29040 Federal Register / Vol. 66, No. 103 / Tuesday, May 29, 2001 / Rules and Regulations

1Public 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).

3According 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;

e. Packages of pieces with covers of

coated stock that are not individually

enclosed in a mailing wrapper (e.g.,

magazines or catalogs with glossy covers

not individually enclosed in an

envelope, uncoated paper wrapper, or

plastic wrapper (polybag)) are subject to

these conditions:

(1) Except as noted in e(2), packages

must not exceed 3 inches in height

(thickness).

(2) Packages of such pieces secured

with shrinkwrap plus one or two plastic

straps, or with at least two plastic

straps, one around the length and one

around the girth, must not exceed 6

inches in height (thickness).

f. Packages containing pieces with

outer surfaces of uncoated stock are

subject to these conditions:

(1) ‘‘Uncoated stock’’ also refers to

pieces with coated covers that are

individually enclosed in a cover or

mailing wrapper of uncoated stock such

as an envelope, sleeve, protective cover,

partial wrapper, or polybag and pieces

with outer surfaces composed of

material other than paper (e.g., plastic,

cloth, fiberboard, or metal).

(2) Packages must not exceed 8 inches

in height (thickness); however, it is

recommended that such packages not

exceed 6 inches in height (thickness).

[Amend the heading of redesignated

1.9 to read as follows. No other changes

to text.]

1.9 Exception to Package

Preparation—Mail in Trays

* * * * *

2.0 ADDITIONAL STANDARDS—

FIRST-CLASS MAIL, PERIODICALS,

AND STANDARD MAIL, AND FLATSIZE BOUND PRINTED MATTER

[Amend 2.1 by copying the content of

2.3b to new 2.1f and revising the

content to read as follows:]

2.1 Cards and Letter-Size Pieces

Cards and letter-size pieces are

subject to these packaging standards:

* * * * *

f. Packages up to 1 inch thick must be

secured with appropriate banding

placed once around the girth (narrow

dimension). Packages over 1 inch thick

must be secured with at least two bands,

one around the length and one around

the girth.

[Amend 2.2 by revising the content to

read as follows:]

2.2 Flat-Size Pieces

Packages of flat-size pieces must be

secure and stable subject to specific

weight limits in M045 if placed on

pallets, specific weight and height limits

in 1.8 for Periodicals and Standard Mail

placed in sacks, and, for Bound Printed

Matter in sacks, specific weight limits in

M720. Flat-size pieces must be prepared

in packages except under 1.9 and, for

First-Class Mail, under M820.3.0.

[Amend the heading of 2.3 and amend

the content by copying and amending

2.3a and deleting current 2.3b to read as

follows:]

2.3 Pieces With Simplified Address

For mail prepared with a simplified

address, all pieces for the same post

office must be prepared in packages of

50 when possible. If packages of other

quantities are prepared, the actual

number of pieces must be shown on the

facing slip attached to show distribution

desired (e.g., rural route, city route, post

office boxholder). Packages must be

secure and stable subject to specific

weight limits in M045 if placed on

pallets, specific weight and height limits

in 1.8 for Periodicals and Standard Mail

placed in sacks, specific thickness limits

in 2.1 for cards and letter-size pieces,

and, for Bound Printed Matter in sacks,

specific weight limits in M720.

* * * * *

Stanley F. Mires,

Chief Counsel, Legislative.

[FR Doc. 01–13397 Filed 5–25–01; 8:45 am]

BILLING CODE 7710–12–P

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.

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 highspeed 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.

2. The DDSA requires that the

Commission promulgate regulations

with respect to this pilot project by

April 20, 2001,3 and specifies

Federal Register / Vol. 66, No. 103 / Tuesday, May 29, 2001 / Rules and Regulations 29041

(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).

8 47 U.S.C. 336(h)(2).

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.

10Permission may be sought under a separate

experimental authorization under part 5 of the

Commission’s rules.

11These include, but are not limited to the rules

contained in Subpart—General; Rules Applicable to

all Services in part 74.

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 lowpower television stations to provide

high-speed digital data service,’’ based

on the pilot projects.

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.

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.

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 fullservice TV stations, authorized fullservice 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.

