Federal Register / Vol. 60, No. 79 / Tuesday, April 25, 1995 / Rules and Regulations 20241

Management Act of 1976, 43 U.S.C.

1714 (1988), it is ordered as follows:

1. Subject to valid existing rights, the

following described public lands are

hereby withdrawn from settlement, sale,

location, or entry under the general land

laws, including the United States

mining laws (30 U.S.C. Ch. 2 (1988)),

but not from leasing under the mineral

leasing laws, to protect the significant

historic and recreational values along

Galice Creek:

Willamette Meridian

Revested Oregon and California Railroad

Grant Lands

T. 34 S., R. 8 W.,

Sec. 35, S1⁄2SE1⁄4SE1⁄4.

T. 35 S., R. 8 W.,

Sec. 2, lots 7 to 14, inclusive, and lots 16,

17, and 19, N1⁄2SW1⁄4NE1⁄4, SE1⁄4NW1⁄4,

and NW1⁄4SW1⁄4;

Sec. 3, SE1⁄4NE1⁄4SE1⁄4 and E1⁄2SE1⁄4SE1⁄4.

The areas described aggregate 290.02 acres

in Josephine County.

2. The withdrawal made by this order

does not alter the applicability of those

public land laws governing the use of

the lands under lease, license, or permit,

or governing the disposal of their

mineral or vegetative resources other

than under the mining laws.

3. This withdrawal will expire 20

years from the effective date of this

order unless, as a result of a review

conducted before the expiration date

pursuant to Section 204(f) of the Federal

Land Policy and Management Act of

1976, 43 U.S.C. 1714(f) (1988), the

Secretary determines that the

withdrawal shall be extended.

Dated: April 4, 1995.

Bob Armstrong,

Assistant Secretary of the Interior.

[FR Doc. 95–10081 Filed 4–24–95; 8:45 am]

BILLING CODE 4310–33–M

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Part 74

[MM Docket No. 93–24, FCC 95–51]

Experimental, Auxiliary, and Special

Broadcast and Other Program

Distributional Services; ITFS Filing

Window

AGENCY: Federal Communications

Commission.

ACTION: Final rule.

SUMMARY: This Report and Order adopts

a window filing procedure for the

processing of applications for new

Instructional Television Fixed Service

(ITFS) stations and major changes to

existing stations. It further adopts rules

affecting the four-channel rule, receive

site interference protection, the

protected service area, and other aspects

of ITFS operation. The Report and Order

responds to the comments received in

response to the Notice of Proposed

Rulemaking in this proceeding. Notice

of Proposed Rulemaking in MM Docket

No. 93–24, (Notice), Order and Further

Notice of Proposed Rulemaking in MM

Docket No. 93–24 (Further Notice). The

action is required to hasten ITFS and

wireless cable service to the public by

streamlining the processing of ITFS

applications.

EFFECTIVE DATE: Upon approval of the

Office of Management and Budget of a

modified FCC Form 330 to effectuate the

modifications approved in this Report

and Order. The FCC will published a

document announcing the effective date

in the Federal Register when OMB

approval is imminent.

FOR FURTHER INFORMATION CONTACT:

Paul R. Gordon, Mass Media Bureau,

Policy and Rules Division, (202) 739–

0773.

SUPPLEMENTARY INFORMATION: This is a

summary of the Commission’s Report

and Order in MM Docket No. 93–24,

adopted and released on February 7,

1995. The complete text of this Report

and Order is available for inspection

and copying in the FCC Reference

Center (room 239) at the Federal

Communications Commission, 1919 M

St., NW, Washington, DC 20554, and

may also be purchased from the

Commission’s copying contractor,

International Transcription Service, at

(202) 857–3800, 2100 M St., NW, Suite

140, Washington, DC 20037.

Synopsis of Report and Order

1. By this Report and Order, the

Commission adopts rules that will

increase the efficiency of our processing

of applications for new ITFS stations,

major amendments to such applications,

and major changes to existing stations.

The Commission also considers

additional proposals intended to

increase the efficiency, and curtail

potential abuse, of the application

processes.

2. During the past decade, applicants

for new ITFS stations or major changes

in existing stations have been subject to

an A/B cut-off procedure. This

procedure involves placing the first

application(s) accepted for filing and

determined to be substantially complete

on a public notice called an ‘‘A’’ cut-off

list. This list notifies the public that the

application has been accepted and gives

interested parties 60 days to file

competing applications or petitions to

deny. An applicant placed on the ‘‘A’’

cut-off list is required to make any major

changes to its proposal before the end of

the ‘‘A’’ cut-off period. After the ‘‘A’’

period expires, the staff places all

substantially complete applications

which were filed during that period and

found to be mutually exclusive with any

listed ‘‘A’’ application on a ‘‘B’’ list.

This list notifies the public that the

specified applications have been

accepted for filing, and it provides 30

days for the filing of petitions to deny

or minor amendments to those

applications.

3. The telecommunications

environment has changed substantially

since 1985, when the Commission

instituted this procedure. Also, in more

than 90% of recently filed applications,

ITFS licensees plan to lease their excess

channel capacity to wireless cable

operators, who almost always pays for

the construction of the ITFS facilities.

