72020 Federal Register / Vol. 69, No. 237 / Friday, December 10, 2004 / Rules and Regulations 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Parts 1, 2, 11, 15, 21, 27, 73, 

74, 76, 78, 79, and 101 

[WT Docket No. 03–66; RM–10586; FCC 04–

135] 

Facilitating the Provision of Fixed and 

Mobile Broadband Access, 

Educational and Other Advanced 

Services in the 2150–2162 and 2500–

2690 MHz Bands

AGENCY: Federal Communications 

Commission.

ACTION: Final rule.

SUMMARY: In this rule the Federal 

Communications Commission (FCC) 

renames the Instructional Television 

Fixed Service (ITFS) as the Educational 

Broadband Service (EBS) and renames 

the Multichannel Multipoint 

Distribution Service (MMDS) and the 

Multipoint Distribution Service (MDS) 

as the Broadband Radio Service (BRS). 

The rules also restructure the 2500–

2690 MHz band, designate the 2495–

2500 MHz band for use in connection 

with the 2500–2690 MHz band, 

establish a plan to transition licenses to 

the restructured 2500–2690 MHz band, 

adopts licensing, service, and technical 

rules to govern licensees in the EBS and 

BRS, permits spectrum leasing for BRS 

and EBS licensees under the 

Commission’s secondary markets 

leasing policies and procedures, and 

permits unlicensed operation in the 

2655–2690 MHz band.

DATES: Effective on January 10, 2005, 

except for 47 CFR 27.1231(d), 27.1231(f) 

and 27.1235, which contain information 

collection modifications that have not 

been approved by the Office of 

Management and Budget (OMB). The 

Commission will publish a document in 

the Federal Register announcing the 

effective date of those sections.

ADDRESSES: In addition to filing 

comments with the Office of the 

Secretary, a copy of any comments on 

the Paperwork Reduction Act 

information collection requirements 

contained herein should be submitted to 

Judith B. Herman, Federal 

Communications Commission, Room 1–

C804, 445 12th Street, SE., Washington, 

DC 20554, or via the Internet at JudithBHerman@fcc.gov.

FOR FURTHER INFORMATION CONTACT:

Genevieve Ross or Nancy Zaczek at 

202–418–2487.

SUPPLEMENTARY INFORMATION: This is a 

summary of the Commission’s Report 

and Order, released on July 29, 2004, 

FCC 04–135, as modified by a 

subsequent Order, released on October 

29, 2004, FCC 04–258. The proposed 

rule was published in the Federal 

Register on June 10, 2003 (68 FR 34560). 

The full text of the R&O and Order is 

available for inspection and copying 

during normal business hours in the 

FCC Reference Center, Room CY–A257, 

445 12th Street, SW., Washington, DC 

20554. The complete text may also be 

purchased from the Commission’s 

duplicating contractor, Best Copy and 

Printing, Inc., (BCPI), Portals II, 445 

12th Street, SW., Room CY–B402, 

Washington, DC 20554, 202–488–5300 

or 800–387–3160, e-mail at 

fcc@bcpiweb.com. The complete item is 

also available on the Commission’s Web 

site at http://hraunfoss.fcc.gov/

edocs_public/attachmatch/FCC–04–

135A1.doc. 

The complete Order modifying the 

Report and Order is also available on 

the Commission’s Web site at http://

hraunfoss.fcc.gov/edocs_public/

attachmatch/FCC–04–258A1.doc. 

I. Summary of Report and Order 

1. In this Report and Order (R&O), we 

take important steps to transform our 

rules and policies governing the 

licensing of the Instructional Television 

Fixed Service (ITFS), the Multipoint 

Distribution Service (MDS), and the 

Multichannel Multipoint Distribution 

Service (MMDS) (collectively, the 

Services) in the 2500–2690 MHz band. 

The actions taken in this order initiate 

a fundamental restructuring of the band 

that will provide both existing ITFS and 

MDS licensees and potential new 

entrants with greatly enhanced 

flexibility in order to encourage the 

highest and best use of spectrum 

domestically and internationally, and 

the growth and rapid deployment of 

innovative and efficient 

communications technologies and 

services. By these actions, we make 

significant progress towards the goal of 

providing all Americans with access to 

ubiquitous wireless broadband 

connections, regardless of their location. 

2. A hallmark of our national 

communications policy is to encourage 

the provision of new technologies and 

services to the public. The actions taken 

herein will foster the development of 

the 2500–2690 MHz band by enabling 

licensees to migrate to more 

technologically and economically 

efficient uses of the spectrum. The 

record in this proceeding 

overwhelmingly supports our tentative 

conclusion that providing 2500–2690 

MHz licensees with additional 

flexibility of use serves the public 

interest and allows licensees to provide 

new and innovative services, consistent 

with the requirements of Section 303(y) 

of the Communications Act. 

3. In recent years, there has been 

steadily increasing demand for mobile 

telephone and mobile data services. In 

2002, the mobile telephony sector 

generated more than $76 billion in 

revenues, increased subscribership from 

128.5 million to 141.8 million (from the 

prior year), and produced a nationwide 

penetration rate of roughly forty-nine 

percent. Estimates of the number of 

mobile Internet users at the end of 2001 

ranged from approximately eight to ten 

million, up from 2 to 2.5 million at the 

end of 2000. Also in recent years, the 

MDS industry has invested several 

billion dollars to develop broadband 

fixed wireless data systems in this band, 

including high-speed access to the 

Internet for residential customers, small 

and medium businesses, and 

educational institutions. Such systems 

offer a significant opportunity to 

provide competition to cable and digital 

subscriber line (DSL) services in the 

provision of broadband services in all 

areas. Additionally, these spectrumbased services will improve the ability 

of educators to serve America’s students 

thereby facilitating educators’ use of our 

national spectrum resource. This 

accomplishes our goal of ensuring that 

educational and medical institutions 

continue to have access to spectrum.

4. Our actions today also respond to 

proposals from the ITFS and MDS 

industries for major revision of current 

regulations so that these services will no 

longer be hindered by outdated and 

overly restrictive regulation. The 

restructured band plan we adopt will 

provide ITFS and MDS licensees with 

contiguous spectrum to deploy both 

existing and emerging technologies, and 

provides for both high and low-power 

operations in the band, thereby 

preserving the opportunity for 

incumbents to maintain existing 

operations. We also adopt a transition 

mechanism that will enable incumbents 

on a region-by-region basis to negotiate 

the transition to new spectrum 

assignments in the restructured band 

plan, with safeguards to ensure that all 

relocating incumbents are treated 

equitably. We also propose an 

alternative market-based transition 

mechanism that would take effect after 

three years for any areas where a 

negotiated transition has not occurred. 

We will be monitoring the transition 

closely through the proponents’ filing of 

Initiation Plans with the Commission 

and notifications of the completion of 

the transition in given markets, as well 

as through reports prepared by the 

Wireless Telecommunications Bureau 

(Bureau) for the Commission. 

Federal Register / Vol. 69, No. 237 / Friday, December 10, 2004 / Rules and Regulations 72021

5. In addition to the broader 

objectives described above, our 

decisions in this proceeding have also 

been guided by the desire to accomplish 

these additional spectrum management 

objectives: (i) Promoting availability of 

broadband to all Americans, including 

broadband technologies for educators; 

(ii) encouraging increased competition 

in wireless broadband through the 

creation of new opportunities for new 

entrants; (iii) promotion of the economic 

viability of services in this band by 

ensuring that the spectrum is as 

fungible, tradable, and marketable as 

possible; (iv) facilitating the highest 

valued use of radio licenses; (v) 

facilitating speed of transition and 

deployment in the band; (vi) providing 

incumbents with a reasonable 

opportunity to continue their current 

uses of the spectrum; and (vii) the 

continued promotion of spectrum-based 

education services. 

6. In this Report and Order, we: 

• Rename the MDS service as the 

‘‘Broadband Radio Service’’ (BRS). This 

new designation connotes a more 

accurate description of the services we 

anticipate will develop in the band. 

• Rename the ITFS service as the 

‘‘Educational Broadband Service’’ (EBS), 

which more accurately describes the 

kinds of the services that we anticipate 

will develop in the band. 

• Expand the overall bandwidth of 

the existing BRS–EBS band by 

reallocating 2495–2500 MHz to fixed 

and mobile except aeronautical mobile 

services. 

• Adopt a band plan that restructures 

the 2500–2690 MHz band into upper 

and lower-band segments for low-power 

operations (UBS and LBS, respectively), 

and a mid-band segment (MBS) for highpower operations. The LBS extends 

from 2496–2572 MHz, and is comprised 

of twelve 5.5-megahertz-wide channels, 

one 6-megahertz-wide channel, and one 

4-megahertz-wide guard band; the MBS, 

extends from 2572–2614 MHz, and is 

comprised of seven 6-megahertz wide 

channels; and the UBS extends from 

2614–2690 MHz, and is comprised of 

twelve 5.5-megahertz wide channels, 

one 6-megahertz-wide channel, and one 

4-megahertz-wide guard band. MDS 

channel 1 will be relocated from 2150–

2156 MHz to 2496–2502 MHz, the LBS, 

and MDS channel 2 will be relocated 

from 2156–2162 MHz to 2618–2624 

MHz, the UBS. By grouping high and 

low-power spectrum uses into separate 

portions of the band, this band plan 

creates opportunities for spectrumbased systems or devices to migrate to 

compatible bands based on marketplace 

forces, and reduces the likelihood of 

interference caused by incompatible 

uses. The new band plan also provides 

new incentives for the development of 

low-power cellularized broadband uses 

of the 2500–2690 MHz band, which 

have been thwarted by the legacy band 

structure. 

• Make full use of the 4 megahertz of 

spectrum (I band) located at the end of 

the band at 2686–2690 MHz. The guard 

bands in the low-power LBS and UBS 

(referred to as the J and K bands, 

respectively) will be designated as 4-

megahertz-wide. The use of 4-megahertz 

J and K bands is consistent with 

conclusions in the 3G Final Report that 

4 megahertz was sufficient to separate 

low-power and high-power uses. 

Furthermore, reducing the guard band 

increases the amount of spectrum 

available for low-power and high-power 

use. These changes will accommodate 

the relocation of incumbents to new 

spectrum assignments in the band that 

will give them substantially greater 

flexibility than the current band plan, 

while also facilitating the relocation of 

MDS Channels 1 and 2. 

• Assign 16.5 megahertz of 

contiguous spectrum in either the LBS 

or UBS, a 6 megahertz channel in the 

MBS, and 1 megahertz of contiguous 

spectrum in either the J or K guard 

bands to licensees presently holding 

four interleaved 6 megahertz channels 

and four associated 0.125 megahertz 

response channels. A licensee presently 

assigned one channel in the band will 

receive one 5.5 megahertz channel in 

either the LBS or UBS or one 6 

megahertz channel in the MBS. The 

provision of contiguous spectrum, 

combined with the deployment of 

compressed digital signals, will provide 

incumbents with the opportunity to 

maintain their current level of analog 

operations.

• Implement geographic area 

licensing for all licensees in the band. 

This will give licensees increased 

flexibility while greatly reducing 

administrative burdens on both 

licensees and the Commission. 

Accordingly, BRS and EBS 

authorization holders will be allowed to 

place transmitters anywhere within 

their defined service area without prior 

authorization so long as the licensee’s 

operations comply with the applicable 

service rules, do not affect radiofrequency quiet zones, or require 

environmental review or international 

coordination. As part and parcel of 

geographic area licensing, where an 

existing license is canceled or forfeited, 

the right to operate in that area 

automatically reverts to the licensee that 

holds the corresponding BTA license, 

which is consistent with the approach 

we have taken in other wireless 

services. 

• Require geographic area licensees to 

protect the operations of both EBS 

incumbents and BRS site-based 

incumbents within the incumbent’s 

GSA as defined by this order. For 

incumbent BRS and EBS site-based 

licensees, the GSA will be based upon 

the licensee’s current PSA as provided 

in §§ 21.902(d) or 74.903(d) of the 

Commission’s rules. For BRS BTA 

authorization holders, the boundaries of 

the GSA will be exactly the same as the 

current PSA pursuant to § 21.933(a). 

• Direct the Wireless 

Telecommunications Bureau to dismiss 

all pending applications to modify EBS 

or BRS stations, except for modification 

applications that could change an 

applicant’s PSA, applications that seek 

to modify or add additional frequency 

assignments, or applications for 

facilities that would have to be 

separately applied for under the rules 

we adopt today. We see no public 

interest in processing modification 

applications that are no longer 

necessary in light of our new geographic 

area licensing scheme. 

• Adopt a transition mechanism that 

enables incumbent licensees to develop 

regional plans for moving to new 

spectrum assignments in the 

restructured band plan. Under this 

mechanism, licensees have a three-year 

period during which they can initiate 

the transition process in their regional 

area and negotiate a transition plan with 

other regional licensees. Transition 

plans must conform to certain 

safeguards to ensure a smooth transition 

and equitable treatment of incumbents. 

• Consolidate licensing and service 

rules for the Educational Broadband 

Service and Broadband Radio Services. 

This action promotes regulatory parity, 

and clarifies and stabilizes the 

regulatory treatment of similar 

spectrum-based services. 

• Extend the rules and policies 

adopted in the Secondary Markets 

Report and Order to the BRS/EBS 

spectrum. We will allow pre-existing 

MDS and ITFS leases to remain in effect 

for up to fifteen years, consistent with 

our current rules. With respect to future 

spectrum leasing arrangements entered 

into pursuant to our part 27 rules for 

EBS, however, consistent with our 

treatment of other services, we limit the 

spectrum lease term to the length of the 

license term in question. 

• Allow cable operators and ILECs to 

acquire or lease BRS/ITFS spectrum in 

order to provide non-video services like 

broadband internet access. In light of 

§ 613(a)’s language and context we do, 

however, prohibit cable operators from 

72022 Federal Register / Vol. 69, No. 237 / Friday, December 10, 2004 / Rules and Regulations 

acquiring BRS/ITFS licenses outright for 

the purpose of providing MVPD service. 

We also retain the related ban on cable 

operators leasing BRS/ITFS spectrum 

within their franchise areas for the 

purpose of providing MVPD service, but 

allow leasing for other purposes. 

• For pre-transition operations, limit 

the signal strength at any point along 

the licensee’s GSA boundary to the 

greater of that permitted under the 

licensee’s Commission authorizations as 

of the effective date of the new rules or 

47 dB [mμ] V/m. 

• For post-transition operations in the 

LBS and UBS, set the signal strength 

limits for the boundaries of the 

geographic service areas to 47 dBμV/m. 

We retain the current ¥73.0 + 10log(X/

6) dBW/m2 limit (where X is the 

bandwidth in MHz of the channel) for 

post-transition operations in the MBS. 

In order to efficiently serve customers or 

students near the border, the signal 

strength, when measured, shall be taken 

over the channel bandwidth (i.e., each 

5.5 MHz channel in the LBS and UBS 

for licensees that hold a full channel 

block) at 1.5 meters above ground where 

most handheld devices are likely to be 

operated. Moreover, to ensure the 

ubiquitous availability of broadband 

services, and account for the fact that 

many licensees will want to be able to 

provide service as soon as possible in 

order to gain a competitive advantage, 

in those instances where there is no 

neighbor licensee that is constructed 

and providing service to customers or 

students, we will allow a licensee to 

exceed the prescribed power limit at the 

GSA boundary until there is a licensee 

providing service that would be affected 

by the higher power level. 

• Adopt our proposal to authorize 

licensees to engage in mobile operation 

by blanket licensing such operations 

under the licensees’ geographical 

service area authorization. 

• Limit all mobile and portable 

response stations, including CPE 

devices, to 2-watts EIRP assuring 

compliance with our rules. 

• Refrain from imposing a limitation 

on the antenna heights of base stations 

located near the GSA border provided 

they do not cause impermissible 

interference. 

• Require that all LBS and UBS 

channels emissions be attenuated below 

the transmitter power by at least 43 + 

10log(P) dB on any channel outside a 

licensee’s spectrum once the transition 

has been completed. 

• Require a licensee, upon receiving a 

documented interference complaint 

from an adjacent channel licensee, to 

further reduce its out-of-band emissions 

on post-transition operations by at least 

67 + 10log(P) dB. Additional attenuation 

will be required where base stations are 

located in close proximity, less than 1.5 

km apart. Finally, we adopt a mobile 

station emission mask for posttransition operations which extends the 

attenuation from 43 + 10log(P) at the 

channel’s edge to 55 + 10log(P) at 5.5 

MHz away from the channel’s edge. 

• Allow pre-transition (and, in the 

MBS, post-transition) analog and digital 

video operations to operate pursuant to 

the existing out-of-band emission 

limitations currently in our rules. 

• To protect MSS operations below 

2495 MHz, MSS licensees operating in 

the adjacent band will be able to request 

additional protection under the same 

circumstances as adjacent-channel BRS 

and EBS licensees. 

• Limit the EIRP of a main, booster or 

base station to 33 dBW + 10log(X/Y) 

dBW, where X is the actual channel 

width in MHz and Y is either (i) 6 MHz 

if prior to transition or the station is in 

the MBS following transition or (ii) 5.5 

MHz if the station is in the LBS and 

UBS following transition. If a main or 

booster station sectorizes or otherwise 

uses one or more transmitting antennas 

with a non-omnidirectional horizontal 

plane radiation pattern, the maximum 

EIRP in dBW in a given direction shall 

be determined by the following formula: 

EIRP = 33 dBW + 10 log(X/Y) dBW + 10 

log(360/beamwidth) dBW, where X is 

the actual channel width in MHz, Y is 

either (i) 6 MHz if prior to transition or 

the station is in the MBS following 

transition or (ii) 5.5 MHz if the station 

is in the LBS and UBS following 

transition, and beamwidth is the total 

horizontal plane beamwidth of the 

individual transmitting antenna for the 

station or any sector measured at the 

half-power points. 

• Restrict the transmitter output 

power of response stations to 2.0 watts 

upon completion of the transition. 

• Provide licensees with the 

flexibility to employ the technologies of 

their choice in the band. 

• Refrain from allowing high-power 

unlicensed operations in the 2500–2690 

MHz band, but lift the restriction on 

unlicensed operation in § 15.205 of our 

rules and permit low-power unlicensed 

devices to operate on frequencies 2655–

2690 MHz under our current part 15 

rules. 

• Consolidate the BRS and EBS 

procedural rules into subpart F of part 

1 of the Commission’s Rules, which 

contains the rules applicable to the 

processing of applications for all 

services in the Universal Licensing 

System (ULS). 

• Adopt service specific rules for BRS 

and EBS in part 27 of the Commission’s 

Rules, thereby providing a single 

reference point for these similar 

services, as opposed to having the rules 

for these services in three different rule 

parts. 

• Adopt rules that consolidate the 

modification rules to determine major 

and minor modifications for BRS and 

EBS licenses under our ULS part 1 

modification rules. Consequently, at the 

end of the six month transition period 

to ULS, implementation of mandatory 

electronic filing will begin for BRS and 

EBS licensees. MDS licensees currently 

submitting FCC Forms 304 or 331 to 

modify their licenses and EBS licensees 

currently submitting FCC Form 330 

must begin using FCC Form 601 to 

report modifications to the Commission.

• Adopt the consolidated wireless 

procedures, contained in part 1 of the 

Commission’s Rules, for amendments to 

BRS and EBS applications. 

Consequently, at the end of the 

transition period to mandatory 

electronic filing under ULS, BRS and 

EBS licensees will use FCC Form 601 to 

amend their applications. 

• Require that at the end of the 

transition period to ULS 

implementation, BRS and EBS licensees 

must use FCC Form 603 and associated 

schedules to apply for consent to 

assignment of existing authorizations 

(including channel swaps), to apply for 

Commission consent to the transfer of 

control of entities holding 

authorizations, to notify the 

Commission of the consummation of 

assignments or transfers, and to request 

extensions of time for consummation of 

assignments or transfers. These 

transaction rules for BRS and EBS 

conform to and merge with the ULS 

requirements in § 1.948 of our rules. 

