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[Federal Register Volume 73, Number 176 (Wednesday, September 10, 2008)]
[Notices]
[Pages 52657-52660]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-20992]

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FEDERAL COMMUNICATIONS COMMISSION

[MB Docket No. 08-172; FCC 08-196]

Development of Devices Capable of Supporting Multiple Audio 
Entertainment Services

AGENCY: Federal Communications Commission.

ACTION: Notice.

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SUMMARY: The Commission adopted a Memorandum Opinion and Order and 
Report and Order, FCC 08-178 (``Merger Order''), approving the transfer 
of various licenses and authorizations from XM Satellite Radio Holdings 
Inc. to Sirius Satellite Radio Inc., both licensees of Satellite 
Digital Audio Radio Service (``SDARS'') systems in the United States. 
In the Merger Order, the Commission committed to initiate a Notice of 
Inquiry (``NOI'') within 30 days of adoption of the Merger Order on the 
issues of requiring devices capable of receiving SDARS to include 
digital audio broadcast (``DAB''), or HD Radio\TM\, or any other 
technologies capable of providing audio entertainment services; and 
requiring devices capable of receiving HD Radio to include SDARS or any 
other technologies capable of providing audio entertainment services. 
With this proceeding, we initiate this NOI.

DATES: Comments for this proceeding are due on or before November 10, 
2008; reply comments are due on or before December 9, 2008.

ADDRESSES: You may submit comments, identified by MB Docket No. 08-172, 
by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Federal Communications Commission's Web Site: http://www.fcc.gov/cgb/ecfs/. Follow the instructions for submitting comments.
     People with Disabilities: Contact the FCC to request 
reasonable accommodations (accessible format documents, sign language 
interpreters, CART, etc.) by e-mail: [email protected] or phone: 202-418-
0530 or TTY: 202-418-0432.
For detailed instructions for submitting comments and additional 
information on the rulemaking process, see the SUPPLEMENTARY 
INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: For additional information on this 
proceeding, please contact Rosalee Chiara, [email protected], or 
Brendan Murray, [email protected], both of the Policy Division, 
Media Bureau, (202) 418-2120.

SUPPLEMENTARY INFORMATION: This is a summary of the Federal 
Communications Commission's Notice of Inquiry in MB Docket No. 08-172, 
FCC 08-196, adopted August 22, 2008, and released August 25, 2008. The 
full text of this document is available for public inspection and 
copying during regular business hours in the FCC Reference Center, 
Federal Communications Commission, 445 12th Street, SW., CY-A257, 
Washington, DC 20554. These documents will also be available via ECFS 
(http://www.fcc.gov/cgb/ecfs/). (Documents will be available 
electronically in ASCII, Word 97, and/or Adobe Acrobat.) The complete 
text may be purchased from the Commission's copy contractor, 445 12th 
Street, SW., Room CY-B402, Washington, DC 20554. To request this 
document in accessible formats (computer diskettes, large print, audio 
recording, and Braille), send an e-mail to [email protected] or call the 
Commission's Consumer and Governmental Affairs Bureau at (202) 418-0530 
(voice), (202) 418-0432 (TTY).

Summary of the Notice of Inquiry

I. Introduction

    1. On July 25, 2008, the Commission adopted a Memorandum Opinion 
and Order and Report and Order, FCC 08-178 (``Merger Order''), 
approving the transfer of various licenses and authorizations from XM 
Satellite Radio Holdings Inc. (``XM'') to Sirius Satellite Radio Inc. 
(``Sirius''), both licensees of Satellite Digital Audio Radio Service 
(``SDARS'') systems in the United States. In the Merger Order, the 
Commission committed to initiate a Notice of Inquiry (``NOI'') within 
30 days of adoption of the Merger Order on the issues of (i) requiring 
devices capable of receiving SDARS to include digital audio broadcast 
(``DAB''), or HD Radio\TM\, or any other technologies capable of 
providing audio entertainment services; and (ii) requiring devices 
capable of receiving HD Radio to include SDARS or any other 
technologies capable of providing audio entertainment services. With 
this proceeding, we initiate this NOI.