These changes have fostered a

substantial increase in the rate of

applications filed for new ITFS stations

or major changes in existing stations,

creating a significant backlog of

applications. Therefore, in the Notice of

Proposed Rulemaking in this

proceeding, 58 FR 12011 (March 2,

1993), we proposed a filing window

procedure for the acceptance of

applications, to allow us to better

control the flow of applications and to

improve processing efficiency.

4. Pursuant to our proposal, we would

accept applications for new facilities

and applications for major changes in

existing facilities only during limited

periods (or ‘‘windows’’). We would

place applications filed in the window

that were not mutually exclusive with

any other application, and that were

found to be acceptable for filing, on a

proposed grant list. We would then

provide the immediately following 30

days for the submission of petitions to

deny. Uncontested applications would

then be granted, if in the public interest.

With regard to mutually exclusive

applications, we would similarly give

30-day Public Notice for the submission

of petitions to deny. Thereafter, we

would evaluate those applications

under the existing comparative selection

process. Any applications currently

tendered but not yet placed on an ‘‘A’’

cut-off list would be treated as having

been filed and cut off as of the close of

the first filing window.

5. Currently, simply to allow the

release of an ‘‘A’’ cut-off list, each

application must undergo a substantive

engineering analysis upon filing. No

applications are granted or denied in

this stage of processing. Subsequently,

after the ‘‘B’’ cut-off period, each
20242 Federal Register / Vol. 60, No. 79 / Tuesday, April 25, 1995 / Rules and Regulations

application undergoes a second

technical analysis in order to determine

whether it is grantable. Because each of

these analyses requires significant

resources, eliminating the duplicative

step would substantially improve

processing efficiency.

6. The Commission concludes that a

window filing system, as enhanced by

an electronic filing and processing

system as proposed in our outstanding

MDS rulemaking proceeding, 59 FR

63743 (Dec. 9, 1994), would serve the

public interest. A window filing

procedure would allow us to better

control the flow of applications and it

would prevent speculators from filing

against applicants that had appeared on

an ‘‘A’’ cut-off list.

7. A 60-day Public Notice period

before each filing window will provide

potential applicants adequate notice and

opportunity to prepare their

applications. As most commenters

observe, this is the same period within

which parties currently have to file an

application in response to an ‘‘A’’ cutoff list. The window shall remain open

for at least five business days. This

period, when combined with the 60-day

public notice, will provide all potential

applicants time to prepare their

applications.

8. Potential inefficiencies caused by

the submission of a large number of

applications during a national (as

opposed to a regional) window are

significantly diminished by our likely

adoption of the electronic filing system

for ITFS applications. A regional

window would unfairly require

educators not located within the

relevant area to delay their educational

plans. Finally, a national window will

allow all interested parties to commence

or continue their ITFS and MDS plans

as soon as possible. This will provide

the certainty of an imminent filing

opportunity to all wireless cable

entities, not just those within a

restricted geographic area.

9. Frequency. Some commenters

support a fixed schedule, arguing that

this would allow educators to plan their

proposals in advance of the Public

Notice. They also advocate the nondiscretionary opening of a window at

least once each quarter, asserting that

frequent filing periods are necessary to

avoid unduly delaying the licensing of

ITFS facilities that are essential to the

growth of the wireless cable industry.

However, we have never before utilized

a window filing system with ITFS, and

we therefore believe that we should take

a more cautious approach as we

structure the window filing system. The

rate of the submission of applications

could vary significantly in the future,

and a fixed requirement could quickly

and unpredictably become

counterproductive or impracticable to

meet. Also, we intend to open filing

windows as frequently as is consistent

with our goals of efficient and

expeditious processing.

10. Amendments. Some commenters

propose that, after a filing window

closes, the Commission should prohibit

amendments that demonstrate

eligibility, improve comparative

standing, or seek rule waivers.

Currently, they claim, many applicants

impose an unnecessary burden on the

Commission by filing such

amendments, such as requests for

waiver of the four-channel-per-market

rule, § 74.902(d) of the Commission’s

rules, 47 CFR 74.902(d).

11. We agree that amendments that

pertain either to improving comparative

standing or to establishing eligibility, as

set forth in §§ 74.913(b) and 74.932(a) of

the Commission’s Rules, respectively,

47 CFR 74.913(b) and 74.932(a) should

not be filed outside the window period.

Similarly, we shall prohibit the filing of

amendments to a facility’s proposed

technical operations, including

amendments to add any receive sites,

outside the window. Such engineering

amendments often require a timeconsuming re-analysis by the staff of the

amendment’s effects on other

applications and thus delay the

processing of all pending applications.

However, with the two exceptions noted

above, such delay is not inherent in

non-engineering amendments, including

requests for waiver of the four-channel

rule, and we will consequently permit

their filing.

12. We make a narrow exception to

the window filing system. NTIA rules

require a party seeking a grant to have

already filed its application with the

Commission, and those requests are

subject to an annual deadline.

Accordingly, in order not to obstruct

these grants, we shall allow the

tendering of applications that rely upon

NTIA funding during the 30 days

preceding the annual deadline. They

shall be considered as having been filed

during the current or immediately

subsequent window, whichever is

appropriate.

