Federal Register / Vol. 62, No. 215 / Thursday, November 6, 1997 / Rules and Regulations 60025

of the demand and appropriate current

or former GSA employee(s). In

proceedings in which GSA, its current

or former employees, or the United

States are represented by DOJ the

determination shall be coordinated with

DOJ, which may respond to the issuer

of the subpoenas or demand in lieu of

the Appropriate Authority.

§ 105–60.606 Procedure where response

to demand is required prior to receiving

instructions.

(a) If a response to a demand is

required before the Appropriate

Authority’s decision is issued, a GSA

attorney designated by the Appropriate

Authority for the purpose shall appear

with the employee or former employee

upon whom the demand has been made,

and shall furnish the judicial or other

authority with a copy of the instructions

contained in this subpart. The attorney

shall inform the court or other authority

that the demand has been or is being

referred for the prompt consideration by

the Appropriate Authority. The attonery

shall respectfully request the judicial or

administrative authority to stay the

demand pending receipt of the

requested instructions.

(b) The designated GSA attorney shall

coordinate GSA’s response with DOJ’s

Civil Division or the relevant Office of

the United States Attorney and may

request that a DOJ or Assistant United

States Attorney appear with the

employee in addition to or in lieu of a

designated GSA attorney.

(c) If an immediate demand for

production or disclosure is made in

circumstances which preclude the

appearance of a GSA or DOJ attorney on

the behalf of the employee or the former

employee, the employee or former

employee shall respectfully make a

request to the demanding authority for

sufficient time to obtain advice of

counsel.

§ 105–60.607 Procedure in the event of an

adverse ruling.

If the court or other authority declines

to stay the effect of the demand in

response to a request made in

accordance with § 105–60.606 pending

receipt of instructions, or if the court or

other authority rules that the demand

must be complied with irrespective of

instructions by the Appropriate

Authority not to produce the material or

disclosure the information sought, the

employee or former employee upon

whom the demand has been made shall

respectfully decline to comply, citing

these instructions and the decision of

the United States Supreme Court in

United States ex rel. Touhy v. Ragen,

340 U.S. 462 (1951).

§ 105–60.608 Fees, expenses, and costs.

(a) In consultation with the

Appropriate Authority, a current

employee who appears as a witness

pursuant to a demand shall ensure that

he or she receives all fees and expenses,

including travel expenses, to which

witnesses are entitled pursuant to rules

applicable to the judicial or

administrative proceedings out of which

the demand arose.

(b) Witness fees and reimbursement

for expenses received by a GSA

employee shall be disposed of in

accordance with rules applicable to

Federal employees in effect at the time.

(c) Reimbursement to the GSA for

costs associated with producing

material pursuant to a demand shall be

determined in accordance with rules

applicable to the proceedings out of

which the demand arose.

Dated: October 28, 1997.

David J. Barram,

Administrator.

[FR Doc. 97–29061 Filed 11–5–97; 8:45 am]

BILLING CODE 6820–34–M

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Parts 1, 21 and 74

[MM Docket No. 97–217; FCC 97–360]

MDS and ITFS Two-Way

Transmissions

AGENCY: Federal Communications

Commission.

ACTION: Proposed rule.

SUMMARY: In this Notice of Proposed

Rulemaking (‘‘NPRM’’), the Commission

seeks comment on the proposed

amendment of its rules to enable

Multipoint Distribution Service

(‘‘MDS’’) and Instructional Television

Fixed Service (‘‘ITFS’’) licensees to

engage in fixed two-way transmissions.

The Commission seeks comment on its

proposals to enhance the flexibility of

MDS and ITFS operations through

facilitated use of response stations, use

of booster stations with program

origination capability in a cellular

configuration, and use of variable

bandwidth (‘‘subchanneling’’ or

‘‘superchanneling’’). Comment is sought

regarding the technical, procedural and

economic effects of implementing the

proposed rule changes.

DATES: Comments must be filed on or

before December 9, 1997, and reply

comments on or before January 8, 1998.

Written comments by the public on the

Initial Regulatory Flexibility Analysis

are due December 9, 1997.

ADDRESSES: Office of the Secretary,

Federal Communications Commission,

1919 M Street, N.W., Washington, D.C.

20554.

FOR FURTHER INFORMATION CONTACT:

Michael J. Jacobs, (202) 418–7066 or

Dave Roberts, (202) 418–1600, Video

Services Division, Mass Media Bureau.

SUPPLEMENTARY INFORMATION: This is a

synopsis of the Commission’s Notice of

Proposed Rulemaking, MM Docket No.

97–217, adopted October 7, 1997, and

released October 10, 1997. The full text

of this NPRM is available for inspection

and copying during normal business

hours in the FCC Reference Center

(Room 239), 1919 M Street, N.W.,

Washington, D.C., and also may be

purchased from the Commission’s copy

contractor, International Transcription

Services, Inc., (202) 857–3800, 1231

20th Street, N.W., Washington, D.C.

20036.

Synopsis of Notice of Proposed

Rulemaking on MDS and ITFS TwoWay Transmissions

1. This NPRM was issued in response

to a petition for rulemaking filed by a

group of 111 educators and participants

in the wireless cable industry

(collectively, ‘‘Petitioners’’), comprised

of MDS and ITFS licensees, wireless

cable operators, equipment

manufacturers, and industry consultants

and associations. In this proceeding,

Petitioners are asking that we

implement a series of technical rule

changes that would give MDS and ITFS

licensees the needed flexibility to fully

exploit digital technology in delivering

two-way communications services.

Currently, MDS and ITFS licensees are

authorized to use digital technology in

order to increase the number of usable

one-way channels available to them,

leased ITFS frequencies and MDS

channels may be used for asymmetrical

high speed digital data applications so

long as such usage complies with the

Commission’s technical rules and its

declaratory ruling on the use of digital

modulation by MDS and ITFS stations

(‘‘Digital Declaratory Ruling,’’ 11 FCC

Rcd 18839 (1996)), and MDS licensees

have been permitted to provide two-way

service on a limited basis. While 125

kHz response channels are currently

allocated for use in association with

most MDS and ITFS stations, Petitioners

anticipate that many MDS and ITFS

licensees and wireless cable operators

engaging in two-way transmissions will

require more capacity for return paths

than is available through such 125 kHz

channels. Moreover, because these 125

kHz response channels must be

individually licensed under the
60026 Federal Register / Vol. 62, No. 215 / Thursday, November 6, 1997 / Rules and Regulations

Commission’s existing rules, Petitioners

argue that the existing rules are too

cumbersome and impose too great a

financial burden on licensees seeking to

implement two-way wireless services.

Instead, Petitioners propose a system

under which MDS and ITFS licensees

would be permitted to utilize all or part

of a 6 MHz channel for return path

transmissions from subscriber premises,

to cellularize their transmission systems

to take advantage of spectrally efficient

frequency reuse techniques, and to

employ modulation schemes consistent

with bandwidths either larger or smaller

than 6 MHz, all while providing

incumbent MDS and ITFS licensees

interference protection equivalent to

what they currently receive.

2. Petitioners emphasized that they

are not seeking a reallocation of

spectrum, but instead are seeking to

modify the technical rules governing the

spectrum already allotted to MDS and

ITFS. We placed the petition for

rulemaking on public notice, and

received comments and reply comments

from wireless cable industry

participants that generally supported

Petitioners’ proposals. While many ITFS

commenters expressed concern over the

details of Petitioners’ proposals, the

comments and reply comments reflected

a consensus in the MDS and ITFS

communities that the concept of twoway offerings would greatly aid both

services. We believe that several of

Petitioners’ proposals may be in the

public interest in that they would

enhance the MDS and ITFS services by

providing licensees additional

flexibility in order to implement twoway services. Such flexibility would be

facilitated by changing certain of our

technical rules, amending some of our

programming rules, and modifying some

of our current application procedures

for MDS and ITFS facilities. The NPRM

seeks comment on the various issues

raised by these proposals, and puts forth

some counter-proposals to those

proffered by Petitioners.

