  A  differs  from  that  assumed  for  B.  92 


 34.  The  "acceptable  quality"  contemplated  in  these  early  Commission  Orders  was  based  on  quality  levels  developed  by  the  Television  Allocation  Study  Organization  ("  TASO").  93  TASO  used  data 
 from  actual  viewers.  These  viewers  were  shown  television  pictures  and  were  asked  to  rate  them  on  a  scale  from  1(  excellent)  to  6  (unusable).  Level  3,  on  which  the  Grade  B  service  level  was  based,  was  defined  as 
 "(  Passable)  -  The  picture  is  of  acceptable  quality.  Interference  is  not  objectionable."  94  Based  on  the  results  of  viewer  ratings,  a  specific  signal  (or  carrier)  to  noise  ratio  at  the  television  receiver  was  found  to  be 


 88  47  C.  F.  R.    73.683(  a). 
 89  Television  Broadcast  Service,  Third  Notice  of  Further  Proposed  Rule  Making  ("  Third  FNPRM"),  16  FR  3072,  3075  (1951),  adopted 
 by  Television  Broadcast  Service,  Sixth  Report  and  Order  ,  41  FCC  148  (1952). 


 90  Third  FNPRM,  16  FR  at  3075. 


 91  Id. 
 92  Id.  at  3080.  The  receiving  antenna  assumed  in  the  planning  factors  for  Grade  A  is  a  simple  dipole,  while  for  Grade  B  it  is  a 
 directional  antenna  with  6  dB  gain  for  low  and  high  VHF  and  13  dB  gain  for  UHF. 


 93  See  Engineering  Aspects  of  Television  Allocation,  Report  of  the  Television  Allocations  Study  Organization,  March  16,  1959;  and 
 O'Connor,  Robert  A.,  "Understanding  Television's  Grade  A  and  Grade  B  Service  Contours,"  IEEE  Transactions  on  Broadcasting,  139  (December  1968).  See  also  PrimeTime  24  Comments,  Hassinger  Declaration  and  attachments  and  Miami  Decision,  slip  op.  at 


 15  ("  there  is  a  strong  correlation  between  signal  intensity  and  picture  quality  when  multiple,  neutral  observers  evaluate  picture  quality  using  properly  functioning  rooftop  antennas"). 


 94  See  O'Connor,  supra. 
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 associated  with  the  grade  3  level  --  that  is,  a  level  of  signal  that  the  median  observer  identified  as  acceptable.  In  association  with  this  level  of  acceptable  quality,  and  with  the  primary  goal  of  creating  service  areas  with 
 minimal  interference  and  maximum  coverage,  the  Commission  developed  assumptions,  generally  described  as  planning  factors,  regarding  the  environment  in  which  viewing  would  take  place.  Assumptions  were  made 
 as  to  the  quality  of  the  television  receiver  used  focusing  on  the  amount  of  electrical  noise  created  in  the  tuner,  the  signal  losses  that  take  place  in  the  wire  connection  from  the  receiver  to  the  antenna,  the  nature 
 (gain,  directionality,  and  height)  of  the  antenna  to  be  used,  and  the  amount  of  electrical  noise  in  the  environment  that  the  signal  would  have  to  overcome  to  be  viewable.  Because  radio  signal  propagation 
 varies  over  time,  certain  statistical  assumptions  were  built  into  the  definitions  used,  including  the  assumption  that  the  signal  in  question  would  be  of  acceptable  quality  to  the  median  observer  at  least  90  percent  of  the 
 time.  95 
 35.  Satellite  industry  and  consumer  comments  96  argue  in  this  proceeding  that  the  Grade  B  signal  intensity  levels  as  currently  defined  are  inappropriate  to  use  to  determine  eligibility  for  broadcast 
 network  service  via  satellite  because  they  do  not  ensure  a  good  television  picture.  They  ask  the  Commission  to  change  the  Grade  B  signal  intensity  values  to  reflect  what  they  contend  are  changed  circumstances.  The 
 satellite  industry  asserts  that  technology,  environmental  noise,  and  consumer  expectations  have  changed  since  Grade  B  signal  strength  was  first  defined  and  contend  that  these  changed  expectations  justify  upward 
 adjustments  to  the  Grade  B  values.  PrimeTime  24  states  that  Grade  B  was  based  on  television  pictures  received  on  black-  and-  white  televisions  and  the  Commission  should  revise  the  definition  of  Grade  B  signal 
 intensity  to  adjust  for  "today's  modern  world  of  VCRs,  large  screen  color  televisions,  and  heavy  television  watching."  97 


 36.  While  satellite  industry  commenters  are  in  agreement  that  the  Grade  B  signal  values  should  be  increased,  they  disagree  on  the  precise  values  that  should  be  used.  98  For  example,  PrimeTime  24's 
 engineering  consultant  asserts  that  the  planning  factor  for  the  C/  N  (carrier  to  noise)  ratio  should  be  increased  from  30  dB  to  43  dB  based  on  the  Commission's  1992  cable  television  standards.  He  also  adds  a  new 
 planning  factor  to  address  ambient  (environmental)  noise  and  decreases  the  assumed  antenna  gain  for  UHF  signals  from  13  dB  to  9  dB.  These  revisions  produce  Grade  B  values  of  67  dBu  (low  VHF),  72  dBu  (high 
 VHF),  and  81  dBu  (UHF).  99  PrimeTime  24's  Hassinger  also  describes  a  different  set  of  revised  values  for  Grade  B  based  on  an  "empirical  approach,"  which  produces  a  mix  of  higher  and  lower  values.  100  Hassinger 


 95  Id. 
 96  See,  e.  g.  ,  Superstar/  Netlink  Group  Comments  at  18;  PrimeStar  Partners  at  5;  PrimeTime  24  Comments  at  10;  J.  E.  Schmidt 
 Comments  at  1;  Michael  W.  LaBoone  Comments  at  1;  Elizabeth  Hooks  Comments  at  1;  Penny  R.  Ball  Comments  at  1;  Robert  J.  Mazzeo  M.  D.  Comments  at  1;  Larry  &  Gina  Wilson  Comments  at  1;  John  Tamosaitis  Comments  at  1;  and  Dale  Miller  Comments  at  1. 


 97  PrimeTime  24  Comments  at  10-  13. 
 98  Compare  PrimeTime  24  Comments  at  10-  13  with  SBCA  Comments  at  13. 
 99  PrimeTime  24  Comments,  Hassinger  Declaration  at  9-  11. 
 100  Id.  at  12-  15. 
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 acknowledges  that  his  proposed  values  do  not  deal  with  the  problem  of  "multipathing"  (i.  e.,  ghosting  or  multiple  images  due  to  signal  reflection)  and  acknowledges  that  the  stronger  signal  intensity  he  proposes 
 "may  make  the  effect  of  multipathing  more  pronounced."  101  PrimeTime  24  concedes  that  these  increased  values  would  approximate  or  exceed  current  Grade  A  contour  values,  but  contends  the  FCC  is  not 
 constrained  by  the  existing  Grade  A  values  since  the  Grade  B  values  proposed  would  be  for  purposes  of  the  SHVA  only. 


 37.  The  Satellite  Broadcasting  Communications  Association  (SBCA)  argues  for  values  of  70.75  dBu  (low  VHF),  76.5  dBu  (high  VHF),  and  92.75  dBu  (UHF)  to  better  reflect  "today's  more  complex 
 signal  propagation  environment."  102  SBCA's  Consulting  Engineers  propose  changes  to  certain  of  the  planning  factors  that  are  the  basis  for  the  Grade  B  values  to  increase  the  receiver  noise  figure,  the  required 
 signal  to  noise  ratio,  the  receiver  antenna  gain,  and  line  loss.  103 
 38.  Satellite  industry  commenters  also  contend  that  the  improvements  in  receivers  since  the  1950s  do  not  adequately  offset  other  factors  that  have  made  picture  quality  decline.  104  PrimeTime  24  asserts 
 that  the  appropriate  standard  for  DTV  allotments  or  Grade  B  contours  is  irrelevant  and  that  what  matters  is  the  appropriate  signal  strength  to  assure  "that  an  individual  household  receives  an  acceptable  quality 
 picture."  105 
 39.  Broadcast  industry  commenters  argue  that  even  if  the  Commission  had  authority  to  revise  the  definition  of  Grade  B  as  it  is  used  in  the  SHVA,  the  Grade  B  values  should  be  lowered  rather  than  raised. 
 They  assert  that  television  receivers  and  antennas  have  improved  since  the  1950s  and  now  give  viewers  better  picture  quality  at  the  Grade  B  signal  level  than  they  had  when  Grade  B  was  adopted.  106  The  broadcast 
 industry  also  asserts  that  the  definition  of  Grade  B  has  been  repeatedly  reevaluated  over  the  past  40  years  and  reaffirmed  on  each  occasion.  107  NAB's  consulting  engineer,  Jules  Cohen  states  that  over  the  forty  years 


 101  Id.  at  16.  In  ghosting,  also  known  as  multipathing,  as  the  signal  strength  increases,  the  "noise"  in  the  picture  is  reduced. 
 Unfortunately,  noise  (e.  g.,  electrical  noise  in  the  tuner  or  environment)  masks  ghosting.  Thus,  as  the  noise  is  reduced,  which  is  a  benefit  to  picture  quality  in  the  absence  of  multipath  problems,  the  ghosting  disturbance  becomes  more  noticeable. 


 102  SBCA  Comments  at  13. 
 103  SBCA  Comments  Engineering  Statement  at  5  and  Appendix  2. 
 104  PrimeTime  24  Reply  at  12,  n.  9.  See  also  SBCA  Comments  at  13;  NRTC  Comments  at  18  (To  ask  viewers  used  to  high  quality 
 distant  network  satellite  service  to  return  to  analog,  over-  the-  air  local  pictures  deemed  "acceptable"  pursuant  to  some  1950s  standard  is  completely  inappropriate  as  well  as  counterproductive  to  the  development  of  a  vibrant,  competitive  MVPD 


 market). 
 105  PrimeTime  24  Reply  at  13. 


 106  See,  e.  g.,  Fox  Broadcasting  Co.  Comments  at  4-  5;  Network  Affiliate  Associations  Comments  at  42. 
 107  See,  e.  g.,  Network  Affiliate  Associations  Reply  at  7  and  n.  13  citing  Television  and  FM  Field  Strength  Curves,  Report  and 
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 since  the  Grade  B  values  were  established,  viewers  may  have  become  more  sophisticated  and  their  definition  of  an  "acceptable"  picture  may  have  changed.  He  contends,  however,  that  improvements  in  receivers  have 
 improved  the  C/  N  ratio  at  the  same  signal  strength.  108  He  also  notes  the  conclusion  of  the  Advisory  Committee  on  an  Advanced  Television  Service  in  1994  that  Grade  B  as  defined  in  47  C.  F.  R.    73.683  is  still 
 the  logical  signal  strength  level  for  acceptable  picture  quality.  109  Broadcasters  also  state  that  increasing  the  Grade  B  values  will  seriously  undermine  the  viability  of  local  television  stations  by  reducing  the  size  of  their 
 markets,  which  will  decrease  advertising  revenue.  110  Decreased  advertising  revenue  threatens  their  survival,  which,  they  contend,  threatens  localism.  Echostar  responds  that  none  of  the  broadcasters  have  quantified 
 their  alleged  loss  of  advertising  revenue.  111 
 40.  Discussion.  The  comments  submitted  by  the  satellite  industry  and  consumers  urge  vigorously  that  for  many  people  the  existing  Grade  B  signal  intensity  values  do  not  equate  to  truly 
 acceptable  picture  quality.  The  first  attack  on  the  existing  standards  has  to  do  with  the  possibility  that  viewers'  expectations  as  to  signal  quality  have  increased  over  time.  If  this  were  the  case  a  stronger  signal 
 would  be  needed  to  produce  a  picture  that  would  now  be  regarded  as  acceptable.  Although  there  is  some  speculation  in  the  comments  that  viewer  expectations  have  indeed  changed,  no  current  study  documents  this 
 or  replicates  the  initial  TASO  study  that  correlated  viewer  judgments  of  television  picture  quality  with  specific  signal  levels.  112  In  response  to  contentions  that  the  current  values  for  Grade  B  signal  intensity  are 


 Order,  FCC  75-  636,  34  Rad.  Reg.  2d  (P&  F)  361  (1975)  (Every  time  the  Commission  or  staff  consider  revising  the  Grade  B  values,  they  conclude  no  revision  is  warranted,  and  in  1975,  the  proposal  was  to  lower  --  not  raise  --  Grade  B  field  strength  values 
 because  equipment  refinements  justified  a  reduction  in  estimated  receiver  noise,  an  increase  in  antenna  gain,  and  reduction  for  transmission  line  loss.);  Association  for  Maximum  Service  Television  Comments  at  6,  17-  20  (The  FCC  has  reexamined  the 
 premises  and  technical  rationale  for  the  Grade  B  standard  over  the  years  and  on  every  occasion  has  determined  that  the  standard  should  be  retained.  The  long  history  and  careful  evaluation  and  reevaluation  of  the  Grade  B  standard  must  not  be 
 jettisoned  through  an  expedited  rulemaking.);  NAB  Comments  at  35;  and  Affiliates  Association  Comments  at  27.  See  also  Staff  Report,  Comparability  For  UHF  Television:  A  Preliminary  Analysis  ,  180-  83  (Sept.  1979)  and  Final  Staff  Report,  Comparability  for 
 UHF  Television  ,  246  (Sept.  1980)  and  NAB  Reply  at  9. 
 108  Jules  Cohen  Engineering  Statement  on  Behalf  of  Maximum  Service  Television,  Inc.  Comments  ("  Cohen  MSTV  Statement")  at   
 8.  Contra,  PrimeTime  24  Reply  at  12. 


 109  Cohen  MSTV  Statement,  supra,  at    9. 


 110  See,  e.  g.,  MSTV  Comments  at  5,  15,  24;  Entravision  Holdings  LLC  Comments  at  2,  9;  The  Post  Company  (KIFI-  TV)  at  7;  Withers 
 Broadcasting  Companies  Comments  at  4;  ABC,  CBS,  NBC  &  Fox  Joint  Comments  at  78. 


 111  Echostar  Reply  at  12. 


 112  PrimeTime  24's  consulting  engineer,  William  Hassinger,  points  to  two  viewer  studies,  one  by  Neil  Smith  in  1971  and  another 
 conducted  in  Charlotte  in  1996.  See  PrimeTime  24  Comments,  Declaration  of  William  Hassinger,  Neil  Smith  Study,  and  ex  parte  presentation  of  January  14,  1999.  Neither  study  was  conducted  in  accordance  with  the  accepted  standard  for  viewer  studies, 


 ITU  Recommendation  500-  4,  "Method  for  the  Subjective  Assessment  of  the  Quality  of  Television  Pictures."  Neil  Smith  acknowledged  that  his  sample  was  too  small  to  be  sufficient  for  any  generalizations.  Neil  Smith  Study  at  18-  19.  The  Charlotte 
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 erroneous  because  they  were  based  on  viewer  evaluations  of  monochrome  images,  we  note  that  the  planning  factors  established  in  April  1952  (Doc.  8736)  were  revisited  in  1959  by  TASO,  which  was  established  in 
 response  to  a  Commission  request  to  study  the  technical  principles  which  should  be  applied  in  television  channel  allocations.  TASO  studied  these  issues  for  two  years,  used  21  inch  monochrome  and  color 
 television  sets,  and  essentially  confirmed  the  same  carrier  to  noise  ratio  as  was  established  earlier.  113  Research  on  subjective  evaluations  of  television  pictures  may  show  that  viewers  have  raised  their  level  of 
 expected  performance,  but  the  results  of  any  subjective  testing  is  dependent  on  the  testing  methodology  and  conditions.  Many  of  these  recent  tests  were  conducted  by  cable  television  sponsors  using  viewers  who  may 
 have  expected  to  pay  for  these  better  pictures.  114 
 41.  In  addition  to  suggesting  that  viewer  expectations  are  different,  it  is  also  argued  that  radio  frequency  noise  in  outlying  areas  has  increased  so  that  rural  areas  are  today  more  akin  to  urban  areas  of  the 
 1950's,  that  the  typical  household  now  has  multiple  television  receivers  necessitating  antenna  lead  splitters  that  increase  line  loss,  and  that  antenna  gain  figures  (particularly  in  the  UHF  frequencies)  should  be  re-evaluated. 
 115  We  believe  that  the  technology  of  receivers  and  antennas  has  kept  pace  with  changing 
 consumer  expectations  and  with  increased  noise.  116  Thus,  it  is  necessary  to  consider  the  totality  of  changes  that  have  taken  place  over  the  past  fifty  years.  In  the  1950s  low  cost  electronic  technology  at  television 


 frequencies  was  hard  to  find.  Therefore,  the  planning  factors  had  to  be  set  low  enough  to  ensure  that  television  sets  could  be  affordable  by  the  public.  The  noise  figure  used  in  the  planning  factors  serves  as  a 
 good  example.  The  noise  figure  is  a  measure  of  the  amount  of  electronic  noise  produced  by  the  components  in  the  television.  This  must  be  added  to  the  signal  budget  just  like  man-  made  noise  and  must  be  overcome  to 
 produce  a  passable  picture.  In  the  1950s,  the  television  tuner  technology  consisted  of  low  cost  noisy  tubes  and  attached  components.  Today,  this  technology  has  progressed  to  modern  solid  state  components  that 
 produce  lower  set  noise.  Thus,  although  many  developments  have  taken  place  since  the  standards  were  first  adopted,  it  is  not  clear  that  increases  in  the  values  involved  are  warranted. 


 42.  We  conclude  that  the  record  in  this  proceeding  provides  an  inadequate  basis  for  changing  the  Grade  B  signal  intensity  values  either  generally  or  for  purposes  of  the  SHVA  specifically.  First,  the 
 evidence  in  the  record  suggests  that  some  of  the  environmental  and  technical  changes  that  have  taken  place  trend  in  opposite  directions  and  tend  to  cancel  each  other  out.  The  Commission  has  examined  the  adequacy 


 study  did  not  use  study  subjects  from  the  general  public  and  viewing  conditions  were  not  appropriate  for  a  scientific  study. 
 113  See  Engineering  Aspects  of  Television  Allocation,  March  16,  1959,  supra. 


 114  Recommendation  500-  4,  "Methods  for  Subjective  Assessment  of  Picture  Quality  of  Television  Pictures,"  Recommendations 
 and  Reports  of  the  CCIR,  Vol.  XI,  Part  1,  Dubrovnik,  1986  and  Subjective  Assessment  of  Cable  Impairments  on  television  Picture  Quality,  Bronwen  Lindsay  Jones,  1992  NCTA  Technical  Papers. 


 115  See  PrimeTime  24  Comments,  Declaration  of  William  Hassinger  at  9-  11;  and  SBCA  Comments,  Engineering  Statement  of  Hatfield 
 &  Dawson  at  3. 


 116  See,  e.  g.,  Comparability  for  UHF  Television  :  Final  Staff  Report  (1980),  at  228  (UHF  noise  figure  significantly  reduced  and 
 further  improved  by  Commission  requirements). 
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 of  the  Grade  B  standard  on  several  occasions  since  it  was  adopted  in  the  1950s,  and  in  each  case  has  decided  not  to  make  changes.  In  1975,  the  Commission  considered  revisions  to  the  Grade  B  contour,  including  a 
 study  of  actual  viewers'  ratings.  117  That  study  concluded  that  there  was  some  evidence  supporting  minor  changes  in  the  Grade  B  values,  but  endorsed  the  Commission's  existing  standards  as  providing  "a  realistic 
 picture  of  station  coverage."  118  The  Commission  concluded  in  that  proceeding  to  revise  the  contour  for  UHF  channels  and  to  adopt  a  "terrain  roughness  factor,"  but  declined  to  make  other  revisions  because  there  was 
 "no  urgent  need,  from  an  engineering  standpoint,  to  redefine  the  Grade  B  contour."  119  In  that  Order,  the  Commission  emphasized  the  dislocation  that  would  be  imposed  on  broadcasters  by  changing  the  Grade  B 
 contour.  120  Again,  in  1980,  Commission  staff  noted  progress  in  obtaining  good  UHF  weak  signal  performance  under  the  existing  rules  and  recommended  against  reducing  the  standards  for  maximum  UHF 
 noise  figure.  121  More  recently,  in  the  DTV  Allotment  proceeding,  the  Commission  reconfirmed  the  usefulness  of  the  Grade  B  values  for  the  purpose  for  which  they  were  originally  created:  defining  service 
 areas.  122  The  record  in  this  rulemaking  does  not  warrant  a  change  from  this  recent  decision. 
 43.  Second,  we  do  not  believe  that  we  have  the  authority  to  create  a  special  Grade  B  solely  for  the  purpose  of  the  SHVA,  nor  do  we  believe  this  is  an  advisable  approach  to  take.  Establishing  another  set 
 of  values,  also  called  Grade  B,  is  likely  to  create  confusion  for  the  broadcast  industry.  It  would  risk  harm  to  the  network/  affiliate  relationship  by  creating  an  implication  that  another,  different  Grade  B  definition  might 
 be  more  suitable  for  other  situations  that  are  not  contemplated  in  this  proceeding.  In  addition,  raising  the  values  for  Grade  B  such  that  they  would  equal  or  exceed  the  Grade  A  values  may  require  reevaluation  of  the 
 Grade  A  values,  as  well.  123  The  significant  and  widespread  ramifications  of  changing  these  definitions 
 117  Amendment  of  Sections  73.333  and  73.699,  Field  Strength  Curves  for  FM  and  TV  Broadcast  Stations;  Amendment  of  Part  73 
 of  the  Rules  Regarding  Field  Strength  Measurements  for  FM  and  TV  Broadcast  Stations  ("  1975  Field  Strength  Order"),  53  FCC  2d  855  (1975). 


