[Federal Register Volume 66, Number 103 (Tuesday, May 29, 2001)]
[Rules and Regulations]
[Pages 29040-29046]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-13380]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 74

[FCC 01-137]


Implementation of LPTV Digital Data Services Pilot Project

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: This document is intended to implement provisions of the LPTV 
Pilot Project Digital Data Services Act, which requires the Commission 
to implement regulations establishing a pilot project pursuant to which 
specified Low Power Television (LPTV) licensees or permittees can 
provide digital data services to demonstrate the feasibility of using 
LPTV stations to provide high-speed digital data service, including 
internet access, to unserved areas.

DATES: Effective April 27, 2001.

ADDRESSES: Federal Communications Commission, 445 12th Street, SW., 
Washington, DC 20554.

FOR FURTHER INFORMATION CONTACT: Gordon Godfrey, Policy and Rules 
Division, Mass Media Bureau, (202) 418-2120 or Keith Larson, Mass Media 
Bureau at (202) 418-2600.

SUPPLEMENTARY INFORMATION: This is a synopsis of the ``Order'', FCC 01-
137, adopted April 19, 2001, and released April 27, 2001. The text of 
this Order is available for inspection and copying during normal 
business hours in the FCC Reference Center, Room CY-A257, 445 12th 
Street, SW., Washington, DC and may also be purchased from the 
Commission's copy contractor, International Transcription Service (202) 
857-3800, 445 12th Street, SW., Room CY-B402, Washington, DC. The Order 
is also available on the Internet at the Commission's website: http://www.fcc.gov.

Synopsis of Order

I. Introduction

    1. With this Order, we implement the provisions of the LPTV Pilot 
Project Digital Data Services Act (``DDSA''). The DDSA mandates that 
the Commission issue regulations establishing a pilot project pursuant 
to which specified Low Power Television (``LPTV'') licensees or 
permittees can provide digital data services to demonstrate the 
feasibility of using low-power television stations to provide high-
speed wireless digital data service, including Internet access, to 
unserved areas.\1\ As defined by the new law, digital data service 
includes: (1) Digitally-based interactive broadcast service; and (2) 
wireless Internet access.\2\ The DDSA identifies twelve specific LPTV 
stations that are eligible to participate in this pilot project, and 
directs the Commission to select a station and repeaters to be 
determined by the FCC to provide service to specified areas in Alaska.
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    \1\ Public Law 106-554, 114 Stat. 4577 (December 21, 2000), 
Consolidated Appropriations--FY 2001, section 143, amending section 
336 of the Communications Act of 1934, as amended, 47 U.S.C. 336, to 
add new paragraph (h).
    \2\ 47 U.S.C. 336(h)(7).
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    2. The DDSA requires that the Commission promulgate regulations 
with respect to this pilot project by April 20, 2001,\3\ and specifies

[[Page 29041]]

interference and other criteria that the designated LPTV stations must 
meet.\4\ The Commission is not required to use notice and comment rule 
making under 5 U.S.C. 553 to promulgate these regulations and the other 
provisions of that section are also inapplicable.\5\ Further, the DDSA 
specifies that the Commission require quarterly reports from the 
specified LPTV stations participating in the project, including 
information with respect to interference and market success in 
providing digital data service.\6\ In addition, the Commission is 
required to collect fees with respect to the new service.\7\ Finally, 
on June 30, 2001 and on June 30, 2002, the Commission is required to 
submit a report to Congress, under section 143(b) of the new law, 
``evaluating the utility of using low-power television stations to 
provide high-speed digital data service,'' based on the pilot projects.
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    \3\ According to new section 336(h)(3), 47 U.S.C. 336(h)(3):
    Notwithstanding any requirement of section 553 of title 5, 
United States Code, the Commission shall promulgate regulations 
establishing the procedures, consistent with the requirements of 
paragraphs (4) and (5), governing the pilot projects for the 
provision of digital data services by certain low power television 
licensees within 120 days after the date of enactment of LPTV 
Digital Data Services Act. The regulations shall set forth--
    (A) requirements as to the form, manner, and information 
required for submitting requests to the Commission to provide 
digital data service as a pilot project;
    (B) procedures for testing interference to digital television 
receivers caused by any pilot project station or remote transmitter;
    (C) procedures for terminating any pilot project station or 
remote transmitter or both that causes interference to any analog or 
digital full-power television stations, class A television station, 
television translators or any other users of the core television 
band;
    (D) specifications for reports to be filed quarterly by each low 
power television licensee participating in a pilot project;
    (E) procedures by which a low power television licensee 
participating in a pilot project shall notify television broadcast 
stations in the same market upon commencement of digital data 
services and for ongoing coordination with local broadcasters during 
the test period; and
    (F) procedures for the receipt and review of interference 
complaints on an expedited basis consistent with paragraph (5)(D).
    \4\ 47 U.S.C. 336(h)(4).
    \5\ 47 U.S.C. 336(h)(3).
    \6\ 47 U.S.C. 336(h)(5)(C).
    \7\ 47 U.S.C. 336(h)(6).
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II. Discussion