3. Revised Definitions of Service. The

ITFS/MDS spectrum is used primarily

for the provision of either one-way

video service to students, in the ITFS

context, or, in the MDS context, wireless

cable service to subscribers, which

likewise historically has constituted

primarily the provision of one-way

video services. While our Rules already

permit MDS licensees to provide nonvideo services, under our current

regulatory scheme, MDS operators

typically only provide two-way service

to subscribers using telephone return

links or individually licensed subscriber

premises stations. This is an outgrowth

of the basic one-way approach to MDS

transmission from which our current

rules originated.

4. We propose changes to MDS and

ITFS service definitions to fully

incorporate the concept of two-way

transmission and which reflect the

reorientation of the regulatory approach

to a flexible service, from that of an

essentially one-way service. A

regulatory system would be created

authorizing the use of response stations

and response station hubs to enable the

two-way operation of wireless cable

systems. We solicit comment on this

new service paradigm.

5. Specifically, we propose to amend

the definition of a ‘‘response station’’ to

indicate that licensees may use all or

part of any of their 6 MHz channels as

a response channel. Response stations

would be the means of transmission

from a subscriber’s premises, and could

use either separate transmitting

antennas for return paths or combined

transmitting/receiving antennas. The

concept of a response station hub is

added, and these hubs would serve as

the collection points for signals from the

response stations in a multipoint-topoint configuration for upstream signal

flow. Thus, response stations would not

need to be licensed individually, and

they could operate at lower power

because the response station hubs

would be located closer to subscriber

premises than are current transmitter

sites. Commenter Caritas

Telecommunications, Inc. (‘‘Caritas’’)

proposed that we limit the availability

of response channels to MDS channels

1, 2 and 2A, converting those channels

from their current use for point-tomultipoint transmissions to subscribers’

homes to use for transmission return

paths. We tentatively decline to adopt

this counter-proposal and agree with

Petitioners that it would both artificially

limit the amount of spectrum that could

be used for return paths and

unnecessarily prevent ITFS licensees

from using their own channels for

return paths. We solicit comment on the

response station hub concept and its

implications. We also solicit comments

on our proposals regarding the

expanded definition of response

stations, including provision for

transmissions on all available MDS and

ITFS channels, and on Caritas’ counterproposal.

6. We further propose to amend the

definition for ‘‘signal booster stations’’

to allow such stations to originate

transmissions, as well as to relay

transmissions from other stations.

Booster stations would be used to

cellularize wireless cable operations,

which now may operate in areas too

large to be served by a single station.

Permitting boosters to originate as well

as relay programming would facilitate

frequency reuse cellular configurations

and two-way high speed Internet access

and other services. We seek comment on

the proposal to expand the role of

booster stations in this manner. Flexible

subchannelization (i.e., the division of a

channel of a particular bandwidth into

multiple channels of smaller

bandwidth) also would be permitted to

allow more efficient channel reuse

within a given service area, and

superchannelization (i.e., the combining

of more than one channel into a single,

wider channel) would be allowed and

could be used for the transmission of

high data rates and/or the use of spread

spectrum emissions. Superchannels also

would be licensed to multiple entities in

many instances, due to the fact that the

interleaved, non-contiguous channels in

this band generally are licensed to

different entities.

Subchannels and superchannels

would be limited to digital

transmissions with uniform spectral

power density across the bandwidth, in

order to make possible the use of

spectral density analysis as part of the

interference analysis process. We seek

comment on these channelization

proposals.

7. Finally, as noted above, 125 kHz

channels are currently allocated as

response channels for use in association

with most MDS and ITFS stations, and

as such they would provide further

capacity as return paths in the

cellularized two-way scheme. In their

Comments, Petitioners add that the

Commission should also permit the use

of the 125 kHz channels for point-tomultipoint transmissions. Petitioners

explain that for systems using digital

technologies, there is a need to transmit

downstream control signals over side

channels that require less than a full 6

MHz channel, for instance for control

over digital set top decoders or control

over two-way communication systems.

Petitioners maintain that use of the 125

kHz channels for such applications is

beneficial in that it preserves the 6 MHz

channels for transmissions that require

greater bandwidth, and it can lead to

reduced equipment costs. Petitioners

also propound that to further offer

flexibility to create channels with

bandwidths exceeding 125 kHz, the

Commission should remove the current

rule provisions which require that the

125 kHz channels only be used in

conjunction with their associated 6 MHz

channels. While also proposing that the

125 kHz channels be used for additional

point-to-multipoint spectrum, Caritas

goes a step further than Petitioners,

advancing that the Commission should
Federal Register / Vol. 62, No. 215 / Thursday, November 6, 1997 / Rules and Regulations 60027

reallocate the 125 kHz channels to be

combined into one continuous piece of

spectrum to be used for such purposes.

We are proposing rules in accordance

with the most flexible framework

ultimately requested by Petitioners for

use of the 125 kHz channels, including

allowing superchannelization or

subchannelization of these stations

regardless of whether they are used as

response stations or for point-tomultipoint transmissions. We believe

that these changes are sufficient to

derive the benefits explained by

Petitioners, and that a reallocation and

the complications associated with that

is not necessary. We solicit comment on

these proposals regarding use of the 125

kHz channels.

8. Interference Considerations. In the

Digital Declaratory Ruling, we waived

our rules with respect to out-of-band

emissions and permitted the use of a

somewhat relaxed spectral mask for

digital transmission modes. This action

was taken because the Commission

concluded that the application of the

current analog emission mask to digital

emissions would be unnecessarily

restrictive and could increase the cost of

digital equipment while providing no

benefit. In addition, the results of

laboratory tests submitted in connection

with the Commission’s consideration of

this issue demonstrated that a digital

station using the relaxed mask is less

likely to cause interference than an

analog station using the existing, more

restrictive, mask.

9. In the NPRM, we propose to

permanently incorporate into the Rules

the spectral mask waiver provisions of

the Digital Declaratory Ruling,

specifically for primary system

transmitters and single channel booster

transmitters with a power greater than

¥9 dBW EIRP; masks are further

specified, albeit with certain

modifications, for sub-and

superchannels, response stations, and

booster stations transmitting on

multiple non-contiguous channels

carrying separate signals and with an

EIRP greater than ¥9 dBW (‘‘broadband

boosters’’). As an exception to the

spectral masks for the 125 kHz

channels, discrete spurious emissions

above the upper and below the lower

authorized channel edges would be

permitted under certain conditions. And

Petitioners request that no spectral mask

whatsoever be applicable to booster

stations with an EIRP of ¥9 dBW or

less. Petitioners argue that such low

power stations have only a very limited

potential for interference, and that

applying strict emission limitations to

them would significantly increase the

price of equipment with no benefit to

the user or nearby licensees in terms of

added interference protection. We seek

comment on whether the degree of

attenuation proposed for these various

schemes is sufficient to provide

adequate adjacent channel interference

protection. We also request comment on

whether eliminating a spectral mask for

low power boosters presents an undue

interference risk, and, if so, which

additional interference safeguards

should be adopted.

10. As in the Digital Declaratory

Ruling, all spectral mask calculations

involving digital emissions will use the

average power of the emission across its

bandwidth, and steps must be taken to

ensure substantially uniform power

density across the bandwidth in use,

including constant power per unit of

bandwidth for sub-and superchannels.