• Permit partitioning and 

disaggregation of licenses for all services 

in the band. 

• Adopt the late-filed renewal policy 

utilized for wireless radio services for 

the BRS/EBS band. Pursuant to this 

policy, renewal applications that are 

filed up to thirty days after the 

expiration date of the license will be 

granted nunc pro tunc if the application 

is otherwise sufficient under our rules, 

but the licensee may be subject to an 

enforcement action for untimely filing 

and unauthorized operation during the 

time between the expiration of the 

license and the untimely renewal filing. 

Applicants who file renewal 

applications more than thirty days after 

the license expiration date may also 

request that the license be renewed 

nunc pro tunc, but such requests will 

not be routinely granted, will be subject 

to stricter review, and also may be 

accompanied by enforcement action, 

Federal Register / Vol. 69, No. 237 / Friday, December 10, 2004 / Rules and Regulations 72023

including more significant fines or 

forfeitures. 

• Adopt our proposal to include BRS 

and EBS STA requests under the same 

ULS regulatory regime as other Wireless 

Services. 

• Adopt our proposal to require BRS 

and EBS licensees to file Form 602, in 

lieu of Form 430, to submit ownership 

information as is done by our other 

wireless licensees under our part I ULS 

Rules. During the transition period, BRS 

and EBS licensees may continue to file 

the Form 430 manually. 

• Permit BRS and EBS applicants to 

request more than one regulatory status 

for authorization in a single license. 

BRS and EBS applicants must also 

follow the notification procedures set 

forth in § 27.10(c) of the Commission’s 

Rules. 

• Eliminate our forfeiture, 

cancellation and discontinuance of 

service rules for certain licensees. BRS 

and EBS Licensees that choose to act as 

fixed common carriers or fixed carriers 

will be subject to § 27.66 of the 

Commission’s Rules. 

• Adopt rules for applicants 

requesting authorization for either 

common carrier or non-common carrier 

status to file changes in foreign 

ownership information pursuant to 

those sections. 

• Eliminate the requirement that BRS 

operators file annual reports with the 

Commission. 

• Adopt rules that streamline our 

application procedures for BRS and EBS 

by integrating the Services into ULS. 

• Adopt the Commission’s uniform 

rule for dismissal or return of defective 

applications in the Wireless Services to 

EBS and BRS applications along with 

the Bureau’s procedures for complying 

with the Commission’s uniform policy.

• Adopt rules to use the ULS forms 

for BRS and EBS, thereby eliminating 

the current MDS and ITFS forms. We 

adopt a six-month transition period after 

the effective date of the rules we have 

adopted today before requiring 

mandatory electronic filing by BRS and 

EBS applicants and licensees in ULS. 

Consistent with prior actions, WTB will 

release a public notice announcing the 

relevant commencement date for the 

processing of applications in the 

Services via ULS. 

• Dismiss all applications for ITFS 

stations that were filed prior to adoption 

of the NPRM where: the applications are 

mutually exclusive, and the applicants 

filed settlement agreements subsequent 

to the release of the NPRM, and/or 

applicants filed settlement agreements 

prior to the release of the NPRM, but the 

settlement agreement did not comply 

with our rules. 

In MM Docket No. 97–217, we 

address a minor issue concerning 

response stations that are not engaged in 

communications with their associated 

hubs to restrict their field strengths. 

Procedural Matters 

A. Paperwork Reduction Analysis 

7. This document contains new 

information collection requirements. 

The Commission, as part of its 

continuing effort to reduce paperwork 

burdens, invites the general public to 

comment on the information collection 

requirements contained in this R&O as 

required by the Paperwork Reduction 

Act of 1995, Public Law 104–13. Public 

and agency comments are due February 

8, 2005. In addition, the Commission 

notes that pursuant to the Small 

Business Paperwork Relief Act of 2002, 

Public Law 107–198, see 44 U.S.C. 

3506(c)(4), we previously sought 

specific comment on how the 

Commission might ‘‘further reduce the 

information collection burden for small 

business concerns with fewer than 25 

employees.’’

8. In this present document, we have 

assessed the effects of requiring 

licensees to file Initiation Plans and Post 

Transition Notification Plans, and find 

that these requirements will not 

adversely affect businesses with fewer 

than 25 employees. First, it is unlikely 

that such businesses will serve as 

Proponents under our new Transition 

Plan thereby triggering the requirement 

to file an Initiation Plan as we generally 

expect that Proponents will largely 

consist of larger businesses with 

sufficient revenue to transition an entire 

market. To the extent that such 

businesses would serve as Proponents, 

the filing of Initiation Plans will not 

constitute a burden or require 

significant paperwork preparation 

because these Proponents will meet this 

filing requirement, by submitting, in 

whole or in part, their written 

agreements on transition. With regard to 

the Post Transition Notification Plan, 

we do not believe that such a filing 

would constitute a burden to businesses 

with fewer than 25 employees because 

such notices will consist of a simple 

notification to the Commission that the 

transition has been completed. This 

notification is in the public interest 

because it will help to ensure that the 

BRS/EBS spectrum is properly utilized. 

We seek comment on these conclusions. 

B. Final Regulatory Flexibility Analysis 

9. As required by the Regulatory 

Flexibility Act of 1980, as amended 

(RFA), an Initial Regulatory Flexibility 

Analysis (IRFA) of the possible 

significant economic impact on a 

substantial number of small entities by 

the policies and rules proposed in the 

Notice of Proposed Rule Making 

(NPRM) was incorporated therein. The 

Commission sought written public 

comment on the proposals in the NPRM, 

including comment on the IRFA. No 

comments were submitted specifically 

in response to the IRFA; we nonetheless 

discuss certain general comments 

below. This present Final Regulatory 

Flexibility Analysis (FRFA) conforms to 

the RFA. 

C. Need for, and Objectives of, the Final 

Rules 

10. In this Report and Order (R&O) we 

adopt a number of changes concerning 

the rules governing the 2500–2690 MHz 

band, for the Multipoint Distribution 

Service (MDS), the Multi-channel 

Multipoint Distribution Service 

(MMDS), and the Instructional 

Television Fixed Service (ITFS). The 

rules we adopt today include: revising 

technical rules to increase licensee 

flexibility; revising the band plan to 

eliminate the current interleaved 

channel scheme to provide licensees 

with contiguous spectrum; 

implementing service rules for mobile 

operation; retaining eligibility 

restrictions to preserve the ITFS service; 

simplifying and streamlining the 

licensing process; and implementing 

application filing and processing 

electronically via our Universal 

Licensing System with a six-month 

transition period after application 

processing in ULS begins before 

requiring mandatory electronic filing. 

11. We believe the rules we adopt 

today will both encourage the 

enhancement of existing services using 

this band and promote the development 

of new innovative services to the public, 

such as providing wireless broadband 

services, including high-speed Internet 

access and mobile services. We also 

believe that our new rules will allow 

licensees to adapt quickly to changing 

market conditions and the marketplace, 

rather than to government regulation, in 

determining how this band can best be 

used. 

Summary of Significant Issues Raised by 

Public Comments in Response to the 

IRFA 

12. No comments were submitted 

specifically in response to the IRFA. 

Description and Estimate of the Number 

of Small Entities to Which the Proposed 

Rules Will Apply

13. The RFA directs agencies to 

provide a description of and, where 

feasible, an estimate of the number of 

72024 Federal Register / Vol. 69, No. 237 / Friday, December 10, 2004 / Rules and Regulations 

small entities that may be affected by 

the proposed rules. The RFA generally 

defines the term ‘‘small entity’’ as 

having the same meaning as the terms, 

‘‘small business,’’ ‘‘small organization,’’

and ‘‘small governmental jurisdiction.’’

In addition, the term ‘‘small business’’

has the same meaning as the term 

‘‘small business concern’’ under the 

Small Business Act. A small business 

concern is one which: (i) Is 

independently owned and operated; (ii) 

is not dominant in its field of operation; 

and (iii) satisfies any additional criteria 

established by the SBA. A small 

organization is generally ‘‘any not-forprofit enterprise which is independently 

owned and operated and is not 

dominant in its field.’’

14. In this section, we further describe 

and estimate the number of small entity 

licensees and regulatees that may be 

affected by rules adopted pursuant to 

this NPRM. The most reliable source of 

information regarding the total numbers 

of certain common carrier and related 

providers nationwide, as well as the 

number of commercial wireless entities, 

appears to be the data that the 

Commission publishes in its Trends in 

Telephone Service report. 

15. Multipoint Distribution Service, 

Multichannel Multipoint Distribution 

Service, and ITFS. Multichannel 

Multipoint Distribution Service (MMDS) 

systems, often referred to as ‘‘wireless 

cable,’’ transmit video programming to 

subscribers using the microwave 

frequencies of the Multipoint 

Distribution Service (MDS) and 

Instructional Television Fixed Service 

(ITFS). In connection with the 1996 

MDS auction, the Commission 

established a small business size 

standard as an entity that had annual 

average gross revenues of less than $40 

million in the previous three calendar 

years. The MDS auctions resulted in 67 

successful bidders obtaining licensing 

opportunities for 493 Basic Trading 

Areas (BTAs). Of the 67 auction 

winners, 61 met the definition of a small 

business. MDS also includes licensees 

of stations authorized prior to the 

auction. At this time, we estimate that 

of the 61 small business MDS auction 

winners, 48 remain small business 

licensees. In addition to the 48 small 

businesses that hold BTA 

authorizations, there are approximately 

392 incumbent MDS licensees that are 

considered small entities. After adding 

the number of small business auction 

licensees to the number of incumbent 

licensees not already counted, we find 

that there are currently approximately 

440 MDS licensees that are defined as 

small businesses under either the SBA 

or the Commission’s rules. Some of 

those 440 small business licensees may 

be affected by the decisions in this R&O.

16. In addition, the SBA has 

developed a small business size 

standard for Cable and Other Program 

Distribution, which includes all such 

companies generating $12.5 million or 

less in annual receipts. According to 

Census Bureau data for 1997, there were 

a total of 1,311 firms in this category, 

total, that had operated for the entire 

year. Of this total, 1,180 firms had 

annual receipts of under $10 million 

and an additional 52 firms had receipts 

of $10 million or more but less than $25 

million. Consequently, we estimate that 

the majority of providers in this service 

category are small businesses that may 

be affected by the rules and policies 

adopted herein. This SBA small 

business size standard is also applicable 

to ITFS. There are presently 2,032 ITFS 

licensees. All but 100 of these licenses 

are held by educational institutions. 

Educational institutions are included in 

this analysis as small entities. Thus, we 

estimate that at least 1,932 licensees are 

small businesses. 

17. MDS is also heavily encumbered 

with licensees of stations authorized 

prior to the auction. The SBA has 

developed a definition of small entities 

for pay television services that includes 

all such companies generating $11 

million or less in annual receipts. This 

definition includes multipoint 

distribution systems, and thus applies to 

MDS licensees and wireless cable 

operators that did not participate in the 

MDS auction. Information available to 

us indicates that there are [832] of these 

licensees and operators that do not 

generate revenue in excess of $11 

million annually. Therefore, for 

purposes of this IRFA, we find there are 

approximately [892] small MDS 

providers as defined by the SBA and the 

Commission’s auction rules, and some 

of these providers may take advantage of 

our amended rules to provide two-way 

MDS. 

18. There are presently [2032] ITFS 

licensees. All but [100] of these licenses 

are held by educational institutions 

(these [100] fall in the MDS category, 

above). Educational institutions may be 

included in the definition of a small 

entity. ITFS is a non-profit nonbroadcast service that, depending on 

SBA categorization, has, as small 

entities, entities generating either $10.5 

million or less, or $11.0 million or less, 

in annual receipts. However, we do not 

collect, nor are we aware of other 

collections of, annual revenue data for 

ITFS licensees. Thus, we find that up to 

[1932] of these educational institutions 

are small entities that may take 

advantage of our amended rules to 

provide additional flexibility to ITFS. 

Description of Projected Reporting, 

Recordkeeping, and Other Compliance 

Requirements 

19. Applicants for MDS or ITFS 

licenses must submit license 

applications through the Universal 

Licensing System using FCC Form 601, 

and other appropriate forms. Licensees 

will also be required to apply for an 

individual station license by filing FCC 

Form 601 for those individual stations 

that (i) require submission of an 

Environmental Assessment of the 

facilities under § 1.1307 of our Rules; 

(ii) require international coordination of 

the application; or (iii) require 

coordination with the Frequency 

Assignment Subcommittee (FAS) of the 

Interdepartment Radio Advisory 

Committee (IRAC). While these 

requirements are new with respect to 

potential licensees in the ITFS and MDS 

bands, the Commission has applied 

these requirements to licensees in other 

bands. Moreover, the Commission is 

also eliminating many burdensome 

filing requirements that have previously 

been applied to MDS and ITFS.

Steps Taken To Minimize Significant 

Economic Impact on Small Entities, and 

Significant Alternatives Considered 

20. The RFA requires an agency to 

describe any significant alternatives that 

it has considered in reaching its 

proposed approach, which may include 

the following four alternatives: ‘‘(i) The 

establishment of differing compliance or 

reporting requirements or timetables 

that take into account the resources 

available to small entities; (ii) the 

clarification, consolidation, or 

simplification of compliance or 

reporting requirements under the rule 

for such small entities; (iii) the use of 

performance, rather than design 

standards; and (iv) an exemption from 

coverage of the rule, or any part thereof, 

for small entities.’’

21. Regarding our decision to retain 

ITFS eligibility restrictions, we realize 

that certain entities expressed their 

wishes that eligibility restrictions be 

lifted throughout the entire ITFS 

spectrum. However, this concern is 

mitigated by the fact that even though 

only qualifying educational institutions 

can hold licenses in the band, such 

institutions are free to lease out excess 

capacity to non-educational entities. 

Throughout the years, this has been the 

dominant practice in the band, and in 

fact, the band is used by noneducational entities. Our decision is 

also mitigated by the fact that noneducational entities may also acquire 

Federal Register / Vol. 69, No. 237 / Friday, December 10, 2004 / Rules and Regulations 72025

this spectrum by entering into 

negotiations with BRS licensees, who 

occupy the same spectrum. 

22. Herein we have adopted a 

variation of the band plan 

recommended by the Wireless 

Communications Association (WCA), 

National Instructional Television Fixed 

Service (NIA) and Catholic Television 

Network (CTN) (collectively, the 

Coalition). Our preferred variation 

contains upper and lower band 

segments for low-power operations 

(UBS and LBS, respectively), and a mid 

band segment (MBS) for high-power 

operations. We do not anticipate that 

this variation will have any adverse 

effect on small entities. This is because 

the new band plan provides contiguous 

blocks of spectrum whereas the old 

band plan provided interleaved 

channels that prevented licensees from 

employing innovative technologies. 

Although some entities rejected the 

three segment plan we have adopted 

and argued that the Commission should 

adopt across-the-board power 

reductions instead of the three band 

segments which require a shuffling of 

channel assignments, we believe this 

alternative would have had a significant 

negative impact on ITFS and MDS 

licensees. This is because many of these 

licensees use this spectrum for highpower operations, and an across-theboard power reduction rule would 

result in the virtual shut down of such 

licensees’ operations. In contrast, the 

approach we have adopted will 

accommodate both high and low-power 

operations. 

23. Regarding our decision to adopt, 

with some modifications, the Coalition’s 

plan for transitioning licensees to the 

new band plan, we recognize that some 

commenters were resistant to the 

Coalition transition plan criticizing it 

for having no deadlines and arguing that 

it would create daisy chains that would 

actually prevent the transition from 

being completed. However, we believe 

this concern is mitigated by our 

decision to set a three year deadline for 

initiating the transition process. We 

have also notified interested parties 

herein that if they do not comply with 

the three year deadline, we will 

implement another transition plan, and 

have sought comment on other 

transition plans we can implement if we 

later find that the one we adopt today 

is not successful. With regard to the 

possible daisy chain problem, we have 

modified the Coalition plan to transition 

to the new band plan using larger areas 

than the Coalition recommends. 

24. Finally, licensees that must 

transition to the new band plan will be 

affected in that some will have to bear 

the costs of such transition. However, 

the record reflects that licensees 

unanimously agree that the band plan 

must be modified, and the transition 

costs are outweighed by the value and 

utility of converting the band plan into 

one which provides licensees with 

contiguous spectrum. 

25. Regarding our decision to 

implement geographic area licensing for 

all licensees in the band, we do not 

anticipate any adverse effect on small 

entities. Instead, our approach here 

should benefit all licensees, including 

small entities, as it reduces the burdens 

associated with filing applications for 

new sites. 

26. Regarding our decision to provide 

licensees with the flexibility to employ 

the technologies of their choice in the 

band, we do not anticipate any adverse 

effect on small entities. To the contrary, 

this decision will allow licensees to 

quickly adjust to changes in technology 

and market demand without seeking 

Commission approval. 

27. Regarding our decision to refrain 

from allowing high-power unlicensed 

operations in the 2500–2690 MHz band, 

we recognize that some small businesses 

would have liked to deploy unlicensed 

operations in the band. However, we 

believe this concern is outweighed by 

the fact that allowing such operations 

would cause interference to primary 

operations in the band, thereby creating 

uncertainty for licensees and 

discouraging investment in the band. 

Furthermore, we note that part 15 of the 

Commission’s Rules provides other 

opportunities for unlicensed operations 

in the electromagnetic spectrum. We 

note specifically that the Commission 

has initiated another rulemaking that 

specifically deals with unlicensed 

operations that may ultimately provide 

more opportunities for unlicensed use. 

28. The regulatory burdens contained 

in the R&O, such as filing applications 

on appropriate forms and filing 

transition plans with the Commission, 

are necessary in order to ensure that the 

public receives the benefits of 

innovative new services, or enhanced 

existing services, in a prompt and 

efficient manner. Nonetheless, we have 

reduced burdens wherever possible by 

eliminating a number of unnecessary 

regulations concerning filing 

requirements. 

Federal Rules That May Duplicate, 

Overlap, or Conflict With the Proposed 

Rule 

29. None. 

Report to Congress 

30. The Commission will send a copy 

of this R&O, including this FRFA, in a 

report to be sent to Congress and the 

Government Accountability Office 

(GAO) pursuant to the Congressional 

Review Act, see 5 U.S.C. 801(a)(1)(A). In 

addition, the Commission will send a 

copy of this R&O, including this FRFA, 

to the Chief Counsel for Advocacy of the 

Small Business Administration. A copy 

of this R&O and FRFA (or summaries 

thereof) will also be published in the 

Federal Register. 

Ordering Clause 

31. Pursuant to sections 1, 2, 4(i), 7, 

10, 201, 214, 301, 302, 303, 307, 308, 

309, 310, 319, 324, 332, 333 and 706 of 

the Communications Act of 1934, 47 

U.S.C. 151, 152, 154(i), 157, 160, 201, 

214, 301, 302, 303, 307, 308, 309, 310, 

319, 324, 332, 333, and 706, that this 

Report and Order is hereby adopted. 

32. The proceeding entitled 

Amendment of parts 21 and 74 to 

Enable Multipoint Distribution Service 

and the Instructional Television Fixed 

Service Amendment of parts 21 and 74 

to Engage in Fixed Two-Way 

Transmissions, MM Docket No. 97–217 

is terminated. 

33. The Commission’s Consumer and 

Governmental Affairs Bureau, Reference 

Information Center, shall send a copy of 

this R&O, to the Chief Counsel for 

Advocacy of the Small Business 

Administration.

34. The Commission’s Consumer and 

Governmental Affairs Bureau, Reference 

Information Center, shall send a copy of 

this NPRM, including the Initial 

Regulatory Flexibility Analysis, to the 

Chief Counsel for Advocacy of the U.S. 

Small Business Administration.