13. In response to several

commenters, we decline generally to

exempt the filing of major change

applications from the window filing

process, and, as discussed above, we

similarly decline to exempt

amendments with similar effects. By

definition, such changes can

substantially impact both existing and

proposed facilities. Accordingly, for the

purpose of the window filing procedure,

they should be treated the same as

applications for new facilities. However,

consistent with existing practice, we

shall continue to make a narrow

exception for amendments to pending

applications that would resolve

mutually exclusive applications without

creating any additional interference. We

will accept such amendments at any

time, and we shall provide a 30-day

period for the submission of petitions to

deny those amendments. We believe

that this will most efficiently bring new

or improved service to the public.

Further, to encourage market

settlements, we shall now allow

licensees of existing facilities to submit

at any time applications for major

changes, as long as the changes are

essential components of a settlement

involving mutually exclusive

applications.

14. The Commission declines to adopt

several other exceptions that the

commenters propose. These rules would

significantly disrupt the new window

filing system, while promoting no

public interest that is not already being

served by the filing procedure or other

ITFS rules.

Proposals to Improve the Application

Process

15. As argued by the commenters, and

noted in the Further Notice, the goals of

the proposed window filing procedure

could be maximized if we at the same

time enacted additional rules that

would increase its efficiency. Therefore,

we set forth several proposals, many

initially advanced by the commenters,

that were intended to improve service to

the public or otherwise enhance

processing efficiency. Our analysis of

each of the proposals will be affected by

two factors. First, as noted above, is the

proposed electronic filing and

processing system for ITFS applications,

which would diminish the negative

impact that a large number of

applications has had on our processing

in the past. Second, implementation of

the proposals adopted herein and strict

enforcement of our existing rules will,

we believe, eliminate many of the

inefficiencies and alleged abuses of the

existing processing system.

Financial Qualifications

16. Proposal. Currently, applicants are

required to certify their financial ability

or their reliance upon NTIA funding. In

response to the Notice, two commenters

proposed to require applicants or their

prospective wireless cable lessees to

submit with their applications proof of

their financial ability to construct. In the

Further Notice, 59 FR 35665 (July 13,

1994) we postulated that such a
Federal Register / Vol. 60, No. 79 / Tuesday, April 25, 1995 / Rules and Regulations 20243

requirement might deter a significant

number of ITFS speculators. We also

asked whether we should require

separate financial documentation for

each station applied for, and whether

we should require the wireless cable

lessee to submit the documentation

when it is paying for construction of the

facilities.

17. The record does not indicate that

our reliance on applicant certification

has been ill-placed. Further, we believe

that the submission of detailed financial

information would in practice neither

increase processing efficiency nor deter

abuse. Collecting the data would impose

significant costs on the wireless cable

lessee, regardless of whether the

supporting documents were kept on

hand by the educator or submitted to

the Commission. We believe that a

sound analysis of all of the incoming

detailed financial submissions would

consume a great deal of the staff’s time,

severely slowing the rate of processing.

Conversely, any reliance on the

documents without our own rigorous

independent analysis would enable us

to detect only a small proportion of

potential abuse.

18. A financially unqualified educator

would generally not be able to complete

construction within the prescribed

period. Because that educator would

then need an extension of time within

which to construct, it would have to

submit an appropriate application to the

Commission, explaining the reasons for

its delay in construction. Thus, we

already have a process in place by

which we can monitor and assess ITFS

licensees’ progress in constructing their

authorized facilities and forestall any

dilatory conduct on their part. Should it

become necessary in the future, we can

revise this process accordingly.

Application Caps

19. We now address two proposals,

raised in response to the Notice by the

Educational Parties: (1) To impose a cap

of 25 applications associated with the

same wireless cable entity, including

any entity with direct or indirect

common ownership or control; and (2)

to limit an individual nonlocal ITFS

entity to filing no more than three to

five applications during a window. To

support this restriction, the Educational

Parties argued that nonlocal applicants

often work with wireless cable entities

as frequency speculators. The

overwhelming majority of interested

commenters oppose the adoption of

either type of cap.

20. To suddenly impose limits on the

number of applications that particular

parties may be affiliated with would

slow both ITFS and wireless cable

development. Further, it would

artificially constrain MDS operators’

business decisions as to the number of

ITFS channels needed to establish

economically viable wireless cable

operations. Also, we can deter the

speculation complained of by the less

restrictive process of analyzing

construction extension applications, as

noted above.

Assignment of Unbuilt Facilities

21. In the Further Notice, we

proposed to formalize our current

practice of limiting the allowable

consideration for the assignment of

authorizations for unbuilt ITFS facilities

to out-of-pocket expenses, as we do with

broadcast construction permits. Our

stated goal was to diminish the

incentive of frequency speculators to

submit applications for authorizations

that they intend to later assign for profit.

Every commenter addressing this issue

supports the proposal, agreeing that it

would help deter abuse. We agree that

this limitation, applicable to broadcast

construction permits, will have similar

deterrent effects on frequency

speculation in the ITFS service, and we

shall therefore adopt it.

Excess Capacity Lease Terms

22. Proposal and Comments. Our

existing policy does not authorize an

educator to execute a lease agreement

the term of which extends beyond the

end of the educator’s license term.

Consequently, depending on how many

years remain in the term, there may be

situations in which our policy would

prohibit a lease agreement to extend

beyond one or two years. At most, MDS

operators can have contractual access to

ITFS channels for no more than ten

years, the length of a full license period.