We also propose to place a limit of 18

dBW EIRP on response station

transmitters in cellularized systems, and

that higher power facilities be

authorized separately and require a site

specific interference analysis. Given the

extremely complex interference

situation attendant to cellularized

operations and the heavily encumbered

nature of MDS and ITFS environments,

we do not believe that it would be

prudent to permit essentially unlimited

numbers of response station transmitters

with 2000 watts (33 dBW EIRP) of

radiated power, as Petitioners requested.

However, while current MDS and ITFS

rules limit booster power to 18 dBW

EIRP, we propose to allow boosters to

operate up to 33 dBW EIRP, the

maximum power level for MDS and

ITFS. We seek comment on this

approach to transmitter power within

the two-way scheme. We also seek

comment on rule proposals with respect

to frequency tolerance requirements for

digital transmissions, type acceptance of

response station transmitters and

boosters, and radio frequency (‘‘RF’’)

emissions for MDS/ITFS return path

transmissions.

11. The Commission’s current

regulations in ITFS and MDS for

interference protection were designed to

minimize the potential for destructive

cochannel and adjacent channel

interference between systems located in

proximity to each other. The specific

criteria for protection are of two forms,

namely, (1) cochannel and adjacent

channel desired-to-undesired signal (D/

U) ratios and (2) limits on the

magnitude of a station’s free space field

as measured at the edge of the station’s

protected service area. For cochannel

interference protection, an applicant

must configure its system so that the

signals from each of its transmitters are

at least 45 dB weaker than the signals

of the existing licensee’s transmitters

within the licensee’s protected service

area and/or, in the case of ITFS

licensees, at the licensee’s protected

receiver sites. For adjacent channel

protection, the ratio must be at least 0

dB. In order to meet the second form of

protection, an applicant generally must

be able to demonstrate that the

magnitude of the free space radiated

field from each transmitter does not

exceed a particular limit (i.e., a power

flux density ¥73 dBW/m2) at the

boundary of the applicant’s service area.

12. Petitioners propose to apply the

existing interference criteria in

essentially unchanged form, and to

supplement them with similar new

criteria to be applied to hub, booster,

and response stations. Petitioners

further propose to aggregate the power

from a primary station and all

associated booster stations for one set of

interference calculations, and that a

separate set of interference calculations

be performed using the aggregated

power from response stations. However,

we counter-propose that a calculation of

the combined field produced by the

primary station transmitter, all boosters,

and the aggregated power from response

stations within a system be utilized to

determine compliance with interference

standards. We seek comment on the

relative merits of Petitioners’ proposed

approach and our counter-proposal. We

also emphasize that where an interferedwith receive antenna meets the antenna

characteristics set forth in our MDS and

ITFS rules, the station causing the

harmful interference is responsible for

curing it.

13. Interference Prediction

Methodology. In order to predict the

interference potential of response

stations in the proposed cellularized

scheme, Petitioners seek to employ a

three-step process using statistical

analysis and worst-case assumptions. In

step one, the hub station response

service area (‘‘RSA’’) is defined and a

grid of points is located within this area

representative of the expected actual

distribution of response station

transmitters within the area. Regions

within the area are defined so that an

adequate population uniformity exists

for purposes of predicting interference

from a distribution of response station

transmitters. Population uniformity is

determined using a complex formula

involving evaluation of the population

density within each ZIP Code within the

planned boundaries of a region.

Population uniformity is an important

facet of each region because Petitioners

assume, a priori, that the distribution of

response station transmitters will be
60028 Federal Register / Vol. 62, No. 215 / Thursday, November 6, 1997 / Rules and Regulations

closely matched to population

distribution within each region.

14. In step two, Petitioners propose to

identify the technical characteristics of

response stations which will be

associated with each point in the RSA

grid. One or more classes of response

stations would be identified within the

RSA and its regions, with each class

being a function of several variables,

such as transmitted power (EIRP),

antenna height, frequency, bandwidth,

and maximum number of assumed

simultaneously operated response

stations in the regional class; these

characteristics and others would be

specified in the response hub

application. Differentiating between

classes is asserted by Petitioners to be

essential for accurately calculating the

interference potential of the response

stations within an RSA, because

differentiable technical characteristics

between classes likely will lead to

differentiable potentials for causing

interference to neighboring systems.

15. The final step in calculating

response station interference would

require combining the radiated fields of

all response stations of all classes,

regions and RSAs within the primary

station’s protected service area. In order

to simplify this calculation, the

statistical population uniformity within

each region would be used as a basis for

grouping response stations of all classes

in proximity at the grid points laid out

within each RSA; multiple classes could

share the same grid points. For each

class of response stations assigned to a

grid point, a set of worst-case

assumptions would be made concerning

the transmitting antenna radiation

pattern, transmitter power (EIRP) and

antenna height. Several complex

calculations, including procedures for

checking the initial calculations,

combining the radiated field for all of

the transmitters for each class of

response station at each grid point from

all RSAs would then be used to evaluate

compliance with the interference

criteria. Thus, whereas under current

rules such compliance is calculated on

a per-transmitter basis, Petitioners’

proposed system would necessitate that

it be calculated on an aggregated basis,

covering hundreds or thousands of

transmitters and their combined

interference potential to neighboring

systems. Petitioners argue that licensees

should be free, upon notification to the

Commission, to continue adding

response station transmitters within

their systems until calculations indicate

that permissible interference values

would be exceeded, and that using

worst-case assumptions in their

methodology has built in an interference

protection buffer for situations where

more stations or a different mix of

stations than anticipated are activated in

an RSA.

16. In the NPRM, we caution that the

interference prediction methodology is

based solely on assumptions, thus

leading to a statistical picture of

response station interference potential

which gives an uncertain approximation

of the operating environment, although

Petitioners also claim that this

approximation is conservative. In

addition, we discuss how the small

scale test conducted by Petitioners in

the flat and relatively unimpeded

terrain of Tucson, AZ, while useful, may

not be generally applicable to the very

diverse geographical and interference

environments in which MDS and ITFS

systems operate. We also express

concern that the proposed methodology

is so complex that it may be very

difficult to implement and enforce, and

may lead to numerous filings updating

system configurations, which would

present severe burdens upon existing

licensees and operators needing to

analyze these filings in order to verify

that no harmful interference will result

to their systems. Notwithstanding these

reservations, however, we express our

belief that Petitioners’ overall goal of

facilitating cellularization of the

services is very forward-looking, and

warrants an opportunity to proceed

despite the complications and

uncertainties which could arise. Thus,

we propose to adopt the methodology

and seek comment on it, but we also

specifically solicit suggestions for

alternative methods for prediction of

interference to and from cellularized

systems. For example, we ask to what

extent ‘‘worst case’’ analysis could serve

a sufficient approximation to a more

exact analysis, such as a determination

of noninterference based solely on

terrain shadowing, and to what

geographical extent individual response

station areas should be aggregated in

large BTAs.

17. Modulation Methods. In the

Digital Declaratory Ruling, we

authorized the use of Quadrature

Amplitude Modulation (‘‘QAM’’) and

Vestigial Sideband (‘‘VSB’’) modulation.

While we declined to consider the use

of other digital modulation methods in

the context of that proceeding, we stated

that we would consider future requests

for declaratory rulings where the

requesters submit appropriate data to

demonstrate that other modulation

techniques could be used in a manner

that would not interfere with MDS and

ITFS analog and digital operations. In

the current rulemaking proceeding, Pace

Telecommunications Consortium

(‘‘Pace’’) commented that the

Commission should immediately grant

ITFS and MDS licensees the flexibility

to use whatever digital techniques best

serve their needs, with interference

controlled through the use of power

spectral density limits and spectral

masks.