List of Subjects in 47 CFR Parts 1, 2, 11, 

15, 21, 27, 73, 74, 76, 78, 79, and 101 

Communications common carriers, 

Communications equipment, Education, 

Equal employment opportunity, Radio, 

Reporting and recordkeeping 

requirements, Television.

Federal Communications Commission. 

William F. Caton, 

Deputy Secretary.

Final Rules

■ For the reasons discussed in the 

preamble, the Federal Communications 

Commission amends 47 CFR parts 1, 2, 

11, 15, 21, 27, 73, 74, 76, 78, 79, and 101 

as follows:

PART 1—PRACTICE AND 

PROCEDURE

■ 1. The authority citation for part 1 

continues to read as follows:

Authority: 47 U.S.C. 151, 154(i), 154(j), 

155, 225, 303(r), 309 and 325(e).

72026 Federal Register / Vol. 69, No. 237 / Friday, December 10, 2004 / Rules and Regulations 

■ 2. Section 1.65 is amended by revising 

paragraph (b) to read as follows:

§ 1.65 Substantial and significant changes 

in information furnished by applicants to 

the Commission.

* * * * *

(b) Applications in broadcast services 

subject to competitive bidding will be 

subject to the provisions of §§ 1.2105(b), 

73.5002 and 73.3522 of this chapter 

regarding the modification of their 

applications.

* * * * *

§ 1.815 [Amended]

■ 3. Section 1.815 is amended by 

removing and reserving paragraph (c)(1).

■ 4. Section 1.933 is amended by adding 

paragraphs (c)(8) and (c)(9) to read as 

follows:

§ 1.933 Public notices.

* * * * *

(c) * * * 

(8) Broadband Radio Service; and 

(9) Educational Broadband Service.

* * * * *

■ 5. Section 1.1102 is amended by 

revising section (20) of the table to read 

as follows:

§ 1.1102 Schedule of charges for 

applications and other filings in the 

wireless telecommunication services.

* * * * *

Action FCC Form No. Fee amount Payment 

type code Address 

20. Broadband Radio Service

a. New Station .................................... 601 & 159 ...................... $220.00 CJM ....... Federal Communications Commission, Wireless 

Bureau Applications, P.O. Box 358155, Pittsburgh, PA 15251–5155. 

b. Major Modification of License ........ 601 &159 ....................... 220.00 CJM ....... Federal Communications Commission, Wireless 

Bureau Applications, P.O. Box 358994, Pittsburgh, PA 15251–5155. 

c. Certification of Commission, Completion of Construction.601 & 159 ...................... 80.00 CJM ....... Federal Communications Commission, Wireless 

Bureau Applications, P.O. Box 358155, Pittsburgh, PA 15251–5155. 

d. License Renewal ............................ 601 & 159 ...................... 220.00 CJM ....... Federal Communications Commission, Wireless 

Bureau Applications, P.O. Box 358155, Pittsburgh, PA 15251–5155. 

e. Assignment or Transfer: 

(i) First Station on Application ........ 603 & 159 ...................... 80.00 CCM ....... Federal Communications Commission, Wireless 

Bureau Applications, P.O. Box 358155, Pittsburgh, PA 15251–5155. 

(ii) Each Additional Station ............. 603 & 159 ...................... 50.00 CAM ....... Federal Communications Commission, Wireless 

Bureau Applications, P.O. Box 358155, Pittsburgh, PA 15251–5155. 

f. Extension of Construction Authorization.601 & 159 ...................... 185.00 CHM ....... Federal Communications Commission, Wireless 

Bureau Applications, P.O. Box 358155, Pittsburgh, PA 15251–5155. 

g. Special Temporary Authority or 

Request for Waiver of Prior Construction Authorization.

Corres & 159 ................. 100.00 CEM ....... Federal Communications Commission, Wireless 

Bureau Applications, P.O. Box 358155, Pittsburgh, PA 15251–5155. 

* * * * * ■ 6. Section 1.1152 is amended by 

revising paragraph (8) to read as follows:

§ 1.1152 Schedule of annual regulatory 

fees and filing locations for wireless radio 

services.

Exclusive use services (per license) Fee 

amount (1) Address 

*******

8. Broadband Radio Service (BRS) ................................................................................................. $265 FCC, BRS, P.O. Box 358835, 

Pittsburgh, PA 15251–5835. 

*******

■ 7. Section 1.1307 is amended by 

revising Table 1 to read as follows:

§ 1.1307 Actions that may have a 

significant environmental effect, for which 

Environmental Assessments (EAs) must be 

prepared.

* * * * *

TABLE 1.—TRANSMITTERS, FACILITIES AND OPERATIONS SUBJECT TO ROUTINE ENVIRONMENTAL EVALUATION

Service (title 47 CFR rule part) Evaluation required if— 

Broadband Radio Service and Educational 

Broadband Service (subpart M of part 27).

Non-building-mounted antennas: height above ground level to lowest point of antenna < 10 m 

and power > 1640 W EIRP. 

Federal Register / Vol. 69, No. 237 / Friday, December 10, 2004 / Rules and Regulations 72027

TABLE 1.—TRANSMITTERS, FACILITIES AND OPERATIONS SUBJECT TO ROUTINE ENVIRONMENTAL EVALUATION—Continued

Service (title 47 CFR rule part) Evaluation required if—

Building-mounted antennas: power > 1640 W EIRP. 

BRS and EBS licensees are required to attach a label to subscriber transceiver or transverter 

antennas that: (1) Provide adequate notice regarding potential radiofrequency safety hazards, e.g., information regarding the safe minimum separation distance required between 

users and transceiver antennas; and (2) reference the applicable FCC-adopted limits for radiofrequency exposure specified in § 1.1310. 

Wireless Communications Service (Part 27) ...... (1) For the 1390–1392 MHz, 1392–1395 MHz, 1432–1435 MHz, 1670–1675 MHz and 2385–

2390 MHz bands: Non-building-mounted antennas: height above ground level to lowest 

point of antenna <10 m and total power of all channels > 2000 W ERP (3280 W EIRP). 

Building-mounted antennas: total power of all channels > 2000 W ERP (3280 W EIRP). 

(2) For the 746–764 MHz, 776–794 MHz, 2305–2320 MHz, and 2345–2360 MHz bands. Total 

power of all channels >1000 W ERP (1640 W EIRP). 

* * * * *

■ 8. Section 1.7001 is amended by 

revising paragraph (b) to read as follows:

§ 1.7001 Scope and content of filed 

reports.

* * * * *

(b) All commercial and governmentcontrolled entities, including but not 

limited to common carriers and their 

affiliates (as defined in 47 U.S.C. 

153(1)), cable television companies, 

Broadband Radio Service (BRS) 

‘‘wireless cable’’ carriers, other fixed 

wireless providers, terrestrial and 

satellite mobile wireless providers, 

utilities and others, which are facilitiesbased providers and are providing at 

least 250 full or one-way broadband 

lines or wireless channels in a given 

State, or provide full or one-way 

broadband service to at least 250 enduser consumers in a given State, shall 

file with the Commission a completed 

FCC Form 477, in accordance with the 

Commission’s rules and the instructions 

to the FCC Form 477, for each State in 

which they exceed this threshold.

* * * * *

■ 9. Section 1.9005 is amended by 

redesignating paragraphs (h) through 

(bb) as paragraphs (j) through (dd) and 

adding new paragraphs (h) and (i) to read 

as follows:

§ 1.9005 Included services.

* * * * *

(h) The Broadband Radio Service (part 

27 of this chapter); 

(i) The Educational Broadband 

Service (part 27 of this chapter);

* * * * *

■ 10. Section 1.9020 is amended by 

revising paragraph (d)(2)(i) to read as 

follows:

§ 1.9020 Spectrum manager leasing 

arrangements.

* * * * *

(d) * * * 

(2) * * * 

(i) The spectrum lessee must meet the 

same eligibility and qualification 

requirements that are applicable to the 

licensee under its license qualification, 

except that spectrum lessees entering 

into spectrum leasing arrangements 

involving licensees in the Educational 

Broadband Service (see § 27.1201 of this 

chapter) are not required to comply with 

the eligibility requirements pertaining to 

such licensees (see § 27.1201 of this 

chapter) so long as the spectrum lessees 

meet the other eligibility and 

qualification requirements applicable to 

part 27 of this chapter services (see

§ 27.12 of this chapter).

* * * * *

■ 11. Section 1.9030 is amended by 

revising paragraph (d)(2)(i) to read as 

follows:

§ 1.9030 Long-term de facto transfer 

leasing arrangements.

* * * * *

(d) * * * 

(2) * * * 

(i) The spectrum lessee must meet the 

same eligibility and qualification 

requirements that are applicable to the 

licensee under its license qualification, 

except that spectrum lessees entering 

into spectrum leasing arrangements 

involving licensees in the Educational 

Broadband Service (see § 27.1201 of this 

chapter) are not required to comply with 

the eligibility requirements pertaining to 

such licensees (see § 27.1201 of this 

chapter) so long as the spectrum lessees 

meet the other eligibility and 

qualification requirements applicable to 

part 27 of this chapter services (see

§ 27.12 of this chapter).

* * * * *

■ 12. Section 1.9047 is added to read as 

follows:

§ 1.9047 Special provisions relating to 

leases of educational broadband service 

spectrum. 

Licensees in the Educational 

Broadcasting Service may enter into 

spectrum leasing arrangements with 

spectrum lessees only insofar as such 

arrangements comply with the 

applicable requirements for spectrum 

leasing arrangements involving 

spectrum in that service as set forth in 

§ 27.1214 of this chapter.

PART 2—FREQUENCY ALLOCATIONS 

AND RADIO TREATY MATTERS; 

GENERAL RULES AND REGULATIONS

■ 13. The authority citation for part 2 

continues to read as follows:

Authority: 47 U.S.C. 154, 302a, 303, and 

336, unless otherwise noted.

■ 14. Section 2.106, the Table of 

Frequency Allocations, is amended by 

revising pages 51, 52, and 53 to read as 

follows.

§ 2.106 Table of Frequency Allocations.

* * * * *

BILLING CODE 6712–01–P

72028 Federal Register / Vol. 69, No. 237 / Friday, December 10, 2004 / Rules and Regulations 


ER10DE04.087</GPH>
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ER10DE04.088</GPH>
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BILLING CODE 6712–01–C


ER10DE04.089</GPH>
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* * * * *

PART 11—EMERGENCY ALERT 

SYSTEM (EAS)

■ 15. The authority citation for part 11 

continues to read as follows:

Authority: 47 U.S.C. 151, 154(i) and (o), 

303(r), 544(g), and 606, unless otherwise 

noted.

■ 16. Section 11.11 is amended by 

revising the text of paragraph (a) and 

paragraph A. of the table titled ‘‘Wireless 

Cable System’’, and paragraphs (c) 

introductory text and (c)(1) to read as 

follows:

§ 11.11 The Emergency Alert System 

(EAS). 

(a) The EAS is composed of broadcast 

networks; cable networks and program 

suppliers; AM, FM Low-power FM 

(LPFM) and TV broadcast stations; Class 

A television (CA) stations; Low-power 

TV (LPTV) stations; cable systems; 

wireless cable systems which may 

consist of Broadband Radio Service 

(BRS), or Educational Broadband 

Service (EBS) stations; and other entities 

and industries operating on an 

organized basis during emergencies at 

the National, State and local levels. It 

requires that at a minimum all 

participants use a common EAS 

protocol, as defined in § 11.31, to send 

and receive emergency alerts in 

accordance with the effective dates in 

the following tables:

* * * * *

Wireless Cable Systems (BRS/EBS 

Stations) 

[A. Wireless cable systems serving 

fewer than 5,000 subscribers from a 

single transmission site must either 

provide the National level EAS message 

on all programmed channels—including 

the required testing—by October 1, 

2002, or comply with the following EAS 

requirements. All other wireless cable 

systems must comply with B.]

* * * * *

(c) For purposes of the EAS, 

Broadband Radio Service (BRS) and 

Educational Broadband Service (EBS) 

stations operated as part of wireless 

cable systems in accordance with 

subpart M of part 27 of this chapter are 

defined as follows: 

(1) A ‘‘wireless cable system’’ is a 

collection of channels in the BRS or EBS 

used to provide video programming 

services to subscribers. The channels 

may be licensed to or leased by the 

wireless cable system operator.

* * * * *

■ 17. In § 11.31, paragraph (c) is 

amended by revising entry ‘‘LLLLLLLL’’

to read as follows:

§ 11.31 EAS protocol.

* * * * *

(c) * * * 

LLLLLLLL—This is the identification 

of the broadcast station, cable system, 

BRS/EBS station, NWS office, etc., 

transmitting or retransmitting the 

message. These codes will be 

automatically affixed to all outgoing 

messages by the EAS encoder.

* * * * *

■ 18. Section 11.35 is amended by 

revising paragraph (a) to read as follows:

§ 11.35 Equipment operational readiness. 

(a) Broadcast stations and cable 

systems and wireless cable systems are 

responsible for ensuring that EAS 

Encoders, EAS Decoders and Attention 

Signal generating and receiving 

equipment used as part of the EAS are 

installed so that the monitoring and 

transmitting functions are available 

during the times the stations and 

systems are in operation. Additionally, 

broadcast stations and cable systems 

and wireless cable systems must 

determine the cause of any failure to 

receive the required tests or activations 

specified in § 11.61(a)(1) and (a)(2). 

Appropriate entries must be made in the 

broadcast station log as specified in 

§§ 73.1820 and 73.1840 of this chapter, 

cable system record as specified in 

§§ 76.1700, 76.1708, and 76.1711 of this 

chapter, BRS station records, indicating 

reasons why any tests were not 

received.

* * * * *

PART 15—RADIO FREQUENCY 

DEVICES

■ 19. The authority citation for part 15 

continues to read as follows:

Authority: 47 U.S.C. 154, 302(a), 303, 304, 

307, 336, and 544(a), unless otherwise noted.

§ 15.205 [Amended]

■ 20. Section 15.205(a) is amended in the 

table by removing ‘‘2655–2900 MHz’’

from the third column and by adding in 

its place ‘‘2690–2900 MHz.’’

* * * * *

PART 21—DOMESTIC PUBLIC FIXED 

RADIO SERVICES

■ 21. Under the authority of 47 U.S.C. 

154, amend 47 CFR chapter I by 

removing part 21.

PART 27—MISCELLANEOUS 

WIRELESS COMMUNICATIONS 

SERVICES

■ 22. The authority citation for part 27 

continues to read as follows:

Authority: 47 U.S.C. 154, 301, 302, 303, 

307, 309, 332, 336 and 337 unless otherwise 

noted.

■ 23. Section 27.1 is amended by adding 

paragraph (b)(9) to read as follows:

§ 27.1 Basis and purpose.

* * * * *

(9) 2495–2690 MHz.

* * * * *

§ 27.3 [Amended]

■ 24. Section 27.3 is amended by 

removing paragraph (h) and by 

redesignating paragraphs (i) through (q) 

as (h) through (p) to read as follows:

■ 25. Section 27.4 is amended by adding 

in alphabetical order the following 

definitions to read as follows:

§ 27.4 Terms and definitions.

* * * * *

Attended operation. Operation of a 

station by a designated person on duty 

at the place where the transmitting 

apparatus is located with the transmitter 

in the person’s plain view.

* * * * *

Booster service area. A geographic 

area to be designated by an applicant for 

a booster station, within which the 

booster station shall be entitled to 

protection against interference as set 

forth in this part. The booster service 

area must be specified by the applicant 

so as not to overlap the booster service 

area of any other booster authorized to 

or proposed by the applicant. However, 

a booster station may provide service to 

receive sites outside of its booster 

service area, at the licensee’s risk of 

interference. The booster station must 

be capable of providing substantial 

service within the designated booster 

service area. 

Broadband Radio Service (BRS). A 

radio service using certain frequencies 

in the 2150–2162 and 2496–2690 MHz 

bands which can be used to provide 

fixed and mobile services, except for 

aeronautical services.

* * * * *

Documented complaint. A complaint 

that a party is suffering from nonconsensual interference. A documented 

complaint must contain a certification 

that the complainant has contacted the 

operator of the allegedly offending 

facility and tried to resolve the situation 

prior to filing. The complaint must then 

specify the nature of the interference, 

whether the interference is constant or 

72032 Federal Register / Vol. 69, No. 237 / Friday, December 10, 2004 / Rules and Regulations 

intermittent, when the interference 

began and the site(s) most likely to be 

causing the interference. The complaint 

should be accompanied by a videotape 

or other evidence showing the effects of 

the interference. The complaint must 

contain a motion for a temporary order 

to have the interfering station cease 

transmitting. The complaint must be 

filed with the Secretary’s office and 

served on the allegedly offending party. 

Educational Broadband Service (EBS).

A fixed or mobile service, the licensees 

of which are educational institutions or 

non-profit educational organizations, 

and intended primarily for video, data, 

or voice transmissions of instructional, 

cultural, and other types of educational 

material to one or more receiving 

locations.

* * * * *

Lower Band Segment (LBS). Segment 

of the BRS/EBS band consisting of 

channels in the frequencies 2496–2572 

MHz. 

Middle Band Segment (MBS).

Segment of the BRS/EBS band 

consisting of channels in the 

frequencies 2572–2614 MHz.

* * * * *

Point-to-point Broadband station. A 

Broadband station that transmits a 

highly directional signal from a fixed 

transmitter location to a fixed receive 

location.

* * * * *

Remote control. Operation of a station 

by a designated person at a control 

position from which the transmitter is 

not visible but where suitable control 

and telemetering circuits are provided 

which allow the performance of the 

essential functions that could be 

performed at the transmitter.

* * * * *

Sectorization. The use of an antenna 

system at an broadband station, booster 

station and/or response station hub that 

is capable of simultaneously 

transmitting multiple signals over the 

same frequencies to different portions of 

the service area and/or simultaneously 

receiving multiple signals over the same 

frequencies from different portions of 

the service area.

Studio to transmitter link (STL). A 

directional path used to transmit a 

signal from a station’s studio to its 

transmitter. 

Temporary fixed broadband station.

A broadband station used for the 

transmission of material from temporary 

unspecified points to a broadband 

station.

* * * * *

Unattended operation. Operation of a 

station by automatic means whereby the 

transmitter is turned on and off and 

performs its functions without attention 

by a designated person.

* * * * *

Upper Band Segment (UBS). Segment 

of the BRS/EBS band consisting of 

channels in the frequencies 2614–2690 

MHz

* * * * *

■ 26. Section 27.5 is amended by adding 

paragraph (i) to read as follows:

§ 27.5 Frequencies.

* * * * *

(i) Frequency assignments for the 

BRS/EBS band.

(1) Pre-transition frequency 

assignments.

BRS Channel 1: 2150–2156 MHz 

BRS Channel 2: 2156–2162 MHz 

BRS Channel 2A: 2156–2160 MHz 

EBS Channel A1: 2500–2506 MHz 

EBS Channel B1: 2506–2512 MHz 

EBS Channel A2: 2512–2518 MHz 

EBS Channel B2: 2518–2524 MHz 

EBS Channel A3: 2524–2530 MHz 

EBS Channel B3: 2530–2536 MHz 

EBS Channel A4: 2536–2542 MHz 

EBS Channel B4: 2542–2548 MHz 

EBS Channel C1: 2548–2554 MHz 

EBS Channel D1: 2554–2560 MHz 

EBS Channel C2: 2560–2566 MHz 

EBS Channel D2: 2566–2572 MHz 

EBS Channel C3: 2572–2578 MHz 

EBS Channel D3: 2578–2584 MHz 

EBS Channel C4: 2584–2590 MHz 

EBS Channel D4: 2590–2596 MHz 

BRS Channel E1: 2596–2602 MHz 

BRS Channel F1: 2602–2608 MHz 

BRS Channel E2: 2608–2614 MHz 

BRS Channel F2: 2614–2620 MHz 

BRS Channel E3: 2620–2626 MHz 

BRS Channel F3: 2626–2632 MHz 

BRS Channel E4: 2632–2638 MHz 

BRS Channel F4: 2638–2644 MHz 

EBS Channel G1: 2644–2650 MHz 

BRS Channel H1: 2650–2656 MHz 

EBS Channel G1: 2656–2662 MHz 

BRS Channel H1: 2662–2668 MHz 

EBS Channel G1: 2668–2674 MHz 

BRS Channel H1: 2674–2680 MHz 

EBS Channel G1: 2680–2686 MHz 

I Channels: 2686–2690 MHz

(2) Post transition frequency 

assignments. The frequencies available 

in the Broadband Radio Service (BRS) 

and Educational Broadband Service 

(EBS) are listed in this section in 

accordance with the frequency 

allocations table of § 2.106 of this 

chapter. 