Some commenters propose that we

modify our policy to allow parties to

negotiate lease agreements whose terms

extend beyond the end of the license

term, to demonstrate to potential

investors their long-term channel

access. The proposal is unopposed.

23. Discussion. The wireless cable

industry requires substantial equity

investment in order to become a viable

competitor in the video marketplace.

However, potential financiers are likely

to exercise caution before investing in

an MDS system, where there is

uncertain long-term availability of the

ITFS channels that provide the basic

capacity for that system. Authorizing

lease agreements that extend beyond the

end of the license term would reduce

the anxiety of potential investors that

the MDS entity would shortly lose four

channels, crippling the entire system.

The increased confidence of investors

will significantly accelerate the

development of the wireless cable

industry and provide competition to

wired cable. Hence, we are revising our

policy to permit an educator, if it

chooses, to execute a 10-year lease

agreement without regard to the

duration of the educator’s current

license term. ITFS lease agreements that

extend beyond the end of the license

term must note that such an extension

is contingent on the renewal of the

educator’s license.

Application of the Four-Channel Rule

24. Proposal. We seek to provide as

many educators as possible with the

opportunity to operate ITFS systems

that meet their educational needs.

Consequently, the four-channel

limitation rule generally limits an ITFS

licensee to four channels for use in a

single area of operation. However, we

have never clearly and formally defined

what constitutes an ‘‘area of operation.’’

The Further Notice proposed to adopt

the staff’s informal policy of considering

a single area of operation for this

purpose to extend no farther than 20

miles from the transmitter site. Many

commenters supported such a mileagebased proposal, while others preferred

one based on predicted interference.

25. Discussion. We adopt the 20-mile

standard. Our experience has

demonstrated that this standard is

efficient and easily understood and

implemented. Determining a station’s

area of operation by use of the

interference approach would require a

considerable amount of technical

analysis by the staff. As a consequence,

adoption of this proposal could

inordinately slow processing and delay

service to the public. We recognize that

any mileage standard will be imprecise,

because there will always be educators

that serve sites beyond the designated

distance. However, the bright-line test

we are adopting today has the important

advantage of being easy for applicants to

comprehend and apply. Further, the

Commission staff can process

applications far more efficiently using

this standard. Moreover, staff,

educators, and wireless cable entities

are extremely familiar with this

standard, having utilized it for a number

of years.

Protected Service Areas

26. Proposal. The Further Notice also

solicited comment on a proposed

change in the application of protected

service areas for wireless cable lessees.

Currently, we provide a 15-mile

interference protection for a service area

regardless of receive site locations, but

solely at the request of the ITFS
20244 Federal Register / Vol. 60, No. 79 / Tuesday, April 25, 1995 / Rules and Regulations

applicant or licensee. The Further

Notice observed that an applicant for

new facilities often requests and

receives interference protection that

restricts an existing licensee lacking

such protection from pursuing certain

modifications to its facilities. At the

same time, an existing facility that has

not requested such protection, upon

learning that an application for a nearby

operation has been filed, often requests

interference protection and possibly

obstructs the new applicant. We

therefore proposed to apply interference

protection only prospectively, making it

effective solely with regard to

applications filed after the protection

request. We asked commenters whether

our proposal would sufficiently

diminish the disruption and delay

resulting from the current system. We

also asked commenters to address a

specific application of the proposed

rule: If two applications are (1)

submitted during the same filing

window, (2) otherwise grantable, and (3)

mutually exclusive only because both

applicants request a protected service

area, we proposed to consider them as

mutually exclusive. Most commenters

addressing the proposal express

support.

27. Discussion. We conclude that the

public interest will be served by

adoption of the proposal to apply

protected service area protection only

prospectively. Adoption of the proposal

will diminish disruption to existing and

proposed facilities. Only one

commenter expressed opposition to the

proposed specific application of the rule

involving mutual exclusivity, and we

shall adopt it, with a slight exception.

There is no public interest benefit in

protecting an uninhabitable area. To do

so would needlessly restrict neighboring

facilities, unduly depriving the area of

both ITFS and wireless cable

programming. Thus, if an applicant

shows that interference will occur solely

over water, we shall not consider the

applications to be mutually exclusive.

However, in order to avoid future

conflicting interpretations and

confusion, we will not extend the

exception to cover any area in which no

subscribers or potential subscribers

would be affected by the interference.

Receive Site Interference Protection

28. Proposal. The Commission’s rules

currently provide interference

protection to an educator’s receive sites,

regardless of their distance from the

transmitter. The Further Notice cited

instances in which interference

protection was requested for receive

sites apparently beyond an educational

institution’s reasonable coverage area.

We stated in the Further Notice that

such requests could be an abuse of our

processes, designed to artificially

increase the service area of the wireless

cable lessee. We also opined that

eliminating this practice would

significantly increase the efficiency of

our processing of applications, thereby

hastening service to the public. We

tentatively concluded that an

educational institution is generally

unlikely to reasonably serve a receive

site located more than 35 miles from the

transmitter. Thus, absent a showing of

unique circumstances, we proposed to

protect only those receive sites 35 miles

or less from the transmitter. Further, we

proposed that an applicant not be able

to claim basic eligibility for a license by

use of any receive site more than 35

miles from the transmitter. With regard

to the 35-mile standard generally, the

commenters are nearly evenly divided.