 118  Id.  and  PrimeTime  24  Comments,  Hassinger  Declaration,  Neil  M.  Smith  Study  at  23. 
 119  53  FCC  2d.  at    49.  But  note  that  even  these  changes  were  stayed  and  never  made  effective.  47  C.  F.  R.    73.684(  k)  and  (l) 
 "are  stayed  indefinitely."  42  FR  25736  (1977). 


 120  1975  Field  Strength  Order  ,  53  FCC  2d  at    21  and  49. 


 121  UHF  Comparability  at  228. 
 122  See  DTV  Sixth  Report  and  Order  ,  12  FCC  Rcd  14588,  14607  and  14676;  and  47  C.  F.  R    73.622(  e)  (DTV  service  areas;  field 
 strength  evaluated  using  Longley-  Rice  point-  to-  point  propagation  model)  and    73.622(  f)(  1)  (reference  to  Grade  B  contour,  as  defined  in    73.683,  for  corresponding  analog  TV  station  coverage). 


 123  It  is  possible  that  environmental  and  technology  changes,  as  well  as  altered  viewer  expectations,  warrant  change  in  the 
 Grade  B  values  to  keep  pace  with  the  standard  of  acceptability  established  in  the  1950s  but  do  not  require  change  to  Grade  A  values  where,  perhaps,  environmental  changes  are  not  so  great.  Nevertheless,  when  Grade  A  and  Grade  B  are  used  for  their 


 original  purpose  of  creating  contours,  the  Grade  B  contour  must  not  meet  or  overlap  the  Grade  A  contour.  Thus,  we  agree  with  commenters  who  say  our  ability  to  change  the  Grade  B  values  is  naturally  constrained  by  the  Grade  A  values. 
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 demand  that  we  have  a  more  complete  and  conclusive  record,  and  more  time  to  evaluate  the  record,  than  we  have  in  this  rulemaking.  124 
 44.  Finally,  some  commenters  raise  concerns  regarding  the  ability  of  the  existing  standard  to  address  interference  and  other  signal  impairments.  Although  we  are  not  changing  the  Grade  B  values,  it  is 
 important  to  note  that  as  a  matter  of  general  policy  we  agree  that  the  Grade  B  standard  incorporated  by  Congress  into  the  SHVA  implicitly  includes  within  the  definition  a  signal  that  is,  in  fact,  viewable  and  not 
 one  so  impaired  by  interference  as  to  be  degraded  below  the  "acceptable  to  the  median"  observer  level.  While  such  problems  can  be  identified  by  qualified  engineering  personnel  through  actual  observations,  this 
 is  not  a  matter,  as  satellite  commenters  in  this  proceeding  acknowledge,  125  that  can  be  resolved  by  simply  adjusting  the  dBu  levels  involved.  No  readily  usable  mechanism  for  addressing  this  matter  through  changed 
 definitions  has  been  identified  in  the  comments. 
 C.  Measuring  Television  Signal  Intensity  at  Individual  Locations 
 45.  For  the  SHVA  to  function  more  effectively,  a  relatively  low  cost,  accurate,  and  reproducible  methodology  for  measuring  the  presence  of  a  Grade  B  intensity  signal  at  an  individual  household  is 
 especially  important.  Individual  testing  is  the  key  mechanism  under  the  SHVA  for  proving  that  a  specific  household  is  unserved  and,  therefore,  eligible  to  receive  satellite  delivery  of  network  affiliated  television 
 stations.  126  The  Commission  already  has  a  method  for  measuring  signal  intensity  for  describing  a  station's  service  area  or  for  propagation  analysis,  but  it  has  not  yet  devised  a  method  for  measuring  signal  intensity  at 
 a  discrete  location,  such  as  an  individual  household.  127  We  believe  that  the  method  we  identify  herein  balances  accuracy,  affordability,  and  simplicity. 


 46.  Many  commenters  have  explicitly  asked  us  to  adopt  a  measurement  methodology.  128  Satellite  carriers  contend  that  requiring  an  individual  measurement  at  each  household  in  every  case  is 
 124  See,  e.  g.,  NAB  Comments  at  26  ("  massive  ripple  effects  throughout  the  Commission's  entire  regulatory  scheme."). 
 125  See,  e.  g.,  PrimeTime  24  Supplemental  Comments,  Declaration  of  William  Hassinger,  at  2  and  16  (desirable  to  include 
 interference  and  other  picture  impairment  factors  in  the  Grade  B  standard  but  case-  by-  case  analysis  is  the  only  substantive  way  to  address  this). 


 126  See  CBS  v.  PrimeTime  24  ,  Final  Ruling  at  48-  49  ("  the  ultimate  test  for  eligibility  of  any  particular  household  is  through  an 
 actual  signal  intensity  test"). 


 127  47  C.  F.  R.    73.686(  b)  ("  Collection  of  field  strength  data  for  propagation  analysis  ");  73.686(  c)  ("  Collection  of  field  strength 
 data  to  determine  television  service  in  specific  communities").  Propagation  analysis  generally  involves  determination  of  the  strength  of  a  signal  over  specified  paths  or  areas.  Propagation  models  may  incorporate  the  effects  of  terrain  elevations 


 along  the  path  and  other  inherent  physical  characteristics  of  the  environment. 
 128  See,  e.  g.  ,  Pegasus  Comments  at  11-  12;  U.  S.  Copyright  Office  Reply  at  2,  5-  7;  PrimeTime  24  Comments  at  5;  NAB  Comments  at 
 43;  SBCA  Comments  at  9-  10;  EchoStar  Comments  at  10;  Network  Affiliates  Comments  at  65;  DirecTV  Comments  at  27;  NRTC  Comments  at  15-  16,  20;  SNG  Comments  at  20;  SBCA  Reply  at  22;  and  NAB  Reply  at  36. 
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 unworkable  due  to  the  high  cost  and  time  commitment.  Some  satellite  commenters  contend  that  the  FCC's  current  method  of  conducting  field  strength  measurements  is  inappropriate  for  SHVA  purposes  because 
 many  homes  do  not  have  30-  foot  antennas,  individual  antennas  are  generally  not  oriented  towards  the  station's  broadcast  tower  because  many  do  not  have  rotors,  it  does  not  take  into  account  the  number  of 
 splitters  used  in  a  household  for  multiple  television  sets,  and  the  use  of  the  100-  foot  mobile  run  is  flawed.  Primetime  24  maintains  that  any  measurements  must  be  made  as  close  to  the  house  as  possible,  should 
 define  how  signal  strength  variability  is  taken  into  account  and,  if  the  homeowner  is  cooperative,  specify  that  the  home's  antenna  be  used  for  the  test  to  obtain  the  most  realistic  result.  129  PrimeStar  points  to  the 
 simplified  measurement  techniques  set  forth  in  the  Hatfield  &  Dawson  Engineering  Statement.  130 
 47.  Broadcasting  commenters  assert  that  only  an  actual  site  test  can  settle  the  legal  eligibility  of  an  individual  household.  The  majority  of  them  agree  that  any  prescribed  testing  methodology  must  be 
 consistent  with  the  Act,  that  measurements  should  be  taken  using  standardized  equipment,  that  the  receiving  antenna  should  be  oriented  toward  the  signal  being  received,  and  that  splitters,  which  deliver  a  signal  from 
 one  antenna  to  more  than  one  television  set,  should  not  be  considered  during  measurements.  The  major  network  affiliates  suggest  that  the  Commission  adopt  the  measurement  methodology  used  in  an  agreement 
 they  brokered  with  PrimeStar  Partners,  Netlink  USA,  and  Telluride  Cablevision  ("  PrimeStar/  Netlink  Agreement").  131 


 48.  Inadequacy  of  the  Current  Grade  B  Measurement  Methodology.  The  Commission's  current  signal  measurement  method,  requiring  a  so-  called  100-  foot  mobile  run,  is  inadequate  for  the 
 purposes  of  the  SHVA.  The  method  typically  involves  a  truck  with  a  30-  foot  antenna  that  takes  continuous  measurements  as  it  travels  a  distance  of  100  feet.  132  Under  Commission  rules,  the  antenna  must  be  rotated  to 
 the  best  receiving  position,  and  engineers  must  record  factors  that  might  affect  signal  intensity,  such  as  topography,  height  and  type  of  vegetation,  buildings,  obstacles,  and  weather  conditions.  If  overhead 
 obstacles  prevent  a  100-  foot  run,  a  cluster  of  five  measurements  may  be  taken  at  locations  within  200  feet  of  each  other.  Testing  can  cost  several  hundred  dollars  each  time  it  is  performed  --  an  expensive  proposition 
 for  a  satellite  company  or  a  consumer  who  wants  to  prove  that  a  household  is  unserved  by  over-  the-  air  signals.  133  When  multiplied  over  hundreds  of  households  in  a  station's  service  area,  the  cost  may  become 


 129  PrimeTime  24  Comments  at  28. 
 130  PrimeStar  Partners  Comments  at  9. 
 131  Network  Affiliate  Associations  Comment  at  73  and  Reply,  Exhibit  B,  Settlement  and  Compliance  Agreement  Between  ABC,  Inc., 
 CBS  Broadcasting,  Inc.,  Fox  Broadcasting  Company,  National  Broadcasting  Company,  and  Certain  ABC,  CBS,  Fox,  and  NBC  Network  Stations;  the  National  Association  of  Broadcasters;  the  ABC  Television  Affiliates  Association,  the  CBS  Television 


 Network  Affiliates  Association,  the  Fox  Television  Affiliates  Association,  and  the  NBC  Television  Affiliates  Association  AND  Primestar  Partners,  L.  P.,  Netlink  USA,  and  Telluride  Cablevision,  Inc.,  Schedule  7. 


 132  47  C.  F.  R.    73.686(  b)(  2). 
 133  See,  e.  g.,  EchoStar  Communications  Corp.,  et  al,  v.  CBS  Broadcasting,  Inc.,  et  al  ,  Plaintiff's  Original  Complaint  and  Request  for 
 Declaratory  Judgment,  Civil  Action  No.  98-  B-  2285  (D.  Colo.)  (October  19,  1998)  (testing  averages  $150  per  household). 
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 prohibitive  and  may  preclude  many  truly  unserved  consumers  from  receiving  broadcast  network  service.  Mitigating  the  costs  of  the  procedure,  without  sacrificing  the  integrity  of  the  testing  results,  is  an  important 
 goal  of  the  new  signal  measurement  methodology. 
 49.  In  addition  to  the  difficulties  inherent  in  the  existing  measurement  test,  many  of  its  assumptions  do  not  hold  in  individual  Grade  B  situations.  The  purpose  of  the  procedure  currently  specified 
 in  the  rules  is  not  to  determine  the  receivability  of  a  signal  at  a  single  spot,  but  to  determine,  through  measurements  at  a  series  of  grid  intersections  over  a  community,  the  nature  of  service  to  the  community.  134 
 Thus,  the  current  procedure  has  limited  use  in  measuring  signal  intensity  at  individual  locations.  For  example,  many  homes  do  not  have  antennas  30  feet  above  the  ground,  especially  if  they  are  one-  story 
 homes.  The  definition  of  unserved  household  only  describes  reception  over  a  conventional  outdoor  rooftop  receiving  antenna,  135  so  requiring  measurements  on  a  30-  foot  antenna  may  not  reflect  what  is  "conventional" 
 at  all  locations  around  the  country.  Finally,  requiring  tests  and  a  100-  foot  mobile  run  ignores  the  fact  that  homes  are  stationary  and  that  reception  may  vary  considerably  over  a  mobile  run  on  a  nearby  street. 


 50.  Measurement  Methodology  for  Individual  Locations.  Because  the  SHVA  is  concerned  with  adequate  television  signals  at  individual  households,  it  is  entirely  proper  that  the  Commission,  as  the 
 originator  of  the  Grade  B  standard,  develop  an  objective  way  to  measure  whether  or  not  that  standard  exists  at  a  particular  location.  In  short,  the  methodology  requires  a  tester  to  make  at  least  five  measurements  in  a 
 cluster  as  close  as  possible  to  the  location  being  tested.  The  median  value  of  the  measurements  will  be  the  signal  intensity  at  the  location.  In  deciding  on  which  measurement  methodology  to  adopt,  we  examined  the 


 134  The  Miami  court  ruled  that  the  signal  strength  test  should  be  "conducted  in  accordance  with  the  procedures  outlined  in  the 
 Declaration  of  Jules  Cohen,  filed  on  March  11,  1997."  Mr.  Cohen  states  in  his  Declaration  that  the  procedure  "was  based  on  that  prescribed  by  the  FCC  in  47  C.  F.  R.    73.686."  Declaration  of  Jules  Cohen  in  CBS,  et  al.,  v.  PrimeTime  24  Joint  Venture  ,  CIV-Nesbitt 


 No.  96-  3650  at  8  (executed  on  March  8,  1998).  Mr.  Cohen  describes  the  measuring  procedure  in  the  following  terms.  At  an  accessible  road  closest  to  a  household,  a  100-  foot  mobile  run  is  made  with  a  conventional  rooftop  antenna  elevated  to  30 
 feet.  During  the  run,  a  station's  field  intensity  is  recorded  and  the  data  is  stored  in  a  computer.  Analysis  of  the  data,  made  with  the  aid  of  a  computer  program,  permits  the  extraction  of  the  maximum,  minimum,  and  median  field  intensity  found, 
 together  with  the  standard  deviation.  Median  field  intensity  minus  standard  deviation  is  a  measure  of  the  least  signal  intensity  likely  to  be  found  at  the  specific  location  of  the  household. 
 In  contrast,  EchoStar  has  proposed  a  signal  strength  test,  in  a  lawsuit  filed  in  October  1998,  that  focuses  more  directly  on  a  single  point  at  a  household.  EchoStar  Communications  Corp.,  et  al,  v.  CBS  Broadcasting,  Inc.,  et  al  ,  Plaintiff's 
 Original  Complaint  and  Request  for  Declaratory  Judgment,  Civil  Action  No.  98-  B-  2285  (D.  Colo.)  (October  19,  1998).  Its  procedure  involves  placement  of  a  conventional  outdoor  rooftop  antenna  within  three  feet  of  the  home  and  raised  to  the  height  of  the 
 roof.  The  antenna  is  oriented  to  maximize  signal  strength  for  the  one  local  station  that  the  consumer  watches  most  often.  A  length  of  standard  household  cable  is  attached  to  the  antenna,  and  a  number  of  splitters  are  attached  to  duplicate  the  number 
 of  splitters  the  consumer  uses  to  service  multiple  televisions.  A  signal  measurement  is  then  conducted.  If  the  signal  strength  is  not  stable,  the  antenna  is  relocated  and  the  same  procedure  utilized  until  a  stable  signal  strength  is  achieved.  Readings  are 
 taken  approximately  every  thirty  seconds  for  a  period  of  five  minutes.  If  any  of  the  signal  strength  readings  register  less  than  the  Grade  B  signal  strength  threshold  as  established  by  Congress  and  the  FCC,  the  consumer  will  be  deemed  an  "unserved 
 household"  eligible  to  receive  distant  network  signals. 
 135  17  U.  S.  C.    119(  d)(  10)(  A). 
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 following  factors,  discussed  in  detail  below  --  the  type  of  testing  antenna  and  equipment,  where  and  how  many  measurements  should  be  taken,  the  effect  of  time  and  weather  on  signal  strength,  the  height  the  testing 
 antenna  should  be  raised,  the  orientation  of  the  testing  antenna,  and  what  information  should  be  recorded.  136 
 51.  Regarding  the  preparation  for  measurements,  we  considered  the  kind  of  testing  antenna  that  should  be  used  and  conclude  that  a  tuned  half-  wave  dipole  is  the  best  choice.  137  It  is  widely  available, 
 inexpensive,  and  simple  to  use.  In  situations  where  definite  readings  are  required,  it  has  advantages  over  gain  antennas  138  that  are  difficult  to  characterize  (calibrate)  over  a  wide  range  of  frequencies.  Although 
 dipole  antennas  are  susceptible  to  interference  from  signals  other  than  the  one  being  measured,  the  cluster  measurements  that  we  require  will  mitigate  those  effects. 


 52.  We  considered  where  the  signal  measurements  should  be  taken  --  on  the  roof,  in  the  yard,  as  close  as  possible  to  the  house,  in  the  driveway,  or  at  the  nearest  public  road.  We  conclude  that  the 
 measurements  should  be  taken  in  a  cluster  as  close  as  possible  to  a  reasonable  and  likely  spot  for  the  receiving  antenna.  139  In  doing  so,  we  do  not  require  testers  to  climb  up  to  the  roof  or  trespass  on  property 
 where  they  are  denied  permission  to  enter.  Although  we  recognize,  as  the  satellite  carriers  argue,  that  measurements  taken  at  the  television  receiver  would  most  accurately  reflect  the  picture  that  a  consumer 
 watches,  such  an  approach  would  be  inconsistent  with  the  intent  of  the  SHVA,  which  requires  the  use  of  an  outdoor  rooftop  antenna.  Measurements  at  the  television  receiver  are  inappropriate  for  determining  the 
 ambient  signal  intensity  available  at  a  household's  roof. 
 53.  We  considered  how  many  measurements  are  necessary  and  conclude  that  at  least  five  measurements  must  be  taken,  each  at  a  pre-  determined  spot.  Multiple  readings  are  necessary  because  a 
 single  reading  may  give  misleading  results.  Reflections  from  surrounding  objects  could  cause  a  reading  to  be  either  a  higher  or  lower  than  normal.  Multiple  readings  will  tend  to  mitigate  these  effects.  The  spots  must 


 136  The  measurement  rule  itself  is  found  in  Appendix  B. 
 137  A  dipole  is  a  wire  or  telescoping  metallic  antenna  consisting  of  two  straight  collinear  conductors  of  equal  length  separated 
 by  a  small  gap  where  the  transmission  line  is  attached.  The  "rabbit  ears"  on  a  television  set  are  a  type  of  dipole.  A  "half-wave"  dipole  has  an  overall  electrical  length  equal  to  half  the  wavelength  of  the  frequency  of  interest.  For  example,  the 


 wavelength  of  a  radio  signal  at  300  MHz  is  one  meter.  A  half-  wave  dipole  for  receiving  a  300  MHz  signal,  therefore,  would  have  an  overall  length  of  one-  half  meter  (approximately  20  inches).  However,  the  physical  length  of  an  actual  half-  wave  dipole 
 is  approximately  5%  shorter  due  to  the  thickness  of  the  conductor  or  the  end  effect  of  a  wire  antenna. 
 138  A  "gain  antenna"  is  an  antenna  that  provides  a  stronger  signal  (if  it  is  a  "positive"  gain  antenna)  to  the  receiver  than  the 
 reference  antenna.  The  "reference"  antenna  is  usually  either  a  dipole  or  an  isotropic  radiator.  There  are  "negative"  gain  antennas,  but  they  are  not  generally  used  for  television  reception.  An  isotropic  radiator  (antenna)  is  a  hypothetical  antenna 


 that  radiates  equally  well  in  all  directions  -  up,  down,  left,  right.  It  has  no  directional  characteristics  and  has  no  practical  application  other  than  as  a  reference  antenna. 


 139  This  conclusion  is  consistent  with  the  settlement  agreement  reached  in  the  Primestar/  Netlink  Agreement,  which  requires 
 five  measurements  taken  in  a  cluster  in  the  home's  driveway  or  otherwise  close  to  the  home.  Primestar/  Netlink  Settlement  Agreement,  Schedule  7,  item  (d)  at  1.  See  also  NAB  Comments  at  44-  45. 
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 be  chosen  before  measurements  are  taken  to  prevent  gaming  of  the  results.  They  must  be  a  minimum  distance  of  three  meters  from  each  other,  an  appropriate  spacing  to  enable  reasonably  accurate  results.  To 
 help  ensure  the  objectivity  of  the  tests,  we  suggest  that,  if  possible,  the  first  testing  point  should  be  chosen  as  the  center  point  of  an  imaginary  square  whose  corners  are  the  four  other  spots.  The  tester  shall  calculate  and 
 report  the  median  of  the  measurements  (in  units  of  dBu)  as  the  measurement  results.  For  purposes  of  the  SHVA,  this  median  measurement  will  determine  whether  a  household  is  unserved.  If  signals  of  more  than 
 one  transmitter  (e.  g.,  more  than  one  television  station)  are  being  tested,  the  tester  shall  use  the  same  spots  for  all  the  measurements. 


 54.  Regarding  measurement  procedure,  we  believe  that  a  one-  time  measurement  is  sufficient  to  determine  the  signal  intensity  at  individual  locations.  Satellite  carriers  and  broadcasters  appear  to  agree  with 
 this  conclusion.  140  We  recognize  that  several  measurements  over  time  may  determine  even  more  accurately  the  actual  signal  intensity  at  individual  locations,  but  we  have  sought  to  create  a  testing  methodology  that  is 
 both  accurate,  practical,  and  relatively  inexpensive. 
 55.  We  require  the  tester  to  measure  the  field  strength  of  the  visual  carrier  with  a  calibrated  instrument  with  a  bandwidth  of  at  least  450  kHz,  but  no  greater  than  one  megahertz.  The  tester  must 
 perform  an  on-  site  calibration  of  the  instrument  in  accordance  with  the  manufacturer's  specifications.  The  instrument  must  accurately  indicate  the  peak  amplitude  of  the  synchronizing  signal.  The  tester  must  use  a 
 shielded  transmission  line  between  the  testing  antenna  and  the  field  strength  meter.  The  tester  must  match  the  antenna  impedance  to  the  transmission  line,  and,  if  using  an  unbalanced  line,  employ  a  suitable  balun. 
 Finally,  the  tester  must  account  for  the  transmission  line  loss  for  each  frequency  being  measured. 
 56.  We  considered  the  effect  that  time  and  weather  have  on  signal  strength.  Generally,  neither  time  nor  steady-  state  conditions  of  weather  have  an  appreciable  effect  on  broadcast  television  frequencies. 
 However,  in  inclement  weather  or  when  major  weather  fronts  are  moving  through  the  measurement  area,  some  noticeable  consequence  may  result.  The  tester  should  not  take  measurements  at  such  times. 


