[Federal Register Volume 66, Number 30 (Tuesday, February 13, 2001)]
[Rules and Regulations]
[Pages 9973-9985]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-3637]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 73

[MM Docket No. 00-39; FCC 01-24]


Broadcast Services; Radio Stations, Television Stations

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: This document resolves a number of issues concerning the 
transition to digital broadcast television (DTV). Among the issues 
resolved in the Report and Order are: when to require election by 
licensees of their post-transition DTV channel; whether to require 
replication by DTV licensees of their NTSC Grade B service contours; 
whether to require enhanced service to the principal community served 
by DTV licensees; and how we should process mutually exclusive 
applications. We also address in this document a host of technical 
issues and determine that at this time there is no persuasive 
information to indicate that there is any deficiency in the 8-VSB 
modulation system of the DTV transmission standard that would cause us 
to revisit

[[Page 9974]]

our decision to deny Sinclair Broadcasting Group, Inc.'s, petition and 
to add COFDM to the current 8-VSB DTV standard or to grant Univision 
Communications Inc.'s Petition for Expedited Rule Making to that same 
effect. We also decline to adopt technical performance standards for 
DTV receivers.

DATES: Effective April 16, 2001.

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

FOR FURTHER INFORMATION CONTACT: Roger Holberg or Mania Baghdadi, Mass 
Media Bureau, Policy and Rules Division, (202) 418-2120 or Alan 
Stillwell or Bruce Franca, Office of Engineering and Technology, (202) 
418-2470.

SUPPLEMENTARY INFORMATION: This is a synopsis of the Report and Order 
(``R&O'') in MM Docket No. 00-39, FCC 01-24, adopted January 18, 2001, 
and released January 19, 2001. The complete text of this document 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. This R&O is also 
available on the Internet at the Commission's website: http://www/
fcc.gov.

Synopsis of Report and Order

    1. In this R&O we will impose a channel election requirement, 
requiring commercial television stations with two in-core channels 
(i.e., channels 2-51) to elect their post-transition digital channel by 
December 31, 2003. We will resolve in a subsequent rule making both 
priority as to channel assignment (e.g., should stations that must move 
to a new channel have the highest priority and get the first selection 
of channels that are returned) and processing issues as well as the 
question of whether any channels should be placed off-limits, not 
available for use by DTV licensees. Additionally, while full 
replication by DTV licensees of the NTSC service area was an important 
Commission objective in developing the DTV Table of Allotments and 
remains a key goal, we will not impose a full replication requirement. 
Instead, we have determined that, after December 31, 2004, whatever 
portion of a commercial broadcaster's NTSC Grade B contour is not 
replicated with its digital television signal will simply cease to be 
protected in the Table of Allotments. We will, however, impose a city-
grade service obligation that will require licensees to encompass their 
communities of license with a stronger signal than that with which they 
had, or will have, to commence DTV operations. In this R&O, we also 
adopt DTV application cut-off procedures and address how we will 
resolve any mutual exclusivities that arise. We also address in the R&O 
portion of this document a host of technical issues and determine that 
at this time there is no persuasive information to indicate that there 
is any deficiency in the 8-VSB modulation system of the DTV 
transmission standard that would cause us to revisit our decision to 
deny Sinclair Broadcasting Group, Inc.'s, petition and to add COFDM to 
the current 8-VSB DTV standard or to grant Univision Communications 
Inc.'s Petition for Expedited Rule Making to that same effect. We also 
decline to adopt technical performance standards for DTV receivers.

I. Background

    2. In the Commission's digital television proceeding (MM Docket No. 
87-268) we repeatedly indicated our intent to hold periodic reviews of 
the progress of the conversion to digital television and to make such 
mid-course corrections as were necessary to ensure the success of that 
conversion. We commenced this, the first, periodic review, with a 
Notice of Proposed Rule Making (``NPRM''), adopted March 6, 2000 (65 FR 
15600, March 23, 2000). In that NPRM we stated that the conversion is 
progressing and that television stations are working hard to convert to 
digital television. We invited comment on several issues that we 
considered essential to be resolved in order to ensure that progress 
continued and that potential sources of delay were eliminated.

II. Discussion

A. Channel Election

    3. In the NPRM, we noted that we had decided in the DTV Sixth 
Memorandum Opinion and Order (``6MO&O''), 63 FR 15774, April 1, 1998, 
that, after the transition, DTV service would be limited to a ``core 
spectrum'' consisting of current television channels 2 through 51. 
Although some stations received transition channels out of the core, 
and a few had both their NTSC and DTV channels outside the core, we 
believe there will be sufficient spectrum so that at the end of the 
transition all DTV stations will be operating on core channels. 
Nevertheless, it now appears that there will be more out of core 
stations that must be accommodated with a core channel than we 
initially anticipated because new applicants will be allowed to convert 
their single NTSC channels to DTV operation and those on channels 
outside the core will be provided a post-transition channel inside the 
core. Also, as noted in the NPRM, the recent establishment of primary 
Class A TV stations may limit availability of core channels in some 
areas. Accordingly, the NPRM suggested a May 1, 2004, election date, 
but asked for comment on whether the election date should be earlier.
    4. We have determined to mandate a December 31, 2003, election 
deadline for commercial television stations both their NTSC and DTV 
operations on in-core channels. This is more than one and a half years 
after the last commercial station construction deadline (i.e., May 1, 
2002), giving these stations ample time in which to decide which of 
their two core channels would be most suitable for use in digital 
broadcasting. Setting this channel election deadline will enable us to 
determine at an early date, on a market-by-market basis, what channels 
will be available for stations having two out-of-core channels and for 
other users and will assist in our clearing of this spectrum. We 
believe that the transition process will be sufficiently along by 
December 31, 2003, to allow commercial broadcasters to make an informed 
channel selection decision. An earlier election decision will provide 
commercial broadcasters with more time in which to construct the 
replication capability prior to our December 31, 2004, ``use or lose'' 
date, also being adopted herein. The choice of this election deadline 
for this category of stations strikes an appropriate balance between 
the need for stations to have a sufficient amount of time in which to 
gain experience in DTV operation and allowing stations that will have 
to move--particularly from out-of-core to in-core--to plan for the DTV 
channel conversion by December 31, 2006.
    5. Non-commercial stations that have both their NTSC and DTV 
operations on in-core channels will have until the end of 2004 to elect 
their channels. This later deadline allows noncommercial stations to 
have at least a full year of experience with their DTV operation before 
having to choose their post-transition channels and, accordingly, 
accommodates the needs of public television.
    6. We will resolve in future DTV periodic reviews a decision on 
whether and when stations with one or both of their channels out of the 
core will have to make an election. We presume that,

[[Page 9975]]

except in extraordinary circumstances, stations that have one in-core 
and one out-of-core channel will remain on their in-core channel after 
the transition. We will resolve issues relating to the particulars of 
the election process and procedure to later periodic reviews or publish 
them in Public Notices issued with sufficient time to allow for 
licensees to familiarize themselves with them. We will also resolve 
later the issue of whether any channels should be off limits. In all 
cases, including stations with both channels in-core, we reserve the 
right to select the final channel of operation in order to minimize 
interference and maximize the efficiency of broadcast allotments in the 
public interest. We intend to review the channel elected to ensure that 
its use furthers these goals.
    7. Under the Community Broadcasters Protection Act of 1999 (CBPA), 
the Commission is prohibited from granting a Class A license to a low 
power television station operating on a channel within the core 
spectrum that includes any of the 175 additional channels that were 
referenced in the Commission's 6MO&O. In the 6MO&O, the Commission 
expanded the DTV core spectrum to cover, in total, channels 2-51, and 
we observed that this expansion would add approximately 175 additional 
channels to the core. The CBPA, as we noted in the NPRM, also requires 
the Commission to identify these 175 channels within 18 months of the 
Act's enactment. We thus invited comment as to whether, based on the 
new obligations imposed by this legislation, we are required to impose 
an earlier election date than May 1, 2004. After enactment of the CBPA, 
we concluded in our R&O establishing a Class A television service that 
we are currently in compliance with the requirement of section 
(f)(6)(B) of the CBPA that we protect the 175 channels, because these 
channels are now encumbered by existing NTSC or DTV allotments. (R&O in 
MM Docket No. 00-10, 65 FR 29985, May 10, 2000.) While a portion of 
these channels will become available for other parties once the 
broadcast licensees make their elections and begin to discontinue 
operations on one of their paired channels at the end of the DTV 
transition, we will have the opportunity closer to that stage to ensure 
that the CBPA's channel protection requirement continues to be met. In 
any event, we are establishing herein an election deadline for 
commercial stations that is earlier than that originally proposed.