29. Discussion. We acknowledge the

concerns of some commenters that

educators may at times serve receive

sites beyond the proposed boundary. In

fact, however, under the proposed rule,

a licensee could protect two receive

sites that were as far as 70 miles apart,

depending on the location of the

transmitter. Thus, we find that the 35-

mile standard is not unduly restrictive,

and we adopt the proposal as it regards

both interference protection and basic

eligibility for receive sites not more than

35 miles from the transmitter. However,

we will waive the rule for a particular

site if an applicant can demonstrate that

it is located within the educator’s

reasonable coverage area.

Major Modifications

30. Proposal. We turn now to our

proposal to reclassify certain types of

modifications to existing ITFS facilities.

As stated in the Further Notice, we have

classified these as either major or minor,

attaching different procedural rules to

each. In the Further Notice, we

expressed our belief that our

consideration of certain changes as

minor does not realistically take into

account the impact that they would

have on the facilities in question, nearby

facilities, or proposed facilities.

Consequently, we proposed to reclassify

as a major change any application

involving: (1) Any polarization change;

(2) the addition of any receive site that

would experience interference from any

licensee or applicant on file prior to the

submission of the application; (3) an

increase in the EIRP in any direction by

more than 1.5 dB; (4) an increase of 25

feet or more in the transmitting antenna

height; or (5) any change that would

cause interference to any previously

proposed application or existing facility.

We additionally proposed to formalize

our policy of considering proposals to

relocate a facility’s transmitter site by

ten miles or more as a major change. We

also proposed to exempt from the new

rule any change that would resolve

mutually exclusive applications without

creating new frequency conflicts. Most

of the commenters that addressed this

issue generally supported the proposal.

Also, the supporting comments assert

that the adoption of the MDS

modification rules would be desirable,

due to the technical and regulatory

relationship that exists between the two

services.

31. Discussion. Our experience, as

supported by many of the comments,

warrants the need to modify the current

classification system to increase

processing efficiency, and we do not

believe that the reclassification of

certain amendments as major will

diminish processing efficiency. Also,

adoption of the MDS classification

system would not be appropriate. Its

definition of a major change is

significantly broader than that

previously used or now adopted for

ITFS. However, the MDS rolling oneday filing window is structured to

accommodate such an expansive

definition, and it does not significantly

restrict the submission of applications

to change existing facilities. The ITFS

window filing system, on the other

hand, is not compatible with such an

expansive classification that would

needlessly restrict the filing of many

ITFS technical modifications. Thus, we

shall classify as major any application

involving: (1) Any polarization change;

(2) an increase in the EIRP in any

direction by more than 1.5 dB; (3) an

increase of 25 feet or more in the

transmitting antenna height; and (4)

relocation of a facility’s transmitter site

by ten miles or more. We shall,

however, accept such applications at

any time, if their grant would resolve

mutually exclusive applications without

creating new conflicts. Adoption of the

proposal will significantly expedite the

processing of ITFS applications.

32. We do not incorporate into the

new rule two types of changes that we

had earlier listed: (1) The addition of

any receive site that would experience

interference from any licensee or

applicant on file prior to the submission

of the application; and (2) any change

that would cause interference to any

previously proposed application or

existing facility. By eliminating the cutoff system, the window filing system

will prevent parties from requesting

changes that are mutually exclusive

with a tendered but not yet cut-off

application.
Federal Register / Vol. 60, No. 79 / Tuesday, April 25, 1995 / Rules and Regulations 20245

Reasonable Assurance of Receive Sites

33. Proposal. The Further Notice

requested comment on how best to

ensure the accuracy of each applicant’s

list of receive sites. We seek to deter

applicants from listing receive sites that

have in fact not agreed to participate in

the proposed ITFS system. We therefore

proposed requiring a letter of assurance

from the applicant, listing each receive

site’s contact person, title, and

telephone number. Most interested

commenters support a stricter

requirement than we proposed, and two

commenters oppose the proposal in any

form. Supporters argue that for adequate

deterrence, we should require a

verification letter from an authorized

official of each receive site listed in an

application.

34. Discussion. To better ensure the

accuracy of receive site lists submitted

both by local and nonlocal applicants,

we adopt a modified version of the

proposal. Processing efficiency will be

enhanced because the additional data

would allow for rapid confirmation of a

site’s participation. However, requiring

a separate letter of verification from

each receive site would involve the

submission of potentially dozens of

separate letters. We believe, though, that

we can expedite processing to the same

degree on the application form: where

we already ask for information about

each of the applicant’s receive sites, we

shall simply add a column asking for a

contact person’s name, title, and

telephone number. The contact person

should be the person (or one of the

people) responsible for implementation

of the ITFS program at that receive site.

Accreditation of Applicants

35. Proposal. While applicants

seeking to construct a new ITFS station

must indicate their accreditation or that

of the schools or other institutions that

intend to utilize the proposed ITFS

service, we noted in the Further Notice

that the extent to which the specified

receive sites are being utilized by

students from accredited institutions is

not called for. Accordingly, we

proposed to require applicants to state

whether and by whom each listed

receive site is accredited. We also asked

whether having only one proposed

receive site out of many as accredited

defeats the fundamental purpose of

ITFS: To serve the educational needs of

accredited institutions. Thus, we invited

commenters to address whether we

should require a majority of receive sites

to be accredited in order for the

application to be grantable, or if we

should deny interference protection for

any unaccredited receive site. The

proposed changes are generally opposed

by the commenters. Many of them argue

that receive sites are increasingly being

used for distance learning without

regard to whether they are accredited.