A. Authorization and Filing Requirements

    3. Eligibility. The DDSA specifies twelve LPTV stations eligible to 
participate in the pilot project. These are: KHLM-LP, Houston, Texas; 
WTAM-LP, Tampa, Florida; WWRJ-LP, Jacksonville, Florida; WVBG-LP, 
Albany, New York; KHHI-LP, Honolulu, Hawaii; KPHE-LP (K19DD), Phoenix, 
Arizona; K34FI, Bozeman, Montana; K65GZ, Bozeman, Montana; WXOB-LP, 
Richmond, Virginia; WIIW-LP, Nashville, Tennessee; WSPY-LP, Plano, 
Illinois; and W24AJ, Aurora, Illinois. The DDSA also includes in the 
LPTV stations eligible to participate in the pilot project a station 
and repeaters to be determined by the Federal Communications Commission 
for the sole purpose of providing service to communities in the Kenai 
Peninsula Borough and Matanuska Susitna Borough in Alaska.\8\ We invite 
LPTV stations in these locations to come forward and present their 
proposals to commence such a pilot project. The proposal should be 
submitted in an informal application complying with the requirements 
set out in this Order.
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    \8\ 47 U.S.C. 336(h)(2).
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    4. Services to be provided. The DDSA defines permissible digital 
data services to include: digitally based interactive broadcast service 
and wireless Internet access.\9\ Wireless Internet can be provided on a 
one-way or two-way basis on the LPTV channel and may be portable or 
fixed. The DDSA also provides that the service may be connected to the 
Internet ``via a band allocated to Interactive Video and Data 
Service.'' Use of frequencies for this service, now called 218-219 MHz 
service under part 95, subpart F, must be in accordance with the 
licensing and other rules established for that service. Specifically, 
an entity will be permitted to use 218-219 MHz Service frequencies for 
provision of digital data services pursuant to the DDSA by obtaining a 
218-219 MHz Service license via competitive bidding or by entering into 
an agreement with a 218-219 MHz Service licensee regarding use of its 
spectrum (e.g., through partitioning and/or disaggregation agreements 
under 47 CFR. 95.823).\10\ The DDSA specifically indicates that LPTV 
digital data services may be delivered via multiple transmitters at 
multiple locations. Therefore, we will fashion the requirements for 
this service to allow the authorized LPTV facility to be converted to a 
main base station and to allow additional base stations to be 
authorized as on-channel boosters.
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    \9\ 9 Under 47 U.S.C. 336(h)(2), digital data service includes:
    (A) digitally-based interactive broadcast service; and
    (B) wireless Internet access, without regard to--
    (i) whether such access is--
    (I) provided on a one-way or a two-way basis;
    (II) portable or fixed; or
    (III) connected to the Internet via a band allocated to 
Interactive Video and Data Service; and
    (ii) the technology employed in delivering such service, 
including the delivery of such service via multiple transmitters at 
multiple locations.
    \10\ Permission may be sought under a separate experimental 
authorization under part 5 of the Commission's rules.
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    5. General Requirements. As participants in this pilot program are 
LPTV stations, we believe that the LPTV rules, contained in subpart G 
of part 74 of the Commission's rules, should continue to apply to these 
stations in all respects, except as specified in the statute and in 
this Order. First and foremost, the LPTV stations participating in the 
pilot project will continue to have the secondary regulatory status 
accorded to all other LPTV stations. Thus, for example, the stations 
participating in the pilot project must provide protection from 
interference to all primary uses of the spectrum, including authorized 
full-service TV stations, authorized full-service DTV stations, and 
land mobile service provided on a ``shared-channel'' basis. 
Furthermore, such stations must provide protection to other secondary 
uses that were previously authorized or proposed in pending 
applications relative to the pilot project stations' underlying LPTV 
authorizations. Such other secondary uses include other LPTV stations, 
TV translator stations, and TV booster stations. In addition, 
protection must be afforded pursuant to the existing LPTV rules to 
Class A TV stations. Additionally, except as specified herein, all non-
technical requirements applied to LPTV stations, such as, for example, 
the rules and procedures relating to transfer of LPTV stations, shall 
apply to the stations participating in the pilot project. Any other of 
the Commission's rules that apply to LPTV stations also will apply to 
the participants in the pilot program, except as specified herein.\11\ 
In sum, all rules that apply to LPTV stations will apply to the LPTV 
pilot project stations except as otherwise specified herein.
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    \11\ These include, but are not limited to the rules contained 
in Subpart--General; Rules Applicable to all Services in part 74.
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    6. Service Area. Since these stations will be participating in a 
pilot project to demonstrate the feasibility of a new mode of operation 
for LPTV stations, we conclude that it is appropriate that the 
protected service area of the pilot project station be within the 
protected service signal contour of the existing LPTV station under its 
authorized analog facilities. For eligible LPTV stations that have both 
a license and a construction permit to modify the licensed facilities, 
the pilot project station may be operated consistent with either the 
licensed facilities or the facilities authorized in the construction 
permit (channel and service area). Participants will not be allowed to 
operate both the licensed and construction permit facilities at the 
same time, that is, one for digital data transmissions and the other 
for analog LPTV broadcast service. If a pilot project station requests 
use of construction permit facilities, operation of the licensed LPTV 
facilities must cease when operation of the construction permit 
facilities commences. This provision is intended to address situations 
where a station's license and