B. Replication

    8. We established replication as a goal in the creation of the 
initial DTV Table of Allotments. By this we meant that each DTV channel 
allotment was chosen to best allow its DTV service to match the Grade B 
service contour of the NTSC station with which it was paired. This 
approach provides important benefits to both viewers and broadcasters.
    9. Thus far we have not mandated replication. We instead have 
allowed broadcasters to build facilities sufficient to emit a DTV 
signal strong enough to ensure that the predicted DTV service contour 
covers the community of license in order to accelerate the construction 
timetable and to alleviate the burdens that it placed on broadcasters. 
We nonetheless noted that during the first two-year review, we would 
consider whether to modify the build-out requirement to require a full-
replication facility.
    10. After considering the comments, and balancing the arguments for 
and against, we have decided not to require replication. We expect that 
DTV broadcasters will eventually choose to replicate their NTSC service 
areas to serve their viewers. However, we will not require such 
replication because we want to give broadcasters a measure of 
flexibility as they build their DTV facilities to collocate their 
antennas at common sites, thus minimizing potential local difficulties 
locating towers and eliminating the cost of building new towers. Some 
broadcast commenters have taken advantage of these measures, which we 
suggested in the 5R&O, and it would be unfair to them and might delay 
construction to require them to change these plans, if necessary, to 
achieve full replication. Additionally, some licensees are not 
operating on their core channels and it would be inefficient to require 
them to construct full-replication facilities on the channel that they 
will soon vacate. As Joint Broadcasters point out, the migration to 
final DTV channels is by no means complete. To require NTSC service 
replication by DTV stations under these circumstances would indeed be 
premature, would cause excessive additional expense to both commercial 
and noncommercial broadcasters alike, and could delay the transition. 
Finally, we are not requiring replication in order that broadcasters 
can have more flexibility to collocate their transmitters and make 
other necessary adjustments. As pointed out in the comments, the use of 
common sites can also minimize environmental degradation.
    11. While we wish to assure broadcasters a measure of flexibility 
in constructing their DTV facilities, we continue to want to assure 
that viewers do not lose service and we take seriously our mandate to 
speed the transition and to ensure that the spectrum is used 
efficiently. We have determined that the best way to accomplish this 
objective without imposing undue cost and delay on broadcasters, and to 
minimize environmental effects, is not to expressly require full 
replication of NTSC coverage with DTV service. However, to provide an 
incentive to them to do so, we will, as proposed by several commenters, 
and as discussed in the NPRM, cease to give interference protection to 
their unreplicated service area as of December 31, 2004. Thus, by 
December 31, 2004, commercial DTV licensees must either be on-the-air 
replicating their April 1997 NTSC Grade B service area as of that date 
or lose interference protection to the unreplicated portion of this 
service area outside the noise-limited signal contour.
    12. We view this as part of a three-stage approach to the 
transition to DTV. The first stage will end May 1, 2002, by which time 
all commercial television stations must commence digital service. 
Noncommercial stations will have until May 1, 2003, to complete this 
stage. The second stage will end at the close of 2003, when channel 
election will be required for all commercial stations or the close of 
2004, for noncommercial stations. The final stage will be occur on 
December 31, 2004, at which time commercial DTV licensees will lose 
interference protection to those portions of their NTSC service area 
that they do not replicate with their DTV signal. Noncommercial DTV 
licensees will not lose such protection until December 31, 2005.

C. City Grade Coverage

    13. For the reasons we discussed in the NPRM, we will impose a 
principal community coverage requirement that is stronger than the DTV 
service contour requirement that we adopted as an initial obligation in 
the 5R&O. Such a requirement will improve the reliability of service to 
the community of license. However, we recognize the broadcasters' need 
for flexibility and will require a set of signal strengths lower than 
we proposed in the NPRM. We believe an appropriate balance is achieved 
by requiring a DTV city grade contour that is 7 dB stronger than the 
DTV service contour values for the pertinent channel. This is 
significantly less burdensome than the proposed values which would have 
been at least 16 dB

[[Page 9976]]

stronger. The values we are adopting are as follows:

------------------------------------------------------------------------
                                                                 Field
                          Channels                             strength
                                                                 (dBu)
------------------------------------------------------------------------
2-6.........................................................          35
7-13........................................................          43
14-69.......................................................          48
------------------------------------------------------------------------

The required level of service must be achieved by December 31, 2004, 
for commercial stations and December 31, 2005, for noncommercial 
stations, the same dates by which stations must either replicate their 
NTSC service areas or lose protection to the unreplicated areas.
    14. We base the 7 dB increment on two factors relating to improving 
the availability of service in the city of license. First, as with NTSC 
TV city grade requirements, we conclude that the percent of locations 
receiving service should be more than the fifty percent criteria that 
is the standard for the NTSC Grade B service contour, as well as for 
the DTV service contour. Increasing the DTV service availability to the 
best 70 percent of the locations requires about a 4 dB increase in 
field strength, if all other assumed planning factors remain the same. 
We believe it is also appropriate to assume that locations inside a 
station's community of license should not require a very high-gain 
receiving antenna normally necessary for fringe-area reception. For 
NTSC TV service, the assumed antenna gain for Grade B service is five 
or six dB more than the assumed antenna gain for Grade A service. Where 
a lower-gain antenna is assumed, correspondingly stronger field 
strength is required for service to be provided. DTV antenna 
assumptions are generally that higher gain antennas will be used than 
have been assumed for NTSC TV reception. Conservatively, we assume that 
a DTV receiving antenna for use in a station's city of license can be 
at least 3 dB lower gain than the assumed receiving antenna for the 
edge of the station's service area.
    15. The improved availability we are providing for is consistent 
with recognizing that the DTV signal is substantially different from 
the NTSC signal. The NTSC signal strength degrades over distance from 
the transmitter, with picture quality declining accordingly. In DTV 
there are virtually no gradations in picture quality that are dependent 
on signal strength. If the signal strength is above a certain threshold 
it will produce an excellent picture. If the signal strength does not 
reach that threshold, the receiver's screen will freeze or go blank. 
The degree to which the signal exceeds that threshold requirement does 
not matter; the picture quality will not change and would not change 
even if we were to require that the community of license be provided 
with a more robust signal than that currently required. The higher 
signal level requirement should increase the number of locations where 
a good signal is present.
    16. We recognize that some stations have spent time and money 
developing solutions to their coverage issues (e.g., placing the 
required level of signal over their community of license, avoiding co-
channel and adjacent channel interference) that may result in their not 
being able to encompass their principal communities with the increased 
city-grade signal level proposed in the NPRM. In some of these cases 
interference has been reduced through collocation that may preclude 
licensees from being able to encompass their communities of license 
with the proposed signal level. We believe the less burdensome 
requirement we are adopting will not force many licensees to increase 
their power or move their antenna resulting in increased cost. The new, 
scaled-down requirement will continue to allow most broadcasters the 
flexibility they have requested in building their DTV facilities and we 
expect that they will construct expeditiously to assure that consumers 
and viewers have the benefit of a rapid transition to digital 
television.
    17. Our enhanced principal community signal strength standard also 
helps prevent the migration of licensees from their community of 
license, thus furthering the purposes of Section 307(b) of the 
Communications Act. Their public interest obligations run to their 
communities of license. These requirements remain undiluted by our 
decision herein.

D. Noncommercial Stations

    18. Although we did not solicit comment on this issue in the NPRM, 
and we stated that it is too early to address the needs of public 
television stations in converting to DTV, AAPTS/PBS request special 
treatment for noncommercial educational television stations. In the 
5R&O in our DTV proceeding, we noted our commitment to noncommercial 
educational television and acknowledged the difficulties they would 
face in transitioning to DTV and which would require special relief 
measures. In recognition of these difficulties we stated that 
noncommercial stations will need and warrant special relief to assist 
them in the transition to DTV. We continue to believe, however, that it 
would be premature to attempt to resolve the issues raised, or grant 
the type of relief sought, by AAPTS/PBS in their comments. Furthermore, 
we believe that it would be beyond the scope of the NPRM in this 
proceeding to do so. As we get closer to the construction and election 
deadlines for noncommercial educational broadcast stations we will be 
in a better position to determine what further relief might be required 
by such stations and whether the scope of that relief needs to be on an 
industry-wide basis or only on a station-by-station or market-by-market 
basis.