18. As in the Digital Declaratory

Ruling, in the NPRM we decline to

adopt one or more ‘‘standard’’ digital

technologies. We will retain or add

provisions for accommodating the use of

different modulation types, as requested

by Petitioners. In addition, because we

wish to encourage parties to continue to

identify different digital modulation

schemes that could be useful in MDS

and ITFS, we emphasize that we remain

open to considering future requests for

declaratory rulings in accordance with

the Digital Declaratory Ruling, upon

submission of appropriate data. We

further invite comment on whether

there is a basis for concluding that use

of particular digital modulation types by

MDS and ITFS stations other than VSB

and QAM would not be prone to

interference, based on the current 45

dB/0 dB protection ratios for cochannel

and adjacent channel interference

respectively, i.e. that such modulation

formats should be permitted without

requiring test data. For example, one

modulation type may be a subset of VSB

and QAM and, therefore, is covered

under the industry tests used to support

the Digital Declaratory Ruling.

19. Application Procedures.

Petitioners set forth an application

processing scheme, governing the filing

of applications for new or modified

response station hubs or boosters, that

would substantially shift review of

applications from Commission staff and

leave much of the interference

environment to be worked out among

licensees. Petitioners propose that we

adopt a rolling, one-day filing window

system. While each applicant would be

required to demonstrate protection of

existing or previously proposed

facilities, all acceptable applications

filed on the same day would be granted

and the filers left to resolve

incompatibilities amongst themselves

with little or no intervention by

Commission staff. Specifically,

Petitioners propose that applications

would be placed on public notice

without prior staff review of

interference studies, and that the

applications would be automatically

granted on the 61st day after that notice

unless a petition to deny was filed or

the Commission notified the applicant

prior to that date that a grant would not

be made.
Federal Register / Vol. 62, No. 215 / Thursday, November 6, 1997 / Rules and Regulations 60029

20. Petitioners speculate that a large

number of applications are likely to be

filed once the new rules become

effective and that many of the

applications submitted at that time will

conflict with others filed

simultaneously. In order to smooth the

transition to the rolling one-day filing

window application processing system,

Petitioners propose that a special oneweek window be employed when the

new rules first go into effect, and that all

applications filed during this window

be deemed filed as of the same day.

Following the publication of a public

notice announcing the tendering for

filing of applications submitted during

that window, applicants would have a

period of 60 days to amend their

applications to resolve conflicts. During

this 60-day period, no additional

applications could be filed, affording

those who filed during the one-week

window an opportunity to resolve any

conflicts without fear that, during the

pendency of settlement discussions,

third parties will propose facilities that

will have to be protected if the original

applicants amend their applications.

After this initial 60 day period, public

notice and automatic grant procedures

akin to those proposed by Petitioners for

the rolling one-day filing windows

would be implemented. Following

Petitioners’ plan, on the 61st day after

the publication of the second public

notice, applications for authorizations

for response station hubs and for booster

stations henceforth would be accepted

and processed under the rolling one-day

filing window approach.

21. Although we tentatively accept

Petitioners’ proposal to place the

applications on public notice without

prior staff review of the interference

studies, we tentatively reject their

proposal for automatic grant of the

applications. We believe that placing

the applications on public notice

without prior interference analysis will

serve to speed the review process by

making the relevant data available to all

interested parties as quickly as possible.

However, we believe that an automatic

grant at the end of the proposed 60 day

public notice period will not provide an

adequate opportunity for interested

parties or, where necessary, for

Commission staff, to review the

interference studies or for the

Commission to make a reasoned

determination in complex cases. We

solicit comment on our conclusions.

22. In addition, while Petitioners’

proposal in this area presents a

promising start, it still leaves a number

of concerns and questions unresolved.

Commenter Catholic Television

Network (‘‘CTN’’) raised the concern

that the one-day rolling filing window

will create an undue burden on ITFS

licensees, who may find themselves

required to evaluate a continuing stream

of applications. We solicit comment on

how such a concern could be resolved

in the context of the one-day rolling

filing window. We also solicit comment

on whether we should retain our current

periodic filing window system used for

ITFS applications and what advantages

and disadvantages exist between the

existing system and the proposed

system. Furthermore, Petitioners’

proposal leaves a number of significant

questions unresolved regarding the

processing of conflicting applications.

For example what should be the result

in the event that same-day filers of

closely-spaced conflicting applications

cannot resolve their differences? Should

the applicants be ordered into binding

arbitration for which they will assume

the cost and whose outcome will be

finally subject to Commission approval?

Should the Commission simply freeze

the applications until the parties are

able to resolve their differences? Should

the Commission’s staff function as a

referee in such cases and, if so, should

it adopt any sort of comparative criteria

to guide its decisions? Should the staff

adopt some type of point system to rate

competing applicants? We seek

comment on these questions.

23. We tentatively propose the

following processing rules, taking into

consideration the concerns of the

various commenters. Under these rules,

applicants would file an original and

two copies of their system proposal and

serve a copy of the proposal on any

party whose MDS/ITFS interests may be

affected by the proposal. A complete

application would then be placed on

public notice for a 60-day initial

comment period. Prior to the expiration

of the 60-day period, interested parties

could file comments, petitions to deny

or requests for extension of time to file

comments or petitions to deny.

Although it is our policy that requests

for extension of time shall not be

granted, and we do not propose to

change that policy, we anticipate that

the limited resources available to an

ITFS party to review a potentially

complex two-way service proposal will

be a factor considered in whether we

grant a request for extension of time. In

the alternative, we would consider

adopting a 120-day initial comment

period, with requests for extensions of

time considered only in extraordinary

circumstances. We seek comment on

these proposals and solicit detailed

alternate proposals. We especially seek

comment on what time period parties

believe would be necessary to

adequately review a service proposal

without unduly delaying the processing

of such a proposal.

24. We believe that the adoption of

the one-week initial filing window will

lessen the burden on all affected parties,

including the Commission’s staff,

during the first round of application

filing. We also believe that providing

parties with an initial 60-day period

during which they can resolve any

apparent conflicts and then amend their

applications without prejudice will

provide for quicker and easier

processing. We believe that issuing a

public notice announcing the

acceptance for filing of all applications

as amended will serve an important

notice function for all potentially

affected parties. As discussed above,

however, we do not propose to accept

Petitioners’ automatic grant proposal.

Rather than adopt Petitioners’ proposed

automatic grant, we tentatively

conclude that, at the end of any

comment period that we may adopt and

following any further staff review, the

Commission staff, pursuant to delegated

authority, would issue a grant or denial

of any authorization pursuant to the

revised rules. If no oppositions have

been filed in a particular proceeding

and the Commission staff has

determined that a service proposal

would not cause interference in

violation of our Rules, we anticipate

that such a grant would be

accomplished quickly. We seek

comment on both our proposed

approach and on Petitioners’ proposed

automatic grant.

25. We also solicit comment on ways

to make information on actual system

operating parameters available to thirdparty applicants who need such

information for analysis of the

interference environment, and on how

to conform our MDS and ITFS rules to

provide for amendment of booster

station and response station hub

applications. Finally, in their

Comments, Petitioners urge that we

adopt a system whereby an applicant,

once authorization for service has been

granted, may switch from common

carrier to non-common carrier service

and back without seeking subsequent

authorization. We seek comment on this

aspect of Petitioners’ proposal, and on

whether operators should be required to

give the Commission notice when they

are switching back and forth between

common carrier and non-common

carrier service, even if prior approval is

not required.

26. Issues Specific to ITFS. Under

§ 74.931 of the Commission’s Rules,

ITFS stations are operated by
60030 Federal Register / Vol. 62, No. 215 / Thursday, November 6, 1997 / Rules and Regulations

educational organizations and are

‘‘intended primarily to provide a formal

educational and cultural development

in aural and visual form,’’ to students

enrolled for credit in accredited

secondary schools, colleges and

universities. An ITFS licensee who

leases excess channel capacity to a

wireless cable operator must provide a

total average of at least 20 hours per

channel per week of ITFS programming

on its authorized channels. ITFS

licensees in such lease arrangements

also retain the right to recapture ‘‘an

average of an additional 20 hours per

channel per week for simultaneous

programming on the number of

channels for which it is authorized.’’ In

addition, an ITFS licensee may shift its

required educational programming onto

fewer than its authorized number of

channels via channel loading or channel

mapping. The licensee may further

agree to transmission of recapture time

on channels not authorized to it but

which are included in the wireless cable

system of which it is a part.