[[Page 29042]]

construction permit serve mostly different areas, where they are 
authorized on different channels or where both conditions exist. We 
will afford protection to pilot project operations based only on the 
protection afforded the underlying analog LPTV authorization. If an 
interfering source would not be required to protect the underlying LPTV 
station's service (for example interference from a full service analog 
TV or DTV station), then it will not be required to eliminate or reduce 
interference to the pilot project operation. Further, if an interfering 
source would not cause unacceptable interference to the underlying LPTV 
station (based on the LPTV station operating as authorized to provide 
analog TV service), then it also will not be required to eliminate or 
reduce interference to the pilot project operation.
    7. Term of pilot project. The DDSA does not specify how long the 
pilot project should last. Nonetheless, it indicates that our last 
report to Congress on the pilot project is due on June 30, 2002. 
Accordingly, we hereby clarify that we will issue experimental letter 
authorizations for the pilot project that will expire on June 30, 2002, 
unless the term is extended prior to that date. We delegate authority 
to the Mass Media Bureau to extend the term of the authorizations for 
individual participants or for participants as a group, and to do so by 
Public Notice, in the event that it is determined that the term of the 
pilot project should be extended.
    8. Application requirements. The DDSA requires that we establish 
``requirements as to the form, manner, and information required for 
submitting requests to the Commission to provide digital data service 
as a pilot project.'' \12\ The legislation specifies that digital data 
services may not be provided unless interference and other criteria are 
met.\13\ In general, we have determined that it is most appropriate to 
require submission of an informal application for experimental 
authority in a manner consistent with Sec. 73.1510(b) of our rules.\14\ 
All other aspects of Sec. 73.1510 will not be applicable because they 
are inconsistent with the DDSA.\15\ We will accept applications only 
from the eligible station specified in the DDSA.\16\ Exhibits to the 
informal applications must fully describe the proposed experimental 
program and the technical facilities that are proposed. Specifically, 
for a main base station and any base station boosters, we will require 
information that is also sought in Form 346, which is used to request 
authority to construct or make changes to an LPTV, TV translator or TV 
booster station. The application should contain the general information 
requested in questions 1-3 of section I, the legal certification 
requested in question 10 of section II, and, for each requested 
facility, all of the engineering information requested in section III 
of Form 346. With respect to the engineering information: The 
modulation type and bandwidth should be specified; the digital average 
power should be provided in lieu of the peak analog power; base or 
fixed station transmitting antenna beam tilt, if any, and polarization 
should be specified; for response stations, the maximum number of 
units, the area of anticipated operation, the receive and transmit 
antenna characteristics including polarization, gain and directional 
patterns, the largest average digital transmitter output power and 
effective radiated power contemplated for the pilot project, and the 
expected worst-case antenna height above ground should be specified. In 
addition, the application must contain a certification that the 
facilities in the pilot project will conform to the Commission's 
environmental impact rules, including explicitly that the proposed 
operation will not result in RF exposure in excess of the pertinent 
limits and the provisions set forth. The application should also 
contain certifications of the applicant and of the preparer of the 
engineering information, attesting to the accuracy and completeness of 
the information furnished. Consistent with the Commission's treatment 
of applications for other experimental authorizations, this application 
for digital data services will be fee exempt.
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    \12\ 47 U.S.C. 336(h)(3)(A).
    \13\ Under 47 U.S.C. 336(h)(4), participating LPTV stations may 
not provide digital data service unless:
    (A) the provision of that service, including any remote return-
path transmission in the case of 2-way digital data service, does 
not cause any interference in violation of the Commission's existing 
rules, regarding interference caused by low power television 
stations to full-service analog or digital television stations, 
class A television stations, or television translator stations; and
    (B) the station complies with the Commission's regulations 
governing safety, environmental, and sound engineering practices, 
and any other Commission regulation under paragraph (3) governing 
pilot program operations.
    \14\ 47 CFR 73.1510(b). This part 73 rule section is made 
applicable to part 74 LPTV stations pursuant to 47 CFR 74.780.
    \15\ The prohibition on sponsored programs or commercial 
announcements during experimental operation in Sec. 73.1510(c)(4) 
and the prohibition on charges being made for the experimentation in 
Sec. 73.1510(c)(6) are notably inconsistent with the services 
envisioned by the DDSA.
    \16\ We include in these entities an LPTV station to provide 
service to the designated locations in Alaska.
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    9. RF Safety. We will require pilot project licensees and 
permittees employing two-way technology to attach labels to every 
response station transceiver (fixed or portable) in a conspicuous 
fashion visible in all directions and readable at distances beyond the 
minimum separation distances. These labels shall give notice of the 
potential radiofrequency safety hazards, and specify minimum separation 
distances. Such labels should include reference to the Commission 
guidelines that apply.\17\ The general populations/uncontrolled limits 
apply to consumer response stations. In addition, pilot project 
licensees and permittees employing two-way technology must include a 
full explanation of the labels that appear on their transceivers, as 
well as reference to the applicable Commission guidelines in the 
instruction manuals and other information accompanying the 
transceivers. This information should include advice as to the minimum 
separation distances required between users and radiating antennas to 
meet the Commission's exposure guidelines. We will not mandate the 
specific language that must be used, however we will require the use of 
the ANSI-specified warning symbol for RF exposure. We also recommend 
that fixed response antennas be installed by pilot project licensees/
permittees or by professional personnel under their direction. 
Professional installation will minimize the possibility that an antenna 
will be placed in a location that could expose participants in the 
pilot project or other persons to the radiated signal at close 
proximity and for an extended period of time.
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    \17\ See Guidelines for Evaluating the Environmental Effects of 
Radiofrequency Radiation, ET Docket No. 93-62, R&O, 61 FR 41006 
(August 7, 1996), 11 FCC Rcd. 15123, 15124, 15152 (1996); 47 CFR 
1.1307(b)(1) and 1.1310.
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    10. Description of experiment. Section 73.1510(b) requires the 
application to include a description of the nature and purpose of the 
experimentation and of the nature of the experimental signal to be 
transmitted. We will require these applications to specify a program of 
experimentation that fulfills the requirements of the DDSA. 
Specifically, the experiments must address a determination of the 
threshold of perceptible interference to DTV receivers from all types 
of transmission that the pilot project stations operate with.\18\ In so 
doing, the LPTV