II. Background

    2. HD Radio. The Commission first considered the feasibility of 
terrestrial and satellite digital radio services in 1990. With respect 
to terrestrial digital radio, the Commission concluded that the 
available systems were undeveloped and that it was premature to engage 
in discussions regarding standards, testing, licensing, and other 
policy issues. In 1999, the Commission recognized new technological 
developments and innovations and commenced the DAB proceeding to begin 
the process of adopting a DAB system. In the DAB NPRM, the Commission 
proposed criteria for the evaluation of DAB models and systems and 
considered certain DAB system testing, evaluation, and standard 
selection issues. In October 2002, the Commission selected iBiquity's 
IBOC HD Radio technology as the sole digital technology for the 
terrestrial radio broadcast service. IBOC technology makes use of the 
existing AM and FM bands (in-band) by adding digital carriers to a 
radio station's analog signal, thereby allowing broadcasters to 
transmit digitally on their existing channel assignments (on-channel) 
while simultaneously maintaining their analog service. The Commission 
concluded that adoption of a single IBOC transmission standard would 
benefit the radio broadcast industry, and solicited industry assistance 
in developing a formal standard. In 2007, the Commission released the 
Second DAB Report and Order, adopting service rules, programming and 
operational rules, and technical rules. In the Second DAB Report and 
Order, the Commission refrained from imposing a mandatory conversion 
schedule for radio stations to commence digital broadcast operations, 
but many radio stations have begun digital transmissions on a 
voluntarily basis.
    3. SDARS. SDARS was established by the Commission in 1997 and, 
after an auction, licenses were granted to two entities, Sirius and XM. 
In establishing SDARS, the Commission explained that the new service 
would provide ``continuous nationwide radio programming with compact 
disc (CD) quality sound'' and would ``increase the variety of 
programming available to the listening public.'' XM commenced service 
in September 2001, and Sirius began service in February 2002. In 2007, 
Sirius and XM requested Commission approval to merge. The Commission 
adopted a decision on July 25, 2008 approving the merger subject to 
conditions. The companies publicly reported on July 29, 2008 that they 
completed the transaction and the

[[Page 52658]]

newly combined company now operates under the name Sirius XM Radio, 
Inc. (``Sirius XM'').
    4. Equipment Open Access Commitment. In the Sirius-XM merger 
proceeding, some commenters urged the Commission to require the 
combined SDARS company to provide open access to the technical 
specifications of its devices and network to enable any receiver 
manufacturer to develop SDARS receivers. Some commenters also urged the 
Commission to require the combined SDARS company to direct 
manufacturers to include HD Radio technology in all SDARS receivers 
containing analog AM or FM radio technology. To address these issues, 
the Commission approved the merger subject to conditions, based on 
voluntary commitments made by Sirius XM, that require the merged entity 
to (i) permit any device manufacturer to develop equipment that can 
deliver the combined company's satellite radio service; (ii) not 
prevent such devices from reaching consumers through exclusive 
contracts or otherwise; and (iii) provide, on commercially reasonable 
terms, the intellectual property to permit any device manufacturer to 
develop equipment that can deliver the merged entity's satellite radio 
service. Moreover, in response to issues raised regarding the 
incorporation of other audio technologies in SDARS receivers, Sirius XM 
committed to allowing device manufacturers to incorporate in SDARS 
receivers any other technology that would not result in harmful 
interference with the merged entity's network, including HD Radio, iPod 
ports, Internet connectivity, and other technology. Based on these 
commitments, the Commission declined to adopt a merger condition that 
would mandate the incorporation of HD Radio technology in SDARS 
receivers. The Commission determined, however, that ``important issues 
have been raised that warrant further examination.'' Accordingly, the 
Commission committed to initiate this NOI within 30 days of adoption of 
the Merger Order.