 57.  We  considered  the  effect  that  signal  interference  has  on  the  strength  of  the  primary  signal  being  measured.  141  We  have  not  found  an  easily  reproducible,  practical  or  cost-  effective  objective  process 
 for  measuring  interference  that  impairs  reception.  142  Adding  expense  and  complication  to  the  testing  methodology  would  be  inconsistent  with  our  goal  of  creating  a  practical  and  economical  measurement 
 method.  While  we  recognize  that  interference  can  make  signals  unviewable  at  a  given  location,  and  thus 


 140  See,  e.  g.,  Network  Affiliate  Associations  Comments,  Appendix  1  at  14;  SBCA  Comments  at  21;  and  NAB  Comments  at  44-  45. 
 141  There  are  three  significant  types  of  signal  interference  --  co-  channel,  adjacent  channel,  and  UHF  taboo.  Co-  channel  (same 
 channel  number  but  assigned  to  a  different  market)  and  adjacent  channel  (channel  numbers  that  are  adjacent  in  the  spectrum,  which  are  also  assigned  to  different  markets)  stations  are  generally  assigned  well  outside  of  a  station's  Grade  B  contour. 


 However,  UHF-  taboo  related  stations  (adjacent  in  the  UHF  part  of  the  spectrum)  are  in  many  cases  located  inside  a  station's  Grade  B  contour. 


 142  Interference  from  other  television  stations  may  have  no  effect  on  measured  signal  strength  even  though  it  affects  the 
 picture  quality. 
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 ideally  issues  of  this  nature  should  be  reviewed  as  part  of  the  standard  measurement  process,  the  only  current  way  to  include  these  factors  is  for  all  interested  parties  to  undertake  a  common  subjective  evaluation  at  the 
 test  site  and  make  a  common  judgment  on  the  issue.  In  the  absence  of  a  common  subjective  judgment,  it  remains  necessary  to  rely  on  the  standard  process  that  does  not  take  this  factor  into  account.  Because 
 common  testing  cannot  be  required  and  because  it  would  add  expense  to  the  testing  procedure,  we  believe  it  would  be  highly  desirable  for  the  parties  to  develop  procedures  to  address  these  concerns  through  waivers  or 
 impartial  testing  personnel.  This  is  especially  desirable  in  those  situations  where  interference  is  predicted  or  expected  to  exist.  143  In  such  situations,  it  is  not  illogical  to  give  some  precedence  to  the  prediction  involved 
 since  interference  can  be  reliably  predicted  and  should  be  confirmable  by  on-  site  observation,  even  if  not  recordable  using  the  standard  test  procedure.  Moreover,  where  local  broadcasters  are  aware  of  interference, 
 we  expect  they  will  be  willing  to  acknowledge  its  effects.  We  believe  that  the  intent  of  the  SHVA  will  be  better  realized  if  parties  consider  interference  when  classifying  households  as  served  or  unserved,  and  we 
 encourage  the  engineering  community  to  focus  on  this  issue  to  improve  objective  measurement  techniques. 
 58.  We  considered  the  height  of  a  "conventional  outdoor  rooftop  antenna"  so  that  the  tester  would  know  how  high  to  raise  the  testing  antenna.  Commenters  offered  several  options,  including  five  feet 
 above  the  roof,  144  30  feet  for  all  circumstances,  and  a  combination  of  20  feet  for  a  one-  story  house  and  30-  feet  for  two  story  houses.  145  There  is  evidence  that  signal  intensity  varies  at  different  heights  above  the 
 ground,  so  the  height  of  the  testing  antenna  could  affect  whether  a  household  is  deemed  unserved.  146  Because  the  SHVA  relates  to  actual  ambient  signal  intensity  at  individual  households,  we  believe  that  the 
 height  of  the  individual  home  is  significant  and,  therefore,  relevant  when  dictating  the  height  of  the  testing  antenna.  In  the  interest  of  simplicity  and  consistency,  we  do  not  require  the  tester  to  raise  the  antenna  to  5 
 feet  above  the  height  of  the  roof,  which  would  result  in  measurements  taken  at  an  endless  variety  of  heights  and  would  increase  dramatically  the  complexity  of  the  testing  and  predictive  models.  We  also  decline  to 
 require  that  the  measurement  be  taken  at  30  feet  in  all  circumstances,  primarily  because  many  American  homes  are  one-  story  households  that  do  not,  and  would  not,  erect  a  30-  foot  antenna.  We  conclude  that  the 
 tester  should  raise  the  testing  antenna  20  feet  (6.1  meters)  above  the  ground  for  one-  story  buildings  and  30  feet  (9.1  meters)  above  the  ground  for  buildings  taller  than  one-  story.  This  accounts  for  most  households  in 
 the  country,  while  maintaining  an  easy-  to-  administer  standard.  For  example,  testers  will  not  be  required  to  measure  the  height  of  each  individual  household  and  they  will  not  have  to  raise  an  unwieldy  testing  antenna 
 that  is  higher  than  30  feet.  147  The  20  foot  /  30  foot  rule  is  also  consistent  with  at  least  one  agreement 
 143  Because  all  sides  acknowledge  that  interference  affects  picture  quality  and  because  the  Longley-  Rice  prediction  model 
 recommended  below  is  capable  of  considering  interference  in  its  predictions,  we  include  interference  in  the  version  of  Longley-  Rice  that  we  endorse  in  this  proceeding.  See    84  infra  . 


 144  See,  e.  g.,  PrimeTime  24  Comments  at  17. 
 145  See,  e.  g.,  Network  Affiliates  Association  Reply  at  69-  72. 
 146  See.,  e.  g.,  PrimeTime  24  Comments,  Declaration  of  Richard  Biby  at  2;  DirecTV  Comments  at  27;  SBCA  Comments  at  20. 
 147  Requiring  that  the  testing  antenna  be  elevated  to  greater  than  30  feet  would  increase  the  complexity  and  expense 
 associated  with  the  test.  Requiring  that  the  tester  climb  on  the  roof  of  a  single  family  home  or  townhouse  creates  potential  liability  problems.  Therefore,  the  test  methodology  does  not  include  these  requirements. 
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 between  the  broadcasters  and  satellite  carriers  regarding  measuring  methodology.  148  We  recognize  that  many  households  are  part  of  multiple  dwelling  units  (MDUs)  that  present  special  problems.  149  We  believe 
 that  where  households  have  access  to  a  master  antenna  on  the  MDU's  roof,  the  test  should  be  made  there,  if  possible.  150  If  the  MDU  has  no  master  antenna,  then  the  test  should  be  made  at  the  household  (outside  if 
 possible,  on  a  balcony  or  patio)  where  the  consumer  might  place  a  conventional  antenna.  151  In  some  instances,  particularly  in  MDUs  taller  than  three  stories,  the  signal  strength  may  be  adequate  inside  the  unit, 
 as  with  "rabbit  ears"  on  the  television  itself.  If  the  signal  intensity  is  stronger  inside  the  unit,  in  these  cases,  the  measurement  should  be  taken  inside,  near  the  television  and  using  the  prescribed  testing  antenna.  We 
 note  that  MDU  residents  may  require  specialized  attention  due  to  the  differences  inherent  in  large  or  tall  multi-  unit  buildings.  The  rulemaking  record  is  largely  directed  to  issues  affecting  individual  homes  and  does 
 not  contain  sufficient  detail  on  the  MDU  issue  to  address  every  circumstance  here. 
 59.  We  considered  how  the  testing  antenna  should  be  oriented.  The  maximum  gain  of  the  testing  antenna  (over  an  isotropic  antenna)  should  face  the  strongest  signal  coming  from  the  transmitter 
 whose  signal  is  being  tested.  If  more  than  one  station's  signal  is  being  measured,  the  testing  antenna  should  be  oriented  separately  for  each  station.  This  orientation  is  consistent  with  good  engineering  practice,  with 
 the  technique  required  by  the  Commission's  signal  measurement  rules,  152  and  with  the  PrimeStar/  Netlink  Agreement  on  determining  eligible  households.  153  It  is  also  consistent  with  the  Copyright  Act,  which 
 defines  an  unserved  household  in  relation  to  an  individual  television  station  rather  than  to  all  network  affiliates  in  a  market.  Section  119(  d)(  10)  defines  unserved  household  "with  respect  to  a  particular  television 
 network"  and  states  that  such  a  household  must  be  unable  to  receive  the  signal  of  "a  primary  network  affiliate  station  affiliated  with  that  network."  Based  on  this  distinction,  we  believe  that  signal  testers  should 
 focus  on  individual  stations.  Because  one  of  the  primary  purposes  of  this  Order  is  to  provide  a  practical  and  reliable  measurement  methodology,  we  include  in  the  testing  procedure  the  proper  orientation,  which  is 
 essential  to  ensure  the  validity  and  integrity  of  the  signal  intensity  test. 


 148  Primestar/  Netlink  Agreement  at  Schedule  7,  p.  1;  see  NAB  Comments  at  45. 
 149  The  Copyright  Office  has  specifically  urged  the  Commission  to  adopt  a  standard  for  measurement  to  account  for  these 
 circumstances.  U.  S.  Copyright  Office  Reply  at  8.  The  technique  we  adopt  is  consistent  with  that  suggested  by  the  NAB.  NAB  Comments,  Exhibit  C,  Engineering  Statement  of  Jules  Cohen  at  13. 


 150  There  is  support  in  the  record  for  measuring  in  the  vicinity  of  the  master  antenna,  if  there  is  one,  or  on  the  balcony  or  patio 
 where  the  dish  is  located.  See  NAB  Comments,  Exhibit  C,  Engineering  Statement  of  Jules  Cohen  at  13. 


 151  The  right  of  consumers  to  erect  an  antenna  or  other  over-  the-  air  reception  device  in  areas  under  his  or  her  exclusive  use  is 
 protected  pursuant  to  Section  207  of  the  Telecommunications  Act  of  1996.  See  Over-  the-  Air  Reception  Devices  Rule  ,  47  C.  F.  R.    1.4000. 


 152  47  C.  F.  R.    73.686. 
 153  See  NAB  Comments  at  45  and  Network  Affiliate  Associations  Reply,  Exhibit  B,  PrimeStar/  Netlink  Agreement  at  Schedule  7. 
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 60.  Finally,  we  considered  how  to  ensure  the  integrity  of  the  signal  tests  simply  and  with  as  little  burden  as  possible.  The  tester  shall  make  and  maintain  a  written  record  of  the  measurements  that 
 includes  several  items  --  (i)  a  list  of  calibrated  equipment  used  in  the  field  strength  survey,  which  for  each  instrument,  specifies  the  manufacturer,  type,  serial  number  and  rated  accuracy,  and  the  date  of  the  most 
 recent  calibration  by  the  manufacturer  or  by  a  laboratory;  (ii)  a  detailed  description  of  the  calibration  of  the  measuring  equipment,  including  field  strength  meters,  measuring  antenna,  and  connecting  cable;  (iii)  for 
 each  spot  at  the  measuring  site,  all  factors  which  may  affect  the  recorded  field,  such  as  topography,  height  and  types  of  vegetation,  buildings,  obstacles,  weather,  and  other  local  features;  (iv)  a  description  of  where 
 the  cluster  measurements  were  made;  (v)  time  and  date  of  the  measurements  and  signature  of  the  person  making  the  measurements;  (vi)  for  each  channel  being  measured,  a  list  of  the  measured  value  of  field 
 strength  (in  units  of  dBu  and  after  adjustment  for  line  loss  and  antenna  factor)  of  the  five  readings  made  during  the  cluster  measurement  process,  with  the  median  value  highlighted.  We  note  that  slight, 
 unintentional  departures  from  these  written  procedures  will  not  invalidate  a  test  if  there  is  no  basis  to  believe  they  affected  the  outcome. 


 D.  Predicting  Television  Signal  Intensity  at  Individual  Locations 
 61.  Although  the  SHVA  appears  to  require  actual  signal  measurements  when  determining  whether  households  are  unserved,  broadcasters  and  satellite  carriers  often  use  a  predictive  model  to  avoid  the 
 costs  and  difficulties  associated  with  such  on-  site  measurements.  However,  they  do  not  always  agree  on  which  model  is  most  appropriate.  Even  when  parties  use  the  same  model,  they  often  disagree  on  the  factors 
 that  are  considered  in  that  model.  For  example,  different  predictive  models  may  or  may  not  account  for  the  effects  on  signal  strength  of  receiving  antenna  height,  vegetation,  ground  clutter,  buildings,  signal 
 interference,  or  multipathing.  Additionally,  predictive  models  may  account  differently  for  variability  in  signal  strength  over  time  and  location,  and  may  predict  signal  strength  with  varying  levels  of  confidence. 
 Also,  values  for  these  parameters  may  be  varied  within  some  predictive  models. 
 62.  Many  commenters,  particularly  satellite-  affiliated  commenters,  have  asked  the  Commission  to  adopt  a  predictive  model  in  this  rulemaking,  and  they  express  strong  preferences  for  what  that  model 
 should  look  like.  Satellite  carriers  assert  that  the  Commission  has  the  authority  to  develop  a  model  for  predicting  whether  a  household  can  receive  a  signal  of  Grade  B  strength,  but  most  concede  that  such  a 
 methodology  should  not  preclude  a  party  from  conducting  actual  tests.  Some  commenters  state  that  any  challenger  to  a  presumption  created  by  the  test  should  bear  cost  of  the  tests,  regardless  of  the  results.  154 
 Other  commenters  argue  that  the  loser  in  a  challenge  should  pay  the  cost  of  measurements.  155  Satellite  carriers  do  not  agree  on  which  of  two  predictive  models,  Longley-  Rice  or  Terrain  Integrated  Rough  Earth 
 Model  (TIREM),  is  the  best  model  for  SHVA  purposes,  although  most  favor  TIREM. 
 63.  Usefulness  of  Predictive  Models.  In  the  NPRM,  we  asked  whether  we  could  mandate  a  model  for  SHVA  purposes  or  merely  endorse  one.  Broadcasters  contend  that  only  an  actual  site  test  can 
 settle  the  legal  eligibility  of  an  individual  household  and  that  the  Act  grants  the  FCC  no  authority  to 


 154  See,  e.  g.,  DirecTV  Comments  at  26;  DirecTV  Reply  at  13-  14;  NRTC  Comments  at  24;  SBCA  Comments  at  18. 
 155  See,  e.  g.,  NAB  Reply  at  44;  Media  Venture  Management  Comments  at  3;  ETAI  at  26;  Network  Affiliate  Associations  Reply  at 
 67-  68;  Biby  Comments  at  6  and  18. 
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 unilaterally  substitute  a  predictive  model.  156  They  assert  that  satellite  providers  and  broadcasters  may  privately  negotiate  the  use  of  a  predictive  model,  but  the  SHVA  precludes  the  Commission  from  mandating 
 a  particular  predictive  methodology.  If  the  Commission  does  endorse  a  model,  most  broadcasters  argue  that  the  model  should  only  create  a  rebuttable  presumption  of  service  of  lack  of  service.  157  The  satellite  providers 
 counter  that  the  Commission  certainly  has  the  authority  to  develop  a  predictive  model.  158  Some  satellite  commenters  state  that  such  a  methodology  should  not  preclude  a  party  from  conducting  actual  tests,  159  but  at 
 least  one  commenter  argues  that  a  prediction  is  enough,  by  itself,  to  satisfy  a  satellite  carrier's  burden  of  proving  that  a  household  is  unserved.  160  The  satellite  providers  also  argue  that  because  the  Commission  has 
 created  predictive  models  for  other  uses  of  the  Grade  B  construct,  it  may  develop  a  predictive  model  specifically  for  the  use  of  Grade  B  in  the  SHVA. 


 64.  We  conclude  that  predictive  models  can  be  effective  and  helpful  proxies  for  individual  household  measurements  and  that  we  have  the  authority  to  develop  and  endorse  a  model  for  making 
 predictions  of  signal  strength  at  individual  locations.  The  Commission  has  developed  and  used  predictive  models  for  determining  signal  intensity  in  other  contexts  (e.  g.,  determination  of  stations'  DTV  service 
 areas).  161  Two  prominent  examples  are  the  newer  Longley-  Rice  models  and  the  procedure  set  forth  in  Section  73.684  of  our  Rules  for  determining  traditional  Grade  B  contours  using  the  radio  propagation  curves 
 for  broadcast  television  set  forth  in  Section  73.699.  We  believe  our  position  as  the  originator  of  the  Grade  B  criterion  qualifies  us  to  determine  the  effectiveness  and  accuracy  of  predictive  models  that  relate  to  it. 


 65.  The  difference  in  taking  actual  measurements  at  individual  households  and  using  predictive  models  is  significant,  because  measurement  requires  time,  money,  and  other  resources  that  often  outweigh 
 the  benefits.  For  example,  it  may  cost  more  for  a  satellite  company  to  take  a  measurement  than  it  can  recover  through  subscriber  and  advertising  fees.  To  avoid  these  costs,  satellite  providers  may  have  refused 


 156  See,  e.  g.,  Association  of  America's  Public  Television  Stations  (APTS)  Comments  at  6;  Network  Affiliate  Associations  Reply  at 
 64;  Walt  Disney  Company  (ABC)  Comments  at  19-  21;  Shockley  Communications  Corp.  et  al.  Comments  at  5;  and  Cordillera  Communications  et  al.  Comments  at  14  (statute  clearly  requires  actual  measurements,  precludes  Commission  mandating  a 


 model,  but  use  of  accurate  model  by  satellite  carriers  can  dramatically  reduce  the  number  of  households  that  would  have  to  be  tested).  But  see  Capitol  Broadcasting  Comments  at  4  (urges  Commission  to  use  predictive  model  in  lieu  of  actual 
 measurement). 
 157  See,  e.  g.,  Shockley  Communications  Corp.  Comments  at  5;  Wilmington  Telecasters  Comments  at  5;  National  Communications 
 Comments  at  5;  JME  Media  Comments  at  5. 


 158  See,  e.  g.,  DirecTV  Comments  at  15-  16. 


 159  See,  e.  g.,  NRTC  Comments  at  21,  23;  DirecTV  Comments  at  5-  6,  26. 
 160  DirecTV  Comments  at  26;  DirecTV  Reply  at  13-  14. 
 161  47  C.  F.  R.    73.684. 
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 or  terminated  service  to  consumers  who  are  actually  unserved.  162  Additionally,  satellite  providers,  broadcasters,  and  consumers  have  often  turned  to  predictive  models  that  erroneously  permit  some  served 
 households  to  receive  satellite  network  service,  or,  conversely,  prevent  some  unserved  households  from  being  eligible  to  receive  network  stations  via  satellite.  163  When  truly  unserved  households  are  deemed 
 ineligible  for  broadcast  network  service  via  satellite,  consumers  are  hurt  and  the  SHVA's  intent  is  thwarted.  Likewise,  when  served  households  are  deemed  eligible  for  satellite-  delivered  broadcast  network  service, 
 network  affiliates  are  harmed  and  the  SHVA's  intent  is  also  thwarted.  We  believe  the  Commission's  endorsement  of  a  model  will  address  some  of  the  problems  that  consumers,  as  well  as  the  broadcast  and 
 satellite  industries,  encounter  when  following  the  SHVA.  We  expect  our  endorsement  to  reduce  conflicts  regarding  which  model  satisfactorily  predicts  a  household's  true  status  as  served  or  unserved,  and  we  hope 
 that  a  single  model  makes  it  easy  for  consumers  to  determine  their  eligibility  for  satellite-  delivered  broadcast  network  service  at  the  time  they  subscribe  to  a  DTH  satellite  service  (at  the  point  of  sale). 


 66.  We  recognize  that  we  speak  only  as  the  expert  agency  on  the  Grade  B  construct,  not  as  the  primary  enforcer  of  the  SHVA.  That  role  belongs  to  the  courts.  We  also  acknowledge  that  we  cannot 
 change  satellite  carriers'  burden  under  the  SHVA  of  proving  that  a  household  is  unserved,  164  and  use  of  the  predictive  model  we  endorse  is  discretionary  with  the  parties.  165  While  our  predictive  model  need  not 
 replace  actual  measurement,  it  could  serve  as  a  presumption  of  service  or  lack  of  service  for  purposes  of  the  SHVA.  166  A  presumption  should  make  administration  of  the  unserved  household  rule  easier  and  more  cost- 


 162  See,  e.  g.,  PrimeTime  24  Comments  at  5  (tests  too  expensive  to  be  economically  feasible);  Superstar/  Netlink  Comments  at  4; 
 and  SBCA  Comments  at  14. 


 163  See  National  Telecommunications  and  Information  Agency  (NTIA)  Comments  on  NRTC  Petition  at  1-  2;  PrimeTime  24  Comments 
 on  NRTC  Petition  at  4,  7,  13;  PrimeTime  24  Comments  on  Echostar  Petition  at  3-  4;  DirecTV  Joint  Comments  on  Petitions  for  Rulemaking  at  17;  PrimeStar  Partners  Comments  at  6-  7;  NRTC  Comments  at  20;  and  DirecTV  Reply  Comments  at  11-  12. 