[[Page 29043]]

participants should assess the potential for causing interference to 
the reception of nearby DTV stations, including DTV stations that begin 
operating during the pilot project. For instance, LPTV participants 
should carefully assess the potential for interference in those 
situations where pilot project base and/or response stations would 
operate in the service area of a DTV station operating on a first 
adjacent channel. Testing should be designed to facilitate the 
establishment of appropriate operating parameters for all types of 
proposed transmitting facilities, including desired-to-undesired signal 
strength ratios for interference situations and the field strength 
values that represent the range of service. For 2-way service, 
establishing the service range involves reception both to and from 
subscriber or consumer transmission/reception facilities (response 
stations). To the extent possible based on the DTV station environment, 
testing should determine the distances from DTV receivers at which 
pilot project stations, including fixed and/or portable response 
stations, can operate without causing any perceptible interference. We 
believe meaningful interference testing would include a combination of 
observations and signal measurements considering such factors as the 
strengths of desired and undesired signals, the nature of the DTV 
reception equipment (indoor or outdoor antennas) and the local signal 
to noise environment. If relevant to the nature of the LPTV data 
transmissions, interference testing should also consider the effects of 
the simultaneous transmissions of multiple response stations, compared 
with the effects of those of single response stations. Testing also 
must include an evaluation of consumer or marketplace acceptance of the 
LPTV digital data technology.
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    \18\ Under 47 U.S.C. 336(h)(3)(B), the Commission must establish 
procedures ``for testing interference to digital television 
receivers caused by any pilot project station or remote 
transmitter.''
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    11. Resolution of interference. The DDSA requires that the 
Commission establish procedures ``for the receipt and review of 
interference complaints on an expedited basis. * * * '' \19\ In 
addition, the legislation provides that the Commission may limit the 
provision of such service if irremediable interference is caused.\20\ 
Section 74.703 of the Commission's rules specifies the applicable 
requirement for LPTV stations correcting a situation of actual 
interference.\21\ Stations participating in this pilot project must 
comply strictly with the requirements of this rule. In addition, 
pursuant to the DDSA, we will require stations in the pilot project to 
take steps to resolve any reported interference promptly.\22\ 
Specifically, upon receipt of a valid interference complaint, the 
licensee or permittee should make every effort to modify or suspend 
operation within 3 hours to eliminate the interference. An interference 
complaint is considered valid if the interference is to reception of a 
station or service that must be protected and it is reasonably 
determined that the interference is from the operation of the pilot 
project station (for example, if the interference is to a service on a 
channel where predicted interference is a concern and the interference 
commenced when a new mode of pilot project station operation began). If 
the complaint is received from any source other than the affected 
broadcaster or station, the pilot project participant should fax a copy 
of the complaint to the affected station within 48 hours of its 
receipt. If the pilot project station claims that it is not causing the 
interference or that the interference is not to protected service, it 
must fax the interference complaint and its opposition to the 
Commission's Mass Media Bureau, Video Services Division within 48 
hours.\23\ If the complaint is received from any source other than the 
affected broadcaster or station, the pilot project participant should 
at the same time fax a copy of the complaint to the affected station. 
In addition, the pilot project participant should fax a copy of its 
opposition to the affected broadcaster or station even if the complaint 
is received from that broadcaster or station. Thereafter, the 
Commission's staff will review the situation and issue a decision as 
quickly as possible, but in any case within the 60 days provided in the 
DDSA.\24\
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    \19\ 47 U.S.C. 336(h)(3)(F).
    \20\ Under 47 U.S.C. 336(h)(5)(A):
    The Commission may limit the provision of digital data service 
by a low-power television station to which this paragraph applies if 
the Commission finds that--
    (i) the provision of 2-way digital data service by that station 
causes any interference that cannot otherwise be remedied; or
    (ii) the provision of 1-way digital data service by that station 
causes any interference.
    \21\ 47 CFR 74.703(b) indicates:
    * * * the responsibility of the licensee of a low power TV, TV 
translator, or TV booster station to correct at its expense any 
condition of interference to the direct reception of the signal of 
any other TV broadcast analog station and DTV station operating on 
the same channel as that used by the low power TV, TV translator, or 
TV booster station or an adjacent channel which occurs as a result 
of the operation of the low power TV, TV translator, or TV booster 
station. Interference will be considered to occur whenever reception 
of a regularly used signal is impaired by the signals radiated by 
the low power TV, TV translator, or TV booster station, regardless 
of the quality of the reception or the strength of the signal so 
used. If the interference cannot be promptly eliminated by the 
application of suitable techniques, operation of the offending low 
power TV, TV translator, or TV booster station shall be suspended 
and shall not be resumed until the interference has been eliminated.
    \22\ Under 47 U.S.C. 336(h)(3)(C), the Commission must establish 
procedures ``for terminating any pilot project station or remote 
transmitter or both that causes interference to any analog or 
digital full-power TV stations, class A television station, 
television translators or any other users of the core television 
band.''
    \23\ The Video Services fax number is currently (202) 418-2827.
    \24\ 47 U.S.C. 336(h)(6).
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    12. Technical operation. We believe that we should permit as much 
flexibility as possible with respect to technical operation. We want to 
allow each station to choose a type of digital modulation that it 
determines appropriate. Where the type of modulation differs from the 
standard DTV system 8-VSB, we will require a full description of the 
modulation the station is proposing to use and an exhibit demonstrating 
that its use would not be expected to cause interference to DTV and 
analog TV service. Such an exhibit is also required if a proposed 8-VSB 
transmission would not comply with the out-of-band emission 
requirements specified in the DTV rules.\25\
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    \25\ 47 CFR 73.622(h).
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    13. We anticipate the possibility that several types of 
transmission facilities may be involved in each pilot project station. 
First, we expect that most, if not all, of these projects will involve 
digital transmissions from a main base station at the authorized site 
of the underlying LPTV station. Unless the evaluation of its digital 
modulation method requires otherwise, we will assume that operation of 
such a facility will not represent a significantly increased 
interference threat compared to the authorized LPTV station if the 
antenna height is not increased and the digital average power does not 
exceed 10 percent of the authorized analog LPTV power (10 dB less 
power). In DTV service, this level of digital power is adequate to 
provide coverage of the same area. Accordingly, the Commission's staff 
will not evaluate at the application stage the interference potential 
of a main digital base station conforming to this restriction.
    14. The second type of transmission facility might consist of one 
or more additional base stations (boosters) located at sites away from 
the authorized LPTV transmitter site. We propose to treat such stations 
as we have analog TV booster stations except that each booster may 
originate its own data messages. As such, we expect such facilities to 
be limited to a site location, power and antenna height combination 
that does not extend the coverage area