E. Mutually Exclusive Applications

    19. In the NPRM, we also addressed certain issues with respect to 
mutually exclusive (MX) DTV applications.
    20. DTV Cut-off Procedures. Based upon the record in this 
proceeding, we conclude that the fairest and most expedient method for 
determining cut-off protection for DTV expansion applications is to 
take a bifurcated approach. With respect to all currently pending DTV 
expansion applications, we establish cut-off protection as of the date 
of the adoption of this R&O. Therefore, all DTV expansion applications 
pending as of the adoption date of this R&O are cut off and will be 
protected against later-filed DTV applications. Later-filed DTV 
applications must protect applications in this cut-off group. We find 
that this approach, which received the support of the majority of the 
commenters, will create a definitive pool of applicants from which both 
the applicants and the Commission staff can begin to resolve mutual 
exclusivity issues. As the Joint Broadcasters and AAPTS/PBS observe, 
use of a single cut-off date for all pending DTV applications will 
minimize the number of MX situations and facilitate applicants' 
planning with respect to their proposals. A single cut-off date also 
provides a measure of fairness to all applicants that filed DTV 
expansion applications prior to the adoption of the R&O by allowing all 
of them to be considered as part of one cut-off group. Because most 
television licensees have filed their DTV expansion applications, 
providing cut-off protection to all pending DTV applications will 
adversely affect only the limited number of licensees that will be 
filing such DTV applications in the future. Finally, selection of the 
adoption date of the R&O as the cut-off date will prevent a possible 
rush of hasty and possibly defective DTV filings filed merely to 
preserve rights that might

[[Page 9977]]

occur if we were to announce a later cut-off date.
    21. Fox and KM Communications, Inc., proposed that we apply first-
come, first served processing to the pending DTV applications. Under 
their approach, all pending DTV applications would be cut-off on the 
day they were filed. We decline to adopt such an approach. First, we 
recognize that there was an extended period of time over the past 
several months during which we permitted DTV applications to be filed 
without indication that applicants needed to expedite their filings or 
lose out on an opportunity to expand their DTV allotments. It would be 
unfair to retroactively apply first-come, first served processing to 
those applicants, such as noncommercial and smaller market licensees, 
that, as permitted, followed our staggered DTV implementation schedule 
and waited until their later deadlines to file their applications. In 
addition, we find that such an approach would not achieve the expected 
results. We have previously found first-come, first-served processing 
to be a desirable method of application processing because it avoids a 
large number of MX applications while also providing applicants with a 
level of certainty that their filing will not conflict with 
undiscovered earlier-filed applications. However, in this case, since 
so many of the pending DTV applications were filed in large batches on 
the same day because of Commission-mandated DTV deadlines (November 1, 
1999, and May 1, 2000 being the prime examples), these applications 
would remain MX, with the intended benefits of first-come, first-served 
processing not being realized.
    22. As for future DTV expansion applications filed after the 
adoption date of this R&O, we will adopt the proposal in the NPRM and 
we will consider such applications cut-off as of the close of business 
on the day they are filed. Under this day-to-day cut-off approach, 
conflicting later-filed applications would have to protect the earlier-
filed, cut-off application. Unlike the case with the large number of 
currently pending DTV applications, we find that the benefits of this 
type of application processing can be realized with respect to the 
anticipated relatively small number of future DTV applications. 
Adoption of day-to-day cut-off processing for new DTV expansion 
applications will not only help to avoid a larger number of mutually 
exclusive applications the processing of which could delay expediting 
DTV service to the public and provide certainty for future applicants, 
but will also encourage potential applicants to file quickly for 
improved facilities and thus help speed the introduction of DTV service 
to the public.
    23. We decline to adopt a moratorium on the filing of new DTV 
expansion applications, as suggested by some commenters. Since many 
licensees filed their DTV expansion or maximization applications by May 
1, 2000, the date set by the CBPA after which such applications would 
have to protect on new Class A television stations, we find it unlikely 
that a large number of additional stations will be filing DTV expansion 
applications. Furthermore, the procedures we adopt herein for resolving 
the pending MX applications will result in an expedited resolution of 
such.
    24. Resolving Mutually Exclusive DTV Applications. We find that the 
best approach to resolving MX DTV expansion applications is to follow 
our existing DTV new station application procedure. First, we will 
continue to identify and grant all checklist, non-checklist, and 
maximization applications that are not predicted to create or receive 
impermissible levels of interference. The staff will identify via 
public notice those groups of MX applications that are related either 
by direct or indirect mutual exclusivities. The applicants will then be 
permitted a period of time, as discussed below, to resolve their MX 
situation through engineering solutions or settlement. The applications 
that remain MX following this settlement period would then be 
dismissed. We agree with those commenters that recognized that this 
type of private resolution of MX situations affords the parties greater 
flexibility than Commission imposed solutions, and avoids the burdens 
of costly and more time consuming regulatory proceedings. We will not 
adopt the proposed ``safety valve'' proposed by the Joint Broadcasters. 
However, in this regard we will consider on a case-by-case basis 
waivers of the de minimis interference limits (between applications) in 
cases of particular hardship where MX applicants demonstrate that their 
DTV applications were filed because they were required to relocate 
their proposed facilities for zoning or technical reasons.
    25. Furthermore, we decline to use auctions to resolve MX DTV 
applications would not serve the public interest. We stated in the NPRM 
that, while we are precluded from Section 309(j) from auctioning 
initial DTV replacement licenses, it does not appear that a digital 
area-expansion application would constitute such a replacement. Some 
commenters, however, pointed out that many initial applications request 
area-expansion. Furthermore, even those DTV expansion applications that 
seek to modify a DTV construction permit or seek a construction permit 
to change an existing DTV facility could be viewed as components of the 
replacement of analog television service. Therefore, it would take a 
time consuming, case-by-case approach to determine whether individual 
DTV applications were subject to auction. Given the extended length of 
time for such analysis, the strain on staff resources, and the 
difficulty in making such a determination, we find that use of auctions 
would not be a workable solution to resolving MX DTV groups. In 
addition, there are other public interest reasons why we believe that 
auctions would not be the best method for resolving DTV mutual 
exclusivity. The use of auctions could encourage applicants to take 
steps to avoid siting their DTV facilities in proximity to the DTV 
facilities of other licensees in order to avoid an MX situation and 
possible auction. This would undermine our stated goal of encouraging 
the collocation of DTV facilities and sharing of facilities. Finally, 
we agree with the Joint Broadcasters that auctions of DTV expansion 
applications could be difficult to administer since they could involve 
``daisy chains'' of direct and indirect MX groupings and may cause 
delay to the overall DTV implementation process.
    26. As for the length of the settlement period, we will limit the 
settlement period to 90 days during which applicants must either find 
an engineering solution or otherwise propose a settlement that would 
resolve their mutual exclusivities. These settlement periods will be 
announced by the staff in future public notices. While we encourage 
applicants to utilize all means possible to resolve their mutual 
exclusivities, including third-party mediation if they desire, we will 
not permit additional time for parties using such measures. We conclude 
that a 90-day settlement period strikes a fair balance between 
permitting applicants ample time and opportunity to resolve their 
mutual exclusivities and expediting the processing of pending DTV 
expansion applications.
    27. As noted above, in addition to permitting applicants in MX 
groups to propose engineering solutions to resolve their mutual 
exclusivities, we will also permit applicants to enter into settlement 
agreements whereby one or more applicants may agree to change their 
proposed facilities or dismiss their expansion application altogether 
in

[[Page 9978]]