(i) Lower Band Segment (LBS): The 

following channels shall constitute the 

Lower Band Segment:

BRS Channel 1: 2496–2502 MHz 

EBS Channel A1: 2502–2507.5 MHz 

EBS Channel A2: 2507.5–2513 MHz 

EBS Channel A3: 2513–2518.5 MHz 

EBS Channel B1: 2518.5–2524 MHz 

EBS Channel B2: 2524–2529.5 MHz 

EBS Channel B3: 2529.5–2535 MHz 

EBS Channel C1: 2535–2540.5 MHz 

EBS Channel C2: 2540.5–2546 MHz 

EBS Channel C3: 2546–2551.5 MHz 

EBS Channel D1: 2551.5–2557 MHz 

EBS Channel D2: 2557–2562.5 MHz 

EBS Channel D3: 2562.5–2568 MHz 

EBS Channel JA1: 2568.00000–2568.33333 

MHz 

EBS Channel JA2: 2568.33333–2568.66666 

MHz 

EBS Channel JA3: 2568.66666–2569.00000 

MHz 

EBS Channel JB1: 2569.00000–2569.33333 

MHz 

EBS Channel JB2: 2569.33333–2569.66666 

MHz 

EBS Channel JB3: 2569.66666–2570.00000 

MHz 

EBS Channel JC1: 2570.00000–2570.33333 

MHz 

EBS Channel JC2: 2570.33333–2570.66666 

MHz 

EBS Channel JC3: 2570.66666–2571.00000 

MHz 

EBS Channel JD1: 2571.00000–2571.33333 

MHz 

EBS Channel JD2: 2571.33333–2571.66666 

MHz 

EBS Channel JD3: 2571.66666–2572.00000 

MHz

(ii) Middle Band Segment (MBS): The 

following channels shall constitute the 

Middle Band Segment:

EBS Channel A4: 2572–2578 MHz 

EBS Channel B4: 2578–2584 MHz 

EBS Channel C4: 2584–2590 MHz 

EBS Channel D4: 2590–2596 MHz 

EBS Channel G4: 2596–2602 MHz 

BRS Channel F4: 2602–2608 MHz 

BRS Channel E4: 2608–2614 MHz

(iii) Upper Band Segment (UBS): The 

following channels shall constitute the 

Upper Band Segment:

BRS Channel KH1: 2614.00000–2614.33333 

MHz 

BRS Channel KH2: 2614.33333–2614.66666 

MHz 

BRS Channel KH3: 2614.66666–2615.00000 

MHz 

EBS Channel KG1: 2615.00000–2615.33333 

MHz 

EBS Channel KG2: 2615.33333–2616.66666 

MHz 

EBS Channel KG3: 2615.66666–2616.00000 

MHz 

BRS Channel KF1: 2616.00000–2616.33333 

MHz 

BRS Channel KF2: 2616.33333–2616.66666 

MHz 

BRS Channel KF3: 2616.66666–2617.00000 

MHz 

BRS Channel KE1: 2617.00000–2617.33333 

MHz 

BRS Channel KE2: 2617.33333–2617.66666 

MHz 

BRS Channel KE3: 2617.66666–2618.00000 

MHz

BRS Channel 2: 2618–2624 MHz 

BRS Channel E1: 2624–2629.5 MHz 

BRS Channel E2: 2629.5–2635 MHz 

BRS Channel E3: 2635–2640.5 MHz 

EBS Channel F1: 2640.5–2646 MHz 

EBS Channel F2: 2646–2651.5 MHz 

EBS Channel F3: 2651.5–2657 MHz 

BRS Channel H1: 2657–2662.5 MHz 

Federal Register / Vol. 69, No. 237 / Friday, December 10, 2004 / Rules and Regulations 72033

BRS Channel H2: 2662.5–2668 MHz 

BRS Channel H3: 2668–2673.5 MHz 

BRS Channel G1: 2673.5–2679 MHz 

BRS Channel G2: 2679–2684.5 MHz 

BRS Channel G3: 2684.5–2690 MHz

Note to paragraph (i)(2): No 125 kHz 

channels are provided for channels in 

operation in this service. The 125 kHz 

channels previously associated with 

these channels have been reallocated to 

Channel H3 in the upper band segment. 

(3) Frequencies will be assigned as 

follows: 

(i) An EBS licensee is limited to the 

assignment of no more than one 6 MHz 

channel in the MBS and three channels 

in the LBS or UBS for use in a single 

area of operation. Applicants shall not 

apply for more channels than they 

intend to construct within a reasonable 

time, simply for the purpose of 

reserving additional channels. The 

number of channels authorized to an 

applicant will be based on the 

demonstration of need for the number of 

channels requested. The Commission 

will take into consideration such factors 

as the amount of use of any currently 

assigned channels and the amount of 

proposed use of each channel requested, 

the amount of, and justification for, any 

repetition in the schedules, and the 

overall demand and availability of 

broadband channels in the community. 

For those applicant organizations 

formed for the purpose of serving 

accredited institutional or governmental 

organizations, evaluation of the need 

will only consider service to those 

specified receive sites which submitted 

supporting documentation. 

(ii) An applicant leasing excess 

capacity and proposing a schedule 

which complies in all respects with the 

requirements of § 1.9047 will have 

presumptively demonstrated need for 

no more than four channels. This 

presumption is rebuttable by 

demonstrating that the application does 

not propose to comport with our 

educational usage requirements as 

defined in § 27.1203, and to transmit the 

requisite minimum educational usage of 

§ 1.9047 of this chapter for genuinely 

educational purposes. 

(4) A temporary fixed broadband 

station may use any available broadband 

channel on a secondary basis, except 

that operation of temporary fixed 

broadband stations is not allowed 

within 56.3 km (35 miles) of Canada. 

(5)(i) A point-to-point EBS station on 

the E and F-channel frequencies, may be 

involuntarily displaced by a BRS 

applicant or licensee, provided that 

suitable alternative spectrum is 

available and that the BRS entity bears 

the expenses of the migration. 

Suitability of spectrum will be 

determined on a case-by-base basis; at a 

minimum, the alternative spectrum 

must be licensable by broadband 

operators on a primary basis (although 

it need not be specifically allocated to 

the broadband service), and must 

provide a signal that is equivalent to the 

prior signal in picture quality and 

reliability, unless the broadband 

licensee will accept an inferior signal. 

Potential expansion of the BRS licensee 

may be considered in determining 

whether alternative available spectrum 

is suitable.

(ii) If suitable alternative spectrum is 

located pursuant to paragraph (h)(6)(i) 

of this section, the initiating party must 

prepare and file the appropriate 

application for the new spectrum, and 

must simultaneously serve a copy of the 

application on the EBS licensee to be 

moved. The initiating party will be 

responsible for all costs connected with 

the migration, including purchasing, 

testing and installing new equipment, 

labor costs, reconfiguration of existing 

equipment, administrative costs, legal 

and engineering expenses necessary to 

prepare and file the migration 

application, and other reasonable 

documented costs. The initiating party 

must secure a bond or establish an 

escrow account to cover reasonable 

incremental increase in ongoing 

expenses that may fall upon the 

migrated licensee. The bond or escrow 

account should also account for the 

possibility that the initiating party 

subsequently becomes bankrupt. If it 

becomes necessary for the Commission 

to assess the sufficiency of a bond or 

escrow amount, it will take into account 

such factors as projected incremental 

increase in electricity or maintenance 

expenses, or relocation expenses, as 

relevant in each case. 

(iii) The EBS licensee to be moved 

will have a 60-day period in which to 

oppose the involuntary migration. The 

broadband party should state its 

opposition to the migration with 

specificity, including engineering and 

other challenges, and a comparison of 

the present site and the proposed new 

site. If involuntary migration is granted, 

the new facilities must be operational 

before the initiating party will be 

permitted to begin its new or modified 

operations. The migration must not 

disrupt the broadband licensee’s 

provision of service, and the broadband 

licensee has the right to inspect the 

construction or installation work.

■ 27. Section 27.12 is revised to read as 

follows:

§ 27.12 Eligibility. 

Except as provided in §§ 27.604, 

27.1201, and 27.1202, any entity other 

than those precluded by section 310 of 

the Communications Act of 1934, as 

amended, 47 U.S.C. 310, is eligible to 

hold a license under this part.

■ 28. Section 27.50 is amended by 

redesignating paragraph (h) as (i) and 

adding a new paragraph (h) to read as 

follows:

§ 27.50 Power limits.

* * * * *

(h) The following power limits shall 

apply in the BRS and EBS: 

(1) Main, booster and base stations.

(i) The maximum EIRP of a main, 

booster or base station shall not exceed 

33 dBW + 10log(X/Y) dBW, where X is 

the actual channel width in MHz and Y 

is either 6 MHz if prior to transition or 

the station is in the MBS following 

transition or 5.5 MHz if the station is in 

the LBS and UBS following transition, 

except as provided in paragraph 

(h)(1)(ii) of this section. 

(ii) If a main or booster station 

sectorizes or otherwise uses one or more 

transmitting antennas with a nonomnidirectional horizontal plane 

radiation pattern, the maximum EIRP in 

dBW in a given direction shall be 

determined by the following formula: 

EIRP = 33 dBW + 10 log(X/Y) dBW + 10 

log(360/beamwidth) dBW, where X is 

the actual channel width in MHz, Y is 

either (i) 6 MHz if prior to transition or 

the station is in the MBS following 

transition or (ii) 5.5 MHz if the station 

is in the LBS and UBS following 

transition, and beamwidth is the total 

horizontal plane beamwidth of the 

individual transmitting antenna for the 

station or any sector measured at the 

half-power points. 

(2) Mobile and other user stations.

Mobile stations are limited to 2.0 watts 

EIRP. All user stations are limited to 2.0 

watts transmitter output power.

* * * * *

■ 29. Section 27.53 is amended by 

redesignating paragraph (l) as paragraph 

(m) and by adding a new paragraph (l) to 

read as follows:

§ 27.53 Emission limits.

* * * * *

(l) For BRS and EBS stations, the 

power of any emissions outside the 

licensee’s frequency bands of operation 

shall be attenuated below the 

transmitter power (P) measured in 

watts. 

(1) Prior to the transition, and 

thereafter, solely within the MBS, for 

analog operations with an EIRP in 

excess of ¥9 dBW, the signal shall be 

attenuated at the channel edges by at 

least 38 dB relative to the peak visual 

carrier, then linearly sloping from that 

72034 Federal Register / Vol. 69, No. 237 / Friday, December 10, 2004 / Rules and Regulations 

level to at least 60 dB of attenuation at 

1 MHz below the lower band edge and 

0.5 MHz above the upper band edge, 

and attenuated at least 60 dB at all other 

frequencies. 

(2) For fixed and temporary fixed 

digital stations, the attenuation shall be 

not less than 43 + 10 log (P) dB, unless 

a documented interference complaint is 

received from an adjacent channel 

licensee. Provided that the complaint 

cannot be mutually resolved between 

the parties, both licensees of existing 

and new systems shall reduce their outof-band emissions by at least 67 + 10 log 

(P) dB measured at 3 MHz from their 

channel’s edges for distances between 

stations exceeding 1.5 km. For stations 

separated by less than 1.5 km, the new 

licensee shall reduce attenuation at least 

67 + 10 log (P) ¥ 20 log(Dkm/1.5), or 

when colocated, limit the undesired 

signal level at the affected licensee’s 

base station receiver(s) at the colocation 

site to no more than ¥107 dBm. Mobile 

Service Satellite licensees operating on 

frequencies below 2495 MHz may also 

submit a documented interference 

complaint against BRS licensees 

operating on channel BRS1 on the same 

terms and conditions as adjacent 

channel BRS or EBS licensees. 

(3) Prior to transition and thereafter 

solely within the MBS, and 

notwithstanding paragraph (l)(2) of this 

section, the maximum out-of-band 

power of a digital transmitter operating 

on a single 6 MHz channel with an EIRP 

in excess of ¥9 dBW employing digital 

modulation for the primary purpose of 

transmitting video programming shall 

be attenuated at the 6 MHz channel 

edges at least 25 dB relative to the 

licensed average 6 MHz channel power 

level, then attenuated along a linear 

slope to at least 40 dB at 250 kHz 

beyond the nearest channel edge, then 

attenuated along a linear slope from that 

level to at least 60 dB at 3 MHz above 

the upper and below the lower licensed 

channel edges, and attenuated at least 

60 dB at all other frequencies. 

(4) For mobile digital stations, the 

attenuation factor shall be not less than 

43 + 10 log (P) dB at the channel edge 

and 55 + 10 log (P) dB at 5.5 MHz from 

the channel edges. Mobile Service 

Satellite licensees operating on 

frequencies below 2495 MHz may also 

submit a documented interference 

complaint against BRS licensees 

operating on channel BRS1 on the same 

terms and conditions as adjacent 

channel BRS or EBS licensees. 

(5) Notwithstanding the provisions of 

paragraphs (l)(2) and (l)(4) of this 

section, prior to transition, a licensee 

may continue to operate facilities 

deployed as of January 10, 2005 

provided that such facilities operate in 

compliance with the emission mask 

applicable to those services prior to 

January 10, 2005.

* * * * *

■ 30. Section 27.55 is amended by 

adding paragraph (a)(4) to read as 

follows:

§ 27.55 Signal strength limits. 

(a) * * * 

(4) BRS and EBS: The predicted or 

measured median field strength at any 

location on the geographical border of a 

licensee’s service area shall not exceed 

the value specified unless the adjacent 

affected service area licensee(s) agree(s) 

to a different field strength. This value 

applies to both the initially offered 

services areas and to partitioned 

services areas. Licensees may exceed 

this signal level where there is no 

affected licensee that is constructed and 

providing service. Once the affected 

licensee is providing service, the 

original licensee will be required to take 

whatever steps necessary to comply 

with the applicable power level at its 

GSA boundary, absent consent from the 

affected licensee. 

(i) Prior to transition, the signal 

strength at any point along the 

licensee’s GSA boundary does not 

exceed the greater of that permitted 

under the licensee’s Commission 

authorizations as of January 10, 2005 or 

47 dB [mμ] V/m. 

(ii) Following transition, for stations 

in the LBS and UBS, the signal strength 

at any point along the licensee’s GSA 

boundary must not exceed 47 dB [mμ] 

V/m. This field strength is to be 

measured at 1.5 meters above the 

ground over the channel bandwidth 

(i.e., each 5.5 MHz channel for licensees 

that hold a full channel block, and for 

the 5.5 MHz channel for licensees that 

hold individual channels). 

(iii) Following transition, for stations 

in the MBS, the signal strength at any 

point along the licensee’s GSA 

boundary must not exceed ¥73.0 + 

10log(X/6) dBW/m2, where X is the 

bandwidth in MHz of the channel.

* * * * *

■ 31. Section 27.58 is amended by 

revising the section heading and 

paragraphs (a), (d) and (e) to read as 

follows:

§ 27.58 Interference to BRS/EBS 

Receivers. 

(a) WCS licensees shall bear full 

financial obligation to remedy 

interference to BRS/EBS block 

downconverters if all of the following 

conditions are met: 

(1) The complaint is received by the 

WCS licensee prior to February 20, 

2002; 

(2) The BRS/EBS downconverter was 

installed prior to August 20, 1998; 

(3) The WCS fixed or land station 

transmits at 50 or more watts peak EIRP; 

(4) The BRS/EBS downconverter is 

located within a WCS transmitter’s free 

space power flux density contour of 

¥34 dBW/m2; and 

(5) The BRS/EBS customer or licensee 

has informed the WCS licensee of the 

interference within one year from the 

initial operation of the WCS transmitter 

or within one year from any subsequent 

power increases at the WCS station.

* * * * *

(d) If the WCS licensee cannot 

otherwise eliminate interference caused 

to BRS/EBS reception, then that licensee 

must cease operations from the 

offending WCS facility.

(e) At least 30 days prior to 

commencing operations from any new 

WCS transmission site or with increased 

power from any existing WCS 

transmission site, a WCS licensee shall 

notify all BRS/EBS licensees in or 

through whose licensed service areas 

they intend to operate of the technical 

parameters of the WCS transmission 

facility. WCS and BRS/EBS licensees are 

expected to coordinate voluntarily and 

in good faith to avoid interference 

problems and to allow the greatest 

operational flexibility in each other’s 

operations.

■ 32. Part 27 is amended by adding 

subpart M to read as follows: 

Subpart M—Broadband Radio Service 

and Educational Broadband Service

27.1200 Change to BRS and EBS. 

27.1201 EBS eligibility. 

27.1202 Cable/BRS cross-ownership. 

27.1203 EBS programming requirements. 

27.1206 Geographic service area. 

27.1207 BTA license authorization. 

27.1208 Service areas. 

27.1209 Conversion of incumbent EBS and 

BRS stations to geographic area 

licensing. 

27.1210 Remote control operation. 

27.1211 Unattended operation. 

27.1212 License term. 

27.1213 Designated entity provisions for 

BRS in Commission auctions 

commencing prior to January 1, 2004. 

27.1214 EBS spectrum leasing arrangements 

and grandfathered leases. 

27.1215 BRS grandfathered leases. 

Technical Standards 

27.1220 Transmission standards. 

27.1221 Interference protection. 

27.1222 Operations in the 2568–2572 and 

2614–2618 bands. 

Federal Register / Vol. 69, No. 237 / Friday, December 10, 2004 / Rules and Regulations 72035

Policies Governing the Transition of the 

2500–2690 MHz Band for BRS and EBS 

27.1230 Conversion of the 2500–2690 MHz 

band. 

27.1231 Initiating the transition. 

27.1232 Planning the transition. 

27.1233 Reimbursement costs of 

transitioning. 

27.1234 Terminating existing operations in 

transitioned markets. 

27.1235 Post-transition notification.

Subpart M—Broadband Radio Service 

and Educational Broadband Service

§ 27.1200 Change to BRS and EBS. 

(a) As of January 10, 2005, licensees 

assigned to the Multipoint Distribution 

Service (MDS) and the Multichannel 

Multipoint Distribution Service (MMDS) 

shall be reassigned to the Broadband 

Radio Service (BRS) and licensees in the 

Instructional Television Fixed Service 

(ITFS) shall be reassigned to the 

Educational Broadband Service (EBS).

§ 27.1201 EBS eligibility. 

(a) With certain limited exceptions set 

forth in paragraph (c) of this section, a 

license for an Educational Broadband 

Service station will be issued only to an 

accredited institution or to a 

governmental organization engaged in 

the formal education of enrolled 

students or to a nonprofit organization 

whose purposes are educational and 

include providing educational and 

instructional television material to such 

accredited institutions and 

governmental organizations, and which 

is otherwise qualified under the 

statutory provisions of the 

Communications Act of 1934, as 

amended. 

(1) A publicly supported educational 

institution must be accredited by the 

appropriate State department of 

education. 

(2) A privately controlled educational 

institution must be accredited by the 

appropriate State department of 

education or the recognized regional 

and national accrediting organizations. 