[[Page 29044]]

of the main base station in any direction. We will require an exhibit 
demonstrating that booster coverage is contained within main base 
station coverage, based on the digital field strength predicted from 
the main base station at the protected contour of the underlying analog 
LPTV authorization. Further, we will assume that such an operation will 
not cause additional interference unless an interference situation is 
demonstrated in an informal objection to the application. Absent such 
an objection, the Commission's staff will not evaluate at the 
application stage the interference potential of an additional digital 
base station conforming to this restriction.
    15. A third possible type of transmission facility is a fixed 
response station communicating with a base station.\26\ We are 
concerned about the interference potential of such facilities, but want 
to allow sufficient flexibility for such stations to allow productive 
testing of desirable power levels and permitted range in terms of 
distance from base station. On balance, we conclude that such response 
stations in this pilot project should use as low an effective radiated 
power (ERP) as is consistent with satisfactory communication with a 
base station, and in no case should the ERP (digital average power) 
exceed 10 watts. We will not specifically limit the range of operation 
from the main or additional base stations, but caution participants in 
this pilot project that they must protect other stations from 
interference in accordance with the discussion above.
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    \26\ See for example, the definition of a Multipoint 
Distribution Service response station given in 47 CFR 21.2.
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    16. A fourth possible type of transmission facility is a portable 
response station. Again, while we are concerned about the interference 
potential of such a station, we want to allow productive testing of 
desirable power levels and permitted range in terms of distance from a 
base station. Accordingly, we conclude that such response stations 
should use as low an effective radiated power (ERP) as is consistent 
with satisfactory communication with the base station, and in no case 
should the digital average ERP exceed 3 watts. In addition, the 
transmitting antenna should be built into the portable transceiver. We 
will not specifically limit the range of operation from the main or 
additional base stations, but caution participants in this pilot 
project that they must protect other stations from interference in 
accordance with the discussion above and will not be protected at 
locations beyond the underlying LPTV station's protected signal 
contour.
    17. Additional types of transmission facilities may be proposed, as 
may facilities that conform to one of the listed types, but do not meet 
the specified restrictions. For such requests, the applicant must 
provide sufficiently detailed analysis to allow the Commission staff to 
conclude that interference is unlikely.
    18. Processing. We intend to accept these applications in the same 
manner used in processing other experimental applications. The normal 
``broadcast applications'' public notice will be issued, and a copy of 
the application will be available in the public reference room. Where 
an application is found to be acceptable, the Mass Media Bureau is 
delegated authority to authorize the proposed operation by an informal 
letter grant within 60 days, subject to any appropriate conditions that 
we may impose in the authorization. As this is an informal application, 
we will not entertain petitions to deny. Informal objections can be 
filed any time before the application is granted.
    19. Facilities changes. The DDSA establishes criteria by which to 
evaluate requests by participants for facilities changes.\27\ We 
interpret this provision as applying to any requested changes to the 
underlying analog LPTV authority. Thus, an application to change 
channel or location must be filed on Form 346 seeking a construction 
permit to make changes in a licensed LPTV station or a modification of 
an existing LPTV station construction permit. Following grant of the 
change in the authorized facilities of the underlying LPTV station, an 
informal application to modify the pilot project authorization may be 
filed in accordance with the above procedures.
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    \27\ Under 47 U.S.C. 336(h)(5)(B):
    The Commission shall grant any such station, upon application 
(made in such form and manner and containing such information as the 
Commission may require) by the licensee or permittee of that 
station, authority to move the station to another location, to 