27. Petitioners propose changes which

would revise the absolute 20 hours per

channel per week recapture time

requirement to provide that the ITFS

programming requirements constitute a

total of 40 hours per channel per week,

including both actual programming and

recapture time. The Petition does not

contemplate any changes to the required

minimum of 20 hours per channel per

week of actual ITFS programming.

Thus, under the proposed changes, if an

ITFS licensee actually provides more

than an average of 20 hours per channel

per week of ITFS programming,

reserved recapture time would only

need to make up the difference to

achieve a total of 40 hours per channel

per week. CTN commented that

retaining the 20 hour minimum actual

programming requirement is

inadequate, and insisted that as digital

compression increases the number of

channel paths, there must be a

proportionate increase in the number of

paths available for education, including

data services. In their reply, Petitioners

claimed that many ITFS licensees are

finding it difficult to satisfy the existing

ITFS minimum programming

requirements. Petitioners further posed

that adoption of CTN’s proposal would

create a disincentive for ITFS licensees

to introduce the new technologies

contemplated by the Petition. We solicit

comment from ITFS licensees on these

comments. In the NPRM, we find no

grounds for retreat from the absolute 20

hour recapture time requirement,

especially at this juncture when several

wireless cable systems currently enjoy

or imminently stand to reap the benefits

of increased spectrum capacity through

use of digital compression techniques.

While we acknowledge the great value

to wireless cable operators of

maximization of spectrum available for

leasing, we also emphasize the primary

educational purpose of ITFS and the

importance of maintaining sufficient

capacity for programming by ITFS

licensees which fulfills that purpose.

28. In the NPRM, we specifically seek

comment on several issues related to the

question of whether to change our ITFS

programming requirements in light of

the use of digital technology by ITFS

licensees. Should there be different

rules depending on whether the

wireless cable system employs digital

transmissions? Should a change take the

form of an increase in required levels of

actual ITFS programming, an increase in

ready recapture time, or both? How

should any increased requirements be

measured, e.g., additional hours or

additional paths? With the flexibility in

implementation of ITFS programming

requirements currently allowed or

proposed, such as channel loading and

shifting of required programming onto

other channels within a wireless cable

system, should we retain our existing

program content requirements and, if

not, how should they be modified? For

example, should data transmission

count towards minimum ITFS

programming requirements? Should

voice transmission count? If data and/or

voice transmission were to count, how

would they be measured with respect to

fulfillment of minimum ITFS

programming requirements? Should

time-of-day requirements be instituted

for these uses to help ensure that they

are really being put towards ITFS

programming? Furthermore, should

counting one or both of them have an

effect on the amount of actual

programming or ready recapture time

required? We also invite comment on

whether education-related uplink

transmissions should be applied

towards satisfaction of minimum ITFS

programming requirements. While we

note our initial impression that counting

uplink transmissions will be overly

complicated and impractical, given the

anticipated multitudes of response

stations and the difficulty in predicting

or tracking exactly when they are being

used for educational purposes, we

nonetheless welcome suggestions on

how they would be measured with

respect to fulfillment of minimum ITFS

programming requirements.

29. Petitioners anticipate that system

developers will attempt to utilize

contiguous 6 MHz channels for two-way

services in order to minimize the

amount of spectrum that would be lost

to the proposed spectral mask whenever

a return path is adjacent to a downlink

channel. Furthermore, entire ITFS

channel groups may need to be devoted

for return paths. Thus, Petitioners

propose that we allow ITFS licensees to

satisfy their programming requirements

on other channels within the wireless

cable system. This proposal would be

the next step in a progression of rule

changes, following our allowance of

channel mapping and channel loading,

that have afforded ITFS licensees

increased flexibility in the

implementation of their minimum

programming requirements. Because

this proposal would enhance the twoway scheme, and because it would not

call for any dilution or elimination of

minimum ITFS programming

requirements, we are considering

implementing it. The flexibility that the

suggested changes would accord to ITFS

licensees to lease their channel capacity,

along with the maintenance of

minimum ITFS programming

requirements, could also encourage

educators to apply for new ITFS stations

and lead to more educational

programming. Several commenters put

forth ideas for refinements to this

proposal. Arizona State Board of

Regents, et al. (‘‘Arizona’’) suggested

that each ITFS licensee be required to

preserve at least one downstream video

channel, and that the Commission

institute a procedure whereby it would

routinely grant applications by ITFS

licensees to exchange individual ITFS

channels between channel groups.

Instructional Telecommunications

Foundation, Inc. (‘‘Foundation’’) would

require that each ITFS licensee devote at

least half of its capacity for downstream

use. Schwartz, Woods & Miller

(‘‘SWM’’) prompted the Commission to

facilitate the ‘‘trading’’ of channels

between the ITFS and MDS bands.

30. Several of the ITFS commenting

parties expressed concern that the

proposed two-way scheme presents

threats to the independence of ITFS

licensees and their future ability to use

spectrum capacity for instructional

purposes. Pace, for instance, cautioned

that because the Petition proposes a

massive shift towards industry control

over ITFS applications, the Commission

must ensure that individual ITFS

licensees ‘‘do not lose their freedom of

choice’’ over the use of their channels,

through coercion by neighboring

licensees or strong wireless cable

operators. However, CharlotteMecklenburg Public Broadcasting

Authority (‘‘CMPBA’’), an ITFS licensee,

took the view that the proposed rules
Federal Register / Vol. 62, No. 215 / Thursday, November 6, 1997 / Rules and Regulations 60031

adequately protect the interests of ITFS

entities, primarily because the rules do

not obligate ITFS licensees to take part

in the two-way system, enter into a lease

agreement, file FCC applications, or

accept harmful signal levels. Some of

the concerned ITFS commenting parties

focused on the effect that the proposed

rules may have on the engineering

autonomy of ITFS licensees. Arizona

posed the question of what would

happen if an excess capacity agreement

comes to an end, and the ITFS licensee

has previously converted its channels to

two-way use and has shifted some or all

of its programming onto other channels

in the wireless cable system. Similarly,

CTN asked what the impact of

cellularization of a market would be on

one or more ITFS licensees within it

who elect not to cellularize, as well as

whether a single ITFS licensee who

strives to cellularize its operations

would be dependent on other licensees

in the market.

31. In the NPRM, we emphasize that

cellularization by ITFS licensees would

be permissive only, and not mandatory.

We particularly seek comment on the

effects of allowing complete flexibility

in the number of channels ‘‘turned

around’’ for return paths, and in the

shifting of required ITFS programming

onto other channels in the wireless

cable system and what restrictions, if

any, should be adopted. We also seek

comment on whether we should require

ITFS licensees to retain one or more

channels for downstream transmissions

and the ramifications of such a

requirement. Further, we seek comment

on whether ITFS channel swaps should

only be just between ITFS channels, or

whether ITFS licensees should be able

to swap their spectrum for channels in

the MDS band. We seek additional

comment on specific potential threats to

the engineering autonomy of ITFS

licensees which could result from

institution of the proposed two-way

framework; in conjunction with such

comment, we further seek proposed

solutions. Some proposed solutions

include channel swapping and

reimbursement of costs of channel

changes, upholding that participation of

ITFS licensees in cellularization is not

mandatory, and potentially increasing

reservation of ready recapture time for

ITFS programming. Do any of these

ideas individually, or a combination of

them, provide a sufficient foundation

for meeting the expanding needs of

some ITFS licensees? Commenters are

also encouraged to address the general

question of whether the Commission

should establish solutions by rule, or

whether solutions should be achieved

by contract, as advocated by Petitioners.