exchange for compensation. In an effort to provide additional 
flexibility and to hasten the settlement process, we will waive the 
provisions of 47 CFR 73.3525(a)(3) which limit the monetary settlement 
of pending applications to the legitimate and prudent expenses of the 
applicant. All other provisions of 47 CFR 73.3525 will continue to be 
applied to these settlements. We find that the public interest will be 
served by waiving the monetary limitation because it will result in the 
resolution of more MX DTV groups, the grant of a greater number of DTV 
expansion applications, and expedited DTV service to the public. We 
also remind DTV applicants seeking engineering solutions or settlements 
to resolve their MX groups, that all such engineering solutions and 
settlements must be submitted in writing for staff review pursuant to 
47 CFR 73.623(g). As that section provides, concerning negotiated 
agreements on DTV interference, ``applications submitted pursuant to 
the provisions of this paragraph will be granted only if the Commission 
finds that such action is consistent with the public interest.''
    28. Finally, we recognize the comments of the Joint Broadcasters 
that adoption of a cut-off procedure and method for resolving MX DTV 
applications necessarily means that we must revise our existing 
maximization procedures as adopted in the Second Memorandum Opinion and 
Order, 64 FR 4322, January 28, 1999 (``2MO&O'') in the DTV rulemaking 
proceeding. In that decision, we adopted a procedure whereby DTV 
maximization applications with power levels above 200 kilowatts would 
be placed on public notice and interested parties would be given 30 
days to object to an expansion proposal by stating that the proposed 
change would impact upon their future plans to maximize their own DTV 
operations. The applicant and objecting party would then have 30 days 
to resolve the conflict and, in the event they are unable to do so, the 
DTV above 200 KW maximization application would be dismissed. The Joint 
Broadcasters are apparently concerned that, left untouched, the 
maximization procedures set forth in the 2MO&O would be inconsistent 
with the cut-off and MX procedures we are adopting herein. We agree, 
and we replace the maximization procedures set forth in the 2MO&O with 
our new cut-off and MX procedures. Accordingly, the temporary 200 kW 
cap on power increases for UHF DTV stations is no longer necessary and 
is removed.
    29. Application Processing/Protection Priority. After consideration 
of the comments, we adopt a system of priorities similar to that 
proposed in the NPRM, and we give priority to DTV expansion 
applications over all NTSC applications except NTSC applications that 
fall into one of the following three categories: post-auction 
applications (i.e., the long form application [FCC Form 301] filed by 
the winning bidder following the completion of a broadcast auction), 
applications proposed for grant in pending settlements, and any 
singleton applications cut-off from further filings. We estimate that 
there are approximately 20 applications in these three categories. The 
cut-off singleton applications remain pending for a variety of legal 
and technical reasons. These NTSC applications must have been accepted 
for filing in order to be protected from DTV expansion applications. In 
the future, when a party files a DTV expansion application, it must 
determine whether there are NTSC applications on file in any of the 
three above categories and provide interference protection to them. As 
for pending DTV expansion applications and NTSC applications, if an 
earlier-filed DTV expansion application conflicts with an NTSC 
application in one of the these three categories, we will consider 
these applications MX and follow our above-outlined procedures for MX 
applications--that is, we will require that the parties resolve their 
MX within 90 days or we will subsequently dismiss both applications. 
Additionally, we will require NTSC applications to protect facilities 
proposed by DTV applicants even if the DTV application was filed while 
the NTSC application is pending. We believe that our goal should 
continue to be expedited implementation of DTV service. We find that 
the above system of priorities will further that goal, while at the 
same time recognizing the need to continue to provide viable NTSC 
service until the DTV transition is complete and not disrupting the 
settled expectations of these NTSC applicants that may have relied on 
existing procedures in the reasonable belief that their applications 
would receive protection.
    30. We will condition the grant of all future NTSC minor change 
applications on acceptance of interference from any proposed DTV 
facility which was filed on or before the NTSC grant date.
    31. With respect to pending petitions for rule making for new or 
modified DTV allotments, where an NPRM has been adopted and the comment 
deadline on the petition for rule making has passed, we will consider 
such petitions as ``cut-off'' as of the comment deadline. In that case, 
if there is an earlier-filed pending DTV expansion application that 
conflicts with the petition, we will consider the petition and 
application(s) as MX and, once again, follow our above outlined 
procedures for MX applications. Pending DTV expansion applications that 
are filed after a DTV petition is cut-off on its comment deadline will 
have to protect the facilities proposed in the DTV petition. If the 
pending DTV petition has not yet been cut-off as of the adoption date 
of this R&O, then, because we will have cut off all pending DTV 
expansion applications, we will consider the petition and any 
conflicting DTV expansion applications as MX and use our above-outlined 
procedures to resolve them.
    32. With respect to future petitions for rulemaking that are filed 
for new or modified DTV allotments, we will continue our current 
practice of providing cut-off protection to such petitions on their 
comment deadline. Therefore, in the future, when an interested party 
files a DTV expansion application, it must provide protection for any 
DTV rulemaking petition for which the comment deadline has passed. Also 
in the future, new DTV petitions will be required to protect all 
earlier-filed DTV expansion applications, given our newly adopted day-
to-day cut-off procedure for such application.

F. Technical Issues

    33. In this section, we address several comments that request 
action on technical issues.
    34. ATSC DTV Standard. The Advanced Television Systems Committee 
(ATSC) is the organization that developed the ``ATSC DTV Standard,'' 
most of which we adopted as our DTV broadcast standard in the Fourth 
Report and Order, 62 FR 14006, March 25, 1997 (``4R&O'') in the DTV 
proceeding. Title 47 CFR 73.682(d) requires that broadcast DTV 
transmissions comply with standard ATSC Doc. A/53 dated September 9, 
1995, except for its constraints on video formats. In comments, ATSC 
reports that, since adoption of the 4R&O, it has made several changes 
to the Doc. A/53 standard including removing constraints associated 
with the ``program paradigm,'' updating references to the underlying 
MPEG standards, replacing references to obsolete ATSC standards for 
Electronic Program Guide and System Information with a reference to a 
new ATSC Doc. A/65 for Program and System Information Protocol (PSIP), 
and requiring a signal when colorimetry other than that defined by 
standard SMPTE 274M is used. The PSIP specification provides for the

[[Page 9979]]

transmission of system information and program guide data for broadcast 
DTV stations, enabling the identification of service channels and 
digital bit streams, and allowing receivers to generate electronic 
program guides. It also provides for selection through the program 
guide function of the type and language of closed captioning to be 
viewed and transmission of program ratings information to allow parents 
to use ``v-chip'' technology. ATSC also indicates that it is 
considering an increase in the maximum allowable audio bit rate.
    35. ATSC urges the Commission to revise the rules to reference the 
latest version of the ATSC DTV Standard A/53 and to require use of the 
ATSC PSIP Standard A/65. ATSC further requests Commission action to 
assure that ``major channel numbers'' in the PSIP are used properly, 
the assignment of transport stream identifier (TSID) parameters is 
properly administered, and that closed captioning and content advisory 
information conforms with the PSIP Standard. ``Major channel number'' 
is part of the DTV bit stream specified in the PSIP standard and used 
to identify the terrestrial broadcast station (or cable or satellite 
source) providing the DTV program(s). Where a station is transmitting 
multiple programs, it uses ``minor channel numbers'' to distinguish 
among them. Within each television market, each programming source 
(terrestrial DTV broadcast stations as well as cable or satellite DTV 
channels) must have a unique ``major channel number'' so DTV receivers 
can be tuned to the desired stations and programs. In addition, the 
PSIP standard uses a ``TSID'' to uniquely identify transport streams, 
again to allow DTV receivers to tune between programs arriving from 
different sources. Finally, ATSC suggests the Commission encourage use 
of additional supplementary ATSC standards, including those concerning 
conditional access and data broadcasting.
    36. In ET Docket No. 99-34, we sought comment on whether 
coordination committees and a national coordinator could assist in the 
administration of the DTV system by assigning the unique PSIP station 
identifier and negotiating the naming and numbering of channels among 
broadcasters in local markets. We continue to believe that an industry 
approach is generally the most appropriate means for managing the 
implementation of a PSIP system. However, we do recognize that the 
transport stream identifiers (TSIDs) must be unique to each individual 
television station and that there is a need to coordinate TSID 
assignments for stations in the border areas with our neighbors in 
Canada and Mexico. We therefore agree that TSID assignments should be 
made part of the Commission's licensing process for broadcast 
television stations and will begin the process to incorporate this 
function into that process in the near future. Until negotiations with 
Canada and Mexico on this matter are complete and we have modified our 
licensing process and records management systems, we will continue to 
rely on the industry to make TSID assignments.
    37. Distributed transmission and boosters. The Merrill Weiss Group 
(Merrill Weiss), supported by Pappas and Penn State University, and ADC 
Telecommunications, urge the Commission to adopt rules for on-channel 
DTV boosters, including allowance for a distributed transmission 
system. Merrill Weiss defines distributed transmission as being similar 
to a cellular telephone system in that a service area is divided into a 
number of cells, each served by its own transmitter. Distributed 
transmission differs from a cellular telephone system in that all 
adjacent cells use the same frequency (a ``single-frequency network''). 
DTV boosters also retransmit the primary DTV station's same program on 
the same channel.
    38. While we recognize the desire to initiate DTV booster 
operations, we believe there are fundamental issues surrounding their 
authorization and protection that must be addressed in a more 
comprehensive manner than can be accomplished based on the limited 
record on this issue in this proceeding. Therefore, we will defer this 
consideration to the rulemaking proceeding on digital LPTV and DTV 
translator stations that we expect to initiate within the next few 
months.
    39. Computer program used for application processing. Several 
concerns are raised in comments about elements of the Commission's 
interference analysis program used in processing applications. Hammett 
and Edison seeks changes in the way the program treats the return of an 
``Error Code 3'' message from the Longley-Rice propagation model. An 
``Error Code 3'' message is given when internal Longley-Rice program 
calculations show parameters are out of range and that reported results 
are dubious or unusable. The message is returned when the calculation 
of the actual distance to the horizon from a given cell or transmitter 
location is less than 0.1 times or greater than 3 times the distance to 
the smooth earth horizon. Hammett and Edison also seeks a change to the 
program's calculation of the depression angle from a transmitting 
antenna to a cell and requests that the program be changed to allow use 
of the actual transmitting antenna elevation patterns rather than the 
generic pattern. AFCCE recommends that the cell size and spacing 
increment should be reduced as necessary to accurately depict terrain 
and population distribution.
    40. We recognize that this is a very complicated analysis. We have 
found it necessary to balance ideas and recommendations for refining 
the program with the disruption and uncertainty that would occur when a 
change is made. In the case of each of these proposals, we believe that 
the disruption of altering the program would be more severe than 
warranted by the possible improvement in the accuracy of the analysis 
results provided by the program. In the case of the ``error code 3'' 
request, we note that we previously indicated that the assumption of 
service was appropriate where the Longley-Rice propagation model 
indicates that results are unreliable because it is similar to the 
situation where, for many purposes, all locations within an NTSC TV 
station's Grade B service contour are assumed to receive service. While 
Hammett and Edison submits the results of its study regarding the 
prevalence of the problem, our review of its information reveals no 
benefit that would warrant reversing our earlier decision.
    41. We have an administrative process that relies on comparison of 
interference and service predictions with the analysis performed in 
creating the table of allotments. Recalculating the entire table would 
be an enormous undertaking. Additionally, reconciling calculations 
using a new methodology with the table calculations based on different 
methodology is difficult and likely to result in uncertainty in the 
results and contested decisions.
    42. We believe the best balance of accurate interference prediction 
and administrative certainty can be achieved with the analytical 
methods that we used to develop the initial table, which is consistent 
with the comments of AFCCE. AFCCE recommends continuing to use the 
established methods of determining the grade B contour for predicting 
an NTSC station's service and determining a DTV service contour using 
the F(50,90) propagation model as the first step in predicting DTV 
service. AFCCE also recommends that use of Longley-Rice analysis and 
the relevant DTV planning factors be continued. We believe this can be 
best achieved by maintaining the normal processing