 164  See  17  U.  S.  C.    119(  a)(  5)(  D). 
 165  But  see    97. 
 166  For  example,  we  note  that  some  broadcasters  have  entered  into  agreements  with  Primestar  and  Netlink  (satellite 
 television  providers)  to  resolve  disputes  arising  from  the  SHVA  requirements.  These  settlements  assign  five-  digit  zip  codes  to  each  station  and  classify  each  zip  code  as  "red  light"  if  more  than  50%  of  the  zip  code's  population  is  served  --  based  on 


 Longley-  Rice  propagation  data  --  and  as  "green  light"  if  50%  or  less  of  the  population  in  the  zip  code  is  served.  Primestar  and  Netlink  agreed  in  this  settlement  that  they  will  not  sign  up  new  subscribers  who  are  in  a  "red  light  zip  code"  unless  the 
 station  grants  a  waiver  or  the  satellite  carrier  conducts  a  signal  intensity  test  that  shows  the  household  does  not  receive  a  Grade  B  intensity  signal.  The  agreement  also  describes  a  simplified  testing  methodology  for  measuring  signal  intensity  at  a 
 home  and  provides  that  the  "loser  pays"  for  any  tests  that  are  conducted.  See  Settlement  and  Compliance  Agreement  Between  ABC,  Inc.,  CBS  Broadcasting,  Inc.,  Fox  Broadcasting  Company,  National  Broadcasting  Company,  and  Certain  ABC,  CBS, 
 Fox,  and  NBC  Network  Stations;  the  National  Association  of  Broadcasters;  the  ABC  Television  Affiliates  Association,  the  CBS  Television  Network  Affiliates  Association,  the  Fox  Television  Affiliates  Association,  and  the  NBC  Television  Affiliates 
 Association  AND  Primestar  Partners,  L.  P.,  Netlink  USA,  and  Telluride  Cablevision,  Inc.  This  settlement  is  a  part  of  the  public  record  in  this  proceeding. 
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 effective  for  both  consumers  and  the  industries.  Broadcasters  and  satellite  providers  should  be  able  to  rely  on  a  Commission-  endorsed  model  when  deciding  whether  individual  consumers  are  presumed  to  be  eligible 
 to  receive  satellite-  delivered  network  signals.  167  Moreover,  we  recommend  that  courts  accept  the  model's  predictions  as  sufficient  to  show  that  a  satellite  service  provider  has  carried  its  statutory  burden  of  showing 
 that  a  household  is  unserved.  168  We  believe  that  such  an  approach  is  consistent  with  the  Miami  federal  court's  use  of  one  variation  of  the  Commission's  Longley-  Rice  predictive  methodology  in  its  injunctions.  169 
 Finally,  we  recommend  that  the  rebuttable  presumptions  created  by  our  model  will  be  combined  with  in-court  and  out-  of-  court  "loser  pays"  mechanisms  to  help  the  SHVA  operate  more  smoothly.  170  Such  a  loser 
 pays  scheme  would  require  the  loser  of  any  challenge  to  a  predictive  model's  presumption  to  pay  the  costs  of  an  on-  site  test  following  the  challenge. 


 67.  Inadequacy  of  the  Traditional  Grade  B  Contour  Methodology.  In  the  NPRM,  we  sought  comment  on  the  application  of  existing  predictive  models  in  the  SHVA  context,  including  our  "traditional" 
 Grade  B  contour  methodology  and  the  Longley-  Rice  predictive  model.  171  We  tentatively  concluded  that  the  Commission's  traditional  predictive  methodology  for  determining  a  Grade  B  contour  is  inappropriate  for 
 predicting  signal  strength  at  individual  locations.  Our  rules  state  that  this  methodology  is  for  three  purposes  only:  (1)  estimation  of  coverage  resulting  from  the  selection  of  a  particular  transmitter  site,  (2)  problems  of 
 coverage  related  to  47  C.  F.  R.    73.3555  (ownership  restrictions),  and  (3)  determination  of  compliance  with    73.685(  a)  concerning  minimum  field  strength  over  the  principal  community.  172  The  traditional  methodology 
 predicts  signal  strength  on  the  basis  of  average  terrain  elevation  along  radial  lines  extending  only  ten  miles  from  a  television  station's  transmitter.  173  The  traditional  methodology  does  not  accurately  reflect  all  the 
 topographic  differences  in  a  station's  transmission  area,  and  explicitly  does  not  account  for  interference  from 


 167  Commenters  note  that  consumers  and  industry  need  certainty  in  this  area.  See,  e.  g.,  PrimeTime  24  NRTC  Comments  at  8-  9, 
 13;  Superstar  Echostar  Comments  at  8-  10;  DirecTV  Joint  Comments  at  2,  10-  11,  19. 


 168  17  U.  S.  C.  119(  a)(  5)(  D). 


 169  CBS  v.  PrimeTime  24  ,  Preliminary  Injunction  at  3;  CBS  v.  PrimeTime  24  ,  Final  Ruling,  slip  op.  at  49;  CBS  v.  PrimeTime  24  , 
 Permanent  Injunction,  slip  op.,  at  2  (court  uses  Longley-  Rice  Version  1.2.2  per  Commission's  OET  Bulletin  No.  69  to  determine  which  households  may  receive  network  programming  from  PrimeTime  24). 


 170  See    93,  97  infra. 
 171  NPRM  at    33;  see  47  C.  F.  R.    73.684(  d)  and  73.686(  b)  (traditional  Grade  B  contour  method);  OET  Bulletin  69  (Longley-  Rice 
 methodology). 


 172  See  47  C.  F.  R.    73.683(  c).  See  also  Superstar/  Netlink  Comments  at  17  (noting  that  the  rule  cautions  that  these  contours  are 
 limited  in  estimating  levels  of  field  strength  and  asserting  that  these  contours  give  no  assurance  of  service  to  any  specific  percentage  of  receiver  locations)  Id.  at  n.  38. 


 173  See  47  C.  F.  R.    73.684(  d)  and  73.686(  b)  and  (c). 
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 other  signals.  174  These  omissions  make  it  an  imperfect  methodology  for  predicting  whether  an  individual  household  can  receive  an  adequate  signal.  175  For  example,  the  model  may  fail  to  account  for  terrain  features 
 that  could  block  a  house's  reception. 
 68.  Commenters  agree  that  the  traditional  methodology  for  predicting  a  Grade  B  contour  should  not  be  used  as  a  prediction  model  for  purposes  of  the  SHVA.  Satellite  industry  commenters  state  that  these 
 field  strength  contour  and  coverage  prediction  rules  were  never  intended  to  be  used  to  determine  whether  a  particular  individual  could  see  an  acceptable  picture  at  his  or  her  home.  176  The  SBCA's  Consulting 
 Engineers,  Hatfield  &  Dawson,  call  the  methodology  in  Section  73.684  of  our  rules  "simplistic,"  and  commends  the  Commission  for  ignoring  pleas  to  use  the  traditional  methodology  in  the  DTV  Allotment 
 determinations.  177  Broadcasting  industry  commenters  agree  that  the  traditional  methodology  is  insufficient.  178  In  practice,  as  well  as  in  the  Miami  lawsuit,  they  have  endorsed  the  Longley-  Rice  model  for 
 signal  strength  predictions.  179  In  their  pleadings,  the  majority  of  broadcasters  say  that  the  Commission  should  endorse  the  Longley-  Rice  model  "as  implemented  for  DTV,"  180  although  some  feel  that,  for  SHVA 
 purposes,  the  model  should  not  be  adopted  in  all  particulars.  Other  broadcasters  feel  that  SHVA  did  not  intend  the  use  of  any  predictive  methodology  181  and  that  such  models  have  no  legal  relevance  to  the  ultimate 
 determination  of  subscriber  eligibility.  182 
 69.  Longley-  Rice  Point-  to-  Point  Model  for  Digital  Television.  We  noted  in  the  NPRM  that  the  Commission  recently  adopted,  in  the  digital  television  (DTV)  proceeding,  rules  for  analyzing  TV  service 


 174  47  C.  F.  R.    73.683  and  73.684(  a). 
 175  The  Commission  also  declined  to  use  the  traditional  methodology  in  the  DTV  allocations  proceeding,  favoring  instead  one 
 variation  of  Longley-  Rice  model  1.2.2.  See  Advanced  Television  Systems  and  Their  Impact  upon  the  Existing  Television  Broadcast  Service,  Sixth  Report  and  Order  ,  12  FCC  Rcd  14588,  14676  (1997)  ("  DTV  Sixth  Report  and  Order"). 


 176  See,  e.  g.,  Superstar/  Netlink  Comments  at  18;  DirecTV  Comments  at  21-  22. 
 177  SBCA  Comments,  Hatfield  &  Dawson  Engineering  Statement  at  7. 
 178  See,  e.  g.,  Network  Affiliate  Assn.  Comments  at  60. 
 179  See,  e.  g.  ,  NAB  Comments  at  38-  39;  MSTV  Comments  at  25;  Network  Affiliate  Assn.  Comments  at  60.  ("  Both  the  broadcasting 
 and  satellite  industries  are  familiar  with  Longley-  Rice,  and,  as  the  Commission  determined  in  the  DTV  proceeding,  a  better  predictive  model  has  not  been  developed."). 


 180  See,  e.  g.,  Network  Affiliate  Assn.  Comments  at  60. 
 181  See,  e.  g.,  Walt  Disney  Company  Comments  at  20. 
 182  See,  e.  g.,  Cordillera  Communications  ,  et  al.,  Comments  at  12. 
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 areas  using  a  point-  to-  point  prediction  method  based  on  version  1.2.2  of  the  Longley-  Rice  propagation  model.  183  We  proposed  that  this  variation  of  Longley-  Rice  be  used  to  determine  Grade  B  service  at 
 individual  households.  The  Longley-  Rice  propagation  model  is  the  most  widely-  used  private  means  of  predicting  the  existence  of  a  signal  of  Grade  B  intensity  for  SHVA  purposes.  184  Although  it  is  similar  to  the 
 traditional  method  for  determining  a  Grade  B  contour,  Longley-  Rice  improves  the  traditional  model  by  adjusting  the  predictions  for  changes  in  terrain  (e.  g.,  hills  and  valleys  between  the  transmitter  and  the  house) 
 along  the  entire  path  from  the  transmitter  to  the  specified  receive  site.  Thus,  while  the  Commission's  traditional  contour  method  often  results  in  smooth  concentric  circles  surrounding  a  transmission  tower,  the 
 Longley-  Rice  method  produces  rougher  outlines  that  more  precisely  depict  areas  of  coverage. 
 70.  The  broadcasters  support  the  use  of  the  Longley-  Rice  point-  to-  point  model  in  the  SHVA  context  (assuming,  they  state,  that  the  Commission  may  endorse  a  model  in  the  first  place),  but  the  satellite 
 interests  claim  it  is  insufficient.  The  Network  Affiliate  Associations  declares, 
 To  the  extent  the  Commission  wishes  to  advise  Congress,  [we]  endorse  the  Commission's  proposal  to  recommend  the  Longley-  Rice  propagation  model  as  a  means  of 
 predicting  Grade  B  service  at  individual  locations.  Both  the  broadcasting  and  satellite  industries  are  familiar  with  Longley-  Rice,  and,  as  the 
 Commission  determined  in  the  DTV  proceeding,  a  better  predictive  model  has  not  been  developed.  185 


 The  broadcasters  accept  Longley-  Rice  with  the  proviso  that  it  should  not  make  predictions  for  households  only  within  a  station's  predicted  Grade  B  contour.  186  This  argument  recognizes  that  many  served  households 
 exist  outside  a  station's  contour,  and  it  highlights  the  irrelevance  of  a  station's  service  area  when  determining,  for  purposes  of  the  SHVA,  what  is  happening  at  an  individual  household.  Broadcasters  also  assert  that  the 
 time  and  location  variability  factors  and  the  statistical  confidence  levels  should  all  be  50%.  187  Many  satellite  commenters  reject  Longley-  Rice  as  a  first  choice  because  they  allege  it  is  based  on  extremely  low  and 
 unrealistic  prediction  of  service  probabilities  and  fails  to  account  for  several  important  factors  that  affect  signal  availability,  including  interference  from  other  signals,  vegetation,  and  buildings.  188  They  propose  the 


 183  The  Longley-  Rice  model  used  for  analysis  of  DTV  and  analog  TV  service  in  the  DTV  proceeding  is  described  in  "Longley-  Rice 
 Methodology  for  Evaluating  TV  Coverage  and  Interference,"  OET  Bulletin  69,  Federal  Communications  Commission  (July  2,  1997)  <  http://  www.  fcc.  gov/  oet/  info/  documents/  bulletins/#  69  >.  Longley-  Rice  is  the  Commission's  designated  methodology  for 


 determining  where  service  is  provided  by  a  DTV  station.  See  47  C.  F.  R.    73.622(  e).  See  also  Advanced  Television  Systems:  Sixth  Report  and  Order  ("  DTV  Sixth  Report  and  Order"),  12  FCC  Rcd  14588,  14672-  76. 


 184  See  CBS  v.  PrimeTime  24  ,  Final  Ruling,  slip  op.  at  23-  25.  See  also  NAB  Comments,  Declaration  of  Jules  Cohen  at  14-  15. 
 185  Network  Affiliate  Assn.  Comments  at  60. 
 186  See,  e.  g.,  Hearst-  Argyle  Comments  at  12;  Network  Affiliate  Assn.  Comments  at  61  and  Reply  at  20. 
 187  See,  e.  g.,  Network  Affiliate  Associations  Comments  at  62  and  Reply  at  45-  47;  MSTV  Comments  at  12;  and  NAB  Reply  at  29-  30. 
 188  See,  e.  g.,  NRTC  Comments  at  22;  PrimeTime  24  Comments  at  17;  SBCA  Comments  at  15. 
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 use  of  the  TIREM  methodology,  jointly  developed  by  the  Department  of  Defense  and  the  National  Telecommunications  and  Information  Agency  (NTIA).  189  TIREM  is  fully  discussed  below.  If  we  do  not 
 accept  TIREM,  the  satellite  carriers  accept  Longley-  Rice  as  the  next  best  option.  190  PrimeTime  24  submits  that  if  we  do  endorse  Longley-  Rice,  the  Commission  must  pay  particularly  careful  attention  to  the 
 parameters  used  in  the  model  and  should  require  the  model  to  assume  the  receiving  antenna  height  is  5  feet  above  the  actual  height  of  the  household's  roof  or,  alternatively,  no  more  than  20  feet  above  ground.  191 


 71.  A  Predictive  Model  for  Individual  Locations.  The  model  we  endorse  is  a  version  of  Longley-  Rice  1.2.2  that  we  have  adapted  for  predicting  signal  strength  at  individual  locations.  Called 
 "Individual  Location  Longley-  Rice"  or  "ILLR,"  it  is  similar  to  the  point-  to-  point  predictive  model  we  established  for  digital  television  (DTV)  allocations.  192  We  believe  ILLR  is  an  accurate,  practical,  and  readily 
 available  model  for  determining  signal  intensity  at  individual  locations.  ILLR  has  several  characteristics,  discussed  in  detail  below,  which  make  it  unique: 


 the  time  variability  factor  is  50%  193  and  the  confidence  variability  factor  is  50%;    the  model  is  run  in  individual  mode; 
   terrain  elevation  is  considered  every  1/  10  of  a  kilometer;    receiving  antenna  height  is  assumed  to  be  20  feet  above  ground  for  one-  story  buildings  and  30  feet  above 
 ground  for  buildings  taller  than  one-  story;    land  use  and  land  cover  (e.  g.,  vegetation  and  buildings)  shall  be  included  when  an  accurate  method  for 
 doing  so  is  developed;  where  error  codes  appear,  they  shall  be  ignored  and  the  predicted  value  accepted  or  the  result  shall  be  tested 
 with  an  on-  site  measurement;  locations  both  within  and  beyond  a  station's  Grade  B  contour  shall  be  examined. 


 We  believe  the  ILLR  can  be  used  for  predicting  signal  strength  for  purposes  of  the  SHVA  as  well  as  for  other  purposes  that  require  information  about  signal  intensity  at  discrete  locations.  The  model  would  not 
 supplant  currently-  existing  approaches  for  depicting  a  field  strength  contour  or  for  describing  a  station's  service  area.  Specifically,  the  ILLR  will  not  replace  the  current  Commission  rules  for  field  strength  contours 
 (47  C.  F.  R.    73.683)  or  prediction  of  coverage  for  non-  SHVA  purposes  (47  C.  F.  R.  73.684).  194  In  fact,  the 
 189  See,  e.  g.  ,  SBCA  Comments  at  15;  Pegasus  Communications  Comments  at  21;  NRTC  Comments  at  23-  24;  Echostar  Comments  at 
 8-  9. 


 190  See,  e.  g.,  PrimeTime  24  Comments  at  5;  Primestar  Partners  Comments  at  8-  9. 


 191  PrimeTime  24  Comments  at  15. 
 192  The  DTV  Longley-  Rice  model  also  used  Longley-  Rice  version  1.2.2. 
 193  When  the  time  variability  factor  for  the  predicted  field  strength  is  50%,  an  acceptable  quality  picture  should  be  available  90% 
 of  the  time. 


 194  As  stated  in  Section  73.683(  c),  field  strength  contours  are  considered  for  three  purposes  only,  none  of  which  include 
 determination  of  signal  intensity  at  individual  locations:  (1)  estimating  coverage  resulting  from  the  selection  of  a  particular 
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 ILLR  should  not  affect  a  station's  Grade  B  contour  or  service  area,  because  areas  are  irrelevant  when  predicting  what  signals  exist  at  a  particular  location.  As  both  satellite  carriers  and  broadcasters  have 
 recognized,  a  predictive  model  for  individual  locations  might  identify  unserved  households  that  lay  within  a  station's  Grade  B  contour  or,  likewise,  might  identify  served  households  outside  a  Grade  B  contour.  195 
 Importantly,  our  model  should  not  increase  or  decrease  the  number  of  truly  unserved  households.  196  The  number  of  unserved  households  remains  finite  under  any  single  definition  of  Grade  B  intensity,  and  we  do 
 not  change  that  definition  here.  If  a  household  is  unserved  in  reality,  the  ILLR  prediction  model  will  not  change  that  situation.  Likewise,  if  a  household  is  currently  served,  the  prediction  model  will  not  change  it  to 
 an  unserved  household.  A  predictive  model  of  any  sort  simply  reflects  reality  without  actually  testing  or  observing  it,  and  some  are  better  than  others  at  painting  the  most  lifelike  picture.  The  ILLR  corrects  for  the 
 mistakes  of  less-  appropriate  and  less-  accurate  models  by  more  precisely  identifying  households  as  served  or  unserved. 


 72.  Time,  Location,  and  Confidence  Factors.  Predictive  models  are  inherently  imperfect  because  they  seek  to  replicate  reality  without  actually  measuring  or  observing  it.  These  imperfections  can  be 
 mitigated  through  statistical  means  and  by  varying  the  "ingredients,"  or  factors,  included  in  any  particular  model.  For  example,  although  signals  of  Grade  B  intensity  are  defined  as  discrete  values  measured  in  dBu, 
 the  intensity  of  broadcast  signals  at  particular  locations  and  at  particular  times  cannot  be  precisely  determined,  regardless  of  the  predictive  method  used. 


 transmitter  site,  (2)  in  connection  with  problems  of  coverage  related  to  the  Commission's  duopoly  rules  (47  C.  F.  R.  73.3555),  and  (3)  determining  compliance  with  73.685(  a)  concerning  the  minimum  field  strength  to  be  provided  over  the  principal 
 community.  Section  73.683  makes  it  clear  that  field  strength  contours  are  insufficient  tools  for  determining  what  is  happening  at  any  particular  location: 


 Under  actual  conditions,  [a  signal's]  true  coverage  may  vary  greatly  from  these  estimates  because  the  terrain  over  any  specific  path  is  expected  to  be  different  from  the  average  terrain  on  which  the  field  strength  charts 
 were  based. 
 *  *  * 
 [T]  he  actual  extent  of  service  will  usually  be  less  than  indicated  by  these  estimates  due  to  interference  from  other  stations.  Because  of  these  factors,  the  predicted  field  strength  contours  give  no  assurance  of  service  to 
 any  specific  percentage  of  receiver  locations  within  the  distances  indicated. 
 195  See,  e.  g.,  NRTC  Comments  at  13;  Richard  Biby  Comments  at  2;  Professional  Service  Association  Comments  at  27;  Network 
 Affiliate  Associations  Comments  at  61;  Grant  Broadcasting  Comments  at  4;  and  Walt  Disney  Comments  at  21. 