32. Several commenters also

addressed the degree of oversight the

Commission should maintain in

regulating the wireless cable industry

and ITFS. In the past, the Commission

has adopted rules and procedures to

accommodate and protect the special

needs of educational institutions and

organizations, believing that educational

institutions should be treated differently

from commercial entities in many

situations due to limited financial and

staff resources. In addition, ITFS

licensees and applicants are required to

file their excess capacity lease

agreements, which are reviewed by the

staff for overly restrictive provisions

affecting the licensee’s rights and

obligations, and compliance with the

Commission’s leasing policies.

33. In order to ensure that educators

retain control of their facilities and to

protect their interests, the Foundation

proposed that the Commission require

that two-way digital applications and

interference consents be reviewed by

legal and engineering counsel that do

not represent commercial interests, and

that these independent advisors ‘‘certify

that in their professional opinion the

submission will not be harmful to future

instructional service.’’ We have

declined in the past to require all

leasing parties to hire separate counsel,

finding this ‘‘safeguard’’ unnecessary

and relying instead on the staff’s review

and monitoring of leases. We see no

reason to change our position on this

issue and seek comment on this issue.

SWM also proposed that in order to

protect the rights of incumbent ITFS

licenses, the Commission require that

leases approved or submitted under the

previous rules ‘‘be amended to make

clear that the wireless cable lessee and

the ITFS licensee have together

considered the rule changes adopted

and made any appropriate changes to

lease terms, prior to the commencement

of commercial operations on the

frequencies using cellularization,

sectorization or differing channelization

plans.’’ Petitioners opposed this

proposal, stating that the parties to the

excess capacity lease agreements, and

not the Commission, are best positioned

to determine whether proposed system

changes require contract revisions.

Accordingly, we seek comment on

SWM’s proposal.

34. We also seek comment on what

impact the proposed rule changes

would have on our requirements

regarding excess capacity lease

agreements. For example, the

Commission consistently has

maintained that an ITFS licensee should

be permitted to purchase the ITFS

equipment necessary to maintain its

operation in the event the lease is

terminated. In addition, we also require

that the licensee maintain ultimate

control over its licensed facilities.

Several commenters have expressed

concern that given the complexity and

cost of Petitioner’s proposal, ITFS

licensees will be unable to sever their

relationship with the wireless cable

operator and acquire the equipment to

either continue cellular operations or

return to non-two-way transmissions.

We particularly seek comment on this

matter and on what type of equipment

MDS lessees of ITFS channels should be

required to make available to the ITFS

licensees upon termination of a lease.

For example, should it only be digital

equipment comparable to that in use on

the system at the time the lease is

terminated or should it be equipment

that would make it possible for the ITFS

licensee to restore analog video

operation, if necessary? Furthermore,

with respect to Petitioners’ proposal that

ITFS licensees be allowed to utilize

their entire channel for return paths and

shift their ITFS programming to other

channels, we request comment on

whether the parties should be required

to file written agreements governing the

ITFS licensee’s lease of an ITFS

programming channel, and whether our

present requirements for excess capacity

leases, including those dealing with

control issues, length of lease, and rights

on termination, should apply.

35. We also revisit our channel

loading rules, and propose to retain

them. We request that interested parties

comment on whether these rules have

been beneficial to ITFS licensees and

wireless cable operators, or whether

they have been detrimental. Because we

believe that they have provided

additional much-needed flexibility to

ITFS licensees and wireless cable

operators, any parties commenting that

these rules have been detrimental

should also focus on solutions to permit

the continued application of them while

rendering them more universally

beneficial. Finally, we also consider

issues related to retention of ITFS call

sign transmission requirements and

accountability of ITFS licensees.

36. In this NPRM, we propose to

amend our rules to give MDS and ITFS

licensees the needed flexibility to fully

exploit digital technology in delivering

two-way communications services.

Growth in the wireless cable industry

has remained slow despite the increased

channel capacity offered by digital

compression and facilitated by the

Digital Declaratory Ruling. Meanwhile,

convergence of different information
60032 Federal Register / Vol. 62, No. 215 / Thursday, November 6, 1997 / Rules and Regulations

1See 5 U.S.C. § 603. The RFA, see 5 U.S.C. § 601

et seq., has been amended by the Contract With

America Advancement Act of 1996, Public Law

104–121, 110 Stat. 847 (1996) (CWAAA). Title II of

the CWAAA is the Small Business Regulatory

Enforcement Fairness Act of 1996 (SBREFA).

2 5 U.S.C. § 601(6).

3 5 U.S.C. § 601(3) (incorporating by reference the

definition of ‘‘small business concern’’ in 15 U.S.C.

§ 632). Pursuant to 5 U.S.C. § 601(3), the statutory

definition of small business applies unless an

agency after consultation with the Office of

Advocacy of the Small Business Administration

and after an opportunity for public comment,

establishes one or more definitions of such term

which are appropriate to the activities of the agency

and publishes definitions in the Federal Register.

4Small Business Act, 15 USC § 632.

5 47 CFR 21.961(b)(1).

6See Amendment of Parts 21 and 74 of the

Commission’s Rules With Regard to Filing

Procedures in the Multipoint Distribution Service

and in the Instructional Television Fixed Service

and Implementation of Section 309(j) of the

Communications Act—Competitive Bidding, MM

Docket No. 94–31 and PP Docket No. 93–253,

Report and Order, 10 FCC Rcd 9589 (1995), 60 FR

36524 (July 17, 1995).

7One of these small entities, O’ahu Wireless

Cable, Inc., was subsequently acquired by GTE

Media Ventures, Inc., which did not qualify as a

small entity for purposes of the MDS auction.

8 13 CFR 121.201.

9See 5 U.S.C. §§ 601 (3)–(5).

delivery systems, including video and

Internet access, is occurring in other

industries, such as cable and DBS. Thus,

one of our primary goals in instituting

this proceeding is to enhance the

competitiveness of the wireless cable

industry. Another of our chief

underlying goals in this proceeding is to

provide benefits to the educational

community through the use of two-way

services, such as high speed Internet

service. Besides proposing to amend our

technical rules to facilitate such usage

over ITFS frequencies, we note that the

growth of wireless cable has led to the

continued development of ITFS by

supporting and funding approximately

95 percent of all new ITFS applicants.

Thus, we believe that enhancing the

competitive viability of wireless cable

service through maximization of

flexibility and service offerings

promotes the underlying educational

purpose of ITFS.

37. This is a permit-but-disclose

notice and comment rulemaking

proceeding. Ex parte presentations are

permitted, except during the Sunshine

Agenda period, provided they are

disclosed as provided in the

Commission’s Rules. See generally 47

CFR 1.1202, 1.1203, and 1.1206(a).

38. For information regarding proper

filing procedures for comments, see 47

CFR 1.415 and 1.419. To file formally in

this proceeding, participants must file

an original and five copies of all

comments, reply comments, and

supporting comments. If participants

want each Commissioner to receive a

personal copy of their comments, an

original plus ten copies must be filed.

Comments and reply comments will be

available for public inspection during

regular business hours in the FCC

Reference Center (Room 239) at the

Federal Communications Commission,

1919 M Street, N.W., Washington, D.C.

20554.

39. Authority. This NPRM is issued

pursuant to authority contained in

Sections 4(i) and (j), 301, 303(g) and (r),

and 403 of the Communications Act of

1934, as amended, 47 U.S.C. §§ 154(i),

154(j), 301, 303(g), 303(r), and 403.