[[Page 9980]]

analysis based on the methodology established in creating the table. 
However, in a special case, where one of the suggested revisions would 
improve the accuracy of the analysis and would make a critical 
difference, an application may contain a showing using an alternate 
analysis in support of a waiver request.
    43. Release of evaluation software. Everist requests that the 
Commission immediately release all software to the public that it uses 
in its DTV evaluation procedures. Some of the software requested by 
Everist is still in a development and testing phase and we believe it 
would be premature and, indeed, confusing to release it to the public 
while it is undergoing review and revision. Software that is relied 
upon in processing TV and DTV applications has been, and will continue 
to be, made available to the public in the same way that evaluation 
software for other video broadcast services is made available.
    44. DTV Planning Factor--Assumed Receiving Antennas. Hammett and 
Edison objects to the assumed receiving antenna pattern for NTSC 
reception being different from the assumed receiving antenna pattern 
for DTV reception in OET-69 interference calculations.
    45. At this time, we do not have a basis for changing these 
criteria. The receiving antenna assumptions were considered in the 
Advisory Committee on Advanced Television Systems and were part of its 
recommendation to the Commission. There has been no consensus developed 
in the industry that changing the receiving antenna assumption is 
appropriate. We therefore see no merit in changing the assumed NTSC and 
DTV antenna patterns. Also, changing the assumptions now would alter 
the interference analysis methodology, which, as discussed above, could 
disrupt processing and create uncertainty.
    46. Change in Census Population Data. Everist asks whether the 
Commission will permit updated Census Bureau population estimates to be 
used for service and interference calculations as they become 
available. As a related matter, AFCCE recommends that the geographic 
center instead of the population centroid of each cell be used in the 
Longley-Rice analysis. The effect of this change would be to make the 
analysis of whether a cell is served or interfered-with independent of 
the population data the analysis is based on (because the precise 
location that is considered to represent the cell would be fixed at the 
middle of the cell and not shifted to a location that depends on the 
population distribution within the cell).
    47. At this time, we have not made plans to convert our processing 
analysis to use new census data. New census data would necessitate re-
evaluation of the entire DTV table to establish ``baseline'' values 
against which application proposals can be measured. Again as above, 
additional information about population shifts can be submitted with an 
application where such information is crucial and decisional. Also, if, 
in the future, we consider using new census data, we can consider then 
the AFCCE recommendation concerning the use of the geographic center of 
each cell.
    48. Maximum power clarification. Title 47 CFR 73.622(f)(5) provides 
that licensees assigned a DTV channel in the initial DTV Table of 
Allotments may request an increase in either Effective Radiated Power 
(ERP) in some direction or antenna Height Above Average Terrain (HAAT) 
that exceeds the initial technical facilities authorized for the 
allotment. Such increases are limited to maximum powers specified in 
paragraphs (f)(6) through (f)(8) of that section. Where specified 
antenna HAAT values are exceeded, the maximum ERP generally is reduced 
in accordance with the appropriate chart or formula in those 
paragraphs. Paragraph (f)(5) also allows the maximum ERP and HAAT 
combination to be ``up to that needed to provide the same geographic 
coverage area as the largest station within their market, whichever 
would allow the largest service area.'' AFCCE, Everist and Hammett & 
Edison, each requests clarification of the term ``geographical coverage 
of the largest station in the market'' for determining maximum power 
and antenna.
    49. We take this opportunity to clarify this rule. First, the 
maximum ERP limits (1000 kW for UHF channels 14-69 in any zone; 30 kW 
for VHF channels 7-13 in Zone 1; 160 kW for VHF channels 7-13 in Zone 2 
or 3; 10 kW for VHF channels 2-6 in Zone 1; and 45 kW for VHF channels 
2-6 in Zone 2 or 3) may not be exceeded. The ``largest station'' 
provision applies only where the rules normally require a reduction in 
the maximum power because a specified antenna HAAT is exceeded. That 
is, it does not allow power higher than the maximum ERP to compensate 
for an antenna HAAT that is lower than the value specified in the rule. 
Second, the ``largest station'' provision is only triggered where a 
station in the same market is serving a larger area than could be 
covered with the standard maximum power and antenna height specified in 
47 CFR 73.622(f). Otherwise, applicants must comply with the maximum 
power and antenna height in that rule section. Third, for the purpose 
of this rule, stations in the same DMA are considered to be in the same 
market. Fourth, the geographical coverage determination is based on the 
area within the DTV station's noise-limited contour, calculated using 
predicted F(50,90) field strengths as set forth in 47 CFR 73.622(e) and 
the procedure specified in 47 CFR 73.625(b). Under this provision an 
application may not request a power and antenna height combination that 
would result in coverage of more square kilometers of area than the 
largest station in the market. It is not necessary that the application 
specify coverage that is congruent with or encompassed by the coverage 
area of the largest station. Stations are not expected to shift their 
coverage area in order to use this provision of the maximum power 
rules. Finally, DTV stations are still subject to the interference 
protection requirements, even when availing themselves of this 
provision.
    50. Directional Antenna Definition and Interference Creating NTSC 
White Areas. Everist seeks clarification on the definition of a non-
directional and a directional transmitting antenna. He also asks about 
incremental creation of white or underserved areas as DTV stations are 
authorized based on creating de minimis interference to the Grade B 
service of NTSC TV stations.
    51. In both of these matters, we believe it is appropriate to 
continue the NTSC TV practice. Title 47 CFR 73.625(c)(2) defines a DTV 
directional antenna as one ``designed or altered to produce a 
noncircular radiation pattern in the horizontal plane * * *.'' Title 47 
CFR 73.685(e) defines an NTSC TV directional antenna as one ``designed 
or altered to produce a noncircular radiation pattern in the horizontal 
plane * * *.'' Therefore, the DTV and NTSC rules defining directional 
antennas are identical and the practices and policies that have been 
applied to NTSC directional antennas will also be applied to DTV 
directional antennas. With regard to white area or underserved area 
determinations, we note that 47 CFR 73.684(a) concerning NTSC TV 
station prediction of coverage specifically indicates that 
``predictions of coverage made pursuant to this section shall be made 
without regard to interference * * *.'' Therefore, as has been the case 
with NTSC interference, we will not consider the effect of DTV 
interference on analysis of white areas or underserved areas.
    52. Closed Captioning for Digital TVs. Motorola addresses an issue 
of