III. Discussion

    5. Consistent with our commitment made in the Merger Order, we 
initiate this NOI regarding whether to require HD Radio or any other 
audio technologies to be incorporated into all SDARS receivers and/or 
whether to require SDARS or any other audio technologies to be 
incorporated into all HD Radio receivers. As an initial matter, we seek 
comment on the extent to which the market is already making multi-
functional radio receivers available to the public that include two or 
more of the following capabilities: SDARS, HD Radio, iPod/MP3, 
Internet, or any other technologies capable of providing audio 
entertainment services. How many of each type of multi-functional radio 
receivers are available today, including factory-installed receivers in 
automobiles and receivers later installed in vehicles in the so-called 
``aftermarket''? How many multi-functional radio receivers are expected 
to be available in the near future without a Commission requirement? To 
the extent that multi-functional radio receivers are not available 
today and are not expected to be available in the near term, is this 
because of a lack of consumer demand for such receivers or some other 
reason? How does any lack of multi-functional radio receivers impact 
competition among SDARS, HD Radio, iPod/MP3, Internet, or any other 
technologies capable of providing audio entertainment services?

A. Including HD Radio or Other Audio Technologies in SDARS Receivers

    6. We seek comment on whether we should require all receivers and 
other devices capable of receiving SDARS signals to also contain chips 
and other technology necessary to support HD Radio or any other 
technologies capable of providing audio entertainment services. Would 
such a requirement promote competition among Sirius XM, HD Radio 
stations, and other audio technologies, thereby leading to lower prices 
for audio entertainment services and/or broader programming options for 
listeners? As discussed above, Sirius XM has committed in connection 
with its merger to allow any manufacturer to develop SDARS receivers 
that can deliver the combined entity's satellite radio service and to 
allow manufactures to incorporate any technology that would not result 
in harmful interference with the SDARS network, including HD Radio 
technology. As a result of this commitment, can we expect a sufficient 
number of multi-functional radio receivers that include both HD Radio 
and SDARS reception capabilities to become available in the near term 
without a Commission requirement? In addition to increased competition, 
what other public interest benefits might result from the incorporation 
of HD Radio or other audio technologies in SDARS receivers? We note 
that the Commission's rules do not require SDARS operators to transmit 
state-level Emergency Alert System (``EAS'') alerts. Would including HD 
Radio technology in SDARS receivers facilitate the dissemination of 
state-level and other geographically targeted EAS alerts to SDARS 
subscribers?
    7. We seek comment on the effect of any receiver requirements, or 
lack thereof, on the development of HD Radio. We also seek comment on 
the extent of consumer demand for HD Radio. What amount and type of 
programming is available on HD Radio today? What amount and type of 
programming is expected to be available on HD Radio in the next three 
years? To what extent are automobile manufacturers already 
incorporating HD Radios into new model vehicles? Does the HD Radio 
industry currently provide automobile manufacturers with incentives to 
include HD Radios in new model vehicles? What incentives would further 
facilitate the deployment of HD Radios in new model vehicles? Would a 
Commission rule requiring HD Radio technology to be incorporated into 
all SDARS receivers facilitate the development of HD Radio? We note 
that in establishing rules for SDARS in 1997, the Commission refrained 
from requiring SDARS receivers to be capable of receiving terrestrial 
broadcasting formats. We seek comment on whether we should reconsider 
this conclusion based on marketplace developments.
    8. We seek comment on the impact of including HD Radio chips and 
technology in SDARS receivers on the cost of SDARS receivers. We seek 
comment on the cost impact on radio manufacturers, auto manufacturers 
and, ultimately, consumers. If the Commission were to require all SDARS 
receivers to also contain HD Radio chips and technology, would such a 
requirement result in higher volume purchases of HD Radio chips and 
technology and thereby lead to lower per-unit costs? To what extent is 
the cost of HD Radio chips and technology attributable to licensing 
fees for intellectual property (IP)? Would higher volume purchases of 
HD Radio chips and technology lead to lower IP licensing costs? Should 
the Commission require reduced royalty fees to iBiquity if we mandate 
the inclusion of an HD Radio chip? If so, does the Commission have the 
authority to do so? Would a mandate requiring the inclusion of HD Radio 
chips and technology in SDARS receivers reduce the incentive to improve 
the quality, develop innovations, and/or reduce the cost of HD Radio 
technology? We also seek comment on the impact on the cost of an SDARS 
receiver from including other technologies capable of providing audio 
entertainment services, such as iPod/MP3 and Internet capability.
    9. We seek comment on what impact including an HD Radio chip and