modify its facilities to operate on a different channel, or to use 
booster or auxiliary transmitting locations, if the grant of 
authority will not cause interference to the allowable or protected 
service areas of full service digital television stations, National 
Television Standards Committee assignments, or television translator 
stations, and provided, however, no such authority shall be granted 
unless it is consistent with existing Commission regulations 
relating to the movement, modification, and use of non-class A low 
power television transmission facilities in order--
    (i) to operate within television channels 2 through 51, 
inclusive; or
    (ii) to demonstrate the utility of low-power television stations 
to provide high-speed 2-way wireless digital data service.
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B. Notification and Reporting Requirements

    20. Notification Requirements. The DDSA requires that we establish 
``procedures by which a low power television licensee participating in 
a pilot project shall notify television broadcast stations in the same 
market upon commencement of digital data services and for ongoing 
coordination with local broadcasters during the test period. * * *'' 
\28\ Accordingly, at least twenty days before an LPTV licensee or 
permittee commences operations pursuant to the pilot program, it must 
notify all permittees and licensees of television stations in the same 
market concerning the particulars of its proposed operation. For this 
purpose, we will consider the market to include all stations assigned 
to the Designated Market Area (DMA) in which the LPTV pilot project 
station is located. Similarly, the pilot project stations must notify 
any authorized full service TV station whose Grade B contour, 
authorized DTV station whose predicted service contour \29\ and any 
Class A station whose protected service contour overlaps the protected 
service contour of the pilot project station's underlying LPTV 
authorization. The LPTV station that is commencing such operations must 
notify such other television stations in writing or electronically and 
must provide a complete description of its technical facilities, 
including power, modulation format, antenna height, and coordinates of 
any fixed base or booster facilities; the power, modulation format, 
anticipated antenna height, and the expected area of operation of any 
fixed and portable response units; as well as the name and telephone 
number of a person who may be contacted in the event of interference. 
We will require the LPTV station to coordinate with such other 
television stations in its market, as defined in this paragraph, before 
it makes any change to its facilities or services that might cause 
interference to those stations, including proposals to expand the range 
of operation of response units beyond the range initially notified. We 
will also require the LPTV stations participating in the pilot project 
to permit local broadcasters to observe the interference testing 
aspects of the pilot project.
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    \28\ 47 U.S.C. 336(h)(3)(E).
    \29\ See 47 CFR 73.622(e).
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    21. Reporting requirements. The DDSA requires that the Commission 
establish quarterly reporting requirements for LPTV stations 
participating in the pilot project.\30\

[[Page 29045]]

These quarterly reports should be filed by the tenth day of the month 
following the end of the quarter,\31\ and must include information: on 
the station's experience with interference complaints and the 
resolution thereof; and information on the station's market success in 
providing digital data service.\32\ In addition, the DDSA provides that 
the reports must include ``such other information as the Commission may 
require in order to administer this paragraph.'' \33\ We will require 
each pilot project station to include a complete description of any 
interference complaints it receives, any interference it determines it 
may be causing and any interference it determines it has received, in 
its required quarterly report to the Commission. We also will require 
the quarterly reports to include data concerning transmission format, 
power and antenna height and determinations of the range within which 
its desired service could be provided, and any other matters of 
technical or operational significance. The reporting requirement will 
commence once experimental authority is granted.
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    \30\ 47 U.S.C. 336(h)(3)(D).
    \31\ For example, April 10, July 10, October 10 and January 10.
    \32\ 47 U.S.C. 336(h)(5)(C)(i), (ii).
    \33\ 47 U.S.C. 336(h)(5)(C)(iii).
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C. Fees