 196  In  answer  to  concerns  raised  by  some  broadcasters,  the  predictive  model  can  recognize  that  many  households,  particularly 
 in  rural  areas,  are  served  by  "translator  stations."  See,  e.  g.  ,  New  Mexico  Broadcasters  Association  Comments  at  12  and  Exhibit  A.  The  ILLR  model,  like  the  on-  site  measurement,  will  consider  the  signal  of  either  the  affiliate  station  or  its  translator, 


 as  appropriate,  to  determine  whether  a  household  is  receiving  adequate  signal  strength. 
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 73.  One  way  to  account  for  these  factors  is  to  build  them  directly  into  signal  strength  values.  The  Grade  B  intensity  levels  are  actually  median  signal  strengths  --  i.  e.,  50%  of  locations  in  a  particular  area 
 should  receive  a  Grade  B  signal  or  higher  at  least  50%  of  the  time.  However,  this  does  not  mean  that  50%  of  the  locations  will  receive  an  acceptable  picture  only  50%  of  the  time.  The  Grade  B  values  have  a  built-  in 
 time  factor  so  that  an  acceptable  picture  is  predicted  at  least  90%  of  the  time.  For  example,  a  signal  strength  of  41  dBu  equals  an  acceptable  picture  for  channels  2-  6.  To  ensure  that  a  location  receives  such  a  signal 
 90%  of  the  time,  the  Grade  B  value  for  those  channels,  47  dBu,  includes  an  extra  time  factor  of  6  dBu.  197  Thus,  although  a  location  receiving  a  Grade  B  signal  of  47  dBu  will  only  get  that  signal  50%  of  the  time,  that 
 same  location  will  receive  a  41  dBu  signal  90%  of  the  time. 
 74.  Time,  location,  and  confidence  factors  can  also  be  built  into  predictive  models.  198  However,  it  is  often  unnecessary  to  build  an  additional  factor  into  a  predictive  model  to  get  the  desired  results.  For 
 instance,  the  Grade  B  values  already  predict  the  existence  of  an  acceptable  television  picture  at  least  90%  of  the  time,  so  the  model  need  only  predict  that  a  signal  of  Grade  B  intensity  exists  at  least  50%  of  the  time. 
 Use  of  a  higher  time  factor,  such  as  90%,  would  amount  to  unnecessary  double-  counting.  The  Longley-  Rice  model  used  for  DTV  allocations  recognizes  this  and,  therefore,  incorporates  the  50%  time  factor  into  its 
 calculations.  Both  broadcasters  and  satellite  carriers  agree  that  this  is  also  appropriate  for  purposes  of  the  SHVA.  199  We  therefore  see  no  reason  to  change  the  number  when  adapting  Longley-  Rice  to  the  individual 
 location  context. 
 75.  Although  the  parties  generally  agree  that  the  time  factor  should  be  50%,  they  do  not  agree  on  the  appropriate  level  for  the  confidence  factor.  Confidence,  in  this  context,  is  a  way  of  expressing  how 
 certain  the  model  is  that  the  predicted  signal  value  is  at  least  that  high.  200  Importantly,  it  is  not  a  reflection  of  how  accurate  the  model  is.  Longley-  Rice  has  generally  incorporated  a  50%  confidence  factor  in  its 
 calculations.  201  The  broadcasters  object  to  any  higher  number  because  they  claim  it  underpredicts  served 
 197  See  discussion  at    15  n.  30  supra. 


 198  See    79  for  discussion  on  the  location  variability  factor. 
 199  See,  e.  g.,  Network  Affiliate  Assn  Comments  at  62-  63  ("  current  Grade  B  field  strength  values  already  incorporate  a  time 
 fading  factor  to  achieve  the  desired  level  of  statistical  reliability,  viz.  that  the  best  50%  of  locations  at  the  contour  receive  an  acceptable  picture  at  least  90%  of  the  time.  The  Longley-  Rice  time  variability  input  should  only  be  changed  to  90%  if  time  fading 


 factor  is  subtracted.");  NAB  Reply  at  29  (90%  time  variability  is  already  built  into  Grade  B  value,  which  is  used  in  the  DTV  Longley-  Rice  model).  See  also  ,  MSTV  Comments  at  11;  ETAI  Comments  at  7;  Primestar  Partners  Comments  at  4;  PrimeTime  24 
 Comments  at  28. 
 200  See  Hufford,  G.  A.,  Longley,  A.  G.,  Kissick,  W.  A.,  A  Guide  to  the  Use  of  the  ITS  Irregular  Terrain  Model  in  the  Area  Prediction 
 Mode,  NTIA  Report  82-  100,  U.  S.  Department  of  Commerce  at  30,  36-  37  (April  1982).  This  confidence  factor  differs  from  the  "confidence  interval"  that  is  used  to  test  a  hypothesis  in  a  statistical  probability  model.  Mr.  Hufford  explains  that  "to  an 


 individual  receiver  of  a  broadcast  station,  [confidence]  will  be  a  measure  of  a  combined  situation  and  location  variability."  Id.  at  36. 


 201  "To  predict  TV  service  .  .  .  the  FCC  sets  location  variability  at  50%  and  the  time  variability  at  90%.  The  percent  confidence  is 
 set  at  50%,  indicating  that  we  are  interested  in  median  situations."  OET  Bulletin  No.  69  at  7. 
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 households,  and  would  discourage  trust  in  the  model  while  encouraging  more  signal  testing.  The  broadcasters  note  that  "confidence"  does  not  mean,  as  the  word  implies,  that  the  model  is  more  accurate.  202 
 76.  We  believe  that  increasing  the  "confidence"  factor  above  50%  decreases  errors  of  one  type  and  increases  errors  of  another  type.  For  example,  if  we  use  a  confidence  factor  of  90%,  the  model  will 
 "search"  for  a  predicted  signal  value  at  a  particular  location  in  which  it  has  90%  confidence  that  the  value  would,  in  reality,  be  that  value  or  higher.  The  model  could  predict  a  particular  signal  value,  say  47  dBu,  and 
 be  85%  confident  that  the  signal  would  be  47  dBu  or  higher  in  reality.  Such  a  high  level  of  confidence  means  it  would  be  very  likely  that  the  location  would  get  a  47  dBu  signal.  However,  because  it  is  searching 
 for  a  value  in  which  it  has  90%  confidence,  the  model  would  not  predict  47  dBu  and  would  continue  searching.  Eventually,  the  model  would  find  a  signal  value  in  which  it  has  90%  confidence,  say  45  dBu,  and 
 deliver  that  as  the  result.  Taking  the  example  one  step  further,  consider  a  "served"  household  under  the  SHVA  to  be  a  household  that  receives  a  signal  of  at  least  47  dBu  (the  appropriate  value  for  channels  2-  6).  If 
 the  model  predicts  with  90%  confidence  that  a  signal  of  at  least  45  dBu  exists,  the  45  dBu  household  would  be  classified  as  "unserved,"  even  though  it  is  very  likely  (85%  confidence)  that  it  receives  a  signal  of  at  least 
 47  dBu.  We  believe  it  would  be  inconsistent  with  the  SHVA  to  classify  a  household  as  unserved  when  a  model  could  predict  it  to  be  served  with  such  a  high  degree  of  confidence.  Therefore,  a  confidence 
 variability  factor  of  90%  is  unsuitable  for  purposes  of  the  SHVA  because  it  overpredicts  the  number  of  truly  unserved  households. 


 77.  A  predictive  model  that  includes  truly  served  households  in  an  unserved  category,  even  temporarily,  creates  several  undesired  effects.  First,  consumers  could  be  confused  and  frustrated.  If  the 
 model  overpredicts  the  number  of  unserved  consumers,  and  those  consumers  subscribe  to  network  service  via  satellite,  they  will  face  disappointment  when  the  broadcaster  forces  termination  of  the  broadcast  network 
 service.  Conversely,  if  the  model  underpredicts  the  number  of  unserved  consumers,  they  would  be  unjustly  deprived  of  broadcast  network  service  via  satellite.  Second,  the  SHVA  protects  network  affiliates  by  making 
 their  served  households  off  limits  to  satellite  delivery  of  broadcast  networks.  A  90%  confidence  factor  for  served  households  would  make  many  truly  served  households  eligible  for  satellite-  delivered  network  service, 
 contrary  to  the  intent  of  the  SHVA.  Third,  if  we  endorse  a  model  that  underpredicts  served  households,  broadcasters  would  have  a  great  incentive  to  challenge  the  model's  prediction  by  taking  an  actual 
 measurement.  Satellite  carriers  would  pursue  testing  when  models  consistently  underpredict  unserved  households.  Either  result  would  defeat  our  goal  of  endorsing  a  predictive  methodology  upon  which  all 
 parties  can  rely. 
 78.  We  have  chosen  to  incorporate  a  50%  confidence  factor  in  the  ILLR  model  because  it  neither  overpredicts  nor  underpredicts  served  households.  A  50%  confidence  factor  does  not  create  a 
 statistical  bias  in  favor  of  either  satellite  carriers  or  broadcasters.  Rather,  it  provides  a  median  result  that  does  not  predictably  err  in  one  direction  or  the  other.  We  have  sought  to  endorse  a  confidence  factor  that  is 
 fair  to  both  sides.  Importantly,  broadcasters  have  accepted  the  50%  confidence  factor  in  their  pleadings  and  in  their  endorsement  of  the  DTV  Longley-  Rice  model  in  the  Miami  court  case.  Similarly,  SBCA's 
 engineering  experts,  Hatfield  and  Dawson,  propose  using  a  50%  confidence  factor  in  the  TIREM  model  that  they  endorse.  They  explain  that  when  the  confidence  factor  is  50%,  the  model  predicts  the  median  situation 
 and  "the  user  has  no  control  over  this  statistical  variable."  203 
 202  See,  e.  g.,  NAB  Supplemental  Comments  at  2-  3  and  Affiliate  Associations  Supplemental  Comments  at  12-  13. 


 203  SBCA  Reply,  Hatfield  and  Dawson  Engineering  Statement  at  8-  9.  See  also  Network  Affiliate  Assn  Supplemental 
 Comments  at  14.  See  discussion  of  TIREM  model,    86  infra. 
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 A.  Individual  Mode.  The  ILLR  will  operate  in  a  so-  called  "individual  mode,"  reflecting  an  observer's  point-  of-  view  at  a  single  location.  In  the  ILLR,  location  variability  becomes  effectively  irrelevant 
 because  only  one  location  (e.  g.,  a  single  household)  is  considered.  The  individual  mode  merges  location  variability  (the  measurable  or  observable  differences  between  dissimilar  locations)  and  so-  called  situational 
 variability  (the  small,  often  hidden,  differences  between  similar  or  identical  locations)  into  the  statistical  confidence  factor.  204  One  expert  on  the  issues,  George  Hufford,  states: 


 In  the  individual  mode  situation  and  location  variability  are  combined  so  that  there  remain  this  combined  variability  and  time  variability.  Here,  the  typical  user  would 
 be  the  individual  receiver  of  a  broadcast  station  for  whom  reliability  means  the  time  availability,  and  confidence  means  the  combined  situation/  location 
 variability.  205 
 Compare  the  "broadcast  mode,"  in  which  the  DTV  Longley-  Rice  model  operates,  but  which  is  inappropriate  for  the  purposes  of  the  SHVA.  206  That  mode  reflects  the  broadcaster's  point-  of-  view  when  it  is  determining 
 a  service  area  that  includes  many  locations.  The  DTV  allotment  proceeding  utilized  the  broadcast  mode  because  it  was  predicting  the  service  areas  of  the  new  DTV  stations,  not  the  status  of  individual  households 
 as  served  or  unserved  by  analog  (NTSC)  signals. 
 B.  Terrain  Elevation.  Because  the  model  seeks  to  predict  signal  intensity  at  individual  locations,  the  model  we  endorse  considers  terrain  elevation  every  1/  10  of  a  kilometer.  This  distance  is  as 
 precise  as  current  technology  allows.  It  contrasts  with  the  DTV  Longley-  Rice  model  that  considers  terrain  elevation  every  kilometer.  207 


 C.  Antenna  Height.  The  ILLR  model  approximates  the  height  of  the  household  whose  signal  is  being  predicted.  Current  models  presume  an  antenna  height  of  30  feet.  The  model  we  endorse,  when  used 
 for  purposes  of  the  SHVA,  shall  incorporate  an  antenna  height  of  20  feet  for  one  story  buildings  and  30  feet  for  buildings  taller  than  one  story,  including  MDUs.  This  requirement  is  generally  consistent  with  our 
 conclusions  about  the  height  a  tester  must  raise  a  testing  antenna  when  making  actual,  on-  site  signal  measurements.  208 


 204  According  to  one  expert  source,  situational  variability  is  caused  by  environmental  changes  or  the  effects  of  random 
 elements  in  nature.  He  writes,  "If  we  use  like  appearing  situations  --  that  is,  if  we  change  operations  from  one  area  to  another  very  similar  area  or  if  we  merely  change  the  sampling  scheme  somewhat  --  then  the  observed  changes  in  the  location 


 variability  we  call  situation  variability  ."  Hufford  Report  at  30. 
 205  Hufford  Report  at  37. 


 206  See  OET  Bulletin  No.  69  at  8. 
 207  Id. 
 208  See    58.  We  note  that  in  some  instances  measurements  in  a  high-  rise  MDU  may  be  made  at  a  height  greater  than  30  feet. 
 MDU  residents  may  require  specialized  attention  due  to  their  unusual  circumstances,  which  will  vary  from  person  to  person 
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 D.  Land  Use  and  Land  Cover.  Satellite  carriers  and  some  other  commenters  argue  that  vegetation  and  buildings  affect  signal  intensity.  Some  broadcasters  agree  that  vegetation  and  buildings  affect 
 signal  propagation,  but  assert  that  the  Longley-  Rice  model,  as  well  as  the  Grade  B  planning  factors,  already  account  for  these  effects.  209  The  Network  Affiliate  Associations  acknowledge,  however,  that  the  empirical 
 data  allegedly  incorporated  in  the  Longley-  Rice  model  consists  of,  at  most,  "sparse"  ground  cover  and  some  "areas  with  moderate  forestation."  210  They  add  that  this  data  produces  a  model  that  includes  the  effects  of 
 foliage  "only  to  the  fixed  degree  that  they  were  present  in  the  data  used."  Other  broadcasters  contend  that  buildings  have  no  appreciable  effect  on  the  rural  areas  that  Congress  sought  to  protect  in  the  SHVA  because 
 large  buildings  exist  primarily  within  the  "city  grade"  where  a  broadcaster's  field  strength  is  strong  enough  to  overcome  any  problems.  211  Some  broadcasters  contend  that  vegetation  changes  seasonally  and  that  both 
 vegetation  and  land  use  change  rapidly  as  land  is  developed.  212 
 E.  We  conclude  that  land  use  and  land  cover  affect  signal  intensity  at  individual  locations  and  should  be  used  in  the  ILLR  when  an  appropriate  application  develops.  The  United  States  Geological  Survey 
 maintains  a  Global  Land  Information  System  ("  GLIS")  213  database  on  land  use  and  land  cover  indicating  features  such  as  vegetation  and  man-  made  structures.  We  believe  that  this  information  is  both  credible  and 
 useful.  We  acknowledge  that  larger  buildings  are  usually  found  in  urban  areas  and  Congress  expected  that  the  SHVA  would  primarily  benefit  rural  consumers,  but  the  definition  of  "unserved"  is  not  explicitly  limited 
 to  those  consumers.  The  statute  does  not  impose  a  mileage  limitation  or  distinguish  between  urban  and  rural  households.  While  we  expect  the  model  to  include  land  use  and  land  cover,  we  are  not  aware  of  a  standard 
 means  of  including  such  information  in  the  ILLR  that  has  been  accepted  by  the  technical  and  scientific 


 and  building  to  building. 
 209  The  Network  Affiliate  Associations  maintain  that  the  empirical  foundation  for  Longley-  Rice  incorporates  some  buildings  and 
 vegetation  data  and  assert  that  adding  additional  vegetation  or  building  data  to  the  model  would  require  that  the  empirical  data  be  "backed  out"  of  the  model.  Network  Affiliate  Assn  Supplemental  Comments  at  1-  3. 


 210  Id.  at  2  and  Hufford  et  al.  ,  Guide  at  12. 
 211  Network  Affiliates  Assn  Reply  at  29  and  NAB  ex  parte  comments  on  January  21,  1999.  Network  Affiliate  Associations  also 
 contend  that  Congress  intended  the  SHVA  to  provide  network  signals  via  satellite  to  rural  areas,  not  to  cities.  Therefore,  they  argue,  it  is  unnecessary  to  adjust  the  predictive  model  to  account  for  buildings.  Network  Affiliate  Assn  Supplemental 


 Comments  at  1-  3. 
 212  Network  Affiliate  Associations  also  assert  that  "there  is  no  complete  and  reliable  database  in  existence  for  buildings  on  a 
 national  basis."  They  also  contend  the  USGS  database  provides  insufficient  detail  to  be  of  use  in  signal  strength  predictions.  Network  Affiliate  Assn  Supplemental  Comments  at  1-  4;  and  ex  parte  comments  by  Fox  Network/  News  Corporation  on  January 


 5,  1999. 


 213  See  USGS  Web  page  at  <  http://  edcwww.  cr.  usgs.  gov/  Webglis/  glisbin/  glismain.  pl  >. 
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 community.  When  an  appropriate  application  has  been  developed  and  accepted,  this  information  will  be  included  in  the  ILLR.  We  challenge  interested  parties  to  develop  such  an  application  that  more  accurately 
 reflects  the  signal  intensity  at  an  individual  location. 
 F.  Interference.  The  Longley-  Rice  model  as  used  in  the  DTV  Allotment  proceeding  is  capable  of  predicting  interference  from  nearby  television  stations.  We  believe  that  the  model  we  endorse,  ILLR, 
 should  include  signal  interference  so  that  it  will  more  accurately  predict  picture  quality.  We  acknowledge  that  interference  is  not  formally  included  in  the  measurement  methodology  we  have  established  in  this 
 Order,  primarily  because  of  the  difficulties  that  would  be  created  if  we  required  testers  to  attempt  to  measure  for  it.  214  However,  all  sides  have  acknowledged  that  interference  affects  picture  quality,  and  we  believe  that, 
 in  contrast  to  the  measurement  methodology,  interference  can  be  reliably  included  in  the  predictive  model,  and  so  it  should  be  included  to  create  more  accurate  results. 


 G.  Error  Codes.  Some  satellite  carriers  have  argued  strongly  for  alleviation  of  the  problems  presented  by  error  codes  (KWX=  3)  that  the  Longley-  Rice  model  sometimes  presents  after  analysis  of  signal 
 intensity  at  particular  locations.  Error  codes  result  when  the  model  makes  a  prediction  of  signal  intensity,  but  essentially  rejects  the  prediction  for  a  reason  that  may  or  may  not  be  significant.  Hatfield  and  Dawson, 
 in  their  Engineering  Statement  accompanying  the  SBCA  Comments,  describe  error  codes: 
 In  circumstances  where  the  program's  capabilities  are  exceeded,  [Longley-  Rice  1.2.2]  cannot  compute  a  result  that  falls  within  its  `confidence'  limits,  and 
 therefore  returns  an  error  code.  The  [DTV]  version  of  the  program  assumes  service  (that  is,  signal  above  the  desired  threshold)  for  these 
 conditions.  215 
 They  explain  that  these  drawbacks  are  trivial  for  DTV  allotment  and  service  analysis,  but  in  the  SHVA  situation,  "it  is  manifestly  unjust  at  those  locations  where  propagation  path  impairments  may  result  in  input 
 parameter  variations  which  cannot  properly  be  calculated  by  Longley-  Rice  1.2.2  [and]  its  use  for  SHVA  compliance  testing  is  unsupportable."  216  Broadcasters  respond  that  this  is  a  "non-  issue."  NAB  claims  that 
 PrimeTime  24  wants  a  household  automatically  deemed  "unserved"  if  the  program  returns  an  error  code.  The  NAB  asserts  that  this  contradicts  the  advice  offered  by  SBCA's  engineers,  Hatfield  &  Dawson,  to  ignore 
 the  error  codes  as  if  they  were  a  "false  alarm."  217  The  Affiliates  Association  also  contends  that  the  error  codes  are  false  alarms  that  are  not  built  into  the  Longley-  Rice  model  and  are  ignored  by  the  DTV  version  of 
 Longley-  Rice.  218  We  conclude  that  a  party  should  either  accept  the  prediction  by  ignoring  the  error  code  or 


 214  See    57  supra. 


 215  Id.  at  7. 
 216  Id. 
 217  NAB  Reply  at  30. 
 218  Network  Affiliate  Assn  Reply  at  40. 
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 test  the  result  with  an  on-  site  measurement.  219  If  the  result  is  accepted  and  is  high  enough  to  predict  service,  the  household  shall  be  classified  as  served.  If  the  result  is  low  enough  to  predict  lack  of  service,  the 
 household  shall  be  classified  as  unserved. 
 H.  TIREM.  Several  satellite  carriers  have  asked  the  Commission  to  endorse  the  TIREM  predictive  model  instead  of  Longley-  Rice.  220  It  was  developed  by  the  Joint  Spectrum  Center  of  the  Defense 
 Department  to  test  specific  paths  with  complex  geometry.  221  News  Corporation  and  the  Corporation  for  Public  Broadcasting  have  used  one  version  of  this  model  to  examine  their  stations'  coverage.  222  However, 
 the  NAB's  engineering  consultant,  Jules  Cohen,  rejects  the  model,  contending  that  there  are  many  versions  of  TIREM,  that  it  is  unclear  which  version  is  recommended  by  satellite  carriers,  and  that  the  TIREM  version 
 that  is  discussed  most  often  is  proprietary.  223  He  also  states  that  TIREM's  proponents  have  provided  little  data  on  which  to  examine  the  propriety  of  using  TIREM  in  the  SHVA  context.  224  The  Affiliate  Associations 
 add  that  the  proprietary  version  would  cost  $500,000  to  adapt  for  purposes  of  the  SHVA.  225  They  also  assert  that  neither  the  Commission  nor  the  broadcast  and  satellite  industries  have  extensive  experience  with 
 TIREM,  especially  when  compared  to  the  experience  the  Commission  already  has  with  Longley-  Rice. 
 I.  We  believe  that  TIREM  shows  promise  as  a  tool  for  predicting  signal  intensity  at  individual  locations,  but  we  decline  to  endorse  it  at  this  time  for  several  reasons.  NTIA  has  confirmed  the  concerns 
 raised  by  some  commenters  concerning  the  public  availability  of  a  standardized  and  useful  version  of  TIREM.  226  For  example,  the  NTIA  states  that  the  latest  version  of  TIREM  may  not  be  readily  available 


 219  As  Hatfield  and  Dawson  noted,  the  DTV  implementation  of  Longley-  Rice  errs  on  the  side  of  broadcasters  by  assuming  service. 
 If  we  change  the  model's  assumption  of  service  so  that  it  assumes  no  service,  we  risk  shifting  the  satellite  carriers'  burden  of  proving  (through  actual  testing)  that  a  household  is  "unserved"  in  such  a  way  that  appears  to  contravene  the  statute. 