36. Discussion. The record does not

demonstrate that serving one accredited

receive site among other unaccredited

receive sites is incompatible with

serving the formal, for-credit

educational needs of students enrolled

at accredited institutions, and we

therefore decline to adopt either

proposal. To do otherwise would

artificially restrict those enrolled

students’ accessibility to formal ITFS

educational programming, while

depriving others of worthwhile

programming, such as in-service

training and instruction in special skills

and safety programs. As most

commenters note, while the essential

purpose of the ITFS service is to provide

formal educational programming to

students enrolled in accredited schools,

colleges and universities, the

Commission has long recognized the

value of transmitting ‘‘other visual and

aural educational, instructional and

cultural material to selected receiving

locations * * *’’ 47 CFR 74.931(a)–(b).

We find no evidence on the record that

persuades us to now significantly alter

the existing relationship between the

provision of formal, for-credit

educational ITFS programming and the

offering of other educational,

instructional, and cultural material,

Indeed, we reaffirm our commitment to

our longstanding objective, one that

permits ITFS licensees to transmit

educational and cultural programs for

use in other than a classroom setting or

to persons other than students enrolled

at accredited institutions. However, we

take this opportunity to modify and

make clearer our requirements regarding

the need for further specification with

respect to the accreditation of the

parties utilizing the proposed ITFS

services.

37. To attain eligibility, an ITFS

applicant must, among other things, be

accredited in its own right and serve its

own students or serve accredited

institutional or governmental

organizations. It has come to our

attention that some applicants

accredited in their own right propose

service only to receive sites which will

not be used by their own students. Such

applicants do not satisfy the eligibility

requirements. They must, therefore, as

Item 3 of Section II in the FCC Form 330

now requires, indicate the name of the

‘‘school/institution’’ it will serve, the

accreditation date and the accrediting

agency or organization. However, we

have found, in processing applications,

that the name of the school or

institution often does not match with

any receive site specified in Section VI

of the Form 330. For ease of processing,

we shall require, for applicants

accredited in their own right and

serving their own students, to identify

in Section II, Item 3(a), the receive sites

in Section VI which fall under their

jurisdiction. For other applicants, that

is, those which are accredited and not

serving their own students and those

applicants which are unaccredited and

establishing their eligibility by serving

accredited institutions, we shall require

that they specify in Section II, Item 3(b),

the receive sites belonging to or being

used by the accredited institution. This

additional information will enable the

staff and all interested parties to

immediately determine the

accreditation status of an applicant.

Other Proposals

38. Offset. The Further Notice

proposed requiring the use of offset

when all affected transmitters are

capable of handling frequency offset

stability requirements. This proposal is

supported by most of the commenters.

However, we believe that voluntary

agreements to utilize frequency offsets

better serve the public interest. The use

of frequency offsets represents a

balancing of the need to prevent cochannel interference with our desire to

allow an increase in the number of

stations in a geographic area. As such,

frequency offsets are not a substitute for

the standard of interference protection,

a desired-to-undesired signal ratio of

45dB, that our technical rules are

designed to ensure. Indeed, the efficacy

of frequency offsets, which is not

universally acclaimed by the

engineering society, is largely

determined by the exigencies of the

situation at hand, requiring affected

applicants and licensees to engage in

cooperative efforts to construct and

adjust their respective technical

operations to successfully avail

themselves of this engineering

technique, if possible. Under these

circumstances, we are not persuaded to

require the mandatory specification of

frequency offsets.

39. Expedited Consideration of

Applications. In the Further Notice, we

asked for comments on the Educational

Parties and WCA’s proposal that we

expedite consideration of certain ITFS

applications in return for the applicant’s

agreeing to an accelerated construction

schedule. The stated purpose was to

rapidly authorize facilities that would

most likely become part of an operating

wireless cable system. Most commenters

are supportive of the proposal, although
20246 Federal Register / Vol. 60, No. 79 / Tuesday, April 25, 1995 / Rules and Regulations

they disagree on the details of its

implementation. Opponents of

expedited consideration argue that it

would not in fact accelerate the

construction of viable MDS systems,

because processing the likely high

number of requests would delay service

to the public. We agree. Rapid

authorization of ITFS facilities is

essential to providing unique

educational programming to greater

numbers of people, and to accelerating

the ability of MDS systems to compete

with wired cable operators. The more

rapid processing sought by the

commenters will likely be achieved by

implementation of the filing window, as

enhanced by the proposed electronic

filing and processing system and the

other modifications adopted in this

proceeding Hence, we do not believe

that adoption of the commenters’

proposal is warranted.

40. FAA Authorization. As mentioned

in the Further Notice, we do not grant

or modify a license until the Federal

Aviation Administration (FAA) has

determined that the proposed

transmitter site and receive sites will

pose no hazard to air navigation. To

prevent needless delay in processing

applications, we proposed to require

applicants to inform the Commission of

the FAA’s determination. The record

clearly supports our belief that

enactment of this policy would speed

processing at minimal cost to

applicants. Therefore, to expedite

processing, we require applicants to

inform the Commission of the FAA’s

determination on a timely basis.