[[Page 9981]]

compatibility of DTV closed captioning with an existing digital cable 
closed captioning technology. Motorola is concerned that this issue 
could lead to a delay in the DTV transition, so it includes an analysis 
that it also submitted in ET Docket 99-254.
    53. The R&O in ET Docket No. 99-254, 65 FR 58467, September 29, 
2000, has addressed this matter and no further action is necessary 
herein.
    54. NTSC Group Delay Blanket Waiver. Hammett & Edison requests a 
blanket waiver of the envelope delay requirement in 47 CFR 73.687(a)(3) 
for NTSC stations with upper-adjacent channel DTV assignments that 
combine their NTSC and DTV signals and use a common transmitting 
antenna.
    55. We agree with Hammett and Edison that a blanket waiver is 
appropriate for this situation. Therefore, we authorize all NTSC TV 
stations with a DTV signal on the first-adjacent channel above the NTSC 
channel and with a common transmission line and antenna, to operate at 
variance with the envelope delay requirements of Sec. 73.687(a)(3) for 
frequencies between 3.9 and 4.2 MHz above the visual carrier.
    56. Canadian Border Zone. AFCCE urges the Commission to resolve 
Canadian border zone issues in an expeditious fashion. We believe this 
concern has been resolved. A Letter of Understanding with Canada was 
signed September 12 and 22, 2000, and announced in a Public Notice 
released September 29, 2000.
    57. Data Base Inconsistency. Everist is concerned that the new Mass 
Media Bureau Consolidated Data Base System (CDBS) should be validated. 
He states that where old terrain elevation data that is inconsistent 
with current determination of terrain elevation, it can turn an 
otherwise ``checklist'' application into a ``non-checklist'' 
application because it will show the antenna height differing from that 
authorized by more than ten meters.
    58. Errors and inconsistencies in the CDBS that we have discovered 
have been corrected and resolved. However, this is an on-going process. 
As for the criteria for ``checklist'' treatment, we decline to alter it 
at this time. We now have the capability to process ``non-checklist'' 
applications expeditiously (and to quickly grant those applications 
that do not raise interference concerns and would have been considered 
checklist except for failing to meet the power or HAAT limits to be 
defined as checklist). Thus, there is not a significant benefit to an 
application being designated as checklist.
    59. Sanctioning a Government-Industry Committee Similar to TASO. 
AFCCE recommends that the Commission sanction the formation of a 
government-industry advisory committee to deal with application 
processing issues, as well as a ``TASO''-like committee to help resolve 
DTV allotment and service issues. TASO is the Television Allocations 
Study Organization, which was formed in the 1950s by the television 
broadcast and consumer electronics industries at the request of the 
Commission to study the technical principles that should be applied in 
television channel allocations. At this time, we believe it is 
preferable to allow current industry efforts to continue without 
interruption. Significant activity is underway and we do not wish to 
slow it down or prevent it from reaching possible resolution of the 
issues that are being addressed. In the future, if circumstances 
warrant, this matter may be revisited.
    60. Method for determining 85% criteria for extending end of the 
transition. California Oregon Broadcasting, Inc. urges the Commission 
to consider how it will implement the 85% DTV reception criteria for 
extending the end of the transition beyond 2006. It is too early in the 
transition to initiate consideration of this matter. We expect to 
consider it in a future review proceeding.
    61. Biological effects of RF radiation. Carole Lomond opposes 
introduction of DTV signals in any residential environment until 
concern over biological effects of nonionizing electromagnetic 
radiation is resolved. Lomond provides no evidence to warrant re-
evaluating our RF exposure regulations. We therefore decline to 
consider this issue in the context of this DTV review proceeding.
    62. Other technical issues. Everist requests clarifications and 
explanations of a number of other technical matters. We are unable to 
address all of these in the context of this proceeding. Many of the 
issues he addresses have not yet arisen in processing and in the case 
of others his concerns are not clearly described. As these issues come 
up, we will resolve them individually on a case-by-case basis. If 
principles emerge from this practice, we will describe them in a Public 
Notice.

G. DTV Transmission Standard

    63. In the NPRM, we observed that some broadcast entities had 
raised concerns regarding the 8-VSB modulation system used in the ATSC 
DTV Standard adopted by the Commission as the transmission standard for 
digital broadcast television signals. We stated that while we continue 
to believe that NTSC service replication is achievable by DTV 
operations using the 8-VSB standard, we recognized that some parties 
within the broadcast industry had recently raised various issues with 
respect to this standard. In particular, we noted that the Sinclair 
Broadcasting Group, Inc. (Sinclair) had previously filed a Petition for 
Expedited Rulemaking urging that we modify the rules to permit the use 
of an alternative modulation method, coded orthogonal frequency 
division multiplexing (COFDM), in addition to the 8-VSB standard. In 
its petition, Sinclair argued that COFDM modulation offered easier 
reception with simple antennas and would enable broadcasters to provide 
fixed, mobile and portable video services. We dismissed Sinclair's 
petition, indicating that we continued to believe that NTSC service 
replication is achievable by DTV operations using the 8-VSB standard. 
However, we also indicated that we would address the concerns raised by 
Sinclair and others about the 8-VSB modulation standard in the context 
of this proceeding. In the NPRM, we therefore invited comment on the 
current status of the 8-VSB DTV standard. We specifically requested 
comment on the progress being made to improve indoor DTV reception 
under the existing transmission standard and manufacturers' efforts to 
implement DTV design or receiver improvements. We also asked commenting 
parties to submit information regarding any additional studies that may 
have been conducted regarding NTSC replication using the 8-VSB 
standard.
    64. Parties primarily representing some broadcast interests express 
continuing concern about the ability of the 8-VSB standard to support 
reliable reception in areas where there is strong multipath, and submit 
that this deficiency must be corrected. These parties generally argue 
that the Commission should actively investigate both 8-VSB and COFDM 
and should consider a change to COFDM if that system is shown to be 
superior to 8-VSB. Sinclair and several others continue to argue that 
broadcasters should be given the option to use a COFDM system for 
transmitting their DTV signals. Other parties representing 
broadcasters, consumer electronics equipment manufacturers and 
consumers urge the Commission to maintain the current 8-VSB modulation 
standard for DTV transmissions. These commenters generally state that 
8-VSB is the most suitable modulation standard for DTV service for 
North America and that the current concerns

[[Page 9982]]

about reception in areas where there are high levels of multipath are 
being addressed through receiver improvements.
    65. We also observe that a group of broadcasters, including many of 
those participating in the Joint Broadcasters comments, has recently 
completed a program of DTV receiver testing. The industry study, among 
other things, compared reception of 8-VSB and COFDM signals at a large 
number of locations in those markets. This study took measurements 
outdoors at the 30-foot antenna height assumed in the DTV planning 
factors and at 6-feet using simple antennas typical of indoor 
reception. Some actual indoor measurements were also taken. One of the 
objectives of the industry tests was to determine whether COFDM should 
be added to the current 8-VSB standard. The report on the industry 8-
VSB/COFDM comparison tests (8-VSB/COFDM Report) indicates that at the 
30-foot receive antenna height, 8-VSB was received at a greater 
percentage of sites than COFDM. This was true at all distances from the 
transmitter. In addition, 8-VSB performed better up to the furthest 
distances measured from the transmitters (55 miles). It also states 
that at the 6-foot receive antenna height, using a simple antenna, 
COFDM was successfully received at more sites than 8-VSB in Washington, 
while 8-VSB was successfully received at more sites in Cleveland. It 
notes that successful reception of either system at the 6-foot height 
was achieved at less than 50% of the test locations. The 8-VSB/COFDM 
Report further indicates that in the case of indoor measurements, the 
percentage of successful reception was similar for both 8-VSB and 
COFDM, with 8-VSB holding a slight advantage. However, successful 
indoor reception was achieved at only about 30% of the test locations.
    66. Based on these test results, the industry has reaffirmed their 
endorsement of the VSB standard and concluded that there is 
insufficient evidence to add COFDM to the U.S. DTV broadcast standard. 
In this regard, on January 15, 2001, the Boards of Directors of MSTV 
and NAB issued the following joint resolution:

    With the support of 30 major broadcast organizations and the 
oversight of technical committees consisting of some 25 engineers 
representing all major technical viewpoints, the broadcasting 
industry concluded a comprehensive, objective and expedited series 
of studies and tests to determine whether COFDM should be added to 
the current 8-VSB standard.
    We conclude that there is insufficient evidence to add COFDM and 
we therefore reaffirm our endorsement of the VSB standard.
    We also conclude that there is an urgent need for swift and 
dramatic improvement in the performance of the present U.S. digital 
television system.
    We therefore will take all necessary steps to promote the rapid 
improvement of VSB technologies and other enhancements to digital 
television and direct the staffs to develop a plan and promptly 
submit it to the Boards.