 220  See,  e.  g.,  SBCA  Comments  at  16;  Echostar  Comments  at  9;  and  NRTC  Comments  at  21-  24. 
 221  The  original  version  of  TIREM  was  developed  by  the  Electromagnetic  Compatibility  Analysis  Center  (ECAC)  within  the  Defense 
 Department  in  the  1960s  and  has  continued  to  be  modified  by  that  organization.  ECAC's  name  was  recently  changed  to  the  Joint  Spectrum  Center. 


 222  Ex  parte  presentation  by  Fox/  News  Corporation  (January  5,  1999);  SBCA  Comments,  Hatfield  &  Dawson  Engineering 
 Statement  at  8. 


 223  Ex  parte  presentation  by  the  NAB  (January  21,  1999).  See  also  Network  Affiliate  Assn  Supplemental  Comments  at  9-  10. 


 224  Id. 
 225  Id. 
 226  See  Letter  to  William  Kennard  from  Larry  Irving,  Assistant  Secretary  of  Commerce  for  Communications  and  Information,  at 
 2  n.  6  (January  29,  1999)  (  ex  parte  filing  in  CS  Docket  98-  201)  ("  NTIA  TIREM  Letter"). 
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 outside  of  eligible  government  agencies  due  to  federal  export  restrictions.  227  These  impediments  to  access  and  use  would  severely  impede  TIREM's  usefulness  to  the  industries  and  to  consumers.  Further,  there  is  not 
 enough  information  regarding  which,  if  any,  version  would  work  best  in  the  SHVA  context.  We  are  unaware  of  any  empirical  information  demonstrating  that  publicly  available  applications  of  TIREM  are 
 substantively  more  accurate  than  the  ILLR.  Indeed,  the  NTIA  has  run  tests  comparing  the  publicly  available  version  found  on  its  Internet  site  with  both  the  Commission's  traditional  Grade  B  contour  projections  and  a 
 version  of  Longley-  Rice  similar  to  ILLR.  228  The  NTIA  created  a  chart  of  sample  contours  for  16  designated  market  areas  and  accompanying  maps  that  suggest  that,  in  many  cases,  TIREM  Version  3  predicts  a  station 
 service  area  larger  than  the  Commission's  traditional  Grade  B  contour.  229 
 J.  In  contrast  to  TIREM,  the  Commission  has  many  years  of  experience  using  and  evaluating  the  Longley-  Rice  model.  TIREM  and  Longley-  Rice  consider  the  same  factors:  "frequency,  atmospheric 
 conditions,  the  electrical  parameters  of  the  earth,  and  the  shape  of  the  terrain  between  the  two  points."  230  The  difference  between  the  models  is  the  algorithm  used  to  consider  the  factors.  Neither  model's  source 
 code  accounts  for  vegetation  or  buildings,  but  both  models  could  be  run  including  this  data,  as  ILLR  will  be.  Further,  we  are  increasing  the  accuracy  of  the  Longley-  Rice  model  for  the  purpose  of  predictions  for 
 individual  locations  by  requiring  that  terrain  elevations  be  examined  every  one-  tenth  kilometer.  In  light  of  the  significance  and  weight  conveyed  by  the  Commission's  endorsement  of  a  particular  model,  we  believe 
 that  the  ILLR  model  will  provide  most,  if  not  all,  of  the  same  benefits  claimed  for  TIREM  by  its  proponents  while  avoiding  its  current  potential  flaws.  231 


 227  See  NTIA  TIREM  Letter  at  2  n.  6,  describing  TIREM  Version  4  and  noting  its  limited  distribution  pursuant  to  the  Arms  Control 
 Act  (22  U.  S.  C.  2751,  et  seq.  )  or  Executive  Order  12460. 


 228  See  NTIA  TIREM  Letter  at  2. 


 229  Id.  For  example,  for  WBTV-  3  in  Charlotte,  the  traditional  Grade  B  contour  encompasses  1,132,000  households,  the  TIREM 
 Version  3  contour  encompasses  1,541,000  households,  and  the  contour  created  with  the  NTIA's  variation  of  Longley-  Rice  encompasses  1,111,000  households.  TIREM  Version  3  is  the  one  available  from  NTIA's  website  and  appears  to  be  the  version 


 advocated  by  SBCA.  See  SBCA  ex  parte  Comments  of  January  26,  1999,  statement  by  Hatfield  &  Dawson  at  1. 
 230  See  SBCA  ex  parte  submission  of  January  26,  1999,  Hatfield  and  Dawson  statement  at  1-  2. 


 231  See  SBCA  Comments,  Hatfield  &  Dawson  Engineering  Statement  at  11  (list  of  advantages  of  TIREM  over  Longley-  Rice  1.2.2, 
 including  more  sophisticated  calculation  of  loss  due  to  terrain  obstructions,  minimization  of  "abrupt  discontinuities  in  calculated  loss  along  a  path,"  and  ability  to  handle  receiving  sites  that  are  close  to  obstructions  without  issuing  error  codes). 
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 E.  Loser  Pays 
 K.  The  SHVA  contains  a  "loser  pays"  mechanism  that  allows  a  party  to  recover  the  cost  of  conducting  a  signal  measurement  at  a  subscriber's  household.  232  At  the  present  time,  the  loser  pays 
 mechanism  only  applies  when  parties  are  in  litigation.  Under  the  current  law,  if  a  broadcast  network  station  questions  whether  a  subscriber  is  unserved,  an  actual  measurement  at  the  subscriber's  household  may  be 
 conducted  by  either  the  satellite  carrier  or  broadcaster  to  determine  eligibility.  233  If  a  measurement  shows  that  the  household  is  unserved,  the  broadcaster  must  pay  the  cost  of  the  test.  Similarly,  if  the  test  shows  that 
 the  household  is  served,  the  satellite  carrier  must  assume  the  cost  of  the  test.  From  1994  to  1996,  the  SHVA  had  "transitional  rules"  that  included  a  "loser  pays"  mechanism  different  from  the  one  currently  in  effect.  234 
 This  "loser  pays"  mechanism  was  not  confined  to  the  context  of  civil  litigation.  235  L.  In  light  of  the  Miami  and  Raleigh  court  findings  that  satellite  carriers  have  signed  up 
 millions  of  people  who  are  served,  it  appears  that  the  loser  pays  mechanisms  have  not  been  effective  in  discouraging  the  enrollment  of  ineligible  subscribers.  236  The  record  is  unclear  on  the  reason  for  this  failure, 
 but  anecdotal  evidence  suggests  that  both  satellite  carriers  and  broadcasters  are  disinclined  to  conduct  tests,  even  when  they  are  likely  to  win,  because  the  tests  could  annoy  their  customers  and  generate  ill-  will. 


 232  17  U.  S.  C.    119(  a)(  9)  (loser  pays  for  signal  intensity  measurement;  recovery  of  measurement  costs  in  a  civil  action). 
 233  The  statute  also  provides  that  if  a  network  station  makes  a  "reasonable  attempt"  to  conduct  a  test  but  the  household 
 denies  the  station  access  to  conduct  the  test,  and  the  station  cannot  otherwise  conduct  a  test,  the  satellite  carrier  must  terminate  network  service  to  that  household.  17  U.  S.  C.    119(  a)(  10). 


 234  See  17  U.  S.  C.    119(  a)(  8)(  B)(  ii)  and  (C)(  ii).  Section  119(  a)(  8)  expired  on  December  31,  1996.  Satellite  Home  Viewer  Act  of  1994  ,   
 6(  c),  Pub.  L.  103-  369  (Oct.  18,  1994). 


 235  17  U.  S.  C.    119(  a)(  8)(  B).  A  network  station  could  challenge  a  satellite  carrier  regarding  whether  a  particular  subscriber 
 was  unserved.  The  satellite  carrier  could  respond  to  the  challenge  by  either  terminating  the  subscriber  or  conducting  a  signal  test  at  the  challenged  household.  If  the  test  found  that  the  household  was  served,  the  satellite  carrier  was  required  to 


 terminate  service.  If  the  test  found  that  the  household  was  unserved,  the  station  that  had  challenged  the  service  was  required  to  reimburse  the  satellite  carrier  for  the  cost  of  the  test  The  SHVA  also  created  a  5%  cap  on  the  number  of 
 challenges  that  stations  could  require  and  be  compensated  for.  17  U.  S.  C.    119(  a)(  8)(  C). 
 236  CBS  v.  PrimeTime  24  ,  Final  Ruling,  slip  op.  at  36-  37.  The  permanent  injunction  in  the  Miami  case  specifies  that  the  loser  pays 
 provision  in  the  SHVA  shall  apply  to  the  "reasonable  costs  of  tests"  conducted  pursuant  to  the  injunction.  Miami  Final  Judgment  and  Permanent,  slip  op.  at  2-  4.  Tests  are  an  option  provided  by  the  injunction  if  PrimeTime  24  wants  to  provide  network 


 programming  by  satellite  to  a  household  within  the  Grade  B  area  of  the  Longley-  Rice  propagation  maps.  Alternatively,  PrimeTime  24  may  obtain  a  written  waiver  from  the  affected  station.  In  the  absence  of  either  a  waiver  or  signal  test  results 
 showing  the  household  is  unserved,  PrimeTime  24  is  prohibited  from  providing  network  service  by  satellite  to  any  household  with  the  Longley-  Rice  predicted  Grade  B  area.  Id. 
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 M.  Some  commenters  endorse  the  current  loser  pays  mechanism  in  the  SHVA.  237  Several  broadcasters  have  noted  that  the  privately-  negotiated  settlement  agreement  between  broadcasters  and 
 Primestar/  Netlink  includes  a  "loser  pays"  arrangement  that  does  not  require  civil  litigation.  238  A  few  of  the  satellite  carriers  criticize  the  SHVA's  current  loser  pays  requirement,  arguing  that  it  does  not  adequately 
 decrease  the  motivation  for  broadcasters  to  bring  numerous  challenges  against  satellite  carriers.  239  They  advocate  a  "challenger  pays"  mechanism  in  which  the  party  challenging  a  predictive  model's  presumptive 
 result  would  bear  the  cost  of  the  test  regardless  of  the  outcome.  240  Broadcast  industry  commenters  oppose  "challenger  pays"  as  unfair.  241 


 N.  The  loser  pays  mechanism  is  part  of  the  SHVA,  and  the  Commission  has  no  authority  to  change  this  mechanism  or  to  promulgate  regulations  that  conflict  with  it.  We  believe  that  the  Commission's 
 endorsement  of  a  more  reliable  predictive  model  in  this  Order  will  allow  the  existing  loser  pays  mechanism  in  the  SHVA  to  work  more  effectively  in  civil  actions. 


 III.  FUTURE  OPTIONS 
 O.  The  resolution  of  the  issues  surrounding  delivery  of  broadcast  network  signals  over  satellite  should  not  end  with  this  Order.  There  are  several,  often  competing,  public  policies  involved  in  the  future 
 actions  that  we  discuss  below.  The  value  of  local  broadcasting  in  this  country  has  been  recognized  time  and  again  by  Congress  and  the  Commission.  Local  television  stations  play  a  vital  role  in  delivering  news, 
 weather,  and  public  affairs  information  to  their  local  communities.  The  growing  competition  between  DBS  and  cable,  however,  benefits  consumers  by  giving  them  more  choices  to  watch  what  they  want  and  by 
 creating  new  and  higher-  quality  services.  DTH  satellite  carriers  have  proven  to  be  the  most  successful  competitors  to  incumbent  cable  companies,  but  they  still  serve  only  9  million  households,  which  is  only 
 between  10%  and  15%  of  the  multichannel  video  programming  market.  242  One  significant  reason  consumers 


 237  See,  e.  g.,  NAB  Reply  at  44;  Media  Venture  Management  Comments  at  3;  ETAI  at  26;  Network  Affiliate  Associations  Reply  at 
 71. 


 238  See,  e.  g.,  Association  of  America's  Public  Television  Stations  Comments  at  10;  Network  Affiliate  Assn  Reply  at  68-  72  and 
 Exhibit  B,  Primestar/  Netlink  Agreement  at  Schedule  7;  see  also  66  supra. 


 239  See,  e.  g.,  DirecTV  Reply  at  14. 


 240  See,  e.  g.,  DirecTV  Comments  at  26;  DirecTV  Reply  at  13-  14;  NRTC  Comments  at  23;  SBCA  Comments  at  18. 
 241  See,  e.  g.,  NAB  Reply  at  45-  46;  Network  Affiliate  Assn  Reply  at  63-  68  (satellite  carriers'  attempt  to  turn  loser  pays  into 
 "challenger  pays"  is  another  example  of  overreaching  and  greed;  presumption  would  shift  the  burden  of  proving  eligibility  onto  local  stations  and  away  from  satellite  carriers  contrary  to  the  SHVA;  would  give  satellite  carriers  an  incentive  to  be 


 unreasonable  because  there  would  be  no  economic  downside  to  forcing  a  broadcaster  to  test  an  "obviously  served"  household  that  had  been  predicted  as  unserved). 


 242  See  Annual  Assessment  of  the  Status  of  Competition  in  Markets  for  the  Delivery  of  Video  Programming,  Fifth  Annual 
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 give  for  not  considering  satellite  programming  service  is  the  difficulty  of  getting  seamless  broadcast  network  service.  Congress  has  informally  asked  for  our  opinion  on  options  to  improve  the  SHVA  and 
 Communications  Act  to  better  serve  consumers.  In  response  to  these  requests,  we  identify  some  possible  changes  Congress  could  consider.  This  list  is  not  meant  to  be  exhaustive. 


 A.  Local-  into-  Local 
 P.  Congress  could  consider  changes  to  copyright  law  to  allow  satellite  companies  to  provide  local  television  stations  to  local  markets.  Cable  companies  already  do  this,  to  their  distinct  advantage  vis  a 
 vis  the  satellite  carriers.  Broadcasters  support  local-  into-  local  legislation  because  they  do  not  fear  losing  their  audiences  --  and  the  advertising  dollars  that  follow.  243  Some  satellite  carriers  accept  local-  into-  local 
 legislation  because  it  gives  them  a  limited  right  to  provide  their  subscribers  with  services  those  subscribers  want.  244  Local-  into-  local  satisfies  consumers'  demands  for  broadcast  network  service  via  satellite  without 
 harming  localism.  Local-  into-  local  also  makes  satellite  carriers  more  attractive  to  consumers,  thus  increasing  their  competitive  standing  with  cable  companies.  However,  local-  into-  local  cannot  provide  the  solution  for 
 every  community  in  the  immediate  future,  due  to  limitations  in  the  satellites'  capacity  to  carry  every  local  channel.  EchoStar  recently  predicted  that  with  new  spectrum,  and  without  full  must-  carry  requirements,  it 
 will  only  be  able  to  serve  20  major  cities  within  the  next  three  years.  245  Those  cities  cover  about  half  the  United  States'  population.  Smaller  cities  would  not  be  able  to  receive  service,  even  under  the  best  scenario, 
 for  about  5  years.  Viewers  who  live  in  communities  where  local-  into-  local  service  is  unavailable  will  need  other  solutions,  including  DirecTV's  practice  of  selling  over-  the-  air  antennas  with  their  satellite  dishes. 
 However,  for  those  that  can  receive  local  network  stations  via  satellite,  local-  into-  local  provides  a  partial  solution  that  should  address  the  needs  of  consumers  and  the  broadcast  and  satellite  industries,  as  well  as 
 promote  competition  to  cable. 
 B.  Change  from  the  Grade  B  Signal  Intensity  Standard 
 Q.  We  have  noted  that  the  Grade  B  signal  intensity  standard  was  originally  designed  to  depict  a  television  station's  service  area,  and  that  it  may  not  address  all  the  factors  that  determine  the  quality  of  a 
 consumer's  television  picture.  This  is  especially  true  if  one  assumes  that  consumers  have  higher  expectations 


 Competition  Report  ,  CS  Docket  No.  98-  102,  FCC  98-  335  at    6,  12  (1998). 
 243  See,  e.  g.,  NAB  Comments  at  51;  Walt  Disney  Co.  Comments  at  27-  28;  Cordillera  Communications  Comments  at  15. 


 244  In  testimony  before  the  Antitrust  Subcommittee  of  the  Senate  Judiciary  Committee  on  January  27,  1999,  EchoStar's  Charlie 
 Ergen  stated  that  surveys  have  found  8  of  10  potential  satellite  customers  don't  buy  because  they  will  not  be  able  to  receive  local  signals.  Reported  in  Communications  Daily,  January  28,  1999. 


 245  Charlie  Ergen  Testimony  before  the  Antitrust  Subcommittee  of  the  Senate  Judiciary  Committee,  January  27,  1999,  as 
 reported  in  Communications  Daily,  January  28,  1999. 
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 for  their  television  picture  than  they  did  in  the  1950s  and  that  environmental  changes  increase  the  effects  of  the  factors  that  Grade  B  cannot  easily  address,  such  as  ghosting  and  signal  interference.  Although  we 
 believe  that  the  Grade  B  standard  is  still  useful  for  determining  signal  strength  and  signal  intensity,  there  may  be  a  better,  but  still  objective,  standard  that  could  be  developed  for  identifying  unserved  households. 
 The  SHVA,  however,  prevents  the  Commission  from  exploring  an  alternative  standard  because  it  explicitly  requires  the  use  of  Grade  B  to  measure  signal  intensity  and  determine  whether  a  household  is  unserved.  This 
 undertaking  would  demand  considerable  time  and  significant  government  and  industry  resources. 
 C.  90-  Day  Waiting  Period 
 R.  Before  receiving  satellite-  delivered  broadcast  networks,  the  SHVA  requires  an  unserved  consumer  who  subscribes  to  cable  to  terminate  that  service  and  wait  for  90  days.  Once  the  cable  service 
 ends,  the  consumer  then  would  face  90  days  with  no  acceptable  network  service  --  nothing  over  cable,  unattainable  over-  the-  air,  and  not  yet  available  via  satellite.  This  requirement  discourages  a  potential 
 satellite  consumer  from  terminating  his  or  her  cable  service.  We  believe  that  elimination  of  the  waiting  period  should  be  considered. 


 D.  Predictive  Model  and  Loser  Pays  Mechanism 
 S.  The  "loser  pays"  mechanism  in  the  SHVA  holds  promise  for  helping  to  resolve  or  avoid  the  disputes  that  arise  under  the  law,  but  it  currently  applies  only  when  the  parties  are  engaged  in  civil  litigation 
 over  the  eligibility  of  subscribing  households  to  receive  broadcast  network  programming  via  satellite.  We  believe  the  loser  pays  mechanism  would  be  more  effective  if  it  also  applied  before  litigation  commences  and 
 if  used  in  conjunction  with  a  predictive  model.  Initially,  we  suggest  that  clear  statutory  acceptance  of  prediction  models  for  creating  rebuttable  presumptions  of  service  or  lack  of  service  would  add  certainty  to 
 the  entire  SHVA  process.  The  ILLR  that  we  endorse  in  this  Order  will  reduce  mistakes  when  predicting  a  household's  status  as  served  or  unserved  and  will  therefore  allow  parties  to  be  more  confident  in  the 
 predicted  result  and  less  inclined  to  conduct  or  demand  a  test.  A  broadly  applied  loser  pays  mechanism  that  allocates  the  cost  of  testing  on  the  party  in  error,  in  conjunction  with  this  more  reliable  prediction  model, 
 would  likely  give  satellite  carriers  an  economic  incentive  to  avoid  enrolling  consumers  who  are  predicted  to  be  served,  and  to  discourage  broadcasters  from  challenging  subscribers  who  are  predicted  as  unserved.  Less 
 testing  means  less  burden  and  inconvenience  for  the  industries  and  consumers.  Fewer  challenges  and  disputes  would  reduce  the  number  of  consumers  who  are  angered  and  inconvenienced  by  the  operation  of 
 the  SHVA. 


 IV.  PROCEDURAL  MATTERS 
 T.  To  minimize  possible  confusion  in  connection  with  the  injunction  scheduled  to  take  effect  on  February  28,  1999,  that  will  affect  more  than  700,000  satellite  subscribers,  this  Report  and  Order  will 
 become  effective  upon  publication  in  the  Federal  Register.  We  find  good  cause  exists  under  the  Administrative  Procedure  Act  ("  APA")  to  have  the  rule  adopted  in  this  Report  and  Order  take  effect  upon 
 publication  in  the  Federal  Register  pursuant  to  section  553(  d)(  3)  of  the  APA.  246  We  believe  that  making  the 
 246  The  APA  generally  requires  publication  in  the  Federal  Register  of  substantive  rules  30  days  prior  to  their  effective  date  but 
 permits  substantive  rules  to  become  effective  with  less  than  30  days  advance  publication  for  good  cause.  5  U.  S.  C.    553(  d)(  1)  and  (3).  See  also  47  C.  F.  R.  427(  b). 
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 Report  and  Order  and  rule  effective  upon  publication  in  the  Federal  Register  will  eliminate  any  confusion  should  the  court  in  CBS  et  al.  v.  PrimeTime  24  wish  to  issue  a  supplemental  order  in  light  of  the  conclusions 
 in  this  Order.  247 
 U.  Paperwork  Reduction  Act  of  1995  Analysis.  The  requirements  adopted  in  this  Report  and  Order  have  been  analyzed  with  respect  to  the  Paperwork  Reduction  Act  of  1995  (the  "1995  Act")  and  found 
 to  impose  new  or  modified  information  collection  requirements  on  the  public.  The  Commission  has  requested  Office  of  Management  and  Budget  ("  OMB")  approval,  under  the  emergency  processing  provisions 
 of  the  1995  Act  (5  C.  F.  R.    1320.13),  of  the  information  collection  requirements  contained  in  this  Report  and  Order. 