Initial Regulatory Flexibility Analysis

As required by the Regulatory

Flexibility Act (RFA),1 the Commission

has prepared this present Initial

Regulatory Flexibility Analysis (IRFA)

of the expected significant economic

impact on small entities by the policies

and rules proposed in this Notice of

Proposed Rulemaking in MM Docket

No. 97–217 (‘‘NPRM’’). Written public

comments are requested on this IRFA.

Comments must be identified as

responses to the IRFA and must be filed

by the deadlines for comments on the

NPRM provided above. The Commission

will send a copy of the NPRM, including

this IRFA, to the Chief Counsel for

Advocacy of the Small Business

Administration (SBA). See 5 U.S.C.

§ 603(a). In addition, the NPRM and

IRFA (or summaries thereof) will be

published in the Federal Register. See

id.

Need for, and Objectives of, the

Proposed Rules

The Commission is instituting this

rulemaking to determine whether, and if

so, how, to amend its rules to promote

the ability of MDS and ITFS licensees to

provide two-way digital services. The

objective of this proceeding is to

encourage the efficient use of the

spectrum allotted to MDS and ITFS by

simplifying our current two-way

licensing system and providing greater

flexibility in the use of the allotted

spectrum where such flexibility would

best serve the needs of the public. In

addition, we intend to enhance the

competitiveness of the wireless cable

industry and the resultant choices

available to consumers, and to increase

Internet access for educational

institutions and their students via ITFS

frequencies.

Legal Basis

Authority for the action proposed in

this proceeding may be found in

Sections 4(i) and (j), 301, 303(g) and (r),

and 403 of the Communications Act of

1934, as amended, 47 U.S.C. Sections

154(i), 154(j), 301, 303(g), 303(r), and

403.

Description and Estimate of the Number

of Small Entities to Which the Proposed

Rules Will Apply

The RFA generally defines ‘‘small

entity’’ as having the same meaning as

the terms ‘‘small business,’’ ‘‘small

organization,’’ and ‘‘small business

concern.’’ 2 In addition, the term ‘‘small

business’’ has the same meaning as the

term ‘‘small business concern’’ under

the Small Business Act.3 A small

business concern is one which: (1) is

independently owned and operated; (2)

is not dominant in its field of operation;

and (3) satisfies any additional criteria

established by the SBA.4

MDS

The Commission has defined ‘‘small

entity’’ for the auction of MDS as an

entity that, together with its affiliates,

has average gross annual revenues that

are not more than $40 million for the

preceding three calendar years.5 This

definition of a small entity in the

context of MDS auctions has been

approved by the SBA.6 The Commission

completed its MDS auction in March

1996 for authorizations in 493 basic

trading areas (BTAs). Of 67 winning

bidders, 61 qualified as small entities.7

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, which includes all

such companies generating $11 million

or less in annual receipts.8 This

definition includes multipoint

distribution systems, and thus applies to

MDS licensees and wireless cable

operators which 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. We tentatively

conclude that for purposes of this IRFA,

there are approximately 892 small MDS

providers as defined by the SBA and the

Commission’s auction rules, and some

of these providers may be impacted by

the outcome of this NPRM. We seek

comment on this tentative conclusion.

ITFS

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.9 ITFS is a non-pay, non-
Federal Register / Vol. 62, No. 215 / Thursday, November 6, 1997 / Rules and Regulations 60033

10See 13 CFR 121.210 (SIC 4833, 4841, and 4899).

11See, e.g., 47 CFR 21.911.

commercial broadcast 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.10

However, we do not collect, nor are we

aware of other collections of, annual

revenue data for ITFS licensees. Thus,

we tentatively conclude that up to 1932

of these educational institutions are

small entities. We seek comment on this

conclusion.

Description of Reporting,

Recordkeeping and Other Compliance

Requirements

The Commission seeks comment on

proposals to amend its rules to promote

the ability of MDS and ITFS licensees to

provide two-way digital services,

including implementation of simplified

procedures governing application for,

and authorization of, booster stations

and response station hubs. Because the

proposed rule changes would enable

licensees to apply for and receive

authorizations for new types of booster

stations and for response station hubs,

certain commensurate new reporting

and recordkeeping obligations would

follow as part of this process, though the

nature of the obligations and the MDS

and ITFS rules directly addressing

them 11 would remain the same. At the

same time, however, the proposed rule

changes would make the overall

licensing process for two-way digital

services much less cumbersome than

the current process, which requires

individual licensing of each response

station and booster station. In the

NPRM, we request comment on whether

we should increase ITFS programming

requirements, and if so, in which way

and to what degree. While the proposed

two-way scheme would result in more

complicated interference analysis

requirements for MDS and ITFS entities

seeking to establish or modify service,

regardless of whether the entities

themselves choose to engage in fixed

two-way transmissions, these

interference safeguards are necessary to

promote the objectives of this

proceeding. We seek comment on these

conclusions and how we can modify

any proposed new requirements so as to

reduce the burden on small entities and

still meet the objectives of this

proceeding.

Steps Taken to Minimize Significant

Economic Impact on Small Entities, and

Significant Alternatives Considered

As described in the NPRM, in

response to a March 31, 1997 Public

Notice soliciting comment on the

Petition, several of the ITFS

commenting parties express concern

that the proposed two-way scheme

presents threats to the independence of

ITFS licensees and their future ability to

use spectrum capacity for instructional

purposes. Pace, for instance, cautions

that because the Petition proposes a

massive shift towards industry control

over ITFS applications, the Commission

must ensure that individual ITFS

licensees ‘‘do not lose their freedom of

choice’’ over the use of their channels,

through coercion by neighboring

licensees or strong wireless cable

operators. Other commenting ITFS

parties, however, do not perceive such

a threat. For instance, CMPBA believes

that the proposed rules adequately

protect the interests of ITFS entities,

primarily because the rules do not

obligate ITFS licensees to take part in

the two-way system, enter into a lease

agreement, file FCC applications, or

accept harmful signal levels.

Nevertheless, in order to find solutions

that would allay the concerns of some

ITFS licensees, in the NPRM we seek

suggestions on ways to provide

maximum flexibility in usage of ITFS

channels while ensuring that capacity is

reserved for downstream ITFS

programming, pose the question of

whether solutions should be established

by rule or by contract and what role the

Commission or other third parties

should play in reviewing excess

capacity lease agreements, and confirm

that cellularization by ITFS licensees

would be permissive only, and not

mandatory.

CTN raises the concern that

Petitioners’ one-day rolling application

filing window plan and automatic grant

proposal will create an undue burden

on ITFS licensees who may find

themselves required to evaluate a

continuing stream of applications. We

solicit comment on how such a concern

could be resolved in the context of a

one-day rolling filing window or

whether we should retain a periodic

filing window system. Furthermore, we

tentatively reject the automatic grant

component of Petitioners’ application

processing proposal, and instead

propose a ‘‘comment period’’ of 60 or

120 days, after which applications

would be processed pursuant to current

procedures. In proposing the comment

period alternative, we acknowledge the

complexity of the engineering

information in the response hub or

booster station applications, and the

substantial number of affected parties,

particularly ITFS licensees, that

frequently have very limited resources

and that often would not be able to file

a petition against an application before

the application is automatically granted.

Thus, in the NPRM, we particularly

solicit comment from small ITFS

operators. Similarly, we express concern

that the proposed interference

prediction methodology is so complex

that it may lead to numerous filings

updating system configurations, which

would present considerable burdens

upon existing licensees and operators

needing to analyze these filings. We

therefore solicit suggestions for other

possible prediction methodologies.