(3) Those applicant organizations 

whose eligibility is established by 

service to accredited institutional or 

governmental organizations must 

submit documentation from proposed 

receive sites demonstrating that they 

will receive and use the applicant’s 

educational usage. In place of this 

documentation, a state educational 

television (ETV) commission may 

demonstrate that the public schools it 

proposes to serve are required to use its 

proposed educational usage. 

Documentation from proposed receive 

sites which are to establish the 

eligibility of an entity not serving its 

own enrolled students for credit should 

be in letter form, written and signed by 

an administrator or authority who is 

responsible for the receive site’s 

curriculum planning. No receive site 

more than 35 miles from the transmitter 

site shall be used to establish basic 

eligibility. The administrator must 

indicate that the applicant’s program 

offerings have been viewed and that 

such programming will be incorporated 

in the site’s curriculum. The letter 

should discuss the types of 

programming and hours per week of 

formal and informal programming 

expected to be used and the site’s 

involvement in the planning, 

scheduling and production of 

programming. If other levels of authority 

must be obtained before a firm 

commitment to utilize the service can be 

made, the nature and extent of such 

additional authorization(s) must be 

provided. 

(4) Nonlocal applicants, in addition to 

submitting letters from proposed receive 

sites, must demonstrate the 

establishment of a local program 

committee in each community where 

they apply. Letters submitted on behalf 

of a nonlocal entity must confirm that 

a member of the receive site’s staff will 

serve on the local program committee 

and demonstrate a recognition of the 

composition and power of the 

committee. The letter should show that 

the staff member will aid in the 

selection, scheduling and production of 

the programming received over the 

system. 

(b) No numerical limit is placed on 

the number of stations which may be 

licensed to a single licensee. A single 

license may be issued for more than one 

transmitter if they are to be located at 

a common site and operated by the same 

licensee. Applicants are expected to 

accomplish the proposed operation by 

the use of the smallest number of 

channels required to provide the needed 

service. 

(c)(1) Notwithstanding paragraph (a) 

of this section, a wireless cable entity 

may be licensed on EBS frequencies in 

areas where at least eight other EBS 

channels remain available in the 

community for future EBS use. 

Channels will be considered available 

for future EBS use if there are no cochannel operators or applicants within 

80.5 km (50 miles) of the transmitter site 

of the proposed wireless cable 

operation, and if the transmitter site 

remains available for use at reasonable 

terms by new EBS applicants on those 

channels within three years of 

commencing operation. 

(2) No more than eight EBS channels 

per community may be licensed to 

wireless cable entities.

(3) To be licensed on EBS channels, 

a wireless cable applicant must hold a 

license or a lease, or must have filed an 

unopposed application for at least four 

BRS channels to be used in conjunction 

with the facilities proposed on the EBS 

frequencies. An unopposed application 

is one that faces no competing 

application(s) or petition(s) to deny. 

Applicants will be required to confirm 

their unopposed status after the period 

for filing competing applications and 

petitions to deny has passed. If a BRS 

application is opposed, the companion 

EBS application will be returned. 

(4) To be licensed on EBS channels, 

a wireless cable applicant must show 

that there are no BRS channels available 

for application, purchase or lease that 

could be used in lieu of the EBS 

frequencies applied for. A wireless cable 

entity may apply for EBS channels at 

the same time it applies for the related 

BRS frequencies, but if that BRS 

application is opposed by a timely filed 

mutually exclusive application or 

petition to deny, the application for EBS 

facilities will be returned. 

(5) If an EBS application and a 

wireless cable application for available 

EBS facilities are mutually exclusive, 

the EBS application will be granted if 

the applicant is qualified. An EBS 

applicant may not file an application 

mutually exclusive with a wireless cable 

application if there are other EBS 

channels available for the proposed EBS 

facility. 

(6)(i) An educational institution or 

entity that would be eligible for EBS 

channels that are licensed to a wireless 

cable entity may be entitled to access to 

those channels. Requests for access may 

be made by filing a request with the 

Commission. A cover letter must clearly 

indicate that the application is for EBS 

access to a wireless cable entity’s 

facilities on EBS channels. 

(ii) An EBS entity determined by the 

Commission to have right of access to 

wireless cable licensed facilities may 

have access to a maximum of 40 hours 

per channel per week. The EBS entity 

has the right to designate 20 of those 

hours as follows: 3 hours of the EBS 

entity’s choice each day, Monday 

through Friday, between 8 a.m. and 10 

p.m., excluding weekends, holidays and 

school vacations; and the remaining five 

hours any time of the EBS entity’s 

choice between 8 a.m. and 10 p.m., 

Monday through Saturday. 

(iii) No time-of-day and day-of-week 

obligations will be imposed on either 

party with respect to the other 20 hours 

of access time. 

(iv) The EBS user must provide the 

wireless cable licensee with its planned 

schedule of use four months in advance. 

72036 Federal Register / Vol. 69, No. 237 / Friday, December 10, 2004 / Rules and Regulations 

No minimum amount of programming 

will be required of an EBS operator 

seeking access to one channel; for access 

to a second channel, the EBS user must 

use at least 20 hours per week on the 

first channel from 8 a.m. to 10 p.m., 

Monday through Saturday; for access to 

a third channel, the EBS entity must use 

at least 20 hours per week on the first 

channel and on the second channel 

during the hours prescribed above, and 

so on. Only one educational institution 

or entity per wireless cable licensed 

channel will be entitled to access from 

the wireless cable entity. Access will 

not be granted to a single entity for more 

than four channels, unless it can satisfy 

the waiver provisions of § 27.5(i)(3). 

(v) When an EBS entity is granted 

access to an EBS channel of a wireless 

cable licensee, the wireless cable 

licensee will be required to pay half of 

the cost of five standard receive sites on 

that channel. The wireless cable entity 

may, at its option, pay the costs of an 

application and facility construction for 

such EBS entity on other available EBS 

channels, including half of the cost of 

five receive sites per channel.

(vi) After three years of operation, a 

wireless cable entity licensed to use EBS 

channels will not be required to grant 

new or additional access to such EBS 

channels, or provide any alternative 

facilities to any EBS entity seeking 

access to its facilities, if there are 

suitable EBS frequencies available for 

the EBS entity to build its own system. 

(vii) The parties may mutually agree 

to modify any requirements or 

obligations imposed by these 

provisions, except for the requirement 

that an educational entity use at least 20 

hours per week on a channel of a 

wireless cable licensee before requesting 

access to an additional channel.

§ 27.1202 Cable/BRS cross-ownership. 

(a) Initial or modified authorizations 

for BRS stations may not be granted to 

a cable operator if a portion of the BRS 

station’s protected services area is 

within the portion of the franchise area 

actually served by the cable operator’s 

cable system and the cable operator will 

be using the BRS station as a 

multichannel video programming 

distributor (as defined in § 76.64(d) of 

this chapter). No cable operator may 

acquire such authorization either 

directly, or indirectly through an 

affiliate owned, operated, or controlled 

by or under common control with a 

cable operator if the cable operator will 

use the BRS station as a multichannel 

video programming distributor. 

(b) No licensee of a station in this 

service may lease transmission time or 

capacity to a cable operator either 

directly, or indirectly through an 

affiliate owned, operated, controlled by, 

or under common control with a cable 

operator, if a portion of the BRS 

station’s protected services area is 

within the portion of the franchise area 

actually served by the cable operator’s 

cable system the cable operator will use 

the BRS station as a multichannel video 

programming distributor. 

(c) Applications for new stations, 

station modifications, assignments or 

transfers of control by cable operators of 

BRS stations shall include a showing 

that no portion of the PSA of the BRS 

station is within the portion of the 

franchise area actually served by the 

cable operator’s cable system, or of any 

entity indirectly affiliated, owned, 

operated, controlled by, or under 

common control with the cable 

operator. Alternatively, the cable 

operator may certify that it will not use 

the BRS station to distribute 

multichannel video programming. 

(d) In applying the provisions of this 

section, ownership and other interests 

in BRS licensees or cable television 

systems will be attributed to their 

holders and deemed cognizable 

pursuant to the following criteria: 

(1) Except as otherwise provided 

herein, partnership and direct 

ownership interests and any voting 

stock interest amounting to 5% or more 

of the outstanding voting stock of a 

corporate BRS licensee or cable 

television system will be cognizable; 

(2) Investment companies, as defined 

in 15 U.S.C. 80a–3, insurance 

companies and banks holding stock 

through their trust departments in trust 

accounts will be considered to have a 

cognizable interest only if they hold 

20% or more of the outstanding voting 

stock of a corporate BRS licensee or 

cable television system, or if any of the 

officers or directors of the BRS licensee 

or cable television system are 

representatives of the investment 

company, insurance company or bank 

concerned. Holdings by a bank or 

insurance company will be aggregated if 

the bank or insurance company has any 

right to determine how the stock will be 

voted. Holdings by investment 

companies will be aggregated if under 

common management. 

(3) Attribution of ownership interests 

in a BRS licensee or cable television 

system that are held indirectly by any 

party through one or more intervening 

corporations will be determined by 

successive multiplication of the 

ownership percentages for each link in 

the vertical ownership chain and 

application of the relevant attribution 

benchmark to the resulting product, 

except that wherever the ownership 

percentage for any link in the chain 

exceeds 50%, it shall not be included 

for purposes of this multiplication. For 

purposes of paragraph (d)(9) of this 

section, attribution of ownership 

interests in a BRS licensee or cable 

television system that are held 

indirectly by any party through one or 

more intervening organizations will be 

determined by successive multiplication 

of the ownership percentages for each 

link in the vertical ownership chain and 

application of the relevant attribution 

benchmark to the resulting product, and 

the ownership percentage for any link in 

the chain that exceeds 50% shall be 

included for purposes of this 

multiplication. For example, except for 

purposes of paragraph (d)(9) of this 

section, if A owns 10% of company X, 

which owns 60% of company Y, which 

owns 25% of ‘‘Licensee,’’ then X’s 

interest in ‘‘Licensee’’ would be 25% 

(the same as Y’s interest because X’s 

interest in Y exceeds 50%), and A’s 

interest in ‘‘Licensee’’ would be 2.5% 

(0.1 × 0.25). Under the 5% attribution 

benchmark, X’s interest in ‘‘Licensee’’

would be cognizable, while A’s interest 

would not be cognizable. For purposes 

of paragraph (d)(9) of this section, X’s 

interest in ‘‘Licensee’’ would be 15% 

(0.6 × 0.25) and A’s interest in 

‘‘Licensee’’ would be 1.5% (0.1 × 0.6 ×

0.25). Neither interest would be 

attributed under paragraph (d)(9) of this 

section. 

(4) Voting stock interests held in trust 

shall be attributed to any person who 

holds or shares the power to vote such 

stock, to any person who has the sole 

power to sell such stock, and to any 

person who has the right to revoke the 

trust at will or to replace the trustee at 

will. If the trustee has a familial, 

personal or extra-trust business 

relationship to the grantor or the 

beneficiary, the grantor or beneficiary, 

as appropriate, will be attributed with 

the stock interests held in trust. An 

otherwise qualified trust will be 

ineffective to insulate the grantor or 

beneficiary from attribution with the 

trust’s assets unless all voting stock 

interests held by the grantor or 

beneficiary in the relevant BRS licensee 

or cable television system are subject to 

said trust. 

(5) Subject to paragraph (d)(9) of this 

section, holders of non-voting stock 

shall not be attributed an interest in the 

issuing entity. Subject to paragraph 

(d)(9) of this section, holders of debt and 

instruments such as warrants, 

convertible debentures, options or other 

non-voting interests with rights of 

conversion to voting interests shall not 

be attributed unless and until 

conversion is effected. 

Federal Register / Vol. 69, No. 237 / Friday, December 10, 2004 / Rules and Regulations 72037

(6)(i) A limited partnership interest 

shall be attributed to a limited partner 

unless that partner is not materially 

involved, directly or indirectly, in the 

management or operation of the BRS or 

cable television activities of the 

partnership and the licensee or system 

so certifies. An interest in a Limited 

Liability Company (‘‘LLC’’) or 

Registered Limited Liability Partnership 

(‘‘RLLP’’) shall be attributed to the 

interest holder unless that interest 

holder is not materially involved, 

directly or indirectly, in the 

management or operation of the BRS or 

cable television activities of the 

partnership and the licensee or system 

so certifies.

(ii) For a licensee or system that is a 

limited partnership to make the 

certification set forth in paragraph 

(d)(6)(i) of this section, it must verify 

that the partnership agreement or 

certificate of limited partnership, with 

respect to the particular limited partner 

exempt from attribution, establishes that 

the exempt limited partner has no 

material involvement, directly or 

indirectly, in the management or 

operation of the BRS or cable television 

activities of the partnership. For a 

licensee or system that is an LLC or 

RLLP to make the certification set forth 

in paragraph (d)(6)(i) of this section, it 

must verify that the organizational 

document, with respect to the particular 

interest holder exempt from attribution, 

establishes that the exempt interest 

holder has no material involvement, 

directly or indirectly, in the 

management or operation of the BRS or 

cable television activities of the LLC or 

RLLP. Irrespective of the terms of the 

certificate of limited partnership or 

partnership agreement, or other 

organizational document in the case of 

an LLC or RLLP, however, no such 

certification shall be made if the 

individual or entity making the 

certification has actual knowledge of 

any material involvement of the limited 

partners, or other interest holders in the 

case of an LLC or RLLP, in the 

management or operation of the BRS or 

cable television businesses of the 

partnership or LLC or RLLP. 

(iii) In the case of an LLC or RLLP, the 

licensee or system seeking installation 

shall certify, in addition, that the 

relevant state statute authorizing LLCs 

permits an LLC member to insulate 

itself as required by our criteria. 

(7) Officers and directors of a BRS 

licensee or cable television system are 

considered to have a cognizable interest 

in the entity with which they are so 

associated. If any such entity engages in 

businesses in addition to its primary 

business of BRS or cable television 

service, it may request the Commission 

to waive attribution for any officer or 

director whose duties and 

responsibilities are wholly unrelated to 

its primary business. The officers and 

directors of a parent company of a BRS 

licensee or cable television system, with 

an attributable interest in any such 

subsidiary entity, shall be deemed to 

have a cognizable interest in the 

subsidiary unless the duties and 

responsibilities of the officer or director 

involved are wholly unrelated to the 

BRS licensee or cable television system 

subsidiary, and a statement properly 

documenting this fact is submitted to 

the Commission. The officers and 

directors of a sister corporation of a BRS 

licensee or cable television system shall 

not be attributed with ownership of 

these entities by virtue of such status. 

(8) Discrete ownership interests will 

be aggregated in determining whether or 

not an interest is cognizable under this 

section. An individual or entity will be 

deemed to have a cognizable investment 

if: 

(i) The sum of the interests held by or 

through ‘‘passive investors’’ is equal to 

or exceeds 20 percent; or 

(ii) The sum of the interests other than 

those held by or through ‘‘passive 

investors’’ is equal to or exceeds 5 

percent; or 

(iii) The sum of the interests 

computed under paragraph (d)(8)(i) of 

this section plus the sum of the interests 

computed under paragraph (d)(8)(ii) of 

this section equal to or exceeds 20 

percent. 

(9) Notwithstanding paragraphs (d)(5) 

and (d)(6) of this section, the holder of 

an equity or debt interest or interests in 

a BRS licensee or cable television 

system subject to the BRS/cable crossownership rule (‘‘interest holder’’) shall 

have that interest attributed if: 

(i) The equity (including all 

stockholdings, whether voting or 

nonvoting, common or preferred) and 

debt interest or interests, in the 

aggregate, exceed 33 percent of the total 

asset value (all equity plus all debt) of 

that BRS licensee or cable television 

system; and 

(ii) The interest holder also holds an 

interest in a BRS licensee or cable 

television system that is attributable 

under this section (other than this 

paragraph) and which operates in any 

portion of the franchise area served by 

that cable operator’s cable system.

(10) The term ‘‘area served by a cable 

system’’ means any area actually passed 

by the cable operator’s cable system and 

which can be connected for a standard 

connection fee. 

(11) As used in this section ‘‘cable 

operator’’ shall have the same definition 

as in § 76.5 of this chapter. 

(e) The Commission will entertain 

requests to waive the restrictions in 

paragraph (a) of this section where 

necessary to ensure that all significant 

portions of the franchise area are able to 

obtain multichannel video service. 

(f) The provisions of paragraphs (a) 

through (e) of this section will not apply 

to one BRS channel used to provide 

locally-produced programming to cable 

headends. Locally-produced 

programming is programming produced 

in or near the cable operator’s franchise 

area and not broadcast on a television 

station available within that franchise 

area. A cable operator will be permitted 

one BRS channel for this purpose, and 

no more than one BRS channel may be 

used by a cable television company or 

its affiliate or lessor pursuant to this 

paragraph. The licensee for a cable 

operator providing local programming 

pursuant to a lease must include in a 

notice filed with the Wireless 

Telecommunications Bureau a cover 

letter explicitly identifying itself or its 

lessees as a local cable operator and 

stating that the lease was executed to 

facilitate the provision of local 

programming. The first application or 

the first lease notification in an area 

filed with the Commission will be 

entitled to the exemption. The 

limitations on one BRS channel per 

party and per area include any cable/

BRS operations or cable/EBS operations. 

The cable operator must demonstrate in 

its BRS application that the proposed 

local programming will be provided 

within one year from the date its 

application is granted. Local 

programming service pursuant to a lease 

must be provided within one year of the 

date of the lease or one year of grant of 

the licensee’s application for the leased 

channel, whichever is later. If a BRS 

license for these purposes is granted and 

the programming is subsequently 

discontinued, the license will be 

automatically forfeited the day after 

local programming service is 

discontinued. 

(g) Applications filed by cable 

television companies, or affiliates, for 

BRS channels prior to February 8, 1990, 

will not be subject to the prohibitions of 

this section. Applications filed on 

February 8, 1990, or thereafter will be 

returned. Lease arrangements between 

cable and BRS entities for which a lease 

or a firm agreement was signed prior to 

February 8, 1990, will also not be 

subject to the prohibitions of this 

section. Leases between cable television 

companies, or affiliates, and BRS station 

licensees, conditional licensees, or 

72038 Federal Register / Vol. 69, No. 237 / Friday, December 10, 2004 / Rules and Regulations 

applicants executed on February 8, 

1990, or thereafter, are invalid. 

(1) Applications filed by cable 

operators, or affiliates, for BRS channels 

prior to February 8, 1990, will not be 

subject to the prohibitions of this 

section. Except as provided in 

paragraph (g)(2)of this section, 

applications filed on February 8, 1990, 

or thereafter will be returned. Lease 

arrangements between cable and BRS 

entities for which a lease or a firm 

agreement was signed prior to February 

8, 1990, will also not be subject to the 

prohibitions of this section. Except as 

provided in paragraph (g)(2) of this 

section, leases between cable operators, 

or affiliates, and BRS/EBS station 

licensees, conditional licensees, or 

applicants executed on or before 

February 8, 1990, or thereafter are 

invalid. 

(2) Applications filed by cable 

operators, or affiliates for BRS channels 

after February 8, 1990, and prior to 

October 5, 1992, will not be subject to 

the prohibition of this section, if, 

pursuant to the then existing overbuild 

or rural exceptions, the applications 

were allowed under the then existing 

cable/BRS cross-ownership 

prohibitions. Lease arrangements 

between cable operators and BRS 

entities for which a lease or firm 

agreement was signed after February 8, 

1990, and prior to October 5, 1992, will 

not be subject to the prohibitions of this 

section, if, pursuant to the then existing 

rural and overbuild exceptions, the 

lease arrangements were allowed. 

(3) The limitations on cable television 

ownership in this section do not apply 

to any cable operator in any franchise 

area in which a cable operator is subject 

to effective competition as determined 

under section 623(l) of the 

Communications Act.

§ 27.1203 EBS programming requirements. 