[[Page 52659]]

technology in an SDARS receiver would have on the size, weight, battery 
life, and other parameters of an SDARS receiver. Would including HD 
Radio technology have a particularly significant impact on the size, 
weight, and battery life of any class of SDARS receivers, such as 
handheld receivers? Conversely, would including HD Radio technology 
have a relatively insignificant impact on the size, weight, and battery 
life of any class of SDARS receivers, such as receivers in automobiles? 
We also seek comment on the impact on the size, weight, battery life, 
and other parameters of an SDARS receiver from including other 
technologies capable of providing audio entertainment services, such as 
iPod/MP3 and Internet capability.
    10. We seek comment on whether including HD Radio technology or 
other audio technologies in SDARS receivers would have any impact on 
the performance of the SDARS receivers. Would inclusion of HD Radio or 
other audio technologies have any adverse impact on the receiver's 
ability to receive SDARS signals?
    11. If the Commission were to require SDARS receivers to include HD 
Radio or other audio technologies, what timeframe would be appropriate 
for compliance with this requirement? Should we establish a different 
timeframe for Original Equipment Manufactured (``OEM'') automobile 
receivers to account for procurement cycles for the automobile 
industry? Should we require Sirius XM to certify compliance with any 
rules we adopt? Should we adopt any additional requirements to aid the 
Commission in enforcing any rules we adopt?
    12. Would a Commission rule requiring the incorporation of HD Radio 
or other audio technologies into SDARS receivers limit consumer choice 
in the selection of SDARS receivers? Should we allow some SDARS-only 
receivers? If we were to establish a class of permissible SDARS-only 
receivers, how would this impact competition among SDARS, HD Radio, 
iPod/MP3, Internet, or any other technologies capable of providing 
audio entertainment services? As suggested by iBiquity, should we 
require HD Radio chips and technology to be included only in SDARS 
receivers that include the ability to receive terrestrial analog AM/FM 
signals and which provide the user with the same tuning apparatus or 
display for both satellite and analog AM/FM radio? Would inclusion of 
HD Radio technology in these receivers impact the ability of a receiver 
to receive analog AM/FM reception?
    13. We seek comment on whether the open access merger commitment 
affects the need for Commission action. We also seek comment on any 
other issues appropriate to our inquiry regarding whether to require HD 
Radio or any other technologies capable of providing audio 
entertainment services to be incorporated into SDARS receivers.