 V.  Regulatory  Flexibility  Act  Analysis.  The  regulatory  flexibility  analysis  is  found  in  Appendix  A,  attached. 
 W.  Ordering  Clauses.  IT  IS  ORDERED,  pursuant  to  Sections  1,  4(  i),  4(  j)  of  the  Communications  Act  of  1934,  as  amended,  47  U.  S.  C.    151,  154(  i),  and  154(  j);  and  Section  119(  d)(  10)(  a) 
 of  the  Copyright  Act,  17  U.  S.  C.    119(  d)(  10)(  a),  the  terms  and  rule  of  this  Report  and  Order  ARE  ADOPTED.  The  amendments  to  47  C.  F.  R.    73.686  shall  become  effective  upon  date  of  publication  of  this 
 Report  and  Order  in  the  Federal  Register. 


 247  See  CBS  v.  PrimeTime  24  ,  Final  Ruling,  slip  op.  at  5-  6. 
 X.  IT  IS  FURTHER  ORDERED  that  the  Commission's  Office  of  Public  Affairs,  Reference  Operations  Division,  SHALL  SEND  a  copy  of  this  Report  and  Order,  including  the  Final  Regulatory 
 Flexibility  Analysis,  to  the  Chief  Counsel  for  Advocacy  of  the  Small  Business  Administration  in  accordance  with  paragraph  603(  a)  of  the  Regulatory  Flexibility  Act,  Pub.  L.  No.  96-  354,  94  Stat.  1164,  5  U.  S.  C.    601 
 et  seq.  (1981). 


 FEDERAL  COMMUNICATIONS  COMMISSION 
 Magalie  Roman  Salas  Secretary 
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 Appendix  A  Final  Regulatory  Flexibility  Analysis 
 As  required  by  the  Regulatory  Flexibility  Act  ("  RFA")  an  Initial  Regulatory  Flexibility  Analysis  ("  IRFA")  was  incorporated  into  the  Notice  of  Proposed  Rulemaking  ("  NPRM")  in  this  proceeding.  The 
 Commission  sought  written  public  comment  on  the  possible  impact  of  the  proposed  policies  and  rules  on  small  entities  in  the  NPRM,  including  comments  on  the  IRFA.  This  Final  Regulatory  Flexibility  Analysis 
 ("  FRFA")  in  this  Report  and  Order  ("  Order")  conforms  to  the  RFA. 
 A.  Need  for  and  Objective  of  the  Rules 
 1..  In  this  Order,  the  Commission  responds  to  Petitions  for  Rulemaking  filed  by  the  National  Rural  Telecommunications  Cooperative  and  EchoStar  Communications  Corporation  requesting  that  the 
 Commission  address  the  methods  for  determining  whether  a  household  is  "unserved"  by  network  television  stations  for  purposes  of  the  1988  Satellite  Home  Viewer  Act.  248 


 B.  Legal  Basis 
 2..  This  Order  is  authorized  under  Sections  1,  4(  i),  4(  j)  of  the  Communications  Act  of  1934,  as  amended,  47  U.  S.  C.    151,  154(  i),  and  154(  j)  and  Section  119(  d)(  10)(  a)  of  the  Copyright  Act,  17  U.  S.  C.   
 119(  d)(  10)(  a). 
 C.  Summary  of  Significant  Issues  Raised  by  the  Public  Comments  in  Response  to  the  IRFA. 


 3.  Small  Cable  Business  Association  (SCBA)  filed  comments  regarding  the  possible  impact  of  this  proceeding  on  small  cable  operators.  SCBA  contends  that  since  small  cable  and  satellite  carriers  draw 
 from  the  same  customer  base,  any  Commission  action  broadening  the  "unserved"  household  definition  could  adversely  affect  small  cable  operators.  SCBA  contends  that  its  members  represent  an  important  link  in  the 
 distribution  of  local  programming,  especially  in  rural  areas,  and  should  not  be  overlooked  in  this  proceeding.  SCBA  does  not  object  to  satellite  delivery  of  broadcast  network  signals,  so  long  as  satellite  providers  are 
 required  to  provide  carriage  of  all  broadcast  signals  within  a  single  community.  National  Association  of  Broadcasters  (NAB),  and  others,  maintain  that  any  expansion  of  unserved  viewers  could  have  a  substantial 
 impact  on  television  broadcast  stations  serving  smaller  markets.  The  ability  of  these  stations  to  purchase  programming  and  to  serve  their  viewers  would  be  impacted  by  lower  advertising  revenues  should  the 
 Commission's  actions  dramatically  expand  the  numbers  of  unserved  households  in  their  market  place.  National  Rural  Telecommunications  Cooperative  urges  the  Commission  to  revisit  the  conclusion  in  its  IRFA 
 that  because  small  businesses  do  not  have  the  financial  resources  necessary  to  become  DBS  licensees,  none  will  be  affected  by  the  proposed  action. 


 248  17  U.  S.  C.    119. 
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 D.  Description  and  Estimate  of  the  Number  of  Small  Entities  To  Which  the  Rules  Will  Apply 
 4.  The  RFA  directs  the  Commission  to  provide  a  description  of  and,  where  feasible,  an  estimate  of  the  number  of  small  entities  that  will  be  affected  by  the  proposed  action.  249  The  RFA  defines  the 
 term  "small  entity"  as  having  the  same  meaning  as  the  terms  "small  business,"  "small  organization,"  and  "small  business  concern"  under  Section  3  of  the  Small  Business  Act.  250  Under  the  Small  Business  Act,  a 
 small  business  concern  is  one  which:  (1)  is  independently  owned  and  operated;  (2)  is  not  dominant  in  its  field  of  operation;  and  (3)  satisfies  any  additional  criteria  established  by  the  SBA.  251  The  action  taken  in  this 
 Order  will  affect  television  broadcasting  licensees  and  DTH  satellite  operators. 
 5.  Television  Stations.  The  rules  in  this  Order  will  apply  to  television  broadcasting  licensees,  and  potential  licensees  of  television  service.  The  SBA  defines  a  television  broadcasting  station  that  has  no 
 more  than  $10.5  million  in  annual  receipts  as  a  small  business.  252  Television  broadcasting  stations  consist  of  establishments  primarily  engaged  in  broadcasting  visual  programs  by  television  to  the  public,  except  cable 
 and  other  pay  television  services.  253  Included  in  this  industry  are  commercial,  religious,  educational,  and  other  television  stations.  254  Also  included  are  establishments  primarily  engaged  in  television  broadcasting 
 and  that  produce  taped  television  program  materials.  255  Separate  establishments  primarily  engaged  in  producing  taped  television  program  materials  are  classified  under  another  SIC  number.  256  There  were  1,509 
 television  broadcasting  stations  operating  in  the  nation  in  1992.  257  That  number  has  remained  fairly  constant 
 249  5  U.  S.  C.    604(  a)(  3). 


 250  5  U.  S.  C.    604(  a)(  3). 
 251  15  U.  S.  C.    632. 
 252  13  C.  F.  R.    121.201,  Standard  Industrial  Code  ("  SIC")  4833  (1996). 


 253  Economics  and  Statistics  Administration,  Bureau  of  Census,  U.  S.  Department  of  Commerce,  1992  CENSUS  OF 
 TRANSPORTATION  ,  COMMUNICATIONS  AND  UTILITIES  ,  ESTABLISHMENT  AND  FIRM  SIZE  ,  Series  UC92-  S-  1,  Appendix  A-  9  (1995)  ("  1992  CENSUS  OF  TRANSPORTATION"  ). 


 254  Id.  See  also  OMB  SIC  Manual  at  283,  which  describes  "Television  Broadcasting  Stations  (SIC  Code  4833)  as: 
 Establishments  primarily  engaged  in  broadcasting  visual  programs  by  television  to  the  public,  except  cable  and  other  pay  television  services.  Included  in  this  industry  are  commercial,  religious,  educational 
 and  other  television  stations.  Also  included  here  are  establishments  primarily  engaged  in  television  broadcasting  and  which  produce  taped  television  program  materials. 


 255  1992  CENSUS  OF  TRANSPORTATION,  Series  UC92-  S-  1,  Appendix  A-  9. 
 256  Id.  SIC  7812  (Motion  Picture  and  Video  Tape  Production);  SIC  7922  (Theatrical  Producers  and  Miscellaneous 
 Theatrical  Services  (producers  of  live  radio  and  television  programs). 
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 as  indicated  by  the  approximately  1,579  operating  full  power  television  broadcasting  stations  in  the  nation  as  of  May  31,  1998.  258  In  addition,  as  of  October  31,  1997,  there  were  1,880  low  power  television  broadcasting 
 ("  LPTV")  broadcasting  stations  that  may  also  be  affected  by  our  proposed  rule  changes.  259  For  1992  260  the  number  of  television  broadcasting  stations  that  produced  less  than  $10.0  million  in  revenue  was  1,155 
 establishments.  261 
 6.  DBS  and  other  DTH  satellite  operators.  The  Commission  has  not  developed  a  definition  of  small  entities  applicable  to  geostationary  or  non-  geostationary  orbit  fixed-  satellite  or  DBS  service  applicants 
 or  licensees.  Therefore,  the  applicable  definition  of  small  entity  is  the  definition  under  the  SBA  rules  applicable  to  Communications  Services,  Not  Elsewhere  Classified.  This  definition  provides  that  a  small 
 entity  is  one  with  $11.0  million  or  less  in  annual  receipts.  262  The  number  of  employees  working  for  a  "small  entity"  must  be  750  or  fewer.  According  to  Census  Bureau  data,  there  are  848  firms  that  fall  under  the 
 category  of  Communications  Services,  Not  Elsewhere  Classified  that  could  potentially  fall  into  the  DTH  category.  Of  those,  approximately  775  reported  annual  receipts  of  $11  million  or  less  and  qualify  as  small 
 entities.  263  The  proposed  action  in  this  Order  applies  to  entities  providing  DTH  service,  including  licensees  of  DBS  services  and  distributors  of  satellite  programming.  There  are  four  licensees  of  DBS  services  under 
 Part  100  of  the  Commission's  rules.  264  Three  of  those  licensees  are  currently  operational,  and  each  of  those  licensees  has  annual  revenues  in  excess  of  the  threshold  for  a  small  business. 


 E.  Description  of  Projected  Reporting,  Record-  keeping,  and  Other  Compliance  Requirements 
 7.  The  rules  adopted  today  impose  no  requirement  to  file  any  information  with  the  Federal  Communications  Commission.  Parties  who  choose  to  conduct  individual  household  measurements  are 
 required  to  reduce  to  memorialize  their  test  observations  and  results. 


 257  FCC  News  Release  No.  31327,  Jan.  13,  1993. 
 258  See  Broadcast  Station  Totals  As  Of  May  31,  1998,  FCC  News  Release,  June  19,  1998. 
 259  Given  the  nature  of  LPTV  stations,  we  will  presume  that  all  LPTV's  qualify  as  small  entities. 
 260  Census  for  Communications'  establishments  are  performed  every  five  years  ending  with  a  "2"  or  "7".  See 
 Economics  and  Statistics  Administration,  Bureau  of  Census,  U.  S.  Department  of  Commerce. 


 261  The  amount  of  $10  million  was  used  to  estimate  the  number  of  small  business  establishments  because  the  relevant 
 Census  categories  stopped  at  $9,999,999  and  began  at  $10,000,000.  No  category  for  $10.5  million  existed.  Thus,  the  number  is  as  accurate  as  it  is  possible  to  calculate  with  the  available  information. 


 262  13  C.  F.  R.    121.201,  SIC  Code  4899. 
 263  1992  CENSUS  OF  TRANSPORTATION  ,  Series  UC92-  S-  1,  Table  2D,  Employment  Size  of  Firms:  1992,  SIC  Code  4899. 
 264  47  C.  F.  R.  100  et  seq. 
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 F.  Steps  Taken  to  Minimize  Significant  Economic  Impact  on  Small  Entities,  and  Significant  Alternatives  Considered 
 8.  We  believe  that  the  rules  we  adopt  today  will  have  minimal  impact  on  small  television  stations'  ability  to  serve  the  public.  The  rule  we  adopt  today  has  no  impact  on  the  number  of  viewers  who 
 are  "unserved"  or  unable  to  receive  the  relevant  television  broadcast  stations'  signals,  thus  mitigating  any  economic  impact  in  the  market  place.  The  rule  will  primarily  affect  DTH  satellite  operators,  carriers  and 
 distributors,  as  well  as  full  power  commercial  stations  that  are  affiliates  of  national  networks.  The  latter  businesses  generally  do  not  fall  into  the  category  of  small  entities.  Any  adverse  effect  on  the  satellite 
 industry  is  primarily  the  result  of  SHVA  itself,  and  the  actions  we  take  represent  our  efforts  to  maximize  competition  including  competition  by  small  businesses  consistent  with  faithfully  interpreting  the  Act. 


 G.  Federal  Rules  that  May  Duplicate,  Overlap,  or  Conflict  with  the  Proposed  Rule  Changes 
 9.  None. 
54
 Federal  Communications  Commission  FCC  99-  14 
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 Appendix  B  73.686(  d)  Collection  of  field  strength  data  to  determine  television  signal  intensity  at  an  individual 
 location  --  cluster  measurements. 
 (1)  Preparation  for  measurements. 
 (i)  Testing  antenna.  The  test  antenna  shall  be  a  standard  half-  wave  dipole  tuned  to  the  visual  carrier  frequency  of  channel  being  measured. 


 (ii)  Testing  locations.  At  the  location,  choose  a  minimum  of  five  locations  as  close  as  possible  to  the  specific  site  where  the  site's  receiving  antenna  is  located.  If  there  is  no  receiving  antenna  at  the  site,  choose 
 the  minimum  of  five  locations  as  close  as  possible  to  a  reasonable  and  likely  spot  for  the  antenna.  The  locations  shall  be  at  least  three  meters  apart,  enough  so  that  the  testing  is  practical.  If  possible, 
 the  first  testing  point  should  be  chosen  as  the  center  point  of  a  square  whose  corners  are  the  four  other  locations.  Calculate  the  median  of  the  five  measurements  (in  units  of  dBu)  and  report  it  as  the 
 measurement  result. 
 (iv)  Multiple  Signals.  If  more  than  one  signal  is  being  measured  (i.  e.,  signals  from  different  transmitters),  use  the  same  locations  to  measure  each  signal. 


 (2)  Measurement  Procedure.  Measurements  shall  be  made  in  accordance  with  good  engineering  practice  and  in  accordance  with  this  section  of  the  Rules.  At  each  measuring  location,  the  following 
 procedure  shall  be  employed: 
 (i)  Testing  Equipment.  Measure  the  field  strength  of  the  visual  carrier  with  a  calibrated  instrument  with  a  bandwidth  of  at  least  450  kHz,  but  no  greater  than  one  megahertz.  Perform  an  on-  site  calibration  of 
 the  instrument  in  accordance  with  the  manufacturer's  specifications.  The  instrument  must  accurately  indicate  the  peak  amplitude  of  the  synchronizing  signal.  Take  all  measurements  with  a  horizontally 
 polarized  dipole  antenna.  Use  a  shielded  transmission  line  between  the  testing  antenna  and  the  field  strength  meter.  Match  the  antenna  impedance  to  the  transmission  line,  and,  if  using  an  unbalanced 
 line,  employ  a  suitable  balun.  Take  account  of  the  transmission  line  loss  for  each  frequency  being  measured. 


 (ii)  Weather.  Do  not  take  measurements  in  inclement  weather  or  when  major  weather  fronts  are  moving  through  the  measurement  area. 
 (iii)  Antenna  Elevation.  When  field  strength  is  being  measured  for  a  one-  story  building,  elevate  the  testing  antenna  to  6.1  meters  (20  feet)  above  the  ground.  In  situations  where  the  field  strength  is  being 
 measured  for  a  building  taller  than  one-  story,  elevate  the  testing  antenna  9.1  meters  (30  feet)  above  the  ground. 


 (iv)  Antenna  Orientation.  Orient  the  testing  antenna  in  the  direction  which  maximizes  the  value  of  field  strength  for  the  signal  being  measured.  If  more  than  one  station's  signal  is  being  measured,  orient 
 the  testing  antenna  separately  for  each  station. 
55
 Federal  Communications  Commission  FCC  99-  14 
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 (3)  Written  Record  shall  be  made  and  shall  include  at  least  the  following: 
 (i)  A  list  of  calibrated  equipment  used  in  the  field  strength  survey,  which  for  each  instrument,  specifies  the  manufacturer,  type,  serial  number  and  rated  accuracy,  and  the  date  of  the  most  recent  calibration  by 
 the  manufacturer  or  by  a  laboratory.  Include  complete  details  of  any  instrument  not  of  standard  manufacture. 


 (ii)  A  detailed  description  of  the  calibration  of  the  measuring  equipment,  including  field  strength  meters,  measuring  antenna,  and  connecting  cable. 
 (iii)  For  each  spot  at  the  measuring  site,  all  factors  which  may  affect  the  recorded  field,  such  as  topography,  height  and  types  of  vegetation,  buildings,  obstacles,  weather,  and  other  local  features. 
 (iv)  A  description  of  where  the  cluster  measurements  were  made. 
 (v)  Time  and  date  of  the  measurements  and  signature  of  the  person  making  the  measurements. 
 (vi)  For  each  channel  being  measured,  a  list  of  the  measured  value  of  field  strength  (in  units  of  dBu  and  after  adjustment  for  line  loss  and  antenna  factor)  of  the  five  readings  made  during  the  cluster 
 measurement  process,  with  the  median  value  highlighted. 
56
 Federal  Communications  Commission  FCC  99-  14 
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 Appendix  C  COMMENTS 
 1.  ABC,  CBS,  Fox,  and  NBC  Television  Network  Affiliate  Assn 
 2.  Aeder,  Michael  3.  A.  H.  Belo  Corporation 
 4.  Alexander,  Dennis  Jay  5.  Allum,  Raymond  G. 
 6.  Association  for  Maximum  Service  Television  (MSTV) 
 7.  Association  of  America's  Public  Television  Stations  (APTS) 
 8.  Association  of  Local  Television  Stations,  Inc.  (ALTV) 
 9.  Arkansas  Broadcasters  Association  10.  Bailey,  Michael  E. 
 11.  Baldridge,  Susan  12.  Ball,  Pamela 
 13.  Bandy,  Bo  14.  Bandy,  James  D. 
 15.  Barlean,  John  16.  Belina,  Greg 
 17.  Bell,  Randy  18.  Benedek  Broadcasting  Corporation, 
 Chronicle  Broadcasting  Company,  Draper  Communications,  Inc.,  LIN  Television 
 Corporation,  Midwest  Television,  Inc.,  Paxton  Media  Group,  Inc.,  Post-Newsweek 
 Stations,  Inc.,  Raycom  Media,  Inc.,  and  Spartan 
 Communications,  Inc.  (joint  comments) 
 19.  Biby  Engineering  Services  P.  C.  20.  Blake,  Baird  A. 
 21.  Blankenship,  Penny  22.  Bloom,  Ray 
 23.  Boline,  John  24.  Bowes,  John  E. 
 25.  Bowman,  Noel  26.  Brechner  Stations 
 27.  Brian,  Tom 


 30.  Brueggeman,  William  31.  Bushway,  Courtney  D. 
 32.  Cadavid,  Carlos  33.  California  Oregon  Broadcasting 
 34.  Cantella,  Vince  35.  Cantisano,  Richard 
 36.  Capital  of  Texas  Public  Telecommunications  Council 
 37.  Capitol  Broadcasting  Co.,  Inc.  38.  Caprez,  Randy  R. 
 39.  Catamount  Broadcast  Group  40.  Cathey,  Ben  H. 
 41.  CBS  Corporation  42.  Cedar  Rapids  Television  Company 
 43.  Cheever,  Susan  44.  Chitty,  Louis 
 45.  Clark,  Danny  46.  Clark,  Ross  L. 
 47.  Clear  Channel  Communications  48.  Coffield,  Frank 
 49.  Coggins,  Kevin  50.  Conditt,  Rebecca 
 51.  Cordillera  Communications,  Inc.,  Cosmos  Broadcasting  Corporation,  Cox 
 Broadcasting,  Inc.,  Independence  Television  Company  &  Media 
 General  Broadcasting,  Inc.  52.  Corporation  for  General  Trade 
 53.  Davidson,  Donald  54.  Deaner,  Mark  E. 
 55.  Decisionmark  Corp.  56.  DirecTV,  Inc. 
 57.  Dreyer,  John  H.  58.  Echostar  Communications  Corp. 
 59.  Ekart,  Gary  60.  Elam,  John 
 61.  Electronics  Technicians  Assn,  Int'l.  62.  Ellsworth,  Benjamin 
 63.  Entravision  Holdings  LLC 
57
 Federal  Communications  Commission  FCC  99-  14 
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 28.  Brooks  Broadcasting  LLC  29.  Brooks,  Robert  64.  Farris,  Jr.,  Carl  S.  65.  Festog,  David 
 66.  Fisher  Broadcasting,  Inc.  67.  Fox  Broadcasting  Company 
 68.  Fulkerson,  Jo  69.  Gaines,  Richard  L. 
 70.  Gant,  Susan  71.  Garner,  James  and  Claudia 
 72.  Gilmore  Broadcasting  Corp.  73.  Gocom  Communications  LLC 
 74.  Godfrey,  Chuck  E.  75.  Gonser,  Tom 
 76.  Granite  Broadcasting  Corporation  77.  Grant  Broadcasting  Group 
 78.  Green,  Lyman  C.  79.  Greenwood,  Bob  and  Sally 
 80.  Griffith,  Rebecca  81.  Grimsley,  Robert 
 82.  Grocott,  Terry  P.  83.  Gustafson,  David  H. 
 84.  Hale,  Gerald  L.  85.  Halstead,  Roger  D. 
 86.  Hamilton,  Ralph  B.  87.  Hammett  &  Edison,  Inc. 
 88.  Hammonds,  Trevor  G.  89.  Harris,  Charles 
 90.  Hassid,  Jack  91.  Hauser,  William 
 92.  Hearst-  Argyle  Television,  Inc.  93.  Heaton,  Gigi 
 94.  Heggenstaller,  Dennis  R.  95.  Henderson,  T.  A. 
 96.  Herman,  Tommy  97.  Herndon,  Bill 
 98.  Hoffman,  Joseph  L.  99.  Holston  Valley  Broadcasting  Corp. 
 100.  Hubbard  Broadcasting,  Inc.  101.  Hunt,  James  B.,  Governor,  N.  C. 
 102.  JME  Media,  Inc.  103.  Johnson,  Bobby  J. 
 104.  Jones,  Cecile  105.  Jones,  Claude  P. 
 106.  KASW(  TV)  107.  KEYC-  TV 