41. Interference Studies. The Further

Notice noted that applicants frequently

make technical claims that lack

adequate supporting data. To address

this problem, we proposed requiring the

submission of terrain profiles and a

quantitative analysis of any additional

signal loss calculated by using the

Longley-Rice propagation model,

Version 1.2.2, in the point-to-point

mode. Most of the commenters that

addressed this issue generally support

the proposal, but advocate various

exceptions to the rule, allowing the use

of less rigorous models under a variety

of circumstances.

42. Based on the information before

us, we shall not adopt the proposal. The

record demonstrates that our concern

will be met by the submission of any

valid profile maps or sufficient data that

takes terrain shielding into account and

supports the validity of each claim,

regardless of whether the study involves

the Model. Also, for each instance

where terrain shielding is relied upon to

protect ITFS facilities, applicants will

be required to submit the quantitative

amount of signal attenuation, in dB,

attributable to terrain shielding. Any

study must use generally acceptable

engineering practices, and applicants

must state the specific model they have

used in their analysis.

43. Construction of Facilities. Some

commenters express concern that the

Commission has extended construction

periods for parties with no intention to

construct. Hence, they request strict

guidelines for granting such extensions.

One proposes decreasing the period

within which an ITFS licensee must

construct its facilities from 18 months to

12 months. It alleges that, if its proposal

were adopted, frequency speculators

would quickly lose their licenses and

their channels would consequently

become available during the next

window. In both cases, however, our

existing rules already address these

matters. We have set forth the

requirements an educator must meet in

order to obtain an extension of time

within which to construct: (1)

Construction is complete and testing of

the facilities has begun; (2) substantial

progress has been made; or (3) reasons

clearly beyond the applicant’s control,

which applicant has taken all possible

steps to resolve, have prevented

construction. We have no specific

evidence that these rules have not

operated sufficiently to prevent abuses

by frequency speculators. Therefore, we

decline to modify the period of time to

construct.

Administrative Matters

A. Regulatory Flexibility Analysis

44. These rules are not major rules for

the purposes of Executive Order 12291

of February 17, 1981. As required by the

Regulatory Flexibility Act, it is hereby

certified that these rules will not have

a significant impact on small business

entities.

B. Final Regulatory Flexibility Analysis

45. Pursuant to the Regulatory

Flexibility Act of 1980, 5 U.S.C. 605, it

is certified that this decision will have

an impact on ITFS stations by

establishing a window filing procedure

for the processing of such applications

and applications for major changes to

existing ITFS stations, and by adopting

rules affecting the four-channel ruleee,

receive site interference protection, the

protected service area, and other aspects

of ITFS operation. As detailed in the full

text of the Report and Order, the

Commission has attempted, wherever

possible within the statutory

constraints, to establish regulations

which, to the extent possible, minimize

the burdens of ITFS stations. The full

text of the Commission’s final regulatory

flexibility analysis may be found in

Appendix A of the full text of this

Report and Order.

C. Ordering Clauses

46. It is ordered that this Report and

Order is adopted.

47. It is further ordered that, pursuant

to authority contained in sections 4(i)

and 303 of the Communications Act of

1934, as amended, 47 CFR 74 is

amended as set forth below. The change

to the rules adopted in this Report and

Order will become effective upon

approval of the Office of Management

and Budget of a modified FCC Form 330

to effectuate the modifications approved

in this Report and Order.

48. It is further ordered that MM

Docket No. 93–24 is terminated.

List of Subjects in 47 CFR Part 74

Television broadcasting, Instructional

television fixed service.

Federal Communications Commission.

William F. Caton,

Acting Secretary.

Rules

Part 74 of title 47 of the Code of

Federal Regulations is amended as

follows:

PART 74—EXPERIMENTAL

AUXILIARY, AND SPECIAL

BROADCAST DISTRIBUTION

SERVICES

1. The authority citation for part 74

continues to read as follows:

Authority: Secs. 4, 303, 48 Stat. 1066, as

amended, 1082, as amended; 47 U.S.C. 154,

303, unless otherwise noted. Interpret or

apply secs. 301, 303, 307, 48 Stat. 1081, 1082,

as amended, 1083, as amended; 47 U.S.C.

301, 303, 307.

2. Section 74.902 is amended by

revising the second sentence of

paragraph (d)(1) to read as follows:

§ 74.902 Frequency assignments.

* * * * *

(d)(1) * * * An area of operation is

defined as the area 20 miles or less from

the ITFS transmitter.* * *

* * * * *

3. Section 74.903 is amended by

adding a new paragraph (a)(5), by

adding a final sentence to paragraph (e),

and by adding a new paragraph (f), to

read follows:

§ 74.903 Interference.

(a) * * *

(5) No receive site more than 35 miles

from the transmitter shall be entitled to

interference protection.

* * * * *
Federal Register / Vol. 60, No. 79 / Tuesday, April 25, 1995 / Rules and Regulations 20247

(e) * * * Such protection shall be

applied solely with regard to

applications filed subsequent to the

request for a protected service area.

(f) With respect to protected service

area proposals, two applications will be

regarded as mutually exclusive if they

are:

(1) Submitted during the same filing

window;

(2) Otherwise grantable;

(3) Mutually exclusive only because

either or both applicants request a

protected service area. However, if an

applicant in such a situation shows that

the resulting interference would occur

solely over water, the applications will

not be considered to be mutually

exclusive.