(a) Except as provided in paragraphs 

(b), (c), and (d) of this section, BRS and 

EBS licensees are authorized to provide 

fixed or mobile service, except 

aeronautical mobile service, subject to 

the technical requirements of subparts C 

and M of this part. 

(b) Educational Broadband Service 

stations are intended primarily through 

video, data, or voice transmissions to 

further the educational mission of 

accredited public and private schools, 

colleges and universities providing a 

formal educational and cultural 

development to enrolled students. 

Authorized educational broadband 

channels must be used to further the 

educational mission of accredited 

schools offering formal educational 

courses to enrolled students, with 

limited exceptions as set forth in 

§ 27.1201(c). 

(c) In furtherance of the educational 

mission of accredited schools, 

Educational Broadband Service stations 

may be used for: 

(1) In-service training and instruction 

in special skills and safety programs, 

extension of professional training, 

informing persons and groups engaged 

in professional and technical activities 

of current developments in their 

particular fields, and other similar 

endeavors; 

(2) Transmission of material directly 

related to the administrative activities of 

the licensee, such as the holding of 

conferences with personnel, distribution 

of reports and assignments, exchange of 

data and statistics, and other similar 

uses. 

(d) Stations, including high-power 

EBS signal booster stations, may be 

licensed in the EBS as originating or 

relay stations to interconnect 

educational broadband fixed stations in 

adjacent areas, to deliver instructional 

and cultural material to, and obtain 

such material from, commercial and 

noncommercial educational television 

broadcast stations for use on the 

educational broadband system, and to 

deliver instructional and cultural 

material to, and obtain such material 

from, nearby terminals or connection 

points of closed circuit educational 

television systems employing wired 

distribution systems or radio facilities 

authorized under other parts of this 

chapter, or to deliver instructional and 

cultural material to any cable television 

system serving a receiving site or sites 

which would be eligible for direct 

reception of EBS signals under the 

provisions of § 27.1201.

§ 27.1206 Geographic Service Area. 

(a) The Geographic Service Area 

(GSA) is either: 

(1) The area for incumbent site-based 

licensees that is bounded by a circle 

having a 35 mile radius and centered at 

the station’s reference coordinates, 

which was the previous PSA entitled to 

incumbent licensees prior to January 10, 

2005, and is bounded by the chord(s) 

drawn between intersection points of 

the licensee’s previous 35 mile PSA and 

those of respective adjacent market, cochannel licensees; or:

(2) The BTA that is licensed to the 

respective BRS BTA authorization 

holder subject to the exclusion of 

overlapping, co-channel incumbent 

GSAs as described in paragraph (a)(1) of 

this section. 

(b) If the license for an incumbent 

BRS station cancels or is forfeited, the 

GSA area of the incumbent station shall 

dissolve and the right to operate in that 

area automatically reverts to the GSA 

licensee that held the corresponding 

BTA.

§ 27.1207 BTA license authorization. 

(a) Winning bidders must file an 

application (FCC Form 601) for an 

initial authorization in each market and 

frequency block. 

(b) Blanket licenses are granted for 

each market and frequency block. 

Blanket licenses cover all mobile and 

response stations. Blanket licenses also 

cover all fixed stations anywhere within 

the authorized service area, except as 

follows: 

(1) A station would be required to be 

individually licensed if 

(i) International agreements require 

coordination; 

(ii) Submission of an Environmental 

Assessment is required under § 1.1307 

of this chapter; 

(iii) The station would affect the radio 

quiet zones under § 1.924 of this 

chapter. 

(2) Any antenna structure that 

requires notification to the Federal 

Aviation Administration (FAA) must be 

registered with the Commission prior to 

construction under § 17.4 of this 

chapter.

§ 27.1208 Service areas. 

Most BRS/EBS service areas are Basic 

Trading Areas (BTAs). BTAs are based 

on the Rand McNally 1992 Commercial 

Atlas & Marketing Guide, 123rd Edition, 

at pages 38–39. The following are 

additional BRS or EBS service areas in 

places where Rand McNally has not 

defined BTAs: American Samoa; Guam; 

Northern Mariana Islands; Mayaguez/

Aguadilla-Ponce, Puerto Rico; San Juan, 

Puerto Rico; and the United States 

Virgin Islands. The Mayaguez/

Aguadilla-Ponce, PR, service area 

consists of the following municipios: 

Adjuntas, Aguada, Aguadilla, Anasco, 

Arroyo, Cabo Rojo, Coamo, Guanica, 

Guayama, Guayanilla, Hormigueros, 

Isabela, Jayuya, Juana Diaz, Lajas, Las 

Marias, Maricao, Maunabo, Mayaguez, 

Moca, Patillas, Penuelas, Ponce, 

Quebradillas, Rinco ́n, Sabana Grande, 

Salinas, San German, Santa Isabel, 

Villalba and Yauco. The San Juan 

service area consists of all other 

municipios in Puerto Rico.

§ 27.1209 Conversion of incumbent EBS 

and BRS stations to geographic area 

licensing. 

(a) Any EBS or BRS station licensed 

by the Commission, other than BTA 

authorizations and facilities authorized 

pursuant to BTA authorizations, shall be 

considered an incumbent station. 

Federal Register / Vol. 69, No. 237 / Friday, December 10, 2004 / Rules and Regulations 72039

(b) As of January 10, 2005, all 

incumbent EBS and BRS licenses shall 

be converted to a geographic area 

license. Pursuant to that geographic area 

license, such incumbent licensees may 

modify their systems provided the 

modified system complies with the 

applicable rules. The blanket license 

covers all fixed stations anywhere 

within the authorized service area, 

except as follows:

(1) A station would be required to be 

individually licensed if 

(i) International agreements require 

coordination; 

(ii) Submission of an Environmental 

Assessment is required under § 1.1307 

of this chapter; 

(iii) The station would affect the radio 

quiet zones under § 1.924 of this 

chapter. 

(2) Any antenna structure that 

requires notification to the Federal 

Aviation Administration (FAA) must be 

registered with the Commission prior to 

construction under § 17.4 of this 

chapter. 

(c) The frequencies associated with 

incumbent authorizations that have 

been cancelled automatically or 

otherwise been recovered by the 

Commission will automatically revert to 

the applicable BTA licensee.

§ 27.1210 Remote control operation. 

Licensed BRS/EBS stations may be 

operated by remote control without 

further authority.

§ 27.1211 Unattended operation. 

Unattended operation of licensed 

BRS/EBS stations is permitted without 

further authority. An unattended relay 

station may be employed to receive and 

retransmit signals of another station 

provided that the transmitter is 

equipped with circuits which permit it 

to radiate only when the signal intended 

to be retransmitted is present at the 

receiver input terminals.

§ 27.1212 License term. 

(a) BRS/EBS licenses shall be issued 

for a period of 10 years beginning with 

the date of grant. 

(b) An initial BTA authorization shall 

be issued for a period of ten years from 

the date the Commission declared 

bidding closed in the MDS auction.

§ 27.1213 Designated entity provisions for 

BRS in Commission auctions commencing 

prior to January 1, 2004. 

(a) Eligibility for small business 

provisions. For purposes of Commission 

auctions commencing prior to January 1, 

2004 for BRS licenses, a small business 

is an entity that together with its 

affiliates has average annual gross 

revenues that are not more than $40 

million for the preceding three calendar 

years. 

(b) Designated entities. As specified in 

this section, designated entities that are 

winning bidders in Commission 

auctions commencing prior to January 1, 

2004 for BTA service areas are eligible 

for special incentives in the auction 

process. See 47 CFR 1.2110. 

(c) Installment payments. Small 

businesses and small business consortia 

may elect to pay the full amount of their 

winning bids in Commission auctions 

commencing prior to January 1, 2004 for 

BTA service areas in installments over 

a ten (10) year period running from the 

date that their BTA authorizations are 

issued. 

(1) Upon issuance of a BTA 

authorization to a winning bidder in a 

Commission auction commencing prior 

to January 1, 2004 that is eligible for 

installment payments, the Commission 

will notify such eligible BTA 

authorization holder of the terms of its 

installment payment plan. For BRS, 

such installment payment plans will: 

(i) Impose interest based on the rate 

of ten (10) year U.S. Treasury 

obligations at the time of issuance of the 

BTA authorization, plus two and one 

half (2.5) percent;

(ii) Allow installment payments for a 

ten (10) year period running from the 

date that the BTA authorization is 

issued; 

(iii) Begin with interest-only 

payments for the first two (2) years; and 

(iv) Amortize principal and interest 

over the remaining years of the ten (10) 

year period running from the date that 

the BTA authorization is issued. 

(2) Conditions and obligations. See 

§ 1.2110(f)(4) of this chapter. 

(3) Unjust enrichment. If an eligible 

BTA authorization holder that utilizes 

installment financing under this 

subsection seeks to partition, pursuant 

to applicable rules, a portion of its BTA 

containing one-third or more of the 

population of the area within its control 

in the licensed BTA to an entity not 

meeting the eligibility standards for 

installment payments, the holder must 

make full payment of the remaining 

unpaid principal and any unpaid 

interest accrued through the date of 

partition as a condition of approval. 

(d) Reduced upfront payments. For 

purposes of Commission auctions 

commencing prior to January 1, 2004 for 

BRS licenses, a prospective bidder that 

qualifies as a small business, or as a 

small business consortia, is eligible for 

a twenty-five (25) percent reduction in 

the amount of the upfront payment 

otherwise required. To be eligible to bid 

on a particular BTA, a small business 

will be required to submit an upfront 

payment equal to seventy-five (75) 

percent of the upfront payment amount 

specified for that BTA in the public 

notice listing the upfront payment 

amounts corresponding to each BTA 

service area being auctioned. 

(e) Bidding credits. For purposes of 

Commission auctions commencing prior 

to January 1, 2004 for BRS licenses, a 

winning bidder that qualifies as a small 

business, or as a small business 

consortia, may use a bidding credit of 

fifteen (15) percent to lower the cost of 

its winning bid on any of the BTA 

authorizations awarded in the 

Commission BRS auctions commencing 

prior to January 1, 2004. 

(f) Short-form application 

certification; Long-form application or 

statement of intention disclosure. A BRS 

applicant in a Commission auction 

commencing prior to January 1, 2004 

claiming designated entity status shall 

certify on its short-form application that 

it is eligible for the incentives claimed. 

A designated entity that is a winning 

bidder for a BTA service area(s) shall, in 

addition to information otherwise 

required, file an exhibit to either its 

initial long-form application for a BRS 

station license, or to its statement of 

intention with regard to the BTA, which 

discloses the gross revenues for each of 

the past three years of the winning 

bidder and its affiliates. This exhibit 

shall describe how the winning bidder 

claiming status as a designated entity 

satisfies the designated entity eligibility 

requirements, and must list and 

summarize all agreements that affect 

designated entity status, such as 

partnership agreements, shareholder 

agreements, management agreements 

and other agreements, including oral 

agreements, which establish that the 

designated entity will have both de facto 

and de jure control of the entity. See 47 

CFR 1.2110(i). 

(g) Records maintenance. All holders 

of BTA authorizations acquired in a 

Commission auction commencing prior 

to January 1, 2004 that claim designated 

entity status shall maintain, at their 

principal place of business or with their 

designated agent, an updated 

documentary file of ownership and 

revenue information necessary to 

establish their status. Holders of BTA 

authorizations or their successors in 

interest shall maintain such files for a 

ten (10) year period running from the 

date that their BTA authorizations are 

issued. The files must be made available 

to the Commission upon request.

§ 27.1214 EBS spectrum leasing 

arrangements and grandfathered leases. 

(a) A licensee in the EBS that is solely 

utilizing analog transmissions may enter 

72040 Federal Register / Vol. 69, No. 237 / Friday, December 10, 2004 / Rules and Regulations 

into a spectrum leasing arrangement to 

transmit material other than the 

educational programming defined in 

§ 27.1203(b) and (c) subject to the 

following conditions: 

(1) Before entering into a spectrum 

leasing arrangement involving material 

other than educational programming on 

any one channel, the licensee must 

provide at least 20 hours per week of 

EBS educational programming (as 

defined in § 27.1203(b) and (c)) on that 

channel, except as provided in 

paragraphs (a)(2) and (a)(3) of this 

section. An additional 20 hours per 

week per channel must be strictly 

reserved for EBS use and not used for 

non-EBS purposes, or reserved for 

recapture by the EBS licensee for its 

EBS educational usage, subject to one 

year’s advance, written notification by 

the EBS licensee to its lessee and 

accounting for all recapture already 

exercised, with no economic or 

operational detriment to the licensee. 

These hours of recapture are not 

restricted as to time of day or day of the 

week, but may be established by 

negotiations between the EBS licensee 

and the lessee. The 20 hours per 

channel per week EBS educational 

usage requirement and the recapture 

and/or reservation requirement of an 

additional 20 hours per channel per 

week shall apply spectrally over the 

licensee’s whole actual service area. 

(2) For the first two years of operation, 

an EBS entity may enter into a spectrum 

leasing arrangement involving material 

other than educational programming if 

it provides EBS educational usage for at 

least 12 hours per channel per week, 

provided that the entity does not 

employ channel loading technology. 

(3) The licensee may shift its requisite 

EBS educational usage onto fewer than 

its authorized number of channels, via 

channel mapping or channel loading 

technology, so that it can enter into a 

spectrum leasing arrangement involving 

full-time channel capacity on its EBS 

station and/or associated EBS booster 

stations, subject to the condition that it 

provide a total average of at least 20 

hours per channel per week of EBS 

educational usage on its authorized 

channels. The use of channel mapping 

or channel loading consistent with the 

Rules shall not be considered adversely 

to the EBS licensee in seeking a license 

renewal. The licensee also retains the 

unabridgeable right to recapture, subject 

to six months’ advance written 

notification by the EBS licensee to the 

spectrum lessee, an average of an 

additional 20 hours per channel per 

week, accounting for all recapture 

already exercised. Regardless of whether 

the licensee has educational receive 

sites within its GSA, the licensee may 

lease booster stations in the entire GSA, 

provided that the licensee maintains the 

unabridgeable right to ready recapture at 

least 40 hours per channel per week for 

EBS educational usage. The licensee 

may agree to the transmission of this 

recapture time on channels not 

authorized to it, but which are included 

in the wireless system of which it is a 

part. A licensee under this paragraph 

which enters into a spectrum leasing 

arrangement on any one of its channels 

to an operator may ‘‘channel shift’’

pursuant to and under the conditions of 

paragraph (d)(2) of this section. 

(b) A licensee utilizing digital 

transmissions on any of its licensed 

channels may enter into a spectrum 

leasing arrangement to transmit material 

other than the educational programming 

defined in § 27.1203(b) and (c), subject 

to the following conditions:

(1) The licensee must reserve a 

minimum of 5% of the capacity of its 

channels for instructional purposes 

only, and may not enter into a spectrum 

leasing arrangement involving this 

reserved capacity. In addition, before 

leasing excess capacity, the licensee 

must provide at least 20 hours per 

licensed channel per week of EBS 

educational usage. This 5% reservation 

and this 20 hours per licensed channel 

per week EBS educational usage 

requirement shall apply spectrally over 

the licensee’s whole actual service area. 

However, regardless of whether the 

licensee has an educational receive site 

within its GSA served by a booster, the 

licensee may lease excess capacity 

without making at least 20 hours per 

licensed channel per week of EBS 

educational usage, provided that the 

licensee maintains the unabridgeable 

right to recapture on one months’

advance notice such capacity as it 

requires over and above the 5% 

reservation to make at least 20 hours per 

channel per week of EBS educational 

usage. 

(2) The licensee may shift its requisite 

EBS educational usage onto fewer than 

its authorized number of channels, via 

channel mapping or channel loading 

technology, and may shift its requisite 

EBS educational usage onto channels 

not authorized to it, but which are 

included in the wireless system of 

which it is a part (‘‘channel shifting’’), 

so that it can enter into a spectrum 

leasing arrangement involving full-time 

channel capacity on its EBS station, 

associated EBS booster stations, and/or 

EBS response stations and associated 

response station hubs, subject to the 

condition that it provide a total average 

of at least 20 hours per licensed channel 

per week of EBS educational usage. The 

use of channel mapping, channel 

loading, and/or channel shifting 

consistent with the Rules shall not be 

considered adversely to the EBS 

licensee in seeking a license renewal. In 

addition, an EBS entity receiving 

interference protection will continue to 

receive such protection if it elects to 

swap channels with another EBS or BRS 

station. 

(c) All spectrum leasing arrangements 

involving EBS spectrum must afford the 

EBS licensee an opportunity to purchase 

or to lease EBS equipment in the event 

that the spectrum leasing arrangement is 

terminated as a result of action by the 

spectrum lessee. 

(d) All leases of current EBS spectrum 

entered into prior to January 10, 2005 

and in compliance with leasing rules 

formerly contained in part 74 of this 

chapter may continue in force and 

effect, notwithstanding any 

inconsistency between such leases and 

the rules applicable to spectrum leasing 

arrangements set forth in this chapter. 

Such leases entered into pursuant to the 

former part 74 rules of this chapter may 

be renewed and assigned in accordance 

with the terms of such lease. All 

spectrum leasing arrangements leases 

entered into after January 10, 2005, 

pursuant to the rules set forth in part 1 

and part 27 of this chapter, must comply 

with the rules in those parts.

§ 27.1215 BRS grandfathered leases. 

(a) All leases of current BRS spectrum 

entered into prior to January 10, 2005 

and in compliance with rules formerly 

contained in part 21 of this chapter may 

continue in force and effect, 

notwithstanding any inconsistency 

between such leases and the rules 

applicable to spectrum leasing 

arrangements set forth in this chapter. 

Such leases entered into pursuant to the 

former part 21 of this chapter may be 

renewed and assigned in accordance 

with the terms of such lease. All 

spectrum leasing arrangements leases 

entered into after January 10, 2005, 

pursuant to the rules set forth in part 1 

and part 27 of this chapter must comply 

with the rules in those parts. 

Technical Standards

§ 27.1220 Transmission standards. 

The width of a channel in the LBS 

and UBS is 5.5 MHz, with the exception 

of BRS channels 1 and 2 which are 6.0 

MHz. The width of all channels in the 

MBS is 6 MHz. However, the licensee 

may subchannelize its authorized 

bandwidth, provided that digital 

modulation is employed and the 

aggregate power does not exceed the 

authorized power for the channel. The 

licensee may also, jointly with other 

Federal Register / Vol. 69, No. 237 / Friday, December 10, 2004 / Rules and Regulations 72041

licensees, transmit utilizing bandwidth 

in excess of its authorized bandwidth, 

provided that digital modulation is 

employed, all power spectral density 

requirements set forth in this part are 

met and the out-of-band emissions 

restrictions set forth in § 27.53 are met 

at the edges of the channels employed.

§ 27.1221 Interference protection. 

(a) Interference protection will be 

afforded to BRS on a station by station 

basis based on the heights of the stations 

in the LBS and UBS and also on height 

benchmarking, although the heights of 

antennas utilized are not restricted. 

(b) Height Benchmarking. Height 

benchmarking is defined for pairs of 

base stations, one in each of two 

neighboring service areas. The height 

benchmark for a particular station in a 

service area relative to a base station in 

an adjacent service area is the 

distance’squared between the station 

and the GSA service area boundary 

measured along the radial between the 

respective stations, divided by 17. That 

is, the height benchmark is hb = D2/17. 

Interference protection will be afforded 

on a station by station basis based on 

the actual antenna height above the 

radial average terrain (calculated along 

the straight line between the two base 

stations in accordance with § 24.53(b) 

and (c) of this chapter) and this height 

benchmark.

§ 27.1222 Operations in the 2568–2572 and 

2614–2618 bands. 