In addition, our Office of Engineering and Technology (OET) is 
currently conducting field tests of 8-VSB reception in the Washington, 
DC and Baltimore market areas to independently assess the status of DTV 
receiver development. The OET study is examining the performance of 
early and improved models of DTV receivers with respect to multipath 
and coverage based on reception of the signals of the local DTV 
stations now operating in those markets. This study involves taking 
measurements at a large number of sites throughout these stations' 
service areas, including close-in urban, suburban, and rural areas 
located near the stations' predicted DTV service contour. Specific 
sites were also selected to ensure that measurements were taken in 
areas with moderate to strong multipath conditions. Measurements were 
taken outdoors at the 30-foot height and also at 7-feet using simple 
antennas typical of indoor reception. The interim results of the OET 
tests indicate that the current generation of DTV receivers are 
considerably improved over the early generation units, and in 
particular with regard to their ability to provide acceptable service 
in areas with moderate and strong, complex multipath signals. The OET 
test results also indicate that the 8-VSB system adequately meets our 
goals for DTV service replication, minimum interference, and spectrum 
recovery as set forth in the 6R&O.
    67. These new studies bear out the conclusions of the OET's DTV 
Report that the relative benefits of changing the DTV transmission 
system to COFDM are unclear and would not outweigh the costs or delays 
involved in making such a revision. Accordingly, based on our review of 
the record, the demonstrated improvements in DTV receiver performance, 
and the findings and recommendations of the industry, we find that 
there is no reason to revisit our decision to deny Sinclair's petition. 
Consequently we will not reopen the issue of the Commission's DTV 
standard.

H. DTV Receiver Performance Standards

    68. In the NPRM, we discussed the desirability of setting receiver 
performance standards and recognized that some broadcasters have 
recommended that we address over-the-air DTV signal reception issues by 
setting receiver performance thresholds. We therefore requested comment 
on the desirability of adopting minimum performance levels and asked, 
if we were to adopt such requirements, how they should be structured, 
including timing considerations.
    69. In the 6MO&O in the DTV proceeding, we stated that we believe 
that competitive market forces will ensure that DTV receivers perform 
adequately. We noted that receiver performance involves trade-offs 
among many different factors and that manufacturers are in the best 
position to determine how these trade-offs should best be made to meet 
consumer demand. We further stated, however, that we would continue to 
monitor this area through the DTV implementation process and that we 
would take regulatory action if needed. As indicated above, DTV 
receiver manufacturers, driven by market forces, are continuing to make 
significant improvements in their products, particularly in the area of 
indoor reception and multipath signal handling capabilities. These 
efforts are consistent with our earlier assessment that those producing 
receivers are in the best position to determine how to make trade-offs 
in performance factors to best meet consumer needs. We therefore 
continue to believe that it would be undesirable to set rigid 
performance standards for DTV receivers at this time. We will, however, 
continue to monitor receiver issues throughout the transition and will 
take appropriate action on receiver standards if necessary.

A. Miscellaneous Issues

    70. In the NPRM, we invited comment on any critical unresolved 
tower siting issues and how they affect the progress of the digital 
transition. We asked whether broadcasters are able to secure necessary 
tower locations and construction resources and whether and to what 
extent zoning disputes, private negotiations with tower owners, and the 
availability of tower construction resources affect the transition.
    71. The comments generally affirm our preliminary assessment in the 
NPRM that, while some stations are facing problems with tower 
availability and/or local zoning issues, such problems do not seem to 
be widespread

[[Page 9983]]

at this time. The Commission intends to continue to monitor the 
situation to forestall and/or remedy problems through these entities, 
as requested by NAB.
    72. Additionally, in the NPRM we invited comment on copy protection 
and cable compatibility issues. Recently, the Commission issued orders 
in other proceedings dealing with both issues, obviating the need for 
action to be taken herein. In our recent FNPRM in the navigation 
devices proceeding 
(FNPRM in CS Docket No. 97-80, 65 FR 58255, September 28, 2000), we 
noted that, unlike in the analog context, digital technology enables 
users to make an unlimited number of virtually perfect copies of 
digital content. However, digital technology also can enable copyright 
holders of digital content to prevent misuse of copy protected material 
through methods not previously available. In the Declaratory Ruling we 
found that some measure of anti-copying encryption technology is 
consistent with our navigation devices rules because it protects a gap 
where digital data would otherwise be available ``in the clear'' and 
subject to unrestricted digital copying. Accordingly, we clarified that 
the inclusion of some amount of copy protection within a host device 
does not violate the navigation devices rules. In the NPRM, with 
respect to cable compatibility, we invited comment on the extent to 
which a failure of industry parties to reach agreement on labeling of 
digital receivers would hinder the transition. Subsequently, in our 
recent R&O concerning compatibility between cable systems and consumer 
electronics equipment (R&O in PP Docket No. 00-67, 65 FR 64388, October 
27, 2000) we adopted rules providing for the labeling of DTV receivers 
to ensure that consumers will be fully informed about the capabilities 
of DTV receivers to operate with cable television systems. We provided 
for labels with regard to three categories of DTV receivers, depending 
upon several characteristics. Because additional industry work is still 
required for design specifications for the Digital Cable Ready 3 
category, we stated that the record would be kept open in PP Docket No. 
00-67 in order to provide us with the option of incorporating these 
anticipated specifications into our rules at a later date. This 
labeling scheme will permit consumers to make well-informed decisions 
about DTV equipment purchases based on a clear understanding of 
receivers with different labels.
    73. Additionally in that proceeding, we required the consumer 
electronics and cable television industries to report back to us on 
their progress in developing technical standards in two areas: Direct 
connection of DTV receivers to digital cable television systems, and 
the provision of tuning and program schedule information to support on-
screen program guides for consumers. These two issues have been 
substantially, but not completely resolved in an agreement between the 
National Cable Television Association and the Consumer Electronics 
Association.
    74. In sum, substantial progress has been made with respect to both 
copy protection and DTV receiver/cable compatibility. We see no need 
for further action at the present time in this proceeding with respect 
to these important issues and will continue to monitor and consider 
those issues in the foregoing separate proceedings.

III. Conclusion

    1. At the outset of this proceeding we stated that the conversion 
to digital is progressing and television stations are working hard to 
convert to DTV. The comments we received in response to the NPRM have 
mostly further confirmed our initial impressions. We believe that the 
conversion is, indeed, making progress and that the actions we are 
taking, and proposing, herein will hasten this transition. 
Particularly, our choice of an early channel election for commercial 
licensees and our decision not to require replication of NTSC service 
should well conduce to allowing stations to make plans and purchase 
equipment at the earliest practicable times. We will continue to 
monitor the progress toward the DTV conversion and will in future 
reviews take those actions needed to accomplish a smooth transition by 
December 31, 2006.

IV. Administrative Matters

    76. Paperwork Reduction Act Analysis. This R&O has been analyzed 
with respect to the Paperwork Reduction Act of 1995, and found to 
impose no new or modified reporting and recordkeeping requirements or 
burdens on the public.
    77. Final Regulatory Flexibility Analysis. As required by the 
Regulatory Flexibility Act (RFA), the Commission has prepared the 
following Final Regulatory Flexibility Analysis (FRFA) of the possible 
impact on small entities of the rules adopted in this R&O.
    78 As required by the Regulatory Flexibility Act (RFA), an Initial 
Regulatory Flexibility Analysis (IRFA) was incorporated in the NPRM. 
The Commission sought written public comment on several issues 
concerning the transition to digital television (DTV), including 
comment on the IRFA. This Final Regulatory Flexibility Analysis (FRFA) 
conforms to the RFA.
    79. Need for, and Objectives of, the R&O. As described in the R&O, 
the nation's television system is currently engaged in the transition 
from analog to digital television. As part of that transition, all 
television broadcasters will have to file applications of various 
types. This might create mutual exclusivities both between DTV 
applicants and between DTV and analog (NTSC) applicants. The Commission 
will have to process those applications. The rules adopted herein are 
needed to, and will, govern the processing of those applications.
    80. Summary of Significant Issues Raised by Public Comments in 
Response to the IRFA. No comments were filed in response to the IRFA.
    81. Description and Estimate of the Number of Small Entities To 
Which the Proposed Rules Will Apply. The RFA directs agencies to 
provide a description of, and, where feasible, an estimate of the 
number of small entities that may be affected by the proposed rules, if 
adopted. The RFA defines the term ``small entity'' as having the same 
meaning as the terms ``small business,'' ``small organization,'' and 
``small governmental jurisdiction. In addition, the term ``small 
business'' has the same meaning as the term ``small business concern'' 
under section 3 of the Small Business Act. A small business concern is 
one which: (1) is independently owned and operated; (2) is not dominant 
in its field of operation; and (3) satisfies any additional criteria 
established by the SBA.
    82. Pursuant to 5 U.S.C. 601(3), the statutory definition of a 
small business applies ``unless an agency, after consultation with the 
Office of Advocacy of the [SBA] and after opportunity for public 
comment, establishes one or more definitions of such term which are 
appropriate to the activities of the agency and publishes such 
definition(s) in the Federal Register.'' A ``small organization'' is 
generally ``any not-for-profit enterprise which is independently owned 
and operated and is not dominant in its field.'' Nationwide, as of 
1992, there were approximately 275,801 small organizations. ``Small 
governmental jurisdiction'' generally means ``governments of cities, 
counties, towns, townships, villages, school districts, or special 
districts with a population of less than 50,000.'' As of 1992, there 
were approximately 85,006 local governments in the United States. This 
number includes 38,978 counties, cities,