In some instances, a proposed rule

will impact different classes of small

entities in different ways. For instance,

in considering whether to increase ITFS

programming requirements, including

ready recapture time, we acknowledge

in the NPRM the balance which

underlies the existence and substance of

the ready recapture provisions of 47

CFR 74.931(e): the great value to

wireless cable operators of

maximization of spectrum available for

leasing, and the importance of

maintaining sufficient capacity for

programming by ITFS licensees which

fulfills the primary educational purpose

of ITFS. We decline to retreat from the

current recapture time requirements of

§ 74.931(e), but we solicit comment in

the NPRM on whether we should adopt

any changes to the number of hours

required for ready recapture by ITFS

licensees.

Other proposals, tentative

conclusions, or questions that we pose

in the NPRM are designed to minimize

the impact on all small entities

involved. For example, we tentatively

reject Caritas’ proposal to limit the

availability of response channels to

MDS channels 1, 2, and 2A, because it

would both artificially limit the amount

of spectrum that could be used for

return paths and unnecessarily prevent

ITFS licensees from using their own

channels for return paths, while

providing no interference protection

benefits that cannot be derived in other

ways.

CTN and SWM both put forth

procedural suggestions for this

proceeding. CTN proposes that rather

than proceeding with the instant

rulemaking, we pursue a negotiated

rulemaking procedure and convene a

federal advisory committee to evaluate

Petitioners’ proposals and work out the

most effective method to implement

them. CTN asserts that this would

provide substantial, useful information

and facilitate the process initiated by

Petitioners. We believe that the instant

rulemaking process will provide us with

sufficient information to adequately
60034 Federal Register / Vol. 62, No. 215 / Thursday, November 6, 1997 / Rules and Regulations

1 Implementation of the Pay Telephone

Reclassification and Compensation Provisions of

the Telecommunications Act of 1996, CC Docket

No. 96–128, Report and Order, 61 FR 52307

(October 7, 1996), 11 FCC Rcd 20,541 (1996),

(‘‘Report and Order’’); Order on Reconsideration, 61

FR 65341 (December 12, 1996), 11 FCC Rcd 21,233

(1996)(’’Order on Reconsideration’’) (together the

‘‘Payphone Orders’’).

2See Report and Order, 11 FCC Rcd at 20,591,

paras. 98–99; Order on Reconsideration, 11 FCC

Rcd at 21265–66, para. 64, and 21,278–80, paras.

93–99.

3See Order on Reconsideration, 11 FCC Rcd at

21265–66, para. 64, and 21,278–80, paras. 93–99.

4See id.

5Requests were received from the United States

Telephone Association (USTA), the LEC ANI

Coalition and TDS Communications Corporation.

Those petitions have been placed on public notice

for comments. See DA 97–2214, Pleading Cycle

Established for Petitions to Waive Payphone Coding

Digits Requirements, October 20, 1997.

6This waiver does not change the obligations of

LECs pursuant to our requirements in Policies and

Rules Concerning Operator Service Access and Pay

Telephone Compensation, Third Report and Order,

CC Docket No. 91–35, 61 FR 26466 (May 28, 1996),

11 FCC Rcd 17,021 (1996).

evaluate Petitioners’ proposals. In

addition, the need for swift

consideration of these proposals, in

order to enhance the competitiveness of

the wireless cable industry and expedite

educational institutions’ access to the

Internet via ITFS frequencies, may be

defeated by implementing a potentially

lengthy negotiated rulemaking

procedure. Thus, we reject CTN’s

proposal for a negotiated rulemaking at

this time. Should circumstances

warrant, however, we reserve the option

to revisit our decision on this issue at

a later date. Conversely, SWM requests

the issuance of an NPRM in this

proceeding, and noting that many of the

parties which filed comments in the

initial round of this proceeding are ITFS

entities, requests an early Fall comment

date in light of the academic schedules

which predominate amongst these

entities. The comment period that we

establish here, therefore, should

enhance the ability of ITFS entities to

file carefully considered comments and

reply comments. We solicit comment in

the NPRM on other substantive and

procedural alternatives to adoption of

the proposed two-way digital

transmission scheme.

Federal Rules that Overlap, Duplicate

or Conflict With the Proposed Rule

None.

List of Subjects

47 CFR Part 1

Environmental impact statements

47 CFR Part 21

Communications common carriers,

Communications equipment, Reporting

and recordkeeping requirements,

Television.

47 CFR Part 74

Communications equipment,

Education, Reporting and recordkeeping

requirements, Television.

Federal Communications Commission.

William F. Caton,

Acting Secretary.

[FR Doc. 97–29346 Filed 11–5–97; 8:45 am]

BILLING CODE 6712–01–P

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Part 64

[CC Docket 96–128; DA 97–2162]

Pay Telephone Reclassification and

Compensation Provisions of the

Telecommunications Act of 1996

AGENCY: Federal Communications

Commission.

ACTION: Final rule; petition for waiver.

SUMMARY: On October 7, 1997, the

Common Carrier Bureau granted, on its

own motion, a limited waiver of five

months, until March 9, 1998, to those

local exchange carriers and payphone

service providers that cannot provide

payphone-specific digits as required by

orders in this proceeding. This limited

waiver applied to the requirement that

local exchange carriers provide

payphone-specific coding digits to

payphone service providers, and that

payphone service providers provide

coding digits from their payphones

before they can receive per-call

compensation from interexchange

carriers for subscriber 800 and access

code calls, and 0+ and inmate calls. The

limited waiver recognized that three

parties had filed petitions for waiver of

the payphone-specific coding digit

requirements.

EFFECTIVE DATE: October 7, 1997.

FOR FURTHER INFORMATION CONTACT: Rose

Crellin or Greg Lipscomb, Formal

Complaints and Information Branch,

Enforcement Division, Common Carrier

Bureau. (202) 418–0960.

SUPPLEMENTARY INFORMATION: A toll-free

call transmitted by a local exchange

carrier (LEC) to an interexchange carrier

(IXC) carries with it billing information

codes, called automatic number

identification (ANI), supplied by the

LEC that assist the IXC in properly

billing the call. Currently, however, not

all payphone calls carry the payphonespecific coding digits necessary to

identify the calls as payphone calls,

making per-call tracking and blocking

more difficult.

In the Payphone Orders,1 we imposed

a requirement that LECs provide

payphone-specific coding digits to

payphone service providers (PSPs), and

that PSPs provide those digits from their

payphones before the PSPs can receive

per-call compensation from IXCs for

subscriber 800 and access code calls.2 In

the Order on Reconsideration, we

clarified that, to be eligible for per-call

compensation beginning October 7,

1997, payphones are required to

transmit specific payphone coding

digits as a part of their ANI, which will

assist in identifying payphones to

compensation payers.3 Each payphone

must transmit coding digits that

specifically identify it as a payphone,

and not merely as a restricted line.4 We

also clarified that by October 7, 1997,

LECs must make available to PSPs, on

a tariffed basis, such coding digits as a

part of the ANI for each payphone.

We have received three requests for a

waiver of the payphone-specific coding

digit requirements.5 Meanwhile, we

have granted, on our own motion,

pursuant to § 1.3 of our rules, a limited

waiver, until March 9, 1998, of the

payphone-specific coding requirement

for those LECs and PSPs not yet able to

provide transmission of such digits.

Those LECs and PSPs that are able to

transmit the required coding digits by

October 7, 1997, remain obligated to do

so. Similarly, the remaining LECs and

PSPs are obligated to transmit the

required coding digits as soon as they

are technically capable, but in any event

no later than March 9, 1998.

During the period between October 7,

1997, and March 9, 1998, payphones

appearing on the LEC-provided lists of

payphones will be eligible for per-call

compensation even if they do not

transmit payphone-specific codes. This

waiver of the requirements applicable to

LECs and PSPs will provide LECs, IXCs,

and PSPs with additional time that the

record indicates is necessary to

implement the procedures needed to

transmit payphone-specific coding

digits, without further delaying the

payment of per-call compensation

required by section 276 of the Act.6