All operations in the 2568–2572 and 

2614–2618 MHz bands shall be 

secondary to adjacent-channel 

operations. Stations operating in the 

2568–2572 and 2614–2618 MHz must 

not cause interference to licensees in 

operation in the LBS, MBS, and UBS 

and must accept any interference from 

any station operating in the LBS, MBS, 

and UBS in compliance with the rules 

established in this subpart. Stations 

operating in the 2568–2572 and 2614–

2618 bands may cause interference to 

stations in operation in the LBS, MBS, 

and UBS if the affected licensees 

consent to such interference. 

Policies Governing the Transition of the 

2500–2690 MHz Band for BRS and EBS

§ 27.1230 Conversion of the 2500–2690 

MHz band. 

BRS and EBS licensees in the 2500–

2690 MHz band on the pre-transiton A–

I Channels will be transitioned from the 

frequencies assigned to them under 

§ 27.5(i)(1) to the frequencies assigned 

to them under § 27.5(i)(2). The 

transition, which will be undertaken by 

one or more proponent(s), will occur in 

the following five phases: initiating the 

transition process (see § 27.1231), 

planning the transition (see § 27.1232), 

reimbursing transition costs (see 

27.1233), terminating existing 

operations in transitioned markets that 

do not comport with § 27.5(i)(2) (see 

§ 27.1234), and filing the post-transition 

notification (see § 27.1235).

§ 27.1231 Initiating the transition. 

(a) The transition will occur by MEA. 

MEAs are based on the U.S. Department 

of Commerce’s 172 Economic Area 

(EAs). There are 52 MEAs composed of 

one or more EAs. Additionally, there are 

three EA-like areas: Guam and Northern 

Mariana Islands; Puerto Rico and the 

U.S. Virgin Islands; and American 

Samoa, which will also be transitioned 

to the band plan in § 27.5(i)(2). The 

MEA associated with the Gulf of Mexico 

will not be transitioned. MEAs are 

identified in the Table to § 27.6(a). 

(b) Sections 27.1231 through 27.1235 

apply only to transitions initiated by a 

proponent(s) within 3 years of January 

10, 2005. 

(c) When a proponent(s) is a Basic 

Trading Area (BTA) BRS licensee that is 

located in more than one MEA, the 

proponent(s) may elect to transition 

only one MEA or may elect to transition 

two or more MEAs that overlap the 

proponent(s)’s BTA. 

(d) A proponent(s) may be an EBS or 

BRS licensee or an EBS lessee. To 

initiate a transition, a proponent(s) must 

submit the following information to the 

Commission at the Office of the 

Secretary in Washington, DC: 

(1) A list of the MEA(s) that the 

proponent(s) is transitioning; 

(2) A list by call sign of all of the BRS 

and EBS licensees in the MEA(s) that 

are being transitioned; 

(3) A statement indicating that the 

engineering analysis to transition all of 

the BRS and EBS licensees in the 

MEA(s) has been completed; 

(4) A statement indicating when the 

transition will be completed; 

(5) A statement indicating that an 

agreement has been concluded with the 

proponent(s) of the adjoining or 

adjacent MEA(s) when the engineering 

analysis indicates that a licensee or 

licensees in an adjacent or adjoining 

MEA must be transitioned to avoid 

interference to licensees in the MEA 

being transitioned, or in lieu of an 

agreement, the proponent(s) may 

provide an alternative means of 

transitioning the licensees in an 

adjacent or adjoining MEA; 

(6) A statement indicating that an 

agreement has been concluded with 

another proponent(s) on how a MEA 

will be transitioned when there are two 

or more proponents seeking to transition 

the same MEA and a statement that 

identifies the specific portion of the 

MEA each proponent will be 

responsible for transitioning; and 

(7) A certification that it has the funds 

available to pay the reasonable expected 

costs of the transition based on the 

information contained in the PreTransition Data Request (see paragraph 

(f) of this section). 

(e) A proponent(s) may, at it own 

discretion, withdraw from transitioning 

a MEA(s) by amending the information 

submitted to the Commission under 

paragraph (d) of this section and 

notifying all affected BRS and EBS 

licensees in the MEA(s). 

(f) Pre-transition data request. To 

assist a potential proponent(s) in 

assessing whether to transition a 

MEA(s), a proponent(s) must send a Pretransition data request to each EBS and 

BRS licensee in the MEA the 

proponent(s) seeks to transition. The 

proponent(s) shall include its full name, 

postal mailing address, contact person, 

e-mail address, and phone and fax 

numbers. The proponent(s) must request 

EBS and BRS licensees within a MEA to 

provide the following information to the 

potential proponent(s):

(1) The location (by street address and 

by geographic coordinates) of every 

constructed EBS receive site that, as of 

the date of receipt of the Pre-Transition 

Data Request, is entitled to a 

replacement downconverter (see 

§ 27.1233(a)). The response must: 

(i) Specify whether the 

downconverting antenna is mounted on 

a structure attached to the building or 

on a free-standing structure; 

(ii) Specify the approximate height 

above ground level of the 

downconverting antenna; 

(iii) Specify, if known, the adjacent 

channel D/U ratio that can be tolerated 

by any receiver(s) at the receive site; and 

(2) The number and identification of 

EBS video programming or data 

transmission tracks the EBS licensee is 

entitled to receive in the MBS and 

whether the EBS licensee will accept 

fewer tracks in the MBS (see 

§ 27.1233(b)). 

(g) The Transition notice. The 

proponent(s) must send a Transition 

Notice to all BRS and EBS licensees in 

the MEA(s) being transitioned. The 

proponent(s) must include the following 

information in the Transition Notice: 

(1) The proponent(s)’s full name; 

postal mailing address, contact person, 

e-mail address, and phone and fax 

numbers; 

(2) The identification of the BRS and 

EBS licensees that will be transitioned; 

72042 Federal Register / Vol. 69, No. 237 / Friday, December 10, 2004 / Rules and Regulations 

(3) Copies of the most recent response 

to the Pre-Transition Data Request for 

each participant in the process; and 

(4) A certification that the 

proponent(s) has the funds available to 

pay the reasonably expected costs of the 

transition based on the information in 

the Pre-Transition Data Request.

§ 27.1232 Planning the transition. 

(a) The Transition planning period.

The Transition Planning Period is a 90-

day period that commences on the day 

after the proponent(s) file the Initiation 

Plan with the Commission. 

(b) The Transition plan. The 

proponent(s) must provide to each BRS 

and EBS licensee within an MEA, a 

Transition Plan no later than 30 days 

prior to the conclusion of the Transition 

Planning Period. 

(1) The Transition Plan must: 

(i) Identify the call signs of the 

stations that are transitioning; 

(ii) Identify the specific channels that 

each licensee will receive following the 

transition; 

(iii) Identify the receive sites at which 

replacement downconverters will be 

installed (see § 27.1233(a)); 

(iv) Identify the video programming 

and data transmission tracks that will be 

migrated to the MBS and provide for the 

MBS channels to be authorized to 

operate with transmission parameters 

that are substantially similar to those of 

the licensee’s operation prior to 

transition (see § 27.1233(b)); 

(v) Identify the technical 

configuration of the MBS facilities; 

(vi) Identify the approximate time line 

for effectuating the transition, which, 

unless dispute resolution procedures are 

used, may not exceed 18 months from 

the conclusion of the Transition 

Planning Period; 

(vii) Provide for the establishment of 

an escrow or other appropriate 

mechanism for ensuring completion of 

the transition in accordance with the 

Transition Plan. 

(2) The Transition Plan may provide 

for interruptions of EBS transmissions, 

so long as those interruptions are 

limited to a period of less than seven 

days at any reception site. The 

proponent(s) must coordinate with each 

EBS licensee to minimize the extent of 

any disruption. 

(3) The Transition Plan may provide 

for the shifting of an EBS licensee’s 

program to alternative channels. Such 

shifting may not be considered an 

interruption, if the EBS licensee’s 

receive sites are equipped to receive and 

internally distribute the channel to 

which the programming is shifted. 

(4) The Transition Plan may provide 

for the installation of an appropriate 

filter on an MBS transmitter if the 

proponent(s) determines that the 

installation of a filter will mitigate 

interference from transmissions in the 

MBS to operations outside the MBS. 

(c) Counterproposals. No later than 10 

days before the conclusion of the 

Transition Planning Period, affected 

BRS and EBS licensees may submit a 

counterproposal to the proponent(s) if 

they believe that the Transition Plan is 

unreasonable. The proponent(s) may: 

(1) Accept the counterproposal, 

modify the Transition Plan accordingly, 

and send the modified Transition Plan 

to all EBS and BRS licensees in the 

MEA; 

(2) Invoke dispute resolution 

procedures for a determination of 

whether the Transition Plan is 

reasonable and take no action until a 

determination of reasonableness is 

made; or 

(3) Invoke dispute resolution 

procedures for a determination of 

whether the Transition Plan is 

reasonable, but may implement the 

transition immediately. 

(d) Safe harbors. An offer by a 

proponent(s) shall be reasonable if it 

meets one of the following safe harbors:

(1) Safe harbor #1. This safe harbor 

applies when the default high-power 

channel assigned to each channel group 

is authorized to operate after the 

transition with the same transmission 

parameters (coordinates, antenna 

pattern, height of center radiation, EIRP) 

as the downstream facilities before the 

transition. If the proponent(s) does not 

propose a change in the geographic 

coordinates of the facilities (other than 

as necessary to conform the actual 

location with the Commission’s 

Antenna Survey Branch database), the 

proponent may also propose the 

following to the extent consistent with 

this subpart: 

(i) An increase in the height of the 

center of radiation of the transmission 

antenna or a decrease in such height of 

no more than 8 meters (provided that 

such change does not result in an 

increase in antenna support structure 

lease costs to the EBS licensee and the 

consent of the owner of the antenna 

support structure is obtained). 

(ii) A change in the EIRP of the 

transmission system of up to 1.5 dB in 

any direction. 

(iii) Digitization, precision frequency 

offset, or other upgrades to the EBS 

transmission or reception systems that 

allow the proponent(s) to invoke more 

advantageous interference protection 

requirements applicable to upgraded 

systems. 

(2) Safe harbor #2. This safe harbor 

applies when an EBS licensee has 

channel-shifted its single video 

programming or data transmission track 

to spectrum licensed to another 

licensee. Under § 27.5(i)(2), that track 

must be on the high-power channel 

licensed to the EBS licensee upon 

completion of the transition. For 

example, before the transition, an A 

Group licensee might have shifted its 

EBS video programming to channel C1. 

If one of the pre-transition A Group 

channels is licensed with technical 

parameters substantially similar to those 

of pre-transition channel C1, the 

Transition Plan may provide for highpower channel A4 to be licensed with 

the same technical parameters as the 

pre-transition channel C1. However, if 

the pre-transition A Group channels are 

licensed to operate with technical 

parameters materially different from 

those of pre-transition channel C1, the 

proponent(s) may: 

(i) Arrange a channel swap with the 

licensee of the C Group so that the A 

Group licensee will receive high-power 

channel C4 (which will automatically be 

licensed with the same transmission 

parameters as the pre-transition channel 

C1) in exchange for channel A4. 

(ii) Arrange for high-power channel 

A4 to operate with transmission 

parameters substantially similar to those 

of the pre-transition channel C1 (see

paragraph (d)(1) of this section).

§ 27.1233 Reimbursement costs of 

transitioning. 

(a) Replacement downconverters. The 

proponent(s) must install at every 

eligible EBS receive site a 

downconverter designed to minimize 

the reception of signals from outside the 

MBS. 

(1) An EBS receive site is eligible to 

be replaced if: 

(i) A reception system was installed at 

that site on or before the date the EBS 

licensee receives its Pre-Transition Data 

Request (see § 27.1231(f)); 

(ii) The reception system was 

installed by or at the direction of the 

EBS licensee; 

(iii) The reception system receives 

EBS programming under § 27.1203(b) 

and (c) or is located at a cable television 

system headend and the cable system 

relays educational or instructional 

programming for an EBS licensee; and 

(iv) It is within the licensee’s 35-mile 

radius GSA. 

(2) Replacement downconverters must 

meet the following minimum technical 

requirements:

(i) The downconverter’s input 

frequency range (the ‘‘in-band 

frequencies’’) must be 2572 MHz to 

2614 MHz and output frequency range 

must be 294 MHz to 336 MHz; 

Federal Register / Vol. 69, No. 237 / Friday, December 10, 2004 / Rules and Regulations 72043

(ii) The downconversion process must 

not invert frequencies; 

(iii) The nominal gain of the 

downconverter must be 32 dB, or 

greater; 

(iv) The downconverter must include 

filtering prior to the first amplifier that 

attenuates frequencies below 2500 MHz 

and above 2705 MHz by at least 25 dB; 

(v) The downconverter must have an 

out-of-band input 3rd order intercept 

point (input IP3) of at least +9 dBm, 

where out-of-band is defined as all 

frequencies below 2566 MHz and all 

frequencies above 2620 MHz; 

(vi) The downconverter must have a 

typical noise figure of no greater than 

3.5 dB and a worst case noise figure of 

no greater than 4.5 dB across all in-band 

frequencies and across its entire 

intended operating temperature range; 

(vii) The downconverter must not 

introduce a delta group delay of more 

than 20 nanoseconds for digital 

operations or 100 nanoseconds for 

analog operations over any individual 

six megahertz MBS channel. 

(b) Migration of Video Programming 

and Data Transmission Track. (1) The 

proponent(s) must provide, at its cost, to 

each EBS licensee that intends to 

continue downstream high-power, highsite educational video programming or 

data transmission services, with one 

programming track on the MBS 

channels for each EBS video or data 

transmission track the licensee is 

transmitting on a simultaneous basis 

before the transition. 

(i) To be eligible for migration, a 

program track must contain EBS 

programming that complies with 

§ 27.1203 (b) and (c). 

(ii) The proponent(s) must pay only 

the costs of migrating programming 

tracks being transmitted on December 

31, 2002 or within six months prior 

thereto. 

(2) The proponent(s) must migrate 

each eligible programming track to 

spectrum in the MBS that will be 

licensed to the affected licensee at the 

conclusion of the transition. 

(3) After the transition, the desired-toundesired signal level ratio at each of 

the receive sites securing a replacement 

downconverter must satisfy the 

following criteria: 

(i) Cochannel D/U Ratio. (A) When 

the post-transition desired signal is 

transmitted using analog modulation, 

the actual cochannel D/U ratio 

measured at the output of the reception 

antenna must be at least the lesser of 45 

dB or the actual pre-transmission D/U 

ratio less 1.5 dB. 

(B) When the post-transition desired 

signal will be transmitted using digital 

modulation, the actual cochannel D/U 

ratio measured at the output of the 

reception antenna must be at least the 

lesser of 32 dB or the pre-transition

D/U ratio less 1.5 dB. 

(C) Where in implementing the 

Transition Plan, the proponent(s) 

deploys precise frequency offset in an 

analog system, the minimum cochannel 

D/U ratio is reduced to 38 dB, provided 

that the transmitters have or are 

upgraded pursuant to the Transition 

Plan to have the appropriate ‘‘plus,’’

‘‘zero,’’ or ‘‘minus’’ 10,010 Hertz 

precision frequency offset with a ±3 

Hertz (or better) stability. 

(ii) Adjacent Channel D/U Ratio. The 

actual adjacent channel D/U must equal 

or exceed the lesser of 0 dB or the actual 

pre-transmission D/U ratio. However, in 

the event that the receive site uses 

receivers or is upgraded by the 

proponent(s) as part of the Transition 

Plan to use receivers that can tolerate 

negative adjacent channel D/U ratios, 

the actual adjacent channel D/U ratio at 

such receive site must equal or exceed 

such negative adjacent channel D/U 

ratio. 

(c) BRS costs. BRS licensees must pay 

their own transition costs. BRS licensees 

in the LBS or UBS must reimburse the 

proponent(s) a pro rata share of the cost 

of transitioning the facilities they use to 

provide commercial service, either 

directly or through a lease agreement 

with an EBS licensee.

§ 27.1234 Terminating existing operations 

in transitioned markets. 

Licensees may discontinue operations 

during the transition.

§ 27.1235 Post-transition notification. 

The proponent(s) and all affected 

licensees must jointly notify the 

Commission at the Office of the 

Secretary, Washington DC, that the 

Transition Plan has been fully 

implemented. 

(a) The notification must provide the 

identification of the licensees that have 

transitioned to the band plan in 

§ 27.5(i)(2) and the specific frequencies 

on which each licensee is operating. 

(b) For each station in the MBS, the 

notification must provide the following 

information: 

(1) The station coordinates, 

(2) The make and model of each 

antenna, 

(3) The horizontal and vertical pattern 

of the antenna; 

(4) EIRP of the main lobe; 

(5) Orientation; 

(6) Height of antenna center of 

radiation; 

(7) Transmitter output power;

(8) All line and combiner losses. 

(c) The proponent(s) must provide 

copies of the post-transition notice to all 

parties of the transition.

PART 73—RADIO BROADCAST 

SERVICES

■ 33. The authority citation for part 73 

continues to read as follows:

Authority: 47 U.S.C. 154, 303, 334 and 336.

§ 73.1010 [Amended]

■ 34. Section 73.1010 is amended by 

removing paragraph (e)(7) and 

redesignating paragraph (e)(8) as 

paragraph (e)(7).

§ 73.3500 [Amended]

■ 35. In the table in § 73.3500 (a) remove 

the entries for Form numbers 330, 330–

L, and 330–R.

§ 73.3533 [Amended]

■ 36. Section 73.3533 is amended by 

removing paragraph (a)(4) and 

redesignating paragraphs (a)(5) through 

(a)(8) as paragraphs (a)(4) through (a)(7).

§ 73.3534 [Removed and reserved]

■ 37. Section 73.3534 is removed and 

reserved.

§ 73.3536 [Amended]

■ 38. Section 73.3536 is amended by 

removing paragraph (b)(4) and 

redesignating paragraphs (b)(5) through 

(b)(7) as paragraphs (b)(4) through (b)(6).

■ 39. Section 73.5000 is amended by 

revising paragraph (a) to read as follows:

§ 73.5000 Services subject to competitive 

bidding. 

(a) Mutually exclusive applications 

for new facilities and for major changes 

to existing facilities in the following 

broadcast services are subject to 

competitive bidding: AM; FM; FM 

translator; analog television; low-power 

television; television translator; and 

Class A television. Mutually exclusive 

applications for minor modifications of 

Class A television and television 

broadcast are also subject to competitive 

bidding. The general competitive 

bidding procedures set forth in part 1, 

subpart Q of this chapter will apply 

unless otherwise provided in part 73 or 

part 74 of this chapter.

* * * * *

■ 40. Section 73.5002 is revised to read 

as follows:

§ 73.5002 Application and certification 

procedures; return of mutually exclusive 

applications not subject to competitive 

bidding procedures; prohibition of 

collusion. 

(a) Prior to any broadcast service 

auction, the Commission will issue a 

72044 Federal Register / Vol. 69, No. 237 / Friday, December 10, 2004 / Rules and Regulations 

public notice announcing the upcoming 

auction and specifying the period 

during which all applicants seeking to 

participate in an auction, and all 

applicants for noncommercial 

educational broadcast stations, as 

described in 47 U.S.C. 397(6), on nonreserved channels, must file their 

applications for new broadcast facilities 

or for major changes to existing 

facilities. Broadcast service applications 

for new facilities or for major 

modifications will be accepted only 

during these specified periods. This 

initial and other public notices will 

contain information about the 

completion and submission of 

applications to participate in the 

broadcast auction, and applications for 

noncommercial educational broadcast 

stations, as described in 47 U.S.C. 

397(6), on non-reserved channels, as 

well as any materials that must 

accompany the applications, and any 

filing fee that must accompany the 

applications or any upfront payments 

that will need to be submitted. Such 

public notices will also, in the event 

mutually exclusive applications are 

filed for broadcast construction permits 

that must be resolved through 

competitive bidding, contain 

information about the method of 

competitive bidding to be used and 

more detailed instructions on 

submitting bids and otherwise 

participating in the auction. In the event 

applications are submitted that are not 

mutually exclusive with any other 

application in the same service, or in 

the event that any applications that are 

submitted that had been mutually 

exclusive with other applications in the 

same service are resolved as a result of 

the dismissal or modification of any 

applications, the non-mutually 

exclusive applications will be identified 

by public notice and will not be subject 

to auction. 