[[Page 9984]]

and towns; of these, 37,566, or 96 percent, have populations of fewer 
than 50,000. The Census Bureau estimates that this ratio is 
approximately accurate for all governmental entities. Thus, of the 
85,006 governmental entities, we estimate that 81,600 (91 percent) are 
small entities.
    83. The SBA defines small television broadcasting stations as 
television broadcasting stations with $10.5 million or less in annual 
receipts. According to Commission staff review of the BIA Publications, 
Inc., Master Access Television Analyzer Database, fewer than 800 
commercial TV broadcast stations (65%) subject to our proposal have 
revenues of less than $10.5 million dollars. We note, however, that 
under SBA's definition, revenues of affiliates that are not television 
stations should be aggregated with the television station revenues in 
determining whether a concern is small. Therefore, our estimate may 
overstate the number of small entities since the revenue figure on 
which it is based does not include or aggregate revenues from non-
television affiliated companies. It would appear that there would be no 
more than 800 entities affected
    84. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements. None. The actions taken in the R&O impose no 
reporting, recordkeeping, or other compliance requirements on 
television broadcast stations, large or small. Instead, this R&O simply 
alerts licensees to the procedures that the Commission will utilize in 
considering DTV applications and, particularly, mutually exclusive 
applications. Additionally, this R&O adopted a channel election 
requirement but specifically reserved the process and procedure for a 
future DTV periodic review. Accordingly, no reporting, recordkeeping or 
other compliance requirements were adopted in this R&O with regard to 
channel election.
    85. Steps Taken To Minimize Significant Impact on Small Entities, 
and Significant Alternatives Considered. The RFA requires an agency to 
describe any significant alternatives that it has considered in 
reaching its proposed approach, which may include the following four 
alternatives (among others): (1) The establishment of differing 
compliance or reporting requirements or timetables that take into 
account the resources available to small entities; (2) the 
clarification, consolidation, or simplification of compliance or 
reporting requirements under the rule for small entities; (3) the use 
of performance, rather than design, standards; and (4) an exemption 
from coverage of the rule, or any part thereof, for small entities.
    86. The processes adopted in the R&O are designed to be as simple 
and inexpensive to applicants as possible, including any small 
entities. The revised rules call for neither auctions nor hearings, 
alternatives which were considered and not adopted because of the 
Commission's belief that, inter alia, such alternatives might 
disadvantage small entities. The Commission declined to adopt a hearing 
procedure to resolve disputes because such procedures are expensive, 
prolonged, and likely would be precluded by section 309(j) of the 
Communications Act. A second alternative would have been to go to an 
auction system. It is our belief, however, that in this situation an 
auction would have both caused delay and disadvantaged smaller 
entities. Therefore, we declined to adopt either of these alternatives.
    87. During our consideration of other possible alternatives, all 
steps were taken to ameliorate the impact of these rules on small 
entities. Instead of the hearing and auction alternatives, we adopted 
rules that establish in cases of mutual exclusivity, that all mutually 
exclusive applications will be dismissed if no voluntary resolution can 
be arrived at within 90 days. We believe that this provision levels the 
playing field, and thereby protects small entities from the economic 
leverage that large entities could wield in either a hearing or 
settlement environment.
    88. Report to Congress. The Commission shall send a copy of the R&O 
in MM Docket No. 00-39, including this FRFA, in a report to be sent to 
Congress pursuant to the Congressional Review Act, see 5 U.S.C. 
801(a)(1)(A). In addition, the Commission shall send a copy of the R&O 
in MM Docket No. 00-39, including the FRFA, to the Chief Counsel for 
Advocacy of the SBA. A copy of the R&O in MM Docket No. 00-39 and FRFA 
(or summaries thereof) will also be published in the Federal Register. 
See 5 U.S.C. 604(b).

V. Ordering Clauses

    89. Accordingly, pursuant to the authority contained in 47 U.S.C. 
1, 2(a), 4(i), 7 and 303, part 73 of the Commission's rules, 47 CFR 
part 73, is amended as set forth in this R&O.
    90. Sinclair Broadcasting Group, Inc.'s, Petition for 
Reconsideration of our denial of its Petition for Expedited Rulemaking, 
and Univision Communications Inc.'s, Petition for Expedited Rule Making 
submitted November 17, 1999, are denied.
    91. Pursuant to the Contract With America Advancement Act of 1996, 
the rule amendments set forth in ``Rule Changes,'' infra., shall be 
effective April 16, 2001.
    92. The Commission's Consumer Information Bureau, Reference 
Information Center, shall send a copy of this R&O, including the Final 
Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of 
the Small Business Administration.

List of Subjects in 47 CFR Part 73

    Radio, Television.

Federal Communications Commission.
Shirley Suggs,
Chief, Publications Branch.

Rule Changes

    Part 73 of Title 47 of the U.S. Code of Federal Regulations is 
amended to read as follows:

PART 73--RADIO BROADCAST SERVICES

    1. The Authority citation for part 73 continues to read as follows:

    Authority: 47 U.S.C. 154, 303, 334, 336.


    2. Section 73.623 is amended by adding paragraph (h) to read as 
follows:


Sec. 73.623  DTV applications and changes to DTV allotments.

* * * * *
    (h) DTV application processing.
    (1) DTV applications pending as of January 18, 2000, are cut-off as 
of that date and shall be afforded the interference protection set 
forth in Sec. 73.622(f) of the rules by all NTSC minor change 
applications and later-filed DTV applications.
    (i) DTV applications pending as of January 18, 2001, must provide 
the requisite interference protection set forth in Sec. 73.622(f) to:
    (A) NTSC and DTV stations, construction permits and DTV allotments;
    (B) Petitions for rulemaking for new DTV allotments for which a 
Commission announced comment period has passed prior to the filing date 
of the DTV application; and
    (C) Earlier-filed and accepted for filing applications for new NTSC 
stations submitted by: post-auction winners pursuant to Sec. 73.5005; 
applicants with a settlement agreement on-file with the Commission that 
would result in the grant of the NTSC application; and cut-off 
singleton applicants.
    (ii) DTV applications pending as of January 18, 2001, that do not 
provide the interference protection set forth in

[[Page 9985]]

Sec. 73.622(f) to other DTV applications pending as of January 18, 
2001, or petitions for rulemaking seeking the allotment of new DTV 
stations for which a Commission announced comment period has not 
passed, will be deemed mutually exclusive with those applications or 
petitions. Those applicants and petitioners will be notified by Public 
Notice and provided with a 90-day period of time to resolve their 
mutual exclusivity via engineering amendment or settlement. Those 
applications and petitions that remain mutually exclusive upon 
conclusion of the 90-day settlement period will be dismissed.
    (2) DTV applications filed after January 18, 2001, shall be 
afforded the interference protection set forth in Sec. 73.622(f) by all 
NTSC minor change applications and later-filed DTV applications. DTV 
applications filed after January 18, 2001, must provide the 
interference protection set forth in Sec. 73.622(f) to the following:
    (i) NTSC and DTV stations, construction permits and DTV allotments;
    (ii) Earlier-filed DTV applications;
    (iii) Petitions for rulemaking seeking the allotment of new DTV 
stations for which a Notice of Proposed Rulemaking has been released 
and the comment deadline specified therein has passed; and
    (iv) Earlier-filed and accepted for filing applications for new 
NTSC stations submitted by: post-auction winners pursuant to 
Sec. 73.5005; applicants with a settlement agreement on-file with the 
Commission that would result in the grant of the NTSC application; and 
cut-off singleton applicants.

    3. Section 73.625 is amended by revising paragraph (a)(1) to read 
as follows:


Sec. 73.625  DTV coverage of principal community and antenna system.

    (a) * * *
    (1) The DTV transmitter location shall be chosen so that, on the 
basis of the effective radiated power and antenna height above average 
terrain employed, the following minimum F(50,90) field strength in dB 
above one uV/m will be provided over the entire principal community to 
be served:

Channels 2-6.................................  35 dBu
Channels 7-13................................  43 dBu
Channels 14-69...............................  48 dBu
 

* * * * *
[FR Doc. 01-3637 Filed 2-12-01; 8:45 am]
BILLING CODE 6712-01-P