 112.  Kitchen,  Kevin  113.  Kiralla,  John  S. 
 114.  KKCO-  TV  115.  KLAX-  TV 
 116.  Knab,  Terry  117.  Knief,  H.  C. 
 118.  Kohl,  Steven  119.  Kuhn,  David 
 120.  Laboone,  Michael  W.  121.  Lacasse,  Norman  R. 
 122.  Lamco  Communications,  Inc.  123.  Laquintano,  Robert 
 124.  Lawrence,  David  R.  125.  Leahy,  Patrick  (Senator) 
 126.  Lear,  James  G.  127.  Lee  Enterprises,  Inc. 
 128.  Lefevre,  D.  Meade  129.  Lenchus,  Rachelle  and  Richard 
 130.  Local  TV  on  Satellite  (LTVS)  131.  Louisiana  Television  Broadcasting 
 Corp.  132.  Lowrie,  Max 
 133.  Manning,  Peter  L.  134.  Mansfield,  William  T. 
 135.  Maranatha  Broadcasting  Company  136.  Marchino,  Martha  J. 
 137.  Marlowe,  Ronald  J.  138.  McCormack,  Donald 
 139.  McGinnis,  Jr.,  Bryan  H.  140.  McPherson,  Jr.,  William  C. 
 141.  Medeiros,  Victor  142.  Media  Venture  Management,  Inc. 
 143.  Meredith  Corporation  144.  Miller,  Ricky  E.  and  Theresa  J. 
 145.  Mobile  Video  Tapes,  Inc.  146.  Montclair  Communications 
 147.  Montgomery  Communications,  Inc.  148.  Moore,  Jr.,  Donald  L. 
 149.  Morgan  Murphy  Stations  150.  Moyer,  John 
 151.  Mt.  Mansfield  Television,  Inc.  152.  Named  State  Broadcasters  Assn 
58
 Federal  Communications  Commission  FCC  99-  14 
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 108.  KIEM-  TV  109.  King,  Edward 
 110.  King,  John  E.  111.  Kirchner,  Ken 
 153.  Natl  Assn  of  Broadcasters  (NAB)  154.  National  Broadcasting  Co.  (NBC) 
 155.  National  Communications,  Inc.  156.  National  Football  League 
 157.  National  Rural  Electric  Coop.  Assn.  158.  National  Rural  Telecommunications 
 Cooperative  (NRTC)  159.  Nelson,  Bill 
 160.  New  Mexico  Broadcasters  Assn.  161.  Newton,  Mark 
 162.  NOE  Corp.  LLC  163.  North  Carolina  and  Virginia  Assn 
 of  Broadcasters  164.  Northpoint  Technology 
 165.  Ohanesian,  Jay  166.  Oliver,  Dylan 
 167.  Orton,  Ralph  168.  Pappas  Telecasting,  Inc.,  Morris 
 Network,  Inc.,  and  Pikes  Peak  Broadcasting  Company 
 169.  Pegasus  Communications  Corp.  170.  Peters,  Jeremy 
 171.  Porgal,  John  M.  172.  Post  Company 
 173.  Potaracke,  Kelly  174.  Powell,  C.  Randy 
 175.  Primestar  Partners  L.  P.  176.  PrimeTime  24  Joint  Venture 
 177.  Professional  Service  Assn.  (PSA)  178.  Radosta,  Dino  J. 
 179.  Ragan,  Jim  180.  Rasbury,  Murry  P. 
 181.  Raymond,  Harry  E.  182.  Retlaw  Enterprises,  Inc. 
 183.  Rhodes,  Richard  and  Sharon  184.  Ripley,  Richard 
 185.  Robinson,  Alan  T.  186.  Roney,  T.  J. 
 187.  Rovira-  Burset,  Raul  A.  188.  Sanderson,  E.  H. 
 189.  Satellite  Broadcasting  and  Communications  Assn.  (SBCA) 
 190.  Schick,  Cynthia  191.  Schmidt,  J.  E. 


 197.  Small,  Robert  198.  Smith,  Debra 
 199.  Snell,  Jr.,  Donald  F.  200.  Stewart,  David 
 201.  Superstar/  Netlink  Group,  LLC  202.  Sutton,  Robert 
 203.  Swain,  Keith  L.  204.  Tanner,  Garth 
 205.  Taylor,  George  W.  206.  Tennant,  Raymond  C. 
 207.  Texas  Television,  Inc.  208.  Thompson,  Dave 
 209.  Traweek,  Gary  210.  Trodick,  Marie  J. 
 211.  TV-  67,  Inc.  212.  Vachal,  Joel  T. 
 213.  Vanpool,  Gary  C.  214.  Virginia  Broadcasting  Corporation 
 215.  Wade,  Randy  216.  Wallace,  Jessica 
 217.  Wallace,  Vaughn  218.  Walt  Disney  Company 
 219.  Warren,  Ronald  220.  Waterman  Broadcasting  Corp 
 of  Florida  221.  Watson,  Joe  D. 
 222.  WB  Television  Network  223.  Wedel,  James 
 224.  Weigel  Broadcasting  Co.  225.  West,  Jeff 
 226.  Wheaton,  Gordon  227.  Wiegand,  John  V. 
 228.  Williams,  Gary  O.  229.  Wilmington  Telecasters,  Inc. 
 230.  Withers  Broadcasting  Companies  231.  Woodruff,  Rick 
 232.  Wright,  John  233.  WWNY-  TV 
 234.  Young,  William  A. 
59
 Federal  Communications  Commission  FCC  99-  14 
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 192.  Schultz,  William  M.  193.  Seelinger,  Brian  M. 
 194.  Shapiro,  Edward  L.  195.  Shockley  Communications  Corp. 
 196.  Small  Cable  Business  Assn  (SCBA) 
60
 Federal  Communications  Commission  FCC  99-  14 
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 REPLY  COMMENTS 
 1.  ABC,  CBS,  Fox,  and  NBC  Television  Network  Affiliate  Associations  2.  ACC  Satellite  TV 
 3.  Association  for  Maximum  Service  Television  (MSTV)  4.  Association  of  Local  Television  Stations,  Inc.  (ALTV) 
 5.  Bassett,  Keith  W.  6.  Comanche  County  Memorial  Hospital 
 7.  DirecTV,  Inc.  8.  Echostar  Communications  Corporation 
 9.  Granite  Broadcasting  Corporation  10.  Gray  Communications  System,  Inc. 
 11.  KXLT-  TV  12.  McClure,  Mary 
 13.  Mt.  Mansfield  Television,  Inc.  14.  National  Association  of  Broadcasters  (NAB) 
 15.  National  Rural  Telecommunications  Cooperative  (NRTC)  16.  Nebraska  Television  Network 
 17.  New  Mexico  Broadcaster  Association  18.  Pappas  Telecasting,  Inc.,  Morris  Network,  Inc.,  and  Pikes  Peak  Broadcasting  Company 
 19.  Pegasus  Communications  Corporation  20.  Primestar  Partners  L.  P. 
 21.  PrimeTime  24  Joint  Venture  22.  Professional  Service  Association 
 23.  Satellite  Broadcasting  and  Communications  Association  (SBCA)  24.  South  Sacramento/  Greenhaven  Chamber  of  Commerce 
 25.  Superstar/  Netlink  Group  LLC  26.  United  Way  of  Lawton-  Fort  Sill 
 27.  U.  S.  Copyright  Office 
 SUPPLEMENTAL  FILINGS 
 1.  ABC,  CBS,  Fox,  and  NBC  Television  Network  Affiliate  Associations  (joint  filing)  2.  National  Association  of  Broadcasters  (NAB) 
61
 Federal  Communications  Commission  FCC  99-  14 
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 LATE-  FILED  COMMENTS 
 1.  Allison,  Lynda  2.  Austin,  Ada 
 3.  Ball,  Penny  4.  Ballard,  Wynette 
 5.  Barcus,  Ralph  E.  6.  Barker,  Francis 
 7.  Barnes,  Billy  T.  8.  Beard,  Marcia 
 9.  Blackledge,  John  10.  Blum,  Vera 
 11.  Blythe,  Norma  L.  12.  Bostuck,  William 
 13.  Bowman,  Jim  14.  Bradley,  Mrs.  Homer  C. 
 15.  Brown,  Sharon  16.  Burgess,  Sharon 
 17.  Carlson,  Christopher  18.  Cary,  Emily 
 19.  Clark,  Mr.  &  Mrs.  James  20.  Cook,  Jim 
 21.  Corbitt,  James  E.  22.  Courtner,  Robert 
 23.  Cox,  Don  A.  &  Joyce  A.  24.  Craig,  Joe  &  Rose 
 25.  Crouse,  Mrs.  L.  R.  26.  Cyrus,  Christopher  A. 
 27.  Daly,  Robert  28.  Daniels,  Raymond 
 29.  Davis,  Pamela  &  Anthony  30.  DeForest,  Robert  &  Norma 
 31.  Doty,  Harvey  L.  32.  Doyle,  Sanford  D. 
 33.  Duchemin,  Masena  &  James  34.  Engley,  Thomas  W. 
 35.  Entman,  F.  V.  36.  Erler,  Paul  W. 
 37.  Farber,  James  F.  38.  Ferree,  Connie 
 39.  Fike,  Mabel  M.  40.  Fisher,  Thomas  F. 
 41.  Fisk,  Orville  &  Barbara  42.  Floyd,  Cathy  L. 


 45.  Fulks,  Charles  O.  46.  Gallagher,  Charles  A. 
 47.  Grand,  Cey  J.  48.  Green,  Mr.  &  Mrs.  Austin 
 49.  Griffey,  Clyde  L.  &  Cecilia  P-  N  50.  Grissom,  Shirley 
 51.  Guynn,  Ruth  52.  Hedrick,  James  E. 
 53.  Heit,  Raymond  &  Shirley  54.  Helleseth,  T.  L. 
 55.  Herman,  Gary  &  Glenna  56.  Hiddleston,  W.  M. 
 57.  Hodges,  Ann  V.  58.  Hoffman,  Donald  R.  &  Patricia  A. 
 59.  Hoholek,  Dolores  60.  Hollar,  Turner 
 61.  Holloway,  James  62.  Holmberg,  Mr.  &  Mrs.  Henry 
 63.  Hooks,  Elizabeth  64.  Hopkins,  Larry  W. 
 65.  Hosler,  Wilbur  &  Violet  66.  James,  Trenton  &  Clark 
 67.  Janson,  Frederick  C.  Sr.  68.  Jensen,  Russell  L. 
 69.  Johnson,  Ann  70.  Johnson,  J.  Wayne 
 71.  Johnson,  Martha  72.  Jones,  Mark 
 73.  Judge,  Ralph  D.  &  Sophia  V.  74.  K&  B  Electronics 
 75.  Keaton,  Mrs.  Rose  76.  Keller,  Dona  J. 
 77.  Kieffer,  Don  78.  Kinnis,  Kevin 
 79.  Koci,  Paul  80.  Kuehnl,  Mrs.  Shirley 
 81.  Kurtz,  David  82.  Kyler,  Donald 
 83.  LaFever,  Howard  &  Laura  84.  Landon,  James  A. 
 85.  Layton,  Edna  86.  Leaks,  Robert 
62
 Federal  Communications  Commission  FCC  99-  14 
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 43.  Foley,  Kathleen  44.  Frantz,  Harold  E.  87.  Little,  Bill  &  Maxine  88.  Lockard,  Gary  O. 
 89.  Long,  Carl  R.  90.  Luce,  Jack  E.  &  Cynthia  K. 
 91.  Madsen,  T.  O.  92.  Martin,  James 
 93.  Martin,  Robert  A.  94.  Mazzeo,  Robert  J.  (M.  D.) 
 95.  McAlary,  Shelly  96.  McAlister,  John  H. 
 97.  McBride,  Lauren  98.  McGarver,  Herbert 
 99.  McHale,  Patricia  &  Charles  100.  McKenzie,  Bonnie 
 101.  McLoughlin,  David  102.  McMullin,  Frank 
 103.  McNeil,  Stanley  D.  104.  Meeks,  James  G. 
 105.  Meigs,  Rebecca  H.  106.  Menton,  William  G. 
 107.  Miller,  Dale  108.  Miller,  Forrest  D. 
 109.  Miller,  Frank  N.  110.  Miller,  Harold  A. 
 111.  Millhouse,  Mr.  &  Mrs.  Richard  112.  Mitchell,  Clair  W. 
 113.  Morse,  Charles  H.  114.  Nichols,  Lori 
 115.  O'Dell,  Janice  G.  116.  Page,  Desiree  M. 
 117.  Parks,  Mr.  &  Mrs.  Joel  118.  Patchen,  Don  &  Betty 
 119.  Perrin,  Ron  &  Jeri  120.  Perry,  Earl 
 121.  Peterson,  Mr.  &  Mrs.  Talbert  122.  Polhamus,  Carol  M. 
 123.  Print,  Mr.  &  Mrs.  Howard  B.  II  124.  Pruitt,  Nellie 
 125.  Puma,  Morris  M.  126.  Putnam,  Joe  &  Judy 
 127.  Pyle,  Shirley  S.  128.  Robertson,  Jimmy  R. 
 129.  Root,  Charles  130.  Rutland,  Mark  &  Robin 


 135.  Schlenker,  Ralph  136.  Schuster,  D. 
 137.  Sheets,  Mr.  &  Mrs.  Stanley  138.  Shipley,  Robert 
 139.  Shipman,  Roberta  &  Robert  140.  Siebert,  Carolin 
 141.  Splan,  Mrs.  Florence  142.  Steele,  Kenneth 
 143.  Stewart,  Sandra  144.  Stromberg,  Paul 
 145.  Suit,  Jim  146.  Suma,  Mark  Daniel 
 147.  Tackett,  Vilma  148.  Tamosaitis,  John 
 149.  Teaster,  Lucille  150.  Thomas,  Joe  W. 
 151.  Thompson,  Rector  A.  152.  Totman,  Stan  &  Betty 
 153.  Trent,  Billy  Earl  154.  Troy,  James  R. 
 155.  Tuttle,  George  Sr.  156.  Twaddle,  Michael  L. 
 157.  Tyrone,  Jimmy  W.  158.  VanHorn,  Robert  &  Lorraine 
 159.  Wagoner,  Brenda  160.  Warren,  Joyce  E. 
 161.  Wetmore,  Vernon  162.  Whipple,  Harrison 
 163.  Wildberger,  Owen  &  Susan  164.  Williams,  Marcellus  J. 
 165.  Wilkinson,  Jahnice  J.  166.  Wilson,  Larry  &  Gina 
 167.  Wilson,  William  B.  168.  Woeppel,  David  W. 
 169.  Wolford,  Brenda  L.  170.  Wood,  Edna 
63
 Federal  Communications  Commission  FCC  99-  14 
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 131.  Sabitus,  Mary  132.  Selwood,  Eugene 
 133.  Scheck,  Clifford  134.  Schlappi,  Carl  W.  &  Opal  J. 


 JOINT  STATEMENT  OF  CHAIRMAN  WILLIAM  E.  KENNARD  AND  COMMISSIONER  SUSAN  NESS 
 Today  the  Commission  takes  several  steps  to  help  ensure  that  those  consumers  who  cannot  receive  acceptable  over-  the-  air  signals  from  their  local  broadcast  stations  have  a  lawful  alternative 
 means  to  receive  network  programming  via  satellite  under  the  Satellite  Home  Viewer  Act.  The  Commission's  ability  to  make  significant  changes  in  this  area  is  constrained  by  the  terms  of  the 
 SHVA,  which  says  that  only  those  viewers  who  cannot  receive  an  "over-  the-  air  signal  of  grade  B  intensity"  are  considered  "unserved"  and  therefore  eligible  to  receive  distant  network  signals.  Thus, 
 we  could  not,  and  have  not,  extended  the  SHVA  to  permit  delivery  of  satellite  network  broadcast  signals  to  consumers  who  can  receive  an  adequate  local  over-  the-  air  signal. 


 By  our  action  today,  however,  we  have  created  a  more  accurate  method  of  identifying  those  consumers  who  are  truly  unserved  within  the  meaning  of  the  statute,  and  therefore  eligible  for 
 satellite-  delivered  network  programming.  Our  action  will  help  not  only  those  individual  subscribers  who,  under  other  tests,  might  be  considered  to  be  "served"  even  though  they  cannot  receive  an 
 acceptable  television  picture,  but  will  better  enable  the  DBS  industry  to  become  a  true  competitor  to  cable,  which  will  help  all  consumers. 


 We  have  tried  to  be  as  aggressive  as  possible  --  consistent  with  Congressional  intent  --  in  protecting  American  consumers  in  this  order.  Some  commenters  urged  that  we  take  the  additional 
 step  of  changing  the  confidence  factor  in  the  predictive  model  that  we  endorse  from  50%  to  90%.  If  we  believed  that  changing  the  predictive  model  to  include  a  90%  confidence  factor  would  ensure 
 that  more  unserved  households  would  be  able  to  get  satellite-  delivered  network  signals,  we  certainly  would  have  voted  to  make  this  change.  Indeed,  at  first  blush,  the  concept  of  a  90%  confidence  factor 
 seems  appealing.  However,  as  discussed  in  the  Report  and  Order,  adopting  a  90%  confidence  factor  would  not  ensure  more  accuracy,  but  rather  would  significantly  overpredict  the  number  of  unserved 
 households,  undermining  Congress's  intent  in  the  statute.  The  model  the  Commission  endorses  in  this  order  --  which  includes  a  50%  confidence  factor  --  is  a  more  sound  predictor  of  who  is  actually 
 served  and  unserved.  Thus,  it  is  more  likely  to  be  relied  upon  by  the  parties  and  in  turn  will  likely  result  in  fewer  actual  measurements  having  to  be  taken,  which  is,  after  all,  the  purpose  of  using  a 
 predictive  model. 
 We  have  gone  as  far  as  we  can  under  the  SHVA  to  enable  consumers  to  receive  network  programming  via  satellite.  A  more  comprehensive  solution  to  this  problem  --  including,  for 
 example,  allowing  delivery  of  local  broadcast  signals  into  local  markets  --  would  require  Congressional  action.  We  look  forward  to  working  with  Congress  to  facilitate  robust  competition 
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 between  DBS  and  cable  service  providers,  bringing  more  choices  and  lower  prices  in  video  programming  to  the  American  public,  while  not  impairing  the  viability  of  over-  the-  air  broadcasting. 
 We  also  call  on  the  satellite  and  broadcast  industries  to  cooperate  in  ensuring  that  consumers  receive  the  service  which  they  are  entitled  to  receive  under  the  SHVA. 
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 STATEMENT  OF  COMMISSIONER  HAROLD  FURCHTGOTT-  ROTH,  DISSENTING  IN  PART 
 In  re:  Satellite  Delivery  of  Network  Signals  to  Unserved  Households  for  Purposes  of  the  Satellite  Home  Viewer  Act 
 I  commend  the  Cable  Services  Bureau,  the  Office  of  Engineering  and  Technology,  the  Mass  Media  Bureau,  and  the  International  Bureau  for  their  fine  work  on  this  Report  &  Order. 
 Unfortunately,  I  cannot  join  Part  III,  which  makes  legislative  recommendations  to  Congress  regarding  the  delivery  of  network  signals  via  satellite. 


 As  I  have  previously  explained,  I  do  not  believe  that,  absent  an  express  request  from  Congress,  making  recommendations  about  how  the  law  should  be  changed  is  an  appropriate  function 
 for  the  Federal  Communications  Commission.  See,  e.  g,  1997  Report  on  the  Status  of  Competition,  13  FCC  Rcd  1034  (1998)  (separate  statement  of  Commissioner  Harold  Furchtgott-  Roth).  The 
 Commission  is  bound  to  take  the  law  as  Congress  makes  it  and  to  implement  the  law  objectively;  yet  when  we  criticize  extant  statutes,  enacted  by  Congress  and  signed  into  law  by  the  President,  we  draw 
 that  objectivity  into  doubt.  Moreover,  as  a  creature  of  Congress'  delegated  authority,  the  Commission  takes  it  direction  from  that  body,  not  the  other  way  around. 


 Even  if  it  were  appropriate  for  the  agency  to  suggest  to  Congress  how  it  ought  to  legislate  (or  how  it  has  erred  by  enacting  certain  legislation),  such  suggestions  could  plausibly  involve,  at  most, 
 communications  law  and  policy.  This  item,  however,  ventures  with  its  recommendations  boldly  into  copyright  law,  an  area  in  which  the  Commission  has  no  expertise  or  authority,  as  the  item  itself 
 implicitly  acknowledges.  See  supra  at  para.  28.  We  simply  do  not  know  where,  and  on  what,  we  tread  when  we  recommend  a  particular  change  in  intellectual  property  rights.  We  simply  do  not 
 fully  understand  what  problems  such  a  change  might  trigger  in  that  body  of  law.  If  the  Copyright  Office  made  recommendations  to  Congress  on  how  to  write  communications  statutes,  I  do  not  think 
 anyone  would  give  them  much  weight.  It  seems  to  me  that  the  converse  is  equally  true. 
 For  these  reasons,  I  would  not  have  recommended  legislative  action  to  Congress  in  this  item,  nor  would  I  have  indicated  that  existing  statutes  are  unfair  or  unwise. 
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