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

29042 Federal Register / Vol. 66, No. 103 / Tuesday, May 29, 2001 / Rules and Regulations

12 47 U.S.C. 336(h)(3)(A).

13Under 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.

15The prohibition on sponsored programs or

commercial announcements during experimental

operation in § 73.1510(c)(4) and the prohibition on

charges being made for the experimentation in

§ 73.1510(c)(6) are notably inconsistent with the

services envisioned by the DDSA.

16We include in these entities an LPTV station

to provide service to the designated locations in

Alaska.

17See 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.

18Under 47 U.S.C. 336(h)(3)(B), the Commission

must establish procedures ‘‘for testing interference

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 § 73.1510(b) of our

rules.14 All other aspects of § 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 worstcase 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.

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.

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

Federal Register / Vol. 66, No. 103 / Tuesday, May 29, 2001 / Rules and Regulations 29043

to digital television receivers caused by any pilot

project station or remote transmitter.’’ 19 47 U.S.C. 336(h)(3)(F). 20Under 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.

22Under 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 fullpower TV stations, class A television station,

television translators or any other users of the core

television band.’’

23The Video Services fax number is currently

(202) 418–2827.

24 47 U.S.C. 336(h)(6).

25 47 CFR 73.622(h).

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.

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

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

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

29044 Federal Register / Vol. 66, No. 103 / Tuesday, May 29, 2001 / Rules and Regulations

26See for example, the definition of a Multipoint

Distribution Service response station given in 47

CFR 21.2.

27Under 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.

28 47 U.S.C. 336(h)(3)(E).

29See 47 CFR 73.622(e).

30 47 U.S.C. 336(h)(3)(D).

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.

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.

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.

21. Reporting requirements. The

DDSA requires that the Commission

establish quarterly reporting

requirements for LPTV stations

participating in the pilot project.30

Federal Register / Vol. 66, No. 103 / Tuesday, May 29, 2001 / Rules and Regulations 29045

31For 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).

34Under 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.

37See 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.

38See Fees R&O, paragraphs 20, 30.

39See Fees Recon., paragraph 16.

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.

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.

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

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

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

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.

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

29046 Federal Register / Vol. 66, No. 103 / Tuesday, May 29, 2001 / Rules and Regulations

42Compare Fees R&O, paragraph 58.

43No other provisions of part 5 of the

Commission’s rules apply.

44See 47 CFR 5.93(a).

45See 47 CFR 5.93(b).

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

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

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 § 74.785 is added to read as

follows:

§ 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

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 224

[Docket No. 990910253–1120–03; ID No.

041300B]

RIN 0648–AM90

Endangered and Threatened Species;

Endangered Status for White Abalone

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Final rule.

SUMMARY: Following completion of a

comprehensive status review of the

white abalone (Haliotis sorenseni) and a

review of factors affecting the species,

NMFS published a proposed rule to list

the white abalone as an endangered

species on May 5, 2000. After

considering public comments on the

proposed rule, NMFS is now issuing a

final rule to list the white abalone as an

endangered species. NMFS has

determined that it is not prudent to

designate critical habitat because

identification of such habitat is

expected to increase the threat of

poaching for white abalone.

DATES: Effective June 28, 2001.

ADDRESSES: Assistant Regional

Administrator, Protected Resources

Division, NMFS, Southwest Region, 501

West Ocean Blvd., Suite 4200, Long

Beach, CA 90802–4213.

FOR FURTHER INFORMATION CONTACT:

Craig Wingert, 562–980–4021; or Marta

Nammack, 301–713–1401.

SUPPLEMENTARY INFORMATION:

Previous Federal Endangered Species

Act (ESA) Actions Related to White

Abalone

NMFS designated the white abalone,

which is a marine invertebrate mollusc,

as a candidate species under the ESA on

July 14, 1997 (62 FR 37560), based on

information indicating that the species

had suffered a major decline in

abundance. Because of the depleted

status of white abalone, NMFS

contracted with Scripps Institution of

Oceanography (SIO) in August 1998 to

conduct a comprehensive status review

of the species. The status review of

white abalone was completed in March

2000.

NMFS received a petition on April 29,

1999, from the Center for Biological

Diversity and the Southwest Center for

Biological Diversity to list white abalone

as an endangered species on an