    22. Under new section 336(h)(6), the Commission must assess and 
collect from LPTV stations authorized to participate in the pilot 
project ``an annual fee or other schedule or method of payment 
comparable to any fee imposed under the authority of this Act on 
providers of similar services.'' \34\ The statute allows the Commission 
to retain receipts of the fee ``as an offsetting collection to the 
extent necessary to cover the costs of developing and implementing the 
pilot program authorized by this paragraph, and regulating and 
supervising the provision of digital data service by low-power 
television stations under this paragraph.''\35\ The legislation also 
provides that excess amounts ``shall be deposited in the Treasury in 
accordance with chapter 33 of title 31, United States Code.'' \36\
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    \34\ Under 47 U.S.C. 336(h)(6):
    The Commission shall assess and collect from any low-power 
television station authorized to provide digital data service under 
this paragraph an annual fee or other schedule or method of payment 
comparable to any fee imposed under the authority of this Act on 
providers of similar services. Amounts received by the Commission 
under this paragraph may be retained by the Commission as an 
offsetting collection to the extent necessary to cover the costs of 
developing and implementing the pilot program authorized by this 
paragraph, and regulating and supervising the provision of digital 
data service by low-power television stations under this paragraph. 
Amounts received by the Commission under this paragraph in excess of 
any amount retained under the preceding sentence shall be deposited 
in the Treasury in accordance with chapter 33 of title 31, United 
States Code.
    \35\ 47 U.S.C. 336(h)(6).
    \36\ Id.
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    23. Based on the statute, we believe that the services that will be 
offered by LPTV licensees in the pilot project (digitally-based 
interactive broadcast services and wireless Internet access) are 
similar to certain of the services, including ancillary or 
supplementary services, that may be offered by Digital Television (DTV) 
licensees. Accordingly, we will impose on the LPTV licensees a 
comparable fee to that imposed on DTV licensees that offer feeable 
ancillary or supplementary services. Thus, we will impose a fee of five 
percent of gross revenues derived from the digital data services 
provided pursuant to the pilot project to the extent to which these 
services would be feeable if offered by DTV licensees.\37\
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    \37\ See 47 CFR 73.624(g); R&O in MM Docket No. 97-247, 63 FR 
69208 (December 14 1998), Fees for Ancillary or Supplementary Use of 
Digital Television Spectrum Pursuant to section 336(e)(1) of the 
Telecommunications Act of 1996, 14 FCC Rcd. 3259 (1998) (Fees R&O), 
recon. denied. 14 FCC Rcd. 19,931 (1999) (Fee Recon.). Under the 
DDSA, the fee may be used by the Commission to offset its costs in 
implementing, regulating, and supervising this program.
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    24. Not only are the digital data services that may be provided by 
LPTV stations similar to those that may be provided by DTV licensees, 
but, in addition, we believe that a fee of five percent will not 
discourage the provision of these services just as we noted that it 
would not dissuade DTV broadcasters from offering such DTV ancillary or 
supplementary services.\38\ The amount of the fee will vary with the 
gross revenues from these services, i.e., with the willingness of 
consumers to pay for such services. Under this fee structure, if a 
given provider of the new service does not find a market and is not 
profitable, its fee will be low. Finally, we believe that this fee is a 
relatively simple fee for LPTV stations to calculate and for the 
Commission to apply. Thus, we believe that it is an appropriate 
fee.\39\
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    \38\ See Fees R&O, paragraphs 20, 30.
    \39\ See Fees Recon., paragraph 16.
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    25. The fee of five percent of gross revenues will apply to the 
extent to which the services provided would be feeable if offered by a 
DTV licensee.\40\ Thus, to the extent that the services are provided 
for a subscriber fee, they will be feeable. Free over-the-air video 
program services will not be feeable. If questions arise as to whether 
certain services are feeable or not,\41\ we can address them in the 
context of an appropriately filed request for declaratory ruling.
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    \40\ Included in such feeable ancillary or supplementary 
services are services for which consumers pay subscriber fees or 
ancillary or supplementary services ``for which the licensee 
directly or indirectly receives compensation from a third party in 
return for transmitting material furnished by such third party 
(other than commercial advertisements used to support broadcasting 
for which a subscription fee is not required).'' 47 U.S.C. 
336(e)(1)(B). In addressing the issue of whether a given service is 
feeable, we will follow the foregoing statutory criteria, as well as 
Commission rules and precedent established with respect to fees for 
DTV ancillary or supplementary services.
    \41\ In the DTV fees proceeding, we declined to decide whether 
home shopping, infomercials, direct marketing and similar services 
made via an interactive system (whereby the viewer may be able 
purchase a product shown on a home shopping program by clicking an 
icon displayed on the screen and transmitting a purchase order via 
the licensee's bit stream) provided by the licensee on its DTV bit 
stream were ancillary or supplementary services subject to a fee. We 
noted that such services are only at a nascent stage and that the 
particular circumstances are unclear. Fees Recon., paragraph 26. We 
see no need to make this determination here as it is unclear whether 
this service will be provided pursuant to the pilot project or, if 
so, what the circumstances will be.
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    26. Collection procedures with respect to the five percent of gross 
revenues fee will be identical to those that apply to DTV licensees, as 
outlined in the Fees Report and Order, 63 FR 69208 (December 14, 1998). 
Since the DDSA requires participating licensees to submit quarterly 
reports, the annual report, on FCC Form 317, applicable to DTV 
licensees will not apply. However, LPTV stations in the pilot project 
that have provided feeable services at any point during the twelve-
month period ending on September 30, will file the FCC's standard 
remittance form (Form 159) on the subsequent December 1. Such annual 
fee filings will apply until the end of the pilot project unless 
continued thereafter by the FCC. For revenues reported December 1, 2001 
only, licensees are to certify revenues received from the feeable 
services provided from the inception date of the services through 
September 30, 2001 and remit payment of the required fee for that 
period.
    27. LPTV licensees should use Form 159 (the standard fee remittance 
form) for the purpose of paying this fee, filing it by December 1. They 
should follow the instructions for DTV licensees, except instead of 
paying with respect to feeable ancillary or supplementary services, 
they will pay with respect to feeable services provided pursuant to the 
pilot project. They should specify on line 23A the station's call sign; 
on 24A the payment type code ``MDDA''; on line 29A the amount of gross 
revenues received from feeable services; on line