B. Including SDARS or Other Audio Technologies in HD Radio Receivers

    14. We seek comment on whether we should require all receivers and 
other devices capable of receiving HD Radio signals to also contain 
chips and other technology necessary to support SDARS or any other 
technologies capable of providing audio entertainment services. Would 
such a requirement promote competition among HD Radio stations, Sirius 
XM, and other audio technologies, thereby leading to lower prices for 
audio entertainment services and/or broader programming options for 
listeners? In addition to increased competition, what other public 
interest benefits might result from the incorporation of SDARS or other 
audio technologies in HD Radio receivers? We note, for example, that 
there may be areas where there is no terrestrial communications 
infrastructure, including during times of disaster. Would including 
SDARS technology in HD Radio receivers promote the dissemination of 
emergency information in these areas?
    15. We seek comment on the impact of including SDARS chips and 
technology in HD Radio receivers on the cost of HD Radio receivers. We 
seek comment on the cost impact on radio manufacturers, auto 
manufacturers and, ultimately, consumers. Does the SDARS technology 
afford adequate controls to enable Sirius XM to control access to its 
subscription services if SDARS chips and technology are included in all 
HD Radio receivers? If the Commission were to require all HD Radio 
receivers to also contain SDARS chips and technology, to what extent 
would this result in higher volume purchases of SDARS chips and 
technology and thereby lead to lower per-unit costs? To what extent is 
the cost of SDARS chips and technology attributable to IP licensing 
fees? Would higher volume purchases of SDARS chips and technology lead 
to lower IP licensing costs? Would a mandate requiring the inclusion of 
SDARS chips and technology in HD Radio receivers reduce the incentive 
to improve the quality, develop innovations, and/or reduce the cost of 
SDARS technology? We also seek comment on the impact on the cost of an 
HD Radio receiver from including other technologies capable of 
providing audio entertainment services, such as iPod/MP3 and Internet 
capability.
    16. We seek comment on what impact including an SDARS chip and 
technology in an HD Radio receiver would have on the size, weight, 
battery life, and other parameters of an HD Radio receiver. Would 
including SDARS technology have a particularly significant impact on 
the size, weight, and battery life of any class of HD Radio receivers, 
such as handheld receivers? In particular, we seek comment on the size 
of the antenna needed to receive SDARS satellite signals. How would 
this antenna size impact the size of an HD Radio? To what extent has HD 
Radio technology been incorporated into mobile phones? If all devices 
capable of receiving HD Radio signals must also include SDARS 
technology, how would that impact the incentives of equipment 
manufacturers to include HD Radio technology in mobile phones? Would 
including SDARS technology have a relatively insignificant impact on 
the size, weight, and battery life of any class of HD Radio receivers, 
such as receivers in automobiles? We also seek comment on the impact on 
the size, weight, battery life, and other parameters of an HD Radio 
receiver from including other technologies capable of providing audio 
entertainment services, such as iPod/MP3 and Internet capability.
    17. We seek comment on whether including SDARS technology or other 
audio technologies in HD Radio receivers would have any impact on the 
performance of the HD Radio receiver. Would inclusion of SDARS or other 
audio technologies have any adverse impact on the receiver's ability to 
receive HD Radio signals?
    18. If the Commission were to require HD Radio receivers to include 
SDARS or other audio technologies, what timeframe would be appropriate 
for compliance with this requirement? Should we establish a different 
timeframe for OEM automobile receivers to account for procurement 
cycles for the automobile industry? What steps could we take to certify 
compliance with any rules? Should we adopt additional requirements to 
aid in enforcing any rules we adopt?
    19. Would a Commission rule requiring SDARS or other audio 
technologies to be incorporated into HD Radio receivers limit consumer 
choice in the selection of HD Radio receivers? Should we allow some 
receivers to be capable of receiving HD Radio but not SDARS or other 
audio technologies? If we were to establish a class of such receivers, 
how would that impact competition among HD Radio, SDARS,

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iPod/MP3, Internet, or any other technologies capable of providing 
audio entertainment services?
    20. We seek comment on any other issues appropriate to our inquiry 
regarding whether to require SDARS or any other technologies capable of 
providing audio entertainment services to be incorporated into HD Radio 
receivers.

IV. Statutory Authority

    21. We seek comment on whether the Commission has the jurisdiction 
to mandate the inclusion of HD Radio, SDARS, or any other audio 
technology in receivers. Do we have express or ancillary statutory 
authority to require receiver manufacturers to include certain 
technology in receivers? To the extent that the Commission does not 
have the authority to require receiver manufacturers to include certain 
technology in receivers, do we have authority to require iBiquity, 
licensees of HD Radio stations, Sirius XM, and/or other entities to 
certify that receivers authorized to receive content include certain 
mandated technology? Would such a requirement be technologically 
feasible, particularly in the case of a non-subscription service such 
as HD Radio?