§ 74.910 [Amended]

4. Section 74.190 is amended by

removing the entry Section 73.3564(a),

(b) Acceptance of applications, and

adding in its place, 73.3597(c)(2)

Procedures on transfer and assignment

applications.

5. Section 74.911 is amended by

revising the third sentence of paragraph

(a)(1), and by revising paragraph (c) to

read as follows:

§ 74.911 Processing of ITFS station

applications.

(a) * * *

(1) * * * A major change for an ITFS

station will be any proposal to add new

channels, change from one channel (or

channel group) to another, change

polarization, increase the EIRP in any

direction by more than 1.5dB, increase

the transmitting antenna height by 25

feet or more, or relocate a facility’s

transmitter site by 10 miles or

more.* * *

* * * * *

(c)(1) New and major change

applications for ITFS stations will be

accepted only on dates specified by the

Commission. Filing periods will be

designated by the Commission in a

Public Notice, to be released not fewer

than 60 days before the commencement

of the filing period. Qualified parties

will have no fewer than 5 business days

within which to submit their

applications. After termination of the

filing period, the Commission shall

release a Public Notice with a list of

applications filed in the window and

provide no fewer than 30 days for the

submission of petitions to deny.

Uncontested applications that are not

mutually exclusive with any other

application or licensed facility, and are

found to be acceptable, shall be granted.

Mutually exclusive applications shall be

evaluated pursuant to the comparative

selection process set forth in § 74.913 as

herein amended.

(2) The requirements of this section

apply to a wireless cable entity

requesting to be licensed on ITFS

frequency pursuant to § 74.990. The

application of such a wireless cable

entity shall be included in the Public

Notice released after the termination of

the filing period.

* * * * *

6. Section 74.913 is amended by

revising the first sentence of paragraph

(d)(1), and adding a new paragraph

(d)(5), to read as follows:

§ 74.913 Selection procedure for mutually

exclusive ITFS applications.

* * * * *

(d) * * *

(1) Enrollment will be considered as

of the last date of the filing window

during which the applications were

filed, as provided by § 74.911(c).* * *

* * * * *

(5) A receive site not receiving

interference protection may not be

utilized by an applicant for tie-breaking

purposes.

* * * * *

7. Section 74.932 is amended by

adding a new paragraph (e), to read as

follows:

§ 74.932 Eligibility and licensing

requirements.

* * * * *

(e) No receive site more than 35 miles

from the transmitter site shall be used

to establish basic eligibility.

* * * * *

8. Section 74.991 is amended by

revising the last two sentences of

paragraph (a) to read as follows:

§ 74.991 Wireless cable application

procedures.

(a) * * * A wireless cable application

for available instructional television

fixed service channels will be subject to

§ 21.914 of this chapter with respect to

other wireless cable applicants, and to

the ITFS window filing period with

respect to instructional television fixed

service applications. All lists of

accepted applications for ITFS

frequencies, regardless of the nature of

the applicant, will be published as ITFS

public notices.

* * * * *

[FR Doc. 95–10024 Filed 4–24–95; 8:45 am]

BILLING CODE 6712–01–M

47 CFR Part 90

[DA95–741]

Inter-Category Sharing of Private

Mobile Radio Services in the 806–821/

851–866 MHz bands

AGENCY: Federal Communications

Commission.

ACTION: Notice of policy.

SUMMARY: The Wireless

Telecommunications Bureau has

imposed a freeze on the filing of new

applications for inter-category sharing

on all private mobile radio service

frequencies in the 806–821/851–866

MHz bands. This action was taken to

ensure the continued availability of

these channels to currently eligible Part

90 applicants not licensed in the

Specialized Mobile Radio (SMR) Service

until the Commission resolves intercategory sharing issues in PR Docket No.

93–144 and PP Docket No. 93–253. This

action will assure the integrity of the

Commission’s licensing process.

EFFECTIVE DATE: April 5, 1995.

FOR FURTHER INFORMATION CONTACT:

Freda Lippert Thyden, Wireless

Telecommunications Bureau, (202) 418–

0627.

SUPPLEMENTARY INFORMATION: This is a

summary of the Wireless

Telecommunications Bureau’s Order,

DA95–741, adopted April 5, 1995, and

released April 5, 1995. The full text of

this Order is available for inspection

and copying during normal business

hours in the Private Wireless Division,

Wireless Telecommunications Bureau,

2025 M Street, Room 5322, Washington,

DC. The complete text may be

purchased from the Commission’s copy

contractor, International Transcription

Service, Inc., 2100 M Street, Suite 140,

Washington, DC 20037, telephone (202)

857–3800.

This will impose no paperwork

burden on the public.

Summary of Order

1. The Wireless Telecommunications

Bureau imposed a temporary freeze on

inter-category sharing of frequencies in

the 806–821/851–866 MHz band

allocated to the Public Safety,

Industrial/Land Transportation (I/LT),

Specialized Mobile Radio (SMR) and

Business Services, in response to a

request by the Association of Public

Safety Communications Officials, Inc.

(APCO). This request was opposed by

the Industrial Telecommunications

Association, Inc. (ITA).

2. APCO asserts that as a consequence

of a Commission-imposed freeze (59

Fed. Reg. 60111 (November 22, 1994))