[[Page 29046]]

27A the fee which they remit with Form 159, in the amount of five 
percent of the amount specified on line 29A; and on line 28 the 
facility identification number assigned to their station by the 
Commission. The licensee's signature on line 30 certifies under penalty 
of perjury the accuracy of the information reported on Form 159.\42\
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    \42\ Compare Fees R&O, paragraph 58.
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    28. The Commission delegates authority to the Office of Managing 
Director to specify by Public Notice any additional procedures for 
filing and processing the fees required by this Order that are 
necessary or warranted. The Commission reserves the right to audit each 
participating licensee's records which support the calculation of the 
amount specified on line 27A of Form 159. Each such licensee, 
therefore, is required to retain such records for the duration of the 
pilot program, or for three years from the date of remittance of fees 
pursuant to this Order, whichever is longer.
    29. While we do not here include automatic confidentiality for 
information submitted pursuant to this Order, submission of the 
required reporting form, and/or remittance of fee payment may be 
accompanied by a request for confidentiality pursuant to 47 CFR 0.459.

D. Other Requirements

    30. Application of experimental rules. In addition to the 
foregoing, we believe that requirements similar to those contained in 
sections 5.93(a) and (b) of the rules should apply to the pilot 
program.\43\ Thus, we will require that all transmitting and/or 
receiving equipment used in the pilot program be owned by, leased to, 
or otherwise under the control of the LPTV licensee.\44\ Response 
station equipment may not be owned by subscribers to the experimental 
data service. This will insure that the LPTV licensee has control of 
the equipment if and when the pilot program terminates. In addition, we 
will require the LPTV licensee to inform anyone participating in the 
experiment, including but not limited to subscribers or consumers, that 
the service or device is provided pursuant to a pilot program and is 
temporary.\45\
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    \43\ No other provisions of part 5 of the Commission's rules 
apply.
    \44\ See 47 CFR 5.93(a).
    \45\ See 47 CFR 5.93(b).
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    31. Final Regulatory Flexibility Analysis. No regulatory 
flexibility analysis is required because the rules adopted in this 
Order are being adopted without notice and comment rule making.
    32. Congressional Review Act. These rules, promulgated without 
notice and comment rule making, are not subject to the provisions of 
the Congressional Review Act.

III. Ordering Clauses

    33. Accordingly, pursuant to the authority contained in sections 1, 
2(a), 4(i), 7, and 336 of the Communications Act of 1934 as amended, 47 
U.S.C. 1, 2(a), 4(i), 7 and 336, part 74 of the Commission's rules, 47 
CFR part 74, is amended as set forth in this Order.
    34. The rule amendments set forth shall be effective immediately.

List of Subjects in 47 CFR Part 74

    Television.

Federal Communications Commission.
Magalie Roman Salas,
Secretary.

Rules

    For the reasons discussed in the preamble, the Federal 
Communications Commission amends 47 CFR part 74 as follows:

PART 74--EXPERIMENTAL RADIO, AUXILIARY, SPECIAL BROADCAST AND OTHER 
PROGRAM DISTRIBUTIONAL SERVICES

    1. The authority citation for part 74 is amended to read as 
follows:

    Authority: 47 U.S.C. 154, 303, 307, 336(f), 336(h) and 554.

    2. A new Sec. 74.785 is added to read as follows:


Sec. 74.785  Low power TV digital data service pilot project.

    Low power TV stations authorized pursuant to the LPTV Digital Data 
Services Act (Public Law 106-554, 114 Stat. 4577, December 1, 2000) to 
participate in a digital data service pilot project shall be subject to 
the provisions of the Commission Order implementing that Act. FCC 01-
137, adopted April 19, 2001.

[FR Doc. 01-13380 Filed 5-25-01; 8:45 am]
BILLING CODE 6712-01-U