(b) To participate in broadcast service 

auctions, or to apply for a 

noncommercial educational station, as 

described in 47 U.S.C. 397(6), on a nonreserved channel, all applicants must 

timely submit short-form applications 

(FCC Form 175), along with all required 

certifications, information and exhibits, 

pursuant to the provisions of § 1.2105(a) 

of this chapter and any Commission 

public notices. So determinations of 

mutual exclusivity for auction purposes 

can be made, applicants for non-table 

broadcast services must also submit the 

engineering data contained in the 

appropriate FCC form (FCC Form 301, 

FCC Form 346, or FCC Form 349). 

Beginning January 1, 1999, all shortform applications must be filed 

electronically. If any application for a 

noncommercial educational broadcast 

station, as described in 47 U.S.C. 397(6), 

is mutually exclusive with applications 

for commercial broadcast stations, and 

the applicants that have the opportunity 

to resolve the mutually exclusivity 

pursuant to paragraphs (c) and (d) of 

this section fail to do so, the application 

for noncommercial educational 

broadcast station, as described in 47 

U.S.C. 397(6), will be returned as 

unacceptable for filing, and the 

remaining applications for commercial 

broadcast stations will be processed in 

accordance with competitive bidding 

procedures.

(c) Applicants in all broadcast service 

auctions, and applicants for 

noncommercial educational stations, as 

described in 47 U.S.C. 397(6), on nonreserved channels will be subject to the 

provisions of § 1.2105(b) of this chapter 

regarding the modification and 

dismissal of their short-form 

applications. Notwithstanding the 

general applicability of § 1.2105(b) of 

this chapter to broadcast auctions, and 

applicants for noncommercial 

educational stations, as described in 47 

U.S.C. 397(6), on non-reserved 

channels, the following applicants will 

be permitted to resolve their mutual 

exclusivities by making amendments to 

their engineering submissions following 

the filing of their short-form 

applications: 

(1) Applicants for all broadcast 

services who file major modification 

applications that are mutually exclusive 

with each other; 

(2) Applicants for all broadcast 

services who file major modification 

and new station applications that are 

mutually exclusive with each other; or 

(3) Applicants for the secondary 

broadcast services who file applications 

for new stations that are mutually 

exclusive with each other. 

(d) The prohibition of collusion set 

forth in § 1.2105(c) of this chapter, 

which becomes effective upon the filing 

of short-form applications, shall apply 

to all broadcast service auctions. 

Notwithstanding the general 

applicability of § 1.2105(c) of this 

chapter to broadcast auctions, the 

following applicants will be permitted 

to resolve their mutual exclusivities by 

means of engineering solutions or 

settlements during a limited period after 

the filing of short-form applications, as 

further specified by Commission public 

notices: 

(1) Applicants for all broadcast 

services who file major modification 

applications that are mutually exclusive 

with each other; 

(2) Applicants for all broadcast 

services who file major modification 

and new station applications that are 

mutually exclusive with each other; or 

(3) Applicants for the secondary 

broadcast services who file applications 

for new stations that are mutually 

exclusive with each other.

■ 41. Section 73.5003 is revised to read 

as follows:

§ 73.5003 Submission of full payments. 

If a winning bidder fails to pay the 

balance of its winning bid in a lump 

sum by the applicable deadline as 

specified by the Commission, it will be 

allowed to make payment within ten 

(10) business days after the payment 

deadline, provided that it also pays a 

late fee equal to five (5) percent of the 

amount due. Broadcast construction 

permits licenses will be granted by the 

Commission following the receipt of full 

payment.

■ 42. Section 73.5005 is amended by 

revising paragraph (a) to read as follows:

§ 73.5005 Filing of long-form applications. 

(a) Within thirty (30) days following 

the close of bidding and notification to 

the winning bidders, each winning 

bidder must submit an appropriate longform application (FCC Form 301, FCC 

Form 346, or FCC Form 349) for each 

construction permit or license for which 

it was the high bidder. Long-form 

applications filed by winning bidders 

shall include the exhibits required by 

§ 1.2107(d) of this chapter (concerning 

any bidding consortia or joint bidding 

arrangements); § 1.2110(j) of this chapter 

(concerning designated entity status, if 

applicable); and § 1.2112 of this chapter 

(concerning disclosure of ownership 

and real party in interest information, 

and, if applicable, disclosure of gross 

revenue information for small business 

applicants).

* * * * *

■ 43. Section 73.5006 is revised to read 

as follows:

§ 73.5006 Filing of petitions to deny 

against long-form applications. 

(a) As set forth in 47 CFR 1.2108, 

petitions to deny may be filed against 

the long-form applications filed by 

winning bidders in broadcast service 

auctions and against the long-form 

applications filed by applicants whose 

short-form applications were not 

mutually exclusive with any other 

applicant, or whose short-form 

applications were mutually exclusive 

only with one or more short-form 

applications for a noncommercial 

educational broadcast station, as 

described in 47 U.S.C. 397(6). 

Federal Register / Vol. 69, No. 237 / Friday, December 10, 2004 / Rules and Regulations 72045

(b) Within ten (10) days following the 

issuance of a public notice announcing 

that a long-form application for an AM, 

FM or television construction permit 

has been accepted for filing, petitions to 

deny that application may be filed. 

Within fifteen (15) days following the 

issuance of a public notice announcing 

that a long-form application for a lowpower television, television translator or 

FM translator construction permit has 

been accepted for filing, petitions to 

deny that application may be filed. Any 

such petitions must contain allegations 

of fact supported by affidavit of a person 

or persons with personal knowledge 

thereof. 

(c) An applicant may file an 

opposition to any petition to deny, and 

the petitioner a reply to such 

opposition. Allegations of fact or denials 

thereof must be supported by affidavit 

of a person or persons with personal 

knowledge thereof. In the AM, FM and 

television broadcast services, the time 

for filing such oppositions shall be five 

(5) days from the filing date for petitions 

to deny, and the time for filing replies 

shall be five (5) days from the filing date 

for oppositions. In the low-power 

television, television translator and FM 

translator broadcast services, the time 

for filing such oppositions shall be 

fifteen (15) days from the filing date for 

petitions to deny, and the time for filing 

replies shall be ten (10) days from the 

filing date for oppositions. 

(d) If the Commission denies or 

dismisses all petitions to deny, if any 

are filed, and is otherwise satisfied that 

an applicant is qualified, a public notice 

will be issued announcing that the 

broadcast construction permit(s) is 

ready to be granted, upon full payment 

of the balance of the winning bid(s). See 

47 CFR 73.5003. Construction of 

broadcast stations shall not commence 

until the grant of such permit or license 

to the winning bidder.

■ 44. Section 73.5007 is amended by 

removing paragraph (b)(2)(vi) and 

revising paragraphs (b)(2)(iv) and 

(b)(2)(v) to read as follows:

§ 73.5007 Designated entity provisions.

* * * * *

(b) * * * 

(2) * * *

(iv) Cable television system—the 

franchised community of a cable 

system; and 

(v) Daily newspaper—community of 

publication.

* * * * *

■ 45. Section 73.5008 is amended by 

revising paragraph (b) to read as follows:

§ 73.5008 Definitions applicable for 

designated entity provisions.

* * * * *

(b) A medium of mass 

communications means a daily 

newspaper; a cable television system; or 

a license or construction permit for a 

television broadcast station, an AM or 

FM broadcast station, or a direct 

broadcast satellite transponder.

* * * * *

PART 74—EXPERIMENTAL RADIO, 

AUXILIARY, SPECIAL 

BROADCASTING AND OTHER 

PROGRAM DISTRIBUTIONAL 

SERVICES

■ 46. The authority citation for part 74 

continues to read as follows:

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

336(h) and 554.

■ 47. Section 74.1 is amended by 

revising paragraph (b) to read as follows:

§ 74.1 Scope.

* * * * *

(b) Rules in part 74 which apply 

exclusively to a particular service are 

contained in that service subpart, as 

follows: Experimental Broadcast 

Stations, Subpart A; Remote Pickup 

Broadcast Stations, Subpart D; Aural 

Broadcast STL and Intercity Relay 

Stations, Subpart E; TV Auxiliary 

Broadcast Stations, Subpart F; Lowpower TV, TV Translator and TV 

Booster Stations, Subpart G; Low-power 

Auxiliary Stations, Subpart H; FM 

Broadcast Translator Stations and FM 

Broadcast Booster Stations, subpart L.

* * * * *

§ 74.15 [Amended]

■ 48. Section 74.15 is amended by 

removing paragraph (e) and 

redesignating paragraphs (f) and (g) as (e) 

and (f).

■ 49. Section 74.703 is amended by 

revising paragraph (d) to read as follows:

§ 74.703 Interference.

* * * * *

(d) When a low-power TV or TV 

translator station causes interference to 

a CATV system by radiations within its 

assigned channel at the cable headend 

or on the output channel of any system 

converter located at a receiver, the 

earlier user, whether cable system or 

low-power TV or TV translator station, 

will be given priority on the channel, 

and the later user will be responsible for 

correction of the interference. When a 

low-power TV or TV translator station 

causes interference to a BRS or EBS 

system by radiations within its assigned 

channel on the output channel of any 

system converter located at a receiver, 

the earlier user, whether BRS system or 

low-power TV or TV translator station, 

will be given priority on the channel, 

and the later user will be responsible for 

correction of the interference.

* * * * *

■ 50. Section 74.832 is amended by 

revising paragraph (a)(6) to read as 

follows:

§ 74.832 Licensing requirements and 

procedures. 

(a) * * *

(6) Licensees and conditional 

licensees of stations in the Service and 

Multichannel Multipoint Distribution 

Service as defined in § 21.2 of this 

chapter, or entities that hold an 

executed lease agreement with an MDS 

or MMDS licensee or conditional 

licensee or with an Instructional 

Television Fixed Service licensee or 

permittee.

* * * * *

Subpart I [Removed and Reserved]

■ 51. Subpart I is removed and reserved.

PART 76—MULTICHANNEL VIDEO 

AND CABLE TELEVISION SERVICE

■ 52. The authority for part 76 continues 

to read as follows:

Authority: 47 U.S.C. 151, 152, 153, 154, 

301, 302a, 303, 303a, 307, 308, 309, 312, 317, 

325, 338, 339, 503, 521, 522, 531, 532, 533, 

534, 535, 536, 537, 543, 544, 544a, 545, 548, 

549, 552, 554, 556, 558, 560, 561, 571, 572, 

and 573.

■ 53. Section 76.64 is amended by 

revising paragraph (d) to read as follows:

§ 76.64 Retransmission consent.

* * * * *

(d) A multichannel video program 

distributor is an entity such as, but not 

limited to, a cable operator, a BRS/EBS 

provider, a direct broadcast satellite 

service, a television receive-only 

satellite program distributor, or a 

satellite master antenna television 

system operator, that makes available 

for purchase, by subscribers or 

customers, multiple channels of video 

programming.

* * * * *

■ 54. Section 76.71 is amended by 

revising paragraph (a) to read as follows:

§ 76.71 Scope of application. 

(a) The provisions of this subpart 

shall apply to any corporation, 

partnership, association, joint-stock 

company, or trust engaged primarily in 

the management or operation of any 

cable system. Cable entities subject to 

these provisions include those systems 

72046 Federal Register / Vol. 69, No. 237 / Friday, December 10, 2004 / Rules and Regulations 

defined in § 76.5(a), all satellite master 

antenna television systems serving 50 or 

more subscribers, and any multichannel 

video programming distributor. For 

purposes of the provisions of this 

subpart, a multichannel video 

programming distributor is an entity 

such as, but not limited to, a cable 

operator, a BRS/EBS provider, a direct 

broadcast satellite service, a television 

receive-only satellite program 

distributor, or a video dialtone program 

service provider, who makes available 

for purchase, by subscribers or 

customers, multiple channels of video 

programming, whether or not a licensee. 

Multichannel video programming 

distributors do not include any entity 

which lacks control over the video 

programming distributed. For purposes 

of this subpart, an entity has control 

over the video programming it 

distributes, if it selects video 

programming channels or programs and 

determines how they are presented for 

sale to consumers. Nothwithstanding 

the foregoing, the regulations in this 

subpart are not applicable to the owners 

or originators (of programs or channels 

of programming) that distribute six or 

fewer channels of commonly-owned 

video programming over a leased 

transport facility. For purposes of this 

subpart, programming services are 

‘‘commonly-owned’’ if the same entity 

holds a majority of the stock (or is a 

general partner) of each program 

service.

* * * * *

■ 55. Section 76.503 is amended by 

revising paragraph (e) to read as follows:

§ 76.503 National Subscriber Limits.

* * * * *

(e) ‘‘Multichannel video-programming 

subscribers’’ means subscribers who 

receive multichannel videoprogramming from cable systems, direct 

broadcast satellite services, direct-tohome satellite services, BRS/EBS, local 

multipoint distribution services, 

satellite master antenna television 

services (as defined in § 76.5(a)(2)), and 

open video systems.

* * * * *

■ 56. Section 76.905 is amended by 

revising paragraph (d) to read as follows:

§ 76.905 Standards for identification of 

cable systems subject to effective 

competition.

* * * * *

(d) A multichannel video program 

distributor, for purposes of this section, 

is an entity such as, but not limited to, 

a cable operator, a BRS/EBS provider, a 

direct broadcast satellite service, a 

television receive-only satellite program 

distributor, a video dialtone service 

provider, or a satellite master antenna 

television service provider that makes 

available for purchase, by subscribers or 

customers, multiple channels of video 

programming.

* * * * *

■ 57. Section 76.1000 is amended by 

revising paragraph (e) and the existing 

note to paragraph (e) shall remain 

unchanged to read as follows:

§ 76.1000 Definitions.

* * * * *

(e) Multichannel video programming 

distributor. The term ‘‘multichannel 

video programming distributor’’ means 

an entity engaged in the business of 

making available for purchase, by 

subscribers or customers, multiple 

channels of video programming. Such 

entities include, but are not limited to, 

a cable operator, a BRS/EBS provider, a 

direct broadcast satellite service, a 

television receive-only satellite program 

distributor, and a satellite master 

antenna television system operator, as 

well as buying groups or agents of all 

such entities.

* * * * *

■ 58. Section 76.1200 is amended by 

revising paragraphs (a) and (b) to read as 

follows:

§ 76.1200 Definitions. 

(a) Multichannel video programming 

system. A distribution system that 

makes available for purchase, by 

customers or subscribers, multiple 

channels of video programming other 

than an open video system as defined by 

§ 76.1500(a). Such systems include, but 

are not limited to, cable television 

systems, BRS/EBS systems, direct 

broadcast satellite systems, other 

systems for providing direct-to-home 

multichannel video programming via 

satellite, and satellite master antenna 

systems. 

(b) Multichannel video programming 

distributor. A person such as, but not 

limited to, a cable operator, a BRS/EBS 

provider, a direct broadcast satellite 

service, or a television receive-only 

satellite program distributor, who owns 

or operates a multichannel video 

programming system.

* * * * *

■ 59. Section 76.1300 is amended by 

revising paragraph (d) to read as follows:

§ 76.1300 Definitions.

* * * * *

(d) Multichannel video programming 

distributor. The term ‘‘multichannel 

video programming distributor’’ means 

an entity engaged in the business of 

making available for purchase, by 

subscribers or customers, multiple 

channels of video programming. Such 

entities include, but are not limited to, 

a cable operator, a BRS/EBS provider, a 

direct broadcast satellite service, a 

television receive-only satellite program 

distributor, and a satellite master 

antenna television system operator, as 

well as buying groups or agents of all 

such entities.

* * * * *

PART 78—CABLE TELEVISION RELAY 

SERVICE

■ 60. The authority for part 78 continues 

to read as follows:

Authority: Sections 2, 3, 4, 301, 303, 307, 

308, 309, 48 Stat., as amended, 1064, 1065, 

1066, 1081, 1082, 1083, 1084, 1085; 47 U.S.C. 

152, 153, 154, 301, 303, 307, 308, 309.

■ 61. Section 78.1 is revised to read as 

follows:

§ 78.1 Purpose. 

The rules and regulations set forth in 

this part provide for the licensing and 

operation of fixed or mobile cable 

television relay service stations (CARS) 

used for the transmission of television 

and related audio signals, signals of 

standard and FM broadcast stations, 

signals of BRS/EBS fixed stations, and 

cablecasting from the point of reception 

to a terminal point from which the 

signals are distributed to the public by 

cable. In addition CARS stations may be 

used to transmit television and related 

audio signals to TV translator and lowpower TV stations.

■ 62. Section 78.5 is amended by 

revising paragraph (j) to read as follows:

§ 78.5 Definitions.

* * * * *

(j) Other eligible system. A system 

comprised of microwave radio channels 

in the BRS/EBS spectrum (as defined in 

subpart M of part 27 of this chapter) that 

delivers multichannel television service 

over the air to subscribers.

■ 63. Section 78.11 is amended by 

revising paragraph (a) to read as follows:

§ 78.11 Permissible service. 

(a) CARS stations are authorized to 

relay TV broadcast and low-power TV 

and related audio signals, the signals of 

AM and FM broadcast stations, signals 

of BRS/EBS fixed stations, and 

cablecasting intended for use by one or 

more cable television systems or other 

eligible systems. LDS stations are 

authorized to relay television broadcast 

and related audio signals, the signals of 

AM and FM broadcast stations, signals 

of BRS/EBS fixed stations, cablecasting, 

and such other communications as may 

be authorized by the Commission. 

Relaying includes retransmission of 

signals by intermediate relay stations in 

Federal Register / Vol. 69, No. 237 / Friday, December 10, 2004 / Rules and Regulations 72047

the system. CARS licensees may 

interconnect their facilities with those 

of other CARS, common carrier, or 

television auxiliary licensees, and may 

also retransmit the signals of such 

CARS, common carrier, or television 

auxiliary stations, provided that the 

program material retransmitted meets 

the requirements of this paragraph.

* * * * *

■ 64. Section 78.13 is amended by 

removing paragraph (e), redesignating 

paragraph (f) as paragraph (e) and 

revising paragraph (d) to read as follows:

§ 78.13 Eligibility for license.

* * * * *

(d) Licensees and conditional 

licensees of channels in the BRS/EBS 

band as defined in § 27.5(i) of this 

chapter, or entities that hold an 

executed lease agreement with a BRS/

EBS licensee or conditional licensee.

* * * * *

PART 79—CLOSED CAPTIONING AND 

VIDEO DESCRIPTION OF VIDEO 

PROGRAMMING

■ 65. The authority for part 79 continues 

to read as follows:

Authority: 47 U.S.C. 151, 152(a), 154(i), 

303, 307, 309, 310, 613.

■ 66. Section 79.1 is amended by 

revising paragraph (d)(7) to read as 

follows:

§ 79.1 Closed captioning of video 

programming.

* * * * *

(d) * * * 

(7) EBS programming. Video 

programming transmitted by an 

Educational Broadband Service licensee 

pursuant to part 27 of this chapter.

* * * * *

PART 101—FIXED MICROWAVE 

SERVICES

■ 67. The authority citation for part 101 

continues to read as follows:

Authority: 47 U.S.C. 154, 303.

§ 101.101 [Amended]

■ 68. Section 101.101 is amended by 

removing the entry of ‘‘2150–2160 MHz’’

frequency band.

§ 101.147 [Amended]

■ 69. Section 101.147 is amended by 

removing the entry of ‘‘2150–2160 MHz’’

frequency band in paragraph (a), and by 

removing and reserving paragraphs (e) 

and (g).

[FR Doc. 04–26830 Filed 12–9–04; 8:45 am] 

BILLING CODE 6712–01–P