V. Procedural Matters

A. Ex Parte Presentations

    22. This is an exempt proceeding in which ex parte presentations 
are permitted (except during the Sunshine Agenda period) and need not 
be disclosed.

B. Comment Filing Procedures

    23. Pursuant to Sec. Sec.  1.415 and 1.419 of the Commission's 
rules, 47 CFR 1.415, 1.419, interested parties may file comments and 
reply comments on or before the dates indicated on the first page of 
this document. Comments may be filed using: (1) The Commission's 
Electronic Comment Filing System (ECFS), (2) the Federal Government's 
eRulemaking Portal, or (3) by filing paper copies.
     Electronic Filers: Comments may be filed electronically 
using the Internet by accessing the ECFS: http://www.fcc.gov/cgb/ecfs/ 
or the Federal eRulemaking Portal: http://www.regulations.gov. Filers 
should follow the instructions provided on the Web site for submitting 
comments.
     For ECFS filers, if multiple docket or rulemaking numbers 
appear in the caption of this proceeding, filers must transmit one 
electronic copy of the comments for each docket or rulemaking number 
referenced in the caption. In completing the transmittal screen, filers 
should include their full name, U.S. Postal Service mailing address, 
and the applicable docket or rulemaking number. Parties may also submit 
an electronic comment by Internet e-mail. To get filing instructions, 
filers should send an e-mail to [email protected], and include the following 
words in the body of the message, ``get form.'' A sample form and 
directions will be sent in response.
     Paper Filers: Parties who choose to file by paper must 
file an original and four copies of each filing. If more than one 
docket or rulemaking number appears in the caption of this proceeding, 
filers must submit two additional copies for each additional docket or 
rulemaking number.
    Filings can be sent by hand or messenger delivery, by commercial 
overnight courier, or by first-class or overnight U.S. Postal Service 
mail (although we continue to experience delays in receiving U.S. 
Postal Service mail). All filings must be addressed to the Commission's 
Secretary, Office of the Secretary, Federal Communications Commission.
     The Commission's contractor will receive hand-delivered or 
messenger-delivered paper filings for the Commission's Secretary at 236 
Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing 
hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be 
held together with rubber bands or fasteners. Any envelopes must be 
disposed of before entering the building.
     Commercial overnight mail (other than U.S. Postal Service 
Express Mail and Priority Mail) must be sent to 9300 East Hampton 
Drive, Capitol Heights, MD 20743.
     U.S. Postal Service first-class, Express, and Priority 
mail should be addressed to 445 12th Street, SW., Washington DC 20554.
    24. People with Disabilities: To request materials in accessible 
formats for people with disabilities (braille, large print, electronic 
files, audio format), send an e-mail to [email protected] or call the 
Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-
418-0432 (tty).
    25. Comments and reply comments will be available for public 
inspection during regular business hours in the FCC Reference Center, 
Federal Communications Commission, 445 12th Street, SW., CY-A257, 
Washington, DC, 20554. These documents will also be available via ECFS. 
Documents will be available electronically in ASCII, Word 97, and/or 
Adobe Acrobat.
    26. Additional Information. For additional information on this 
proceeding, contact Rosalee Chiara, [email protected], or Brendan 
Murray, [email protected], of the Media Bureau, Policy Division, 
(202) 418-2120.

VI. Ordering Clauses

Accordingly, it is ordered, pursuant to the authority contained in 
sections 1, 4(i) & (j), 303(r), and 403 of the Communications Act of 
1934, 47 U.S.C sections 151, 154(i) & (j), 303(r), and 403, that this 
Notice of Inquiry is adopted.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. E8-20992 Filed 9-9-08; 8:45 am]
BILLING CODE 6